Measures for control of corruption -Part Three

The legal definition of bribery in terms of criminal liability is necessary

by Frank de Silva

(July 23, Colombo, Sri Lanka Guardian) In a legalistic frame of concept, focusing on an individual offender and accomplice is inevitable. The critical feature in such enunciation of the law for bribery and corruption is that the legalistic mode does not take full account the whole realm of the public service; the offence is not simply matter between the offender and victim. The public service is at once the perpetrator of the crime and the victim of the offence. The complainant is not the only victim. At the same time the bribe-taker-public servant is not the only perpetrator of the crime. Others too are involved, not necessarily as accomplices in the legalistic manner of speaking. Others in the system have to be compromised to make space for the offender. This extended aspect does not lend itself adequately to the simple application of conventional principles of criminal law administration. The law, as enacted through all the revision and amendment, deals with the public officer as the perpetrator of the offence and the outsider as the victim. From that legal standpoint there is little scope in the law for an idea of the public service as the victim, except inferentially. Any such advertence, if ever, in the review surveys is only incidental. Law enforcement projected thus does not take in the full import of the offences and their consequences for the public service. Definition of the offence of bribery and corruption directed only at the offender is therefore limited and can deter effectiveness.

The legal definition of bribery and corruption is couched in terms for criminal liability. This is necessary. It is idle however to proceed with the legal strategy as the only means for control of bribery. Thus the scope of the problem is extended to larger issues as good governance. Such extended scope engages the concern of relevant authorities, even internationally. The United Nations Development Programme (UNDP) conception of the problem is to this effect. In most countries corruption is a criminal offence. "But the real crime is that everybody suffers, especially the poor and the vulnerable.. . "xviii. The same report observes, ‘corruption damages economies and the environment, and can even reverse development. In extreme cases law and order can fall apart...and crime, violence and social unrest can follow’xix. The UNDP sees corruption as a problem of poor governance. The Consultant’s Report firmly asserts this larger scope of the problem of bribery for good Governancexx. Viewed in this perspective it is clear that the strategy of criminalizing corruption for its control limited to the offender would not be adequate. The offence of bribery, despite other involvement of attendant persons around the offender in the public service, is limited to the legal processing between the victim and the offender. When even that legal processing fails through a low rate of conviction, the system is in some state of collapse.

The problem of bribery and corruption is larger than conventional crime. The above observations highlight the difference. The approach of the law then needs to be wider. Law and its enforcement as conventional concepts do not bring out this difference. Law enforcement, as it is understood, is then plainly inadequate. Taking in the larger picture presents the problem in another light, that the legalistic mind set applied in this context can be pitifully limited of concept. It is sufficient to refer to one review article of this programme on corruption. That article took in the larger picture of bribery and corruption relating to good governance itself. The article concluded: "Corruption is multi-dimensional and the mandate for the Bribery Commission must necessarily be widened beyond its present boundaries: both as to definition and procedure, they are pathetic"xxi. The significance of this review article, unlike other reviews, is not stymied of concept through legