Call for balancing act for general welfare in a democracy

Text of speech made by Attorney General President's Counsel Mohan Peiris at the Global Forum VI on Fighting Corruption and Safeguarding Integrity, Strengthen Unity working together Against Corruption held in Doha, Qatar recently. The Attorney General was invited to participate in this conference held in Doha, Qatar in conjunction with the United Nations. The Conference was held with six different themes

It is indeed a privilege to be granted this opportunity to address at this round table which focuses on "Bridging the public and private sector's efforts for reform", which in contemporary day has not only gained much publicity in the public eye, but required the complete and unwavering attention of each and every well minded member of a just and equitable society, more specifically with regard to focusing upon the private and public sector contribution to the development of our society particularly as a networking forum for public and private policy dialogue on anti corruption strategies, the Sri Lankan Attorney General said.

Attorney General President’s Counsel Mohan Peiris in Doha Qatar Conference

He also emphasised that corruption is the use or abuse of entrusted power with the intent to obtain private gain or gratification, either for one's self or for a friend or relative. This may include a failure or refusal to act when such action is necessary or appropriate, or including another party to take improper action. Corruption is not limited to bribery or other exchanges of value, but it forms a pivotal backbone upon which the whole concept of the abuse of power is made vehemently clear. The initiator is not the only guilty party, anyone who knowingly or willingly participates in a corrupt act is as guilty of corruption.

The Sri Lankan Attorney General in his statement in Doha, Qatar said, bribery and corruption are features that every government in history has had to take note of and treat with serious concern.

World literature is full of references to corruption raging from the ancient clay tablets of Assyria four thousand years ago to the most recent literature. As far back as 1400 BC, the Holy Bible states that Moses indicated. "You must not accept bribes for a bribe blinds the eye of the wise and subverts the cause of those who are right." The dramatists Beaumont and Fletcher likened corruption to a tree. Once it takes root "its branches are an immeasurable length and spread everywhere".

Illegitimate regimes

There is no doubt that bribery and corruption undermines human development and transition to stable democratic rule. It creates illegitimate regimes as corporations bid for contracts by bribing.

Wealthy nations are waking up to this phenomenon and criminalizing all practices involved, this in turn calls for action to be taken on a universal platform for a global stand to fight this plague.

Even where legislation and sanctions prevail to counter this threat, the implementation of the same is much to be desired for.

According to an article in the African Security Review by Hennie van Vuuren, "The real challenge is for governments to implement the often talked about domestic anti-corruption strategies, for civil society to blow the whistle on corporate bribery and for authorities in developed nations to jail those who sanction the payment of bribes abroad."

Therefore it can be seen and said that the problem is greater than at first meets the eye. A system is required that combat the problem at its root and in turn another strategically planed structure of checks and balances is required to ensure that the so-called keepers of the law remain dogged and resolute in this fight against corruption.

The problem does not seem to get any more diluted the higher up the ladder of administration and governance one would go. The media thrive on the scandalous affair of political corruption. In the modern sense of the term, political corruption is a cancer on the integrity of a governmental body.

Political power

Very few public officials begin their careers with the intention of becoming corrupt, but some succumb to a sinister form of peer pressure over time. Being placed in a position of significant political power can be overwhelming and the temptation to break rules for a perceived greater good is always present.

Whenever a person accepts a political appointment or wins an election, he or she must take an oath to uphold the public trust. While this may sound noble on paper, enforcement of this oath may prove problematic. Very few political candidates successfully reach office without making a few promises along the way. Many of these campaign promises are harmless, such as more funding for schools or the like. Other promises, however, may come closer to crossing an ethical line, such as awarding government contracts to influential contributors.

Although a cancer in its own right, the problem of political corruption has far more a far deeper undertone to it. Although as mentioned prior the intentions of the parties in question may be otherwise, the mere suspicion of corruption is sufficient to send the media and with it the general public into a mass outcry for justice.

As the recognized doctrine in law provides, "justice should not only be done, it must appear to be done." The failure of the same due to the prevalence of corruptive practices reduces the public faith in the governing authorities and in the system of governance as a whole, a repercussion of the direst form.

Although the predicament is large, it is not without probable solutions. Leaving aside the commonplace practices of retributive punishment and rehabilitation, other forms of preventive measures can and have been highlighted. As identified before, grassroots level action often results in the most productive outcome.

