Measures for control of corruption -Part Two

Procedure of intelligence should be essentially confidential

by Frank de Silva

Intelligence

(July 22, Colombo, Sri Lanka Guardian) Within the frame of the ample law for law enforcement, intelligence figures little. For all the law and legal initiatives to control bribery, adopted over the years, the function of intelligence for effective action has not been duly conceived. The 1994 law specifies plainly that action under the Act by way of investigation can commence only on a communication, of a formal nature. The response to the communication is then only of a passive reactive nature commencing investigation. The procedure is clear cut. There is then no idea of a proactive disposition of the instituted machinery for control of bribery, apart from the formal communication.

This is a serious shortcoming in the strategy to combat bribery and corruption, indeed against any criminality. The reason why the bribery law has been differently enacted is not clear. It is possible to speculate that the draft of bribery law is in the nature of ‘lawyers’ law’, an epithet used to denote a narrow approach in formulating law. The insinuation is that the law is framed just by law professionals. By definition this term excludes the public point of view. The UN Convention against Corruption clearly alludes to this point. At Article 13 on ‘Participation of Society’, section 2 specifies that each State Party shall take appropriate measures….for the ‘reporting, including anonymously [emphasis added], of any incidents that may be considered to constitute an offence….’ The local law and the terms of the UN Convention do not thus coincide sufficiently. This merits consideration in any review of the law for control of bribery in this country.

The law requiring formal communication to commence action was intended perhaps to prevent frivolous and vexatious action to be initiated. This stance of the law fails to take account two matters. The procedure of intelligence is essentially confidential, and is not in the public domain. Secondly, the product of such intelligence gathering is to be reviewed by the Bribery Commission before any further formal investigation is launched. The same procedure holds with formal communication received, that their validity is determined by the Commission as an initial step. The whole body of the criminal law incorporates the functions of intelligence and investigation in the one process. The inherent function of intelligence in investigation, the close relation of the two, the provision of rules of procedure and evidence to govern their reception, clearly make out this underlying inclusive principle in criminal law. The cast of the bribery law in another frame than the conventional is therefore not clear. The Consultant Chua Cher Yak makes out that this manner of proactive action is vital to the success of the Commission. From a legal or theoretical, even logical, standpoint, the regular process is thereby stunted. Their effect is one of despair.

A communication to the Bribery Commission to initiate investigation is perhaps desirable from many points of view. Since, however, bribery flows from a consensual exchange, a large proportion of these offences is unreported. The law, as it is, allows the space for such desultory end to the problem. This does not make for effectiveness of the law. With the offence of corruption the position is much less of prospect. The victim here is also the public service, which has suffered in the main. The government though aggrieved needs to make a ‘formal’ communication to the Commission to initiate action. This is an unrealistic prospect; the matter is nearly one of an impersonal nature. A person who has suffered similarly can make complaint by way of a communication, if he is aggrieved. There may be a rare instance of persons of eminence taking on the mantle of ‘whistle blower’.

From a practical angle, the prospect of effectiveness is additionally ominous. The reviews of the law and system for control of bribery and corruption do not refer to these aspects of the problem, which affect effective strategy for control of bribery. The reference here is to an ominous cloud that hovers over the official threshold which requires a formal communication to initiate action. Threat, intimidation, coercion and other deterrence play in the gap between the incident of bribery and its report to the authorities. There is invariably no firm record of such insidious influences to deter formal complaints, which might have been represented to the Consultant in reviews. Bribe-takers are, however, well aware of this weak link in the chain and are quick to exploit it. Those who exploit this opportunity thus are persons who can exert themselves to effectively deter complaint. Intimidators would be more cautious if they knew that intelligence could yet bring them to account. The bribe -giving victim is thus double victimized, by the miscreant and by the system. This assertion is made from personal experience and knowledge.

The significance of this observation can be appreciated the better by considering the difference in the two situations, in the reporting to the authorities of a normal crime and in making a formal communication of an incident of bribery. There is little let or hindrance in reporting a crime to authorities, by some person who had information of the matter. The requirement of a formal communication to be made in respect of bribery makes for an additional threshold to be crossed before the matter is brought before the authority. There is much trepidation that besets the complainant in the latter case than with the complainant in conventional crime. The criminal fears his crime will be revealed by intelligence even without formal complaint. The offender in a bribery case fears less.

Investigators in bribery cases are invariably police officers. Police officers are statutorily constituted to deal with matters through intelligence and investigation, the two going hand- in- hand as the logic of the required process. Police officers dealing with bribery have therefore their essential function emasculated; reducing the process of investigation to merely recording a sequence of statements. Action in bribery cases, in these terms, can well be done by any other departmental officers, postal or railway, appointed as authorized officers. Possibly the law for bribery, as it is, required the exercise of some powers of the police only, not all the powers by which the police officer is statutorily instituted. The law did not perhaps intend these restrictive consequences, not from the law itself but from the manner the legal provisions are applied.

