Measures for control of corruption -Part Five

Administrative measures need to be adopted

by Frank de Silva

Administrative liability

(July 26, Colombo, Sri Lanka Guardian) Focus on administrative measures is inevitable in the context of failure of the legal process. This section deals with aspects of administrative liability, of administrative sanction for control of bribery, and their proactive cogency for viable strategy for control of bribery and corruption.

An idea of administrative liability for control of bribery and corruption has not been conceived by the authorities through all the long years of legal formulation.

The legal focus of the strategy for control of bribery and corruption needs to be supplemented by other means. Administrative measures need to be adopted. The offenses of bribery, of corruption and the abuse of power bring into play the totality of the public service, its system and its procedures which are equally the victim of the offense as much as the complainant. There are others involved in the offense than merely the offender, namely, other officials who are in control of the system through which the particular offense of bribery was committed. This involvement of the others is of an administrative nature, distinct from their possible criminal liability. Criminal law would be of little avail to bring to bear on the administrative responsibilities of other officials who hold in trust the system which has been violated by the criminal offender. An administrative liability of officials in charge appears in some form in an offense of bribery. Bribery is committed through violation of procedures and systems which the offender availed himself of. Such violation is mostly of the disciplinary code and in breach of rules of the Establishment Code. Such violation is through remiss of duty short of criminal liability. Perhaps the involvement of the others around the offender takes a form of subversion which permitted the commission of the main offense. The law as it is does not catch up with those others in the office who provided the space for the offender.

Administrative liability, such as it might be, figures hardly in bribery proceedings. Criminal investigations into bribery cases do examine any administrative lapses which facilitated the commission of the offense of bribery. In the main such inquiries look to specific administrative violations which may amount to aiding and abetting or other liability of a criminal nature. Other attendant administrative lapses will not feature in the indictment. Very rarely do such matters lead on to administrative inquiries. There are no instances, perhaps, where matters flowing from bribery cases are dealt with administratively. None of these bribery cases are followed up by the Public Service Commission or even the Head of Department to initiate disciplinary action for administrative lapses in these instances. Some such action does take place in the case following ordinary crime. Where the special bribery laws do operate, administrative action following court action hardly follows.

Administrative sanctions

Administrative sanctions alongside criminal action have little significant application in the current run of the state’s response to the problem. In some cases the administrative aspects are looked into as incidental to the criminal investigation into bribery. At times these aspects are referred back to the department concerned to pursue disciplinary action on the identified lapses. This action may be misplaced in its intent since the offense itself recoils on the department and the relevant circle of officials. An independent review of administrative complicity is barely feasible when a section of the department is itself administratively responsible for the commission of the principal crime. And it is the fact of experience that at the initial stage of the criminal investigation the Bribery Commission officers are greatly hampered by an attitude of non-cooperation in furtherance of the investigation. Instances are when the department officials during an investigation have even suborned witnesses and their evidence.

It is significant that the UN Convention recognizes the need for effective administrative measures in the fight against corruption. A range of preventive measures are listed under Chapter II of the UN Convention against Corruption, at Articles 5 to 14. The sweep of their perspective would include the aspect of good governance noted earlier. The application of administrative sanctions as appropriate to the administrative liabilities of the offending public servants is the one means of effectively controlling the problem of corruption by public officials. It is conceivable that the imposition of such sanctions should be by a body as independent as the Bribery Commission, or by itself directly. That this task of applying administrative sanctions is entrusted to the very offending department cannot carry much conviction. There is at the same time the Public Services Commission which carries the overall burden of the control of the public service to promote good governance. The imposition of administrative sanctions should then be with the concurrence of these two independent commissions, the Bribery Commission and the Public Service Commission. These sanctions are of a varied nature, extending from a form of censure to more serious punishments that would tell on the careers of the offending public servants.

The prospect of a convulsive ripple effect of administrative sanctioning in the event of even a single case of bribery and corruption on the totality of the public structure is self-evident. In fact there appears little responsibility that devolves on the Public Service Commission of Head of department. Offenses of bribery and corruption in the public office do not reflect adversely on the Heads of that office. Consequently, any form of active contribution from administrative heads for control of bribery will not be forthcoming. Instead, there is possible complicity or connivance on their part with the offender in the actual order of things. This is the experience of the bribery investigator who finds little cooperation from others in the office of the offender. With conventional crime investigation at least the related parties will offer evidence. The difference in the two situations is manifest. The law could not have envisaged such eventuality. The law needs to take this fact into the reckoning.