Freedom of information

The first and most important step to be taken would be to create a vigilant, informed and sensitive public. Through the means of education a certain level of integrity, veracity and honour can and must be instilled in society, beginning from primary level right up to the highest levels of trained professionals. It is the task of all concerned to ensure that it is the right of society to expect total integrity from all who hold office and that nothing short should be received.

While retribution is currently practiced as the chief form of counteraction with limited success as has been seen in the past, the other side of the coin may also prove to possess a path to success.

In the like manner that unacceptable conduct is punished, steps maybe taken to reward measures that instill and portray the standard of conduct that is required and advocated by the general public. As simplistic as this concept may at first appear, the minor effect that recognition may have on the feeble mind may manifest itself in manner that may prove to be unexpected. Thus such credit based schemes based at grass roots level starting as before at primary school level up into the various forums of administrative and governmental authorities may produce unforeseen results. Further to educational awareness, the value of a transparent form of practice at all levels of administration may prove invaluable.

The free availability of information to the general public, availability of forums in which queries maybe voiced and heard and like measures from which may stem a sense of empowerment towards the general public which in turn functions not only as a check and balance against corruptive practices but also in the form and capacity of a deterrent against the same. Such awareness, transparency and educative practices should also aim at breaking down social stigmas that redress is available only for the rich and powerful and reveal to the poor and under privileged that their position too is one of strength and not of weakness as is common practice.

Programs of this nature should be structured and systematic, far-reaching and extensive so as to provide an equal opportunity to all, be it to make a complaint or merely to have one's voice heard. This will also aid in the prevention of bribery and corruption at the lower end of the scale where even 'village level' corruption may be combated. This again aids in the creation of grass roots level checks and balances which will undoubtedly filter up and have a noticeable effect on 'heavy duty' bribery and corruption.

Public and private responses

The above programs and systems that may be put into practice mandates that an equally effective system of enforcement is enacted. This must in turn inculcate levels of protection for those officials and complainants that may be involved in the counteraction of these harmful practices, for fear of exercising the system is equally futile as an ineffective system of having no system at all in place.

The campaign against corruption is one that crosses all political and social boundaries. It does not matter as to which political party, caste, creed or religion one may belong to one is necessarily under a duty to condemn corruption outright and banish it from the realms of governance. Corruption will grow if it is not brought under control and that is where constant attention is necessary.

The cure to this plague is far from being straightforward and the path to be taken is far from being a smooth sail. Although darkness may have fallen, light still remains at the end of the tunnel. The task is far from pleasant but without an effort a cure would soon become impossible. The words of William Shakespeare still echo true.

"Corruption wins more than honesty. Still in thy right hand carry gentle peace, to silence envious tongues be just and fear not. Let all the ends thou aims at be thy country's, thy God's and thy truth's then if thou falls, thou falls a blessed martyr".

Bribery and corruption

There is no doubt that bribery and corruption undermines human development and transition to stable democratic rule. In modern parlance, corruption is a cancer on the integrity of a governmental body. The campaign against corruption is one that crosses all political and social boundaries.

Sri Lanka was a signatory and has ratified the United Nations Convention against Corruption. In this regard it is pertinent to note that Article 5(3) of the Convention provides thus "Each State party shall endeavour to periodically evaluate relevant legal instruments and administrative measures with a view to determining their adequacy to prevent and fight corruption".

While emphasizing that every Government should be mindful that bribery and corruption are features that should be taken note of and treated with serious concern, it is significant to note that even prior to Sri Lanka signing and ratifying the aforesaid Convention, the legal infrastructure to combat bribery and corruption had been introduced way back in 1954.

Criminal offence

However, though the said law did not directly recognize 'Corruption' as a substantive criminal offence, law enforcement and judicial authorities made use of this law and its constituent offences of bribery, to deal with instances of direct bribery and other forms of direct and indirect bribery including instances of corruption.

Recognizing the need to effectively deal with bribery and corruption, in the backdrop of the capital market economy, in 1994, a substantial change was introduced whereby Parliament introduced a new law to supplement the previous law and introduced an amendment to the Bribery Act. This amendment created a new substantive offence relating to 'Corruption'.

In the context of the legislative changes effected to deal with the offences of bribery or corruption, it was heartening to note an observation made in the Report of UNDP Consultant and Ex-Director of the Corrupt Practices Investigation Bureau of Singapore, Chu Cher Yak titled 'The Strategic Plan of the Commission to Investigate Allegations of Bribery or Corruption', where in the context of the prevalent laws, he observes thus:

"I should preface my assessment with the broad opening statement that except for some very specific instances, the laws are more than adequate. In fact, they are about one of the most comprehensive set of laws I have come across"

Drawing from this observation and my own assessment, I am inclined to express a similar view. However, I am of the view that certain loopholes in the law require to be tightened, in order to ensure the effective punitive action against persons committing bribery and corruption.

