Arresting corruption

Speech delivered by Chief Justice Asoka de Silva on Anti-Corruption Day.

It is noteworthy that corruption has been on the increase, since the globalization of economy in modern times with its derivatives of trade liberalization, materialization and privatization.

When one looks at Sri Lankan political history the words ‘bribery and corruption’ play a big role during the parliamentary elections. Politicians and political parties come out with anti corruption slogans and throwing allegations against each other. But after the elections everything is forgotten and all continue with what they had been doing and victorious party will share the bigger slice of the cake.

The Hong Kong Chief Justice once in an address on bribery in 1988 tried to define bribery as “a gift to any person in office or holding a position of trust with the object of inducing him, with regard to his official duty, into betraying his trust for the benefit of the giver.”

It is widely accepted that in Sri Lankan society bribery is rampant. To curb the menace the Bribery Act was introduced in 1954. Since then there had been nine amendments to the Act to fine tune the law. To ensure that all forms of bribery are covered by the Act it has been suggested that bribery should be defined in broad terms “any person who accepts, solicits, or agrees to accept any gratification, either for himself or another should be considered guilty of bribery. Similarly any person who offers such gratification or promises to offer gratification should be considered to be equally guilty of bribery. Such gratification can be to compel an action or to prevent an action.” “Any person” referred to here should also include an agent, bribery by a agent should also attract the same penalty.

As mentioned earlier, Bribery Act was passed in 1954.

Inadequate laws

Even though bribery was already an offence under the Penal Code at the time the law was enacted as there was a feeling that penal provisions were inadequate to address the question relating to bribery although the bribery was part of the penal law of this country at least three special commissions had been appointed to probe the allegation of bribery in the past. This was because penal provisions applied only to public officials and not to elected officials.

In 1943, the L. M. D. de Silva Commission was appointed to probe allegations of bribery against the State Council Members. In 1948, the Keuneman Commission was established to investigate bribery in several Government Departments and in 1949 the M. W. H. de Silva Commission was appointed to investigate allegations with regard to the Colombo Municipal Council.

The appointment of these commissions of inquiry under the Commissions of Inquiry Law indicate that the provisions of bribery under the Penal Law were inadequate and that the Special Commissions of Inquiry were required to investigate allegations of bribery and corruption. Some of these Commissions of Inquiry had an instant impact as evidenced by the resignation of three State Councillors after the L. M. D. Silva Commission submitted its report.

It is against this backdrop of commissions of inquiry that the Bribery Act was enacted in 1954. The definition of “public servant” under the Act is wider than what was the previously recognized in the Penal Code.

The Supreme Court had the occasion to interpret some of these provisions. In the case of Mohamed Arif vs Qua conflicting opinions were expressed as to whether it covered any work carried out by public servant or whether it related only to official work. A Supreme Court Divisional Bench by a majority decision upheld the broader view.

State officers

State officers were considered to be servants of the Republic other than the President, Minister, Deputy Members of National State Assembly. Even Labour Tribunal Presidents were considered State officers.

The Legislature Members was deemed to be guilty of bribery where such person solicits or accepts any gratification as an inducement or reward for performing an act in his official capacity. In A. G. vs Lim, Privy Council gave a broader interpretation - any act attributable to his legislators position.

The Act No. 20 of 1994 amendment introduced the offence of corruption. Any public servant who causes a loss to any other or to the Government for the advantage of himself or any other person and commits any of the five acts specified under (a), (b), (c), (d) and (e) of Section 70 of the Act commits an Act of corruption.

A legal definition of corruption is both difficult and complex that people would agree that corruption involves the use of public office for the private gain of the office holder. It should not always necessarily involve financial gain. There could be corruption in the form of gifts or favours in kind. For example soliciting and receiving sexual favours could be considered as corruption.

In every country there is corruption. The only difference is that while corruption in developed countries does not lead to people dying, in most developing countries it does, mainly African countries and to the collapse of economy. The debate on corruption has developed greatly and makes evident that the issue is not only one of law but also of the impunity of the perpetration of corruption. Due to the nature of corruption and its diversity it is not easy for a single state to address it properly. Today the impact of corruption are felt due to trade interactions, between States and the development of E-commerce. Corruption is now a common tragedy with little difference between in its magnitude.

Nature of corruption

Corruption is pervasive and has something to do with the inherent egoistic nature of a person. Corruption today is gaining roots in a system whereby a two way traffic network involves bribes and kickbacks. It is also involved embezzlements and spoliation of Government funds, taking advantage of weak legal regimes and weak management of public funds.

To be continued