Proactive pre-emption

Proactive action is the term used in the Consultant’s Report to describe measures of an administrative/legal nature through rules which serve to pre-empt and prevent bribery and corruption. This report draws reference to devices adopted by the police, cited in another survey (TISL). Neither citation refers to a range of administrative measures, adopted at that time, to deal with the problem of possible corruption. Rules to account for money carried to and returning from duty was one practice followed. More importantly any complaints of this nature were inquired into by police, even detections were made. Periodically assessments of officers’ career advancement were made administratively, on this basis of inquiries and detections and active intervention. Suitability for promotion and other career prospects was determined continuously in this manner. Reputation for honesty and integrity had to be satisfied. The administrative structure involving officers in charge of police stations, their subordinates and their superiors, were actively involved themselves in this controlling process, which prevailed for long. The principle was reasonably well established that a misdemeanour of this nature by an officer reflected on the superiors who directed much of their supervisory duties to ensure against such malpractice. This is in sharp contrast to the current position noted above. Neither the Consultant’s Report nor the TISL survey dealt with the content of the rules made by the Head of the Police Department, the IGP, in terms of the law. Consequently, these reviews on bribery and corruption failed to recognize the range of administrative measures devised by police to contain problems from bribery and corruption. Their legalistic focus occluded the potential of administrative measures which might have supplemented the law on bribery.

The earlier long prevailing position changed drastically with the bribery laws coming into full force. Circulars were issued thereafter debarring police from investigating into complaints of bribery and corruption. Any complaints were to be referred to the Bribery Commissioner. A second circular followed soon after, in after thought, permitting police to make an immediate detection and then refer the matter to the Bribery Commission. There were perhaps legalistic reasons for this new arrangement. This change had other repercussions for preventive and proactive tasks of the police. The supervisory and directing staff was consequently denied the means of making effective career assessments in respect of officers’ integrity and honesty. Their basis for assessment was lost in the process. This task and responsibility for due administration of integrity and honesty at the local level was then soon abandoned. The omission on the part of TISL to advert to this aspect of the problem is significant. Such advertence would have made for a more competent survey ‘identifying cause for police corruption’. The underlying issues of legal and administrative action against bribery might have been surfaced and made clear. Transparency itself would have been advanced. This problem remains with other surveys too.

The weakening of the administrative structure, in the manner described above, at least in respect of the police, had the result of nullifying many of the relevant provisions of the Police Disciplinary Code and the Establishment Code. Any administrative action had to await the conclusion of the bribery case in court. The vagaries of court decision and the time lapse are well known. These added to the problem for the administration to take effective preventive action against bribery. Effective supervision by the administration, such as it was, was barely feasible in an immediate sense. The argument may be advanced that this result was not the intention of the new law. Such explanation does not stand ground.

In a sense administrative authority and control against bribery was lost to legal control and law process as a result. This was the experience with the Police Department particularly. With the rest of the public service the principle applied in a similar manner. A hierarchy of accountability and responsibility inheres in the very structure of the public service. Misconduct reflects on the superior. Supervision is effective as it is exercised at every level, immediately and not postponed to neglect and avoidance. The public service is to be built on this principle of hierarchical order. Supervision and control are basic to such order. Conventional legal principles applied to bribery and corruption adjudication rests on other principles. The issue is of accountability and responsibility of the public servants in the context of the total structure, not when that order is disturbed. Clearly this situation is distinct from that of the conventional criminal offender. The rights of an accused in criminal proceedings against him cannot apply with the same latitude to a public servant charged with an offense in breach of his specific entrustment. What is at stake is not merely the ‘rights’ of the individual offender. The offense is at once, a breach by the offending public servant of an entire system of a trust reposed in him, and by others around him. The rights at stake are therefore not that of an individual but of a whole system that is subverted in the process. Criminal adjudication alone cannot uphold this integrity of the system. Its substitution for all other is itself misapplied. The point made here is that equating the offense of bribery with other crime in all legal respects creates other problems for control of bribery. In another sense the actus reus in the case of bribery is not the same as the actus reus in conventional crime. The actus reus in a bribery case has far more insidious tentacles in its act than is with normal crime. The labyrinthine involvement around the one act does not lend itself easily to legal formulation. The matter of definition of the offense of bribery, referred to above, covers this problem too. These reflections though couched in formal language are projected from a practical point of view.

The United Nations Convention against Corruption does, however, recognize the prospects of administrative measures to be incorporated within the strategies recognized for control of corruption. Chapter II Article 5:3 of the UN Convention expressly calls for required legal instruments and administrative measures to be reviewed periodically with a view to determining their adequacy to prevent and fight corruption. These principles should constitute the mandate for future review of the programme for control of bribery and corruption.

Concluded