Arresting Corruption

Speech delivered by Chief Justice Ashoka de Silva on Anti Corruption Day. Part I was published yesterday

Acts of corruption have caused a perception of the meaning of corruption between normal persons while, there is a different meaning for corruption of the elites particularly those in public or business undertakings. Likewise, there is also a misconception of its meaning for the victim of corruptions and the beneficiaries of corruption acts for example, a Minister can deviate a project from one point to another for genuine or vague reasons or another can facilitate some ones aspirations without merit or irregular means. The beneficiaries of such misconduct may simply consider it is worthy while the victims argue it corruption. This shows the flexible nature of corruption.

The meaning of corruption is two fold, legal and social but due to its complex nature they are both covered in the legal framework to ease the intervention process.

As stated earlier corruption is a global phenomenon. These implications bear political, economic, as well as social dimensions. At political levels, it causes an obstacle to democracy and rule of law. Corruption creates a situation of political instability by destroying trust and confidence which are the foundation of political stability.

Economically, corruption ensures selective access to economic opportunities. Certain groups, families and friends enjoy the lion share of the national economic cake. This denies the majority entrepreneur access to economic rights. Most of the money gained through corrupt means in the Third World is immediately smuggled out to safe havens abroad. Thus the money is lost to the country. On the other hand if this money is ploughed back to the domestic productions at least it will have a less destructive effect.

When corruption is rampant and widespread in central and local government machinery, it frustrates all efforts of economic growth and development. Corruption payments made to obtain public services deny the country valuable revenue.

From social point of view corruption leads to inefficiency. More often than to resources are misallocated or misappropriated leading to a direct inefficiency in Government operations.

The impact the corruption causes to State and individuals directly have prompted the need for the international community and its institutions to take collective measures to alleviate corruption.

At international level the effort to fight corruption commend in 1970’s particularly with the enactment of United States Foreign Corruption Practice Act (FCPA). This Act aimed at regulating business as a corruption free environment. By them the multinational companies were the key players in corruption transactions. Hence, the International Chamber of Commerce (ICC) produce a Code of Conduct designed to be adopted by multinational companies and corporations.

The UN on the other hand under its agencies such as crime prevention and criminal justice division made efforts to address several crimes including corruption. In 1975, the conference of the Fifth Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva came out with a working paper. This paper addressed the threat posed by economic crimes including corruption to the development of State.

The UN took an active role in addressing corruption at the beginning of this century. The United Nations Convention against Transnational Organized Crimes (UNCTOC) was adopted by the General Assembly in Resolution 55/25 of November 15, 2000, entered into force in 2003. This convention envisaged criminalization of active and passive bribery involving public officials, or foreign public official or an International Civil Servant as well as accomplices. This convention influenced the coming into being of United Nations Convention against Corruption (UNCAC) (Adopted by UN General Assembly in October 2003 came into force on December 14, 2005).

By this convention States are empowered to determine desirable offences and make them known to other State to attract prosecution of such officials.

Article 17 provides some of the offences that deserve criminalization under corruption transgression. They are amongst others, embezzled, misappropriation of public funds or property, trading in influence. Abuse of functions, illicit enrichment, laundering of proceeds of corruption, obstructions of justice, liability of the legal person under corruption offences, participation and attempt to commit corruptive offences.

UNCAC also provides for civil measures intended to recover ill-gotten proceeds from the corrupt culprits or their beneficiaries. For this matter convention provides for the need to seize, freeze and confiscate the ill-gotten proceeds.

Due to constrains of time I am unable to discuss the convention and the implications fully but must say that International Conventions have so far laid down the basis for corruption interventions.

Political will of the States will have to be exhibited in arresting corruption within its sovereign limits.

Concluded