In this context it would be apt for me to digress a moment to focus on sectors of the economy more particularly in the context of a developing nation that are more vulnerable or exposed to corruption.

It is often said that human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature (Principle 1, Rio De Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Principle 4, Rio De Janeiro Declaration)

Accordingly, it is undoubted that any development activity more particularly that involving the exploration of energy must be considered in the light of the foregoing principles.

However, it must be borne in mind that organs of State are guardians to whom the people have committed the care and preservation of the resources of the people. This accords not only with the scheme of Government set out in the Constitution but also with the high and enlightened conceptions of the duties of our rulers, in the efficient management of resources in the process of development.

This brings attention to the public trust doctrine, since the decision in Illinois Central R Co v. Illinois 146 U.S 387 at 452, 135 S. Ct. 110 at 118 (1892) commencing with a recognition of public rights in navigation and fishing in and commerce over certain waters, has been extended which by courts in many courts of developing nations around the world to keep focusing upon to ensure that the resources of a nation are not unduly exploited by multi-national companies.

In my view, due regard should be given by the authorities concerned to the general principle encapsulated in the phrase 'sustainable development', namely that human development and the use of natural resources must take place in a sustainable manner.

There are many operational definitions of 'sustainable development', but they have mostly been variations on the benchmark definition of the United Nations Commission on Environment and Development chaired by Prime Minister of Norway Gro Harlem Bruntland, in its report in 1987, ".... development that meets the needs of the present without compromising the ability of future generations to meet their own needs."

Some of the elements encompassed by the principle of sustainable development that are of special significance are, the conservation of natural resources for the benefit of future generations - the principle of intergenerational equity: the exploration of natural resources in a manner which is 'sustainable', or 'prudent' - the principle of sustainable use: the integration of environmental considerations into economic and other development plans, programs and projects - the principle of integration of environment and development needs.

Future generations

International standard setting instruments have clearly recognized the principle of inter-generational equity. It has been stated that humankind bears a solemn responsibility to protect and improve the environment for present and future generations. The natural resources of the earth including the air, water, land, flora and fauna must be safeguarded for the benefit of present and future generations. The non-renewable resources of the earth must be employed in such a way as to guard against their future exhaustion and to ensure that benefits from such employment are shared by all humankind. The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. (Principle 3, Rio De Janeiro Declaration). The inter-generational principle in my view, should be regarded as axiomatic in the decision making process in relation to matters concerning the natural resources and the environment in general.

Judge C.G. Weeramantry, in his separate opinion in the Danube case (Hungary v. Slovakia), referred to the "imperative of balancing the needs of the present generation with those of posterity."

However it would be pertinent to point out that the call for sustainable development does not mean that further development must be halted. Governments should not be asked, to sit back and do nothing. In this regard the requirement calls for a 'balancing' exercise for "meeting the just requirements of the general welfare of a democratic society."

Financial resources

I would request one to deliberate in this regard and pose the question to you whether a Government should leave its resources to turn into redundancy by disuse or whether it should make optimum use of it at a time when such resources would give the maximum yield to the State to strengthen its financial resources.

David Koten, the founder President of the People - Centred Development Forum, once observed 'The Capitalist economy ..... has a potentially fatal ignorance of two subjects. One is the nature of money. The other is the nature of life. This ignorance leads us to trade away life for money, which is a bad bargain indeed ...... Money is a number. Real wealth is food, fertile land, buildings or other things that sustain us ...."

This brings us to a point that we need to strike a balance when dealing with the exploitation of natural resources more particularly in developing countries. The question of regulation and anti-corruption initiatives would undoubtedly play a large role to ensure that such resources are made use of in a timely and organized manner, so as to ensure that the development activities of the State are sustainable.

Evidently an urgent need has arisen for us to join hands to combat corruption that is raging our society and stifling the development. The deliberations we make today I hope would give us the zest to be more committed in our goal to achieve for us our society devoid of bribery or corruption. In conclusion, I would leave you with the sentiments expressed by the former Secretary General of the United Nations, on the adoption of the United Nations Convention against Corruption by the General Assembly, aptly sums the reason for which we should be united in our struggle to combat bribery and corruption.

"Corruption hurts the poor disproportionately-by diverting funds intended for development, undermining a Government's ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid".