Photo courtesy of FT
The much awaited Anti Corruption Bill is out and passed by parliament subject to introducing amendments according to the determination of the Supreme Court. It is “An Act to give effect to certain provisions of the United Nations Convention against Corruption and other Internationally recognized norms, standards, and best practices; to provide for the establishment of an Independent Commission to detect and investigate allegations of Bribery, Corruption and offences related to the declaration of assets and liabilities and associated offences, and to direct the institution of and institute prosecutions for offences of Bribery, Corruption and offences related to the declaration of assets and liabilities and other associated offences; to promote and advance the prevention of corrupt practices; to educate and raise awareness amongst the public to combat Corruption;”
The Act makes provisions to establish a Commission to Investigate Allegations of Bribery or Corruption. The Act comes in five parts, a series of chapters, 164 clauses and 150 pages. There have been divergent views expressed in media by all categories of people including corrupt, non corrupt and anti corrupt, civil societies and professional organizations.
Clause 2 (1) of the Act spells out its objects. Three out of 10 objects spelt out are on prevention of bribery and corruption.
(a) prevent and eradicate bribery and corruption in order to meet the just requirements of the general welfare of a democratic society;
(g) to conduct and coordinate educational activities on the prevention of bribery and corruption;
(i) promote inter-agency cooperation and international collaboration in preventing bribery and corruption;
I combed through the Act but did not come across interventions by the commission on prevention of corruption to meet the three objectives. All interventions are post deeds to catch and punish the culprits. The Act is the product of three legal luminaries (President’s Counsel Minister, Legal Draftsman and the Attorney General). It exhaustively deliberates with powers and authority of the commission, its director general, its finance, its procedures and other logistic details. The trio must have thought that the inclusion of such extensive logistic details was important and was the prime purpose of the Act rather than the prevention of and conducting post deeds operations on corruption.
There is a chapter on offences relating to bribery or corruption in Part III. In this chapter, a section is on bribery of judges of the Supreme Court, Court of Appeal, High Courts, judicial officers along with members of parliament. Is it not contempt of judiciary to couple distinguished members of the judiciary with members of parliament? Of course majority of MPs, as the entire country knows, are honest, innocent and uncorrupt. They might smuggle a gold biscuit, snatch a gold chain and ignore claiming compensation from a sunken ship for causing unprecedented environmental damage. Clause 161.2 (1) of the Act provides interpretation. There is no interpretation given for corruption and embezzlement. According to the Act, MPs are correct, honorable and innocent.
Chapter V of the Act is on protection of informers, whistleblowers, witnesses and other persons assisting the commission. The Act says whistleblower shall include persons assisting such whistleblower, persons providing supporting information to such whistleblower, a family member or dependant of such whistleblower or any other person of significant importance to such whistleblower. The image of the media as a guardian of the public interest is customarily thought to be the medium for whistle-blowers. According the Clause 77, “The Commission shall have the power to provide legal representation to any informer, whistleblower or witness during an investigation………”.
Intentionally or not, in concurrence to the Anti Corruption Bill, same legal trio is trying to introduce the Broadcast Regulatory Authority Bill to tame the “unruly, misbehaving” media. The Director General of Commission to Investigate Allegations of Bribery or Corruption can be taken to courts under the provisions of Broadcast Regulatory Authority Bill for protecting and assisting the whistle blower and watch dog, the news media.
Misconception, misjudgment, ill advice and making false statements and not being vigilant cause losses. They facilitate corruption and its continuation. If such lethargy is not corruption, what is it?
“Sri Lanka’s businesses involved in the exports and imports trade have plundered US$ 36.833 billion (Rs 13.246 trillion) over nine years through intentional, dodgy invoicing, and stashing the foreign exchange earnings offshore,” wrote Kapila Bandara.“Importers and exporters intentionally falsify the declared value of goods on invoices filed with Sri Lanka Customs, to make an average of US$ 4.093 billion (Rs 1.471 trillion) evaporate every year, an extensive investigation by Washington, DC-based Global Financial Integrity has revealed.”
This is not a secret. The Central Bank knows this well. In fact the Central Bank governor first pleaded with exporters to avoid dodgy invoicing in the national interest. When exporters have not demonstrated their patriotism, the governor threatened the exporters. But nothing was done. Some exporters continue to stash foreign exchange earnings off shore. Inaction by the Central Bank amounts to abating with so called corrupt exporters. Keeping eyes closed on such purported leakages is not an offence referred to in the Act.
We always appreciate Corporate Social Responsibility (CSR). But how many of us know that CSR is being used by some corporate sector players to evade payment of taxes? We welcome the black money coming in the form of investment with stretched hands with huge concessions; the Act has not recognized such practices as corruption.
The Anti Corruption Act says in clause 34. (1): “The Commission shall take all possible measures to give effect to the United Nations Convention Against Corruption and any other international obligations which Sri Lanka has undertaken to prevent corruption.” But it ignores such hidden forms of corruption.
The same clause talks of preventing corruption but has failed to walk the talk. Lack of coordination, bureaucratic lethargy, ignorance, excessive and confusing documentation, rules and regulations, centralization of services and functions in Colombo are only a few instances that lead to corruption. An Act interested in pleasing UN conventions and any other international obligations, not to mention the IMF, is silent on closing these holes. The Act is drafted for commission officials to take post mortem operations leaving opportunities to cultivate corruption.
Corruption is not limited to the stealing, misappropriation or misuse of public funds; inaction, failure to keep vigil, misinterpretation of and shielding behind regulations are breeding grounds for corruption. As a cabinet appointed Procurement Committee Chairman, I have observed that in procurement Technical Evaluation Reports are not prepared in time; in some cases they are purposely delayed leaving rooms for so called emergency procurement; they are vague leaving rooms for interpretations; and they are prepared to suit identified suppliers.
It is not strange that Transparency International of Sri Lanka, being the watchdog for elimination of corruption ,has gone to courts against inclusion of some clauses and non inclusion of significant clauses in the Act.
The Anti Corruption Bill is introduced in a country rotten with archaic, old aged ordinances, acts, rules and regulations. The bill is only the icing on the top of the stale, inedible cake. Parliament decided to pass the bill without going for a vote.
The IMF has included a novel condition on reducing corruption vulnerabilities in addition to its customary conditions. The UN Human Rights Council has brought about the notion of economic crimes into its agenda for the first time for Sri Lanka in its September 2022 report. The World Bank has placed Sri Lanka behind India, Nepal and Bhutan in its Ease of Doing Business Index. The reason is bureaucratic lethargy, lengthy procedures leading to inordinate delays and corruption.
Sri Lankans are lucky to have an Anti Corruption Bill with holes to catch small fish and shut the stable door after the horse has bolted but printed much before the government printer ran out cash to print ballot papers for Local Government elections.