New anti-corruption law: Proof of the pudding is in the eating

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 recognised 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, 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, professional organisations, etc. 

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 unfortunately did not come across interventions by the commission on prevention of corruption to meet the three objects. All interventions are post deeds to catch and punish the culprits. The act is the product of a three legal luminaries (President 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 would have thought inclusion of such extensive logistic details is important and the prime purpose of the act rather than prevention of and conducting post-deed operations on corruption.     

Chapter I – Establishment of the Commission
Chapter II – Director General and the Staff of the Commission 
Chapter III – Finance
Chapter IV – Powers and Functions of the Commission 

There is a chapter on offences relating to bribery or corruption in Part III. In the chapter, a section is on ‘Bribery of Judges of the Supreme Court, Court of Appeal, High Courts, judicial officers’, along with the Members of Parliament (MPs). Is it not contempt of judiciary to couple distinguished members of the judiciary with honourable MPs? 

Of course, the majority of MPs, as the entire country knows, are honest, innocent and uncorrupt. They might smuggle a gold biscuit, snatch a gold chain and pay off billions of dollars to a shipping company for parading a ship around Sri Lanka, ignore claiming compensation from a sunken ship for causing unprecedented environmental damage, devastation of marine life and other bio products and pollution of the sea and shore equally. All such innocent unintentional acts happen due to their sheer ignorance. 

Clause 161.2 (1) of the act provides interpretation. There is no interpretation given for corruption and embezzlement. According to the act, the MPs are correct, honourable and innocent, not faulty. The Aragalaya boys made a mistake by requesting the entire lot to go home along with Gota. Only the highest voted man went home and was replaced by an unelected man. 

Chapter V of the act is on ‘Protection of Informers, Whistleblowers, Witnesses and Other Persons Assisting the Commission’. The act says the “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 popular image of the media (‘fourth estate’, a trustee of the people’s right to know, ‘expert communicator’) as a ‘watchdog’ and a guardian of the public interest is customarily thought to be the privileged medium for ‘whistleblowers’. According to Clause 77, “The Commission shall have the power to provide legal representation to any informer, whistleblower or witness during an investigation …”

Taming ‘unruly misbehaving’ media

Intentionally or not, by design or by default, in concurrence to the Anti-Corruption Bill, the same legal luminary trio is trying hard to introduce the Broadcast Regulatory Authority Bill, to tame the ‘unruly misbehaving’ media in this Democratic Socialist Republic of Sri Lanka. The Cabinet spokesman, who speaks his master’s voice, would explain how this sheer coincidence took place. The director general of the commission, to investigate allegations of bribery or corruption, can be taken to courts under the provisions of the Broadcast Regulatory Authority Bill for protecting and assisting the whistle blower and watch dog, the news media. 

Misconception, misjudgement, 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?

Kapila Bandara in his article on ‘Exporters, importers shift Rs.13.2 trillion overseas via dodgy invoicing’ has to say this: “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. 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 (CB) 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 CB governor threatened the exporters. But nothing was done. Some exporters continue with stashing foreign exchange earnings offshore. Inaction by the CB amounts to abating with the so-called ‘corrupt’ exporters. Keeping eyes closed on such purported leakages is not an offence referred to in the act.    

Since of late, this country has been witnessing a series of earth tremors in several locations. Geological experts have stated that we need not bother. But, as a layman, I believe we have to bother and rule out any such alarming signals after conducting thorough serious scientific investigations. Our so-called experts have failed to do or evaded that and are telling us not to be vigilant or alarmed. Is cheating and making loose statements not corruption?

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. And the much talked about act has not recognised such practices as corruption.

The Anti-Corruption Bill 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, unfortunately, the bill ignores such hidden forms of corruption. 

Opportunities to cultivate corruption

The same clause talks of undertaking to prevent corruption but has failed to walk the talk. Lack of coordination, bureaucratic lethargy, ignorance, excessive and confusing documentation, rules and regulations, centralisation of services and functions in Colombo are only a few instances that lead to corruption. An act interested in pleasing the UN conventions and any other international obligations, not to mention the household word of the International Monetary Fund (IMF), is silent on closing these holes. The act is drafted for the 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 only. 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 procurement technical evaluation reports are not prepared in time; in some cases they are purposely delayed, leaving rooms for the so-called ‘emergency procurement’; they are vague leaving room for interpretations; 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 celebrated 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 staled inedible cake. Incidentally, the House decided to pass the bill without going for a vote. It would have comforted and saved the skin of the MP, who was caught, admitted and fined for innocently carrying a few mobile phones and gold biscuits on behalf of his friend. Otherwise, he would have been in a dilemma like the farmer, who was carrying a cobra in his bag, whether to vote for or against the bill.

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. Are we trying to close a gaping hole with a tiny finger to please the IMF to get the next tranche of the pittance approved for Sri Lanka?

We, 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 of cash to print the ballot papers for the Local Government Elections.

(Chandrasena Maliyadde is a former Ministry Secretary and the current Vice President of the Sri Lanka Economic Association. He can be reached at [email protected])