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Anti-Corruption Act

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By Chandrasena Maliyadde
Former Ministry Secretary
Vice President, Sri Lanka Economic Association

The much-awaited Anti-Corruption Bill has been passed by the Parliament subject to amendment 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 provides for the establishment of a Commission to Investigate Allegations of Bribery or Corruption. It comes in five Parts, series of Chapters, 164 Clauses and 150 pages. There have been divergent views expressed in the media by all categories of people including corrupt, non-corrupt and anti corrupt, civil societies, professional organizations 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 perused the Act, but, unfortunately 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. Act is the product of 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. 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 deeds 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. It contains a section pertaining to “Bribery of Judges of the Supreme Court, Court of Appeal, High Courts, judicial officers” along with Members of Parliament. Is it not contempt of the judiciary to couple distinguished Members of the Judiciary with the Members of Parliament?

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, honourable and innocent, not faulty. Aragalaya activists 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 “whistleblower” shall include persons assisting such whistleblower, persons providing supporting information to such whistleblower, a family member or dependent 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 ‘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, by design or by default, in concurrence to the Anti-Corruption Bill same legal luminary Trio is trying hard to introduce ‘Broadcast Regulatory Authority Bill’, to tame the ‘unruly misbehaving’ media in this Democratic Socialist Republic of Sri Lanka. A Cabinet Spokesman may be able to explain how this sheer coincidence took place. 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 watchdog, 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?

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, CB Governor threatened the exporters. But nothing was done. Some exporters continue with stashing foreign exchange earnings off shore. Inaction by CB amounts to abating with so called ‘corrupt’ exporters. Keeping eyes closed on such purported leakages is not an offence referred to in the Act.

This country has been witnessing a series of earth tremors in several locations recently. 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 taxes? We welcome the black money coming in the form of investment and grant huge concessions to such investors. And the much-talked about Act has not recognized 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.

The same clause refers to undertaking to prevent corruption but has failed to specify how. 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 UN conventions and any other international obligations not to mention the household word of 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 theft, misappropriation or misuse of public funds. Inaction, failure to remain alert, misinterpretation of and shielding behind regulations promotes 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 room for so-called ‘emergency procurement’ to suit identified suppliers.

 No surprise that Transparency International of Sri Lanka moved the Supreme Court against inclusion of some clauses and non-inclusion of significant clauses in the celebrated Act.

Anti-Corruption Bill is introduced in a country burdened by archaic, old aged Ordinances, Acts, rules and Regulations. Incidentally, the House decided to pass the Bill without a division. Among the members of the current Parliament is a person who was caught, admitted and fined for carrying a few mobile phones and gold biscuits on behalf of his friend and it would have been relieved by the fact that the House did not go for a vote on the Anti-corruption Bill. Otherwise, he and others of his ilk would have found themselves in a dilemma, unable to decide whether to vote for it.

The IMF has included a novel condition for reducing corruption vulnerabilities.  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 reasons are bureaucratic lethargy, lengthy procedures leading to inordinate delays and corruption. Are we trying to paper over the cracks 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 to catch small fish.

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