Gap

The gap in the line of action between formal communication and intelligence is best illustrated through actual examples of bribe- taking. The manner in which the requirement of formal communication to commence bribery investigations is applied and the occlusion of intelligence as a result has been discussed above in general terms. Illustrations will serve to demonstrate this situation in real practical terms. The instances of corruption by police cited in a survey of the impact of corruption on poverty and economic growth will help to draw on these observations. The examples are reflected below verbatim:

a. A person taken into custody at Nochchiagama police station was released without framing charges after accepting a bribe of Rs 10,000/=. A person who was engaged in selling illicit liquor at Viharagala had to pay Rs 5,000/= to the relevant police officer in the area on a regular basis.

b. A person who had taken his tractor to the adjoining village had been charged for an invalid licence and had to pay Rs 2,500/= to get the tractor released from the police station.

c. Any person who wishes to lodge a complaint generally has to pay Rs 200/= to Rs 500/= depending on the nature of the complaint to the officer in charge of the police station. A family at Lindaweva admitted that it had to pay this type of payment to the Officer –in- Charge at the Nochiyagama police station on several occasions.

d. Most of the police officers take bribes for any inquiries irrespective of the nature of the crime. At Viharagala, a person charged with robbery had been released without an inquiry after obtaining a bribe of Rs. 5000/=.

e. Generally, the Traffic Department of the Police is notorious for obtaining bribes for traffic offences. This was prominent in the evidence at all four villages.

The above instances of bribery listed in the survey have a specific purpose, to reflect on their economic impact. Incidentally, the general picture of the problem of bribery is also fairly depicted. The TISL survey has the avowed purpose of projecting police corruption. The particular agenda of this latter survey is less clear. However, these surveys do not go beyond their immediate purpose, to analyze the reasons which allow for the incidence of the problem in this manner and for absence of checks to restrain offences.

Certain questions pose themselves, through their narration, as they are not covered in the survey. The first most glaring feature which strikes is that in none of these instances has a formal communication been made to the Bribery Commission directly. The reasons for such failure in terms of the law have not been pursued in the investigating survey. These surveys have in fact relied on intelligence to obtain the information data. These illustrations serve therefore to make clear the need for intelligence in addition to the formal communication if effective action is the objective of the law. The gap in the legal process to control bribery is then self- evident. An additional question might have been posed by the survey, whether complaints were lodged with the local police authorities in these instances for their action. Had the survey concerned itself with that question, the role of the police authorities in such situation might have transpired, to advance the inquiry. There is also the question of the administrative capacity of the police higher authorities to deal with such complaints had representation been made. That aspect will be dealt with presently. At this point, the position is made clear that the bribery law is out of sync with the ground reality.

The Bribery Commission might have been able to cure this infirmity, by bringing intelligence into the process with the safeguard that any product of intelligence confidentially received will be acted upon if that were to lead to a formal communication. The problem is, however, that a simple legalistic view of the law prevailed, that saw intelligence out of the pale of the law. A preponderance of judges appointed to the Commission may perhaps account for this interpretation. A suggestion, only somewhat to this effect, is referred to in the report of the Consultant. The problem is perhaps that the sole dedicated purpose of the Commission is to ‘investigate’ allegations of bribery, not a matter of sitting in judgment as judges would do. Other problems can stem from the same legalistic root.

Definition

Definition of the offences of bribery and corruption for effectiveness is problematic and thus needs some review. Definition requires some comment, comments from the point of view of law enforcement and effectiveness of the legal regime for control of bribery. Definition of the problem of bribery in Sri Lanka reflects the legal standpoint from which the several legal initiatives have been adopted. This development has been over considerable time. The original definition of the offence was as a crime in the penal code. And in the case of elected officials the offences of bribery had to be dealt with under Commissions of Inquiry. These were followed in 1954 with the extended definitions in the new Bribery Act. Significantly, the other manifestations of the problem from bribery as corruption and as abuse of power were brought within the scope of the definition in the legislative amendments of 1994.

The latest definition brought in the offences of corruption and the abuse of power alongside the offences of bribery. An element of gratification is necessary to establish the offence of bribery, while wrongful loss, if not gain, is a necessary ingredient with the offence of corruption. It is significant that bribery and corruption have yet been brought together in parallel enactment, being in fact germane to each other. They are all offences committed by public servants in breach of the trust reposed in them by virtue of their office, and their actions are not simply matters of individual responsibility.