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Measures for control of corruption - Part Four

Collapsing bridges, outdated drugs, evidence of corruption

by Frank de Silva

(July 24, Colombo, Sri Lanka Guardian) Investigation for effective control of bribery suffers a further obstacle in the apparent requirement for formal communication to commence investigation. Such is the interpretation to the law given by the Bribery Commissioners to the relevant provision in the Act. Apart from that interpretation given by the Bribery Commissioners in open pronouncement, there are other consequences from such for effective control of bribery. The problem is not in the small time cases in which the aggrieved complainant makes formal communication for investigation.

In the more serious cases of corruption which entail severe loss to government in contracts, tenders, commissions and the like, the corruption is plain to see. Collapsing bridges and buildings, doctored ledgers, outdated drugs and a range of evident circumstantial evidence of corruption, known to the public at large, are not brought before the Bribery Commission for investigation, simply because there is not an aggrieved complainant to invoke the law. By such interpretation of the manner in which investigation would be commenced, these serious cases of corruption evade the reach of the law. Invariably these cases involve the ‘big fish’ who get away. A pertinent matter then, in respect of ineffectiveness of the law and legal process for control of corruption, is the content of the law or the interpretation of the provision which has the result of leaving a hole in the net for big fish to escape. Such an observation is unfortunate and is regretted. Reality, however, points in that direction. Intelligence which might have availed is prohibited by such interpretation of the law.

Scope of the problem

The scope of the problems has a bearing on law enforcement and its effectiveness. The legal definition of the problem has thus been consistently extending its scope over the years. This is a reflection of the scope and nature of the problem the state has to contend with, the extent of the mischief to be cured, and the deep seated, invidious nature of the problem. These clearly mark out the offenses of bribery and corruption from the conventional crime that has long been the experience of societies and of systems for the administration of criminal justice in those cases. However, despite the widely differing nature of the problems from conventional crime, distinct from that posed to society from bribery and corruption, the response of the state has largely been in the traditional manner of dealing with it through the criminalization of those acts. The culmination of this process is with the adjudication over the incident. This perspective of the problem in hand may therefore be insufficient of itself. The scope of the problem is larger than legally envisaged.

There is no idea that other authorities have a role or function within the larger scope of the problem alongside the Bribery Commission. The Commission stands nearly all alone in the endeavour. The Commission is empowered to deal with related agencies for the procurement of evidence required for enforcement of the law. There is no corresponding obligation on the part of those relevant agencies to deal with this problem of bribery and corruption, except in responding to the specific warrants issued on the initiative of the Commission. The relevant agencies which might have been charged with like responsibilities to deal with the problem of bribery and corruption are many. The immediately related state agencies are the courts, the public service, the government departments of the Auditor General, the Inland Revenue department. The legal provisions for the declaration of assets and liabilities of public officials over a range of governmental institutions have very similarly little relevance in practical terms to the task of curbing bribery and corruption. The 1975 legislation for the declaration of assets was enacted clearly from the point of view of controlling bribery and corruption. But these have had little of the intended effect. These declarations of assets are very occasionally brought in aid of investigations, only as it arises. The very limited use then made, of these attendant provisions, stands in sharp contrast to the stark reality of widespread incidence of bribery and corruption. Problem here is specifically the scope of the problem and the limited means within.

Other agencies do not appear either to have any legal obligations towards the Commission. A parallel principle of law is apposite to this consideration. There is the duty of a member of the public to give information in respect of the commission of a crime to the relevant authorities. This enshrines a principle in law which enjoins a member of the public to bring to the notice of the authorities and give information. This responsibility cannot be any less in the case of public authorities specially instituted, and even more obligated. Laws cannot be at variance with each other, nor stand apart. Their validation is not only in their enactment, but as they serve a common objective.

End result

The end result through all these protracted legal proceedings in courts is dismal. A large percentage of cases of bribery filed end in acquittal. The rate of conviction in cases of bribery indicted in courts is probably 3% to 10%. The end result is then paltry, given the commitment of the government in terms of the law and expenditure. Effectiveness of action is clearly the casualty in the process. This final figure is itself not convincing for a lot of other reasons. The criticism is levelled earlier that the whole programme nets in only the sprats, the small fish, while the big fish and shark get away. Considered criticism has been expressed in these terms.

There is the added fact that the grounds for acquittal in these cases are very tenuous, even less than technical. In some cases the grounds for acquittal have been that the accused had not been called upon by the Commission to explain acquired wealth before indictment. In fact, the offender is given full opportunity to make explanation to the investigators, which is reviewed by the legal officers and the Commission before indictment is approved. Thus explanation to the Commission and explanation to officers in the Commission are differentiated by court to constitute a failure of procedure; matter of technicality at best, not necessarily in the interests of justice. Such trivialities avail the ‘big fish’ not the small fry. A device adopted in these cases to facilitate acquittal is through long protracted proceedings, a manner of ‘playing the game’ termed thus in the British survey document ‘Justice for All’. The problem arises from structural differences of objectives and approach between the agencies which play out during the proceedings, this report observed.

Through whatever the devices the final result is obtained, the acquittal in courts takes the form of an issue of a certificate of innocence to the offender. This absolution from misdemeanour is implied in the acquittal. There is no further liability on the part of the offender, no sanction attached. This is an untoward end result. The offender acquitted resumes his status as public officer. The complete absolution of the officer of the offense and its reinstatement has a deleterious effect on the rest of the public service. A cynical attitude develops among the officer’s peers and his subordinates. The public officer though acquitted is unable to carry the burden of his office in relation to the rest of the public service. Neither can he aspire to uphold the trust reposed in him over his subordinates. Some of these have even earned their further promotion in the public service. The offenses of bribery and corruption are not merely a breach of the law as any other crime, in which case an acquittal carries no further consequences. The courts have no lien in the matter after disposal of the case through acquittal. The public service has to carry whatever burden the process entailed. There is a breach of trust reposed in him in the public service through the offense, which the acquittal does not clear. The point here is that bribery and corruption dealt with in the same manner and mode of adjudication in criminal law is problematic. With conventional crime the implications of court processing are more limited, and a ‘one off’ dealing with the case in criminal proceedings would be appropriate. The difference is important. If it follows from an acquittal in a bribery case that the offender is completely absolved of his liability and is so issued with a certificate of innocence to resume his public duties, the ensuing concerns will not be allayed. The administrative implications of the offense need equally to be examined, and appropriate sanctions applied. The integrity of the public service would still be in issue, long after the court case. Experience is replete with such untoward result. This result takes a heavy toll on the public service particularly where the government department is obliged to contribute to good governance.

Bribery law has in the end little impact on the problem in this respect. The considerable reviews conducted to examine the problem of bribery have not adverted to this aspect of the problem. The burden of any misapplied criminal adjudication in normal crime is absorbed by the society. Society has displayed a remarkable resilience in this respect. The offense of bribery and corruption recoils to the capacity of the public service for delivery of its essential service, in continuing effect. This merits further examination below.

Scope of law

The legal process for control of bribery and corruption is limited in scope and conception. Law enforcement and the legal approach to the problem for control of bribery and corruption are beset with considerable problems which hardly make for effectiveness. Reviews of bribery and corruption in this country have adopted their respective perspectives for analysis. There has, however, been no considered review to measure the effectiveness of the several means adopted. Their message is, however, clear that much needs yet to be done. Public perception is very much to the same effect. There is a sense of resignation, even fatalistic, on the part of the people to the ground reality that bribery and corruption are but an everyday matter. The instances cited above through some of the reviews are common-or-garden features which prevail all over.

Their thoughts are far removed from the centre. The Bribery Commission at the centre is itself a remote prospect for the villager. Formal communication to the Commission of these instances is perhaps not thought of by them. In respect of certain cases where certain personalities are involved processing their cases at the centre is eminently desirable.

At the periphery they do not see an effective order to which they might recourse to immediately. Similar problems were experienced in other fields as narcotics, by exclusive central control. A perverse order emerges as a result, one of bribery and corruption proceeding with impunity, even with unrestrained connivance by all others in the districts. The legal machinery, limited in scope and conception, is ineffective in this situation. Other means as administrative order should be reinforced to supplement the legal programme.

The legal machinery and legal process for control of bribery and corruption are plainly inadequate and ineffective in the face of the problem confronted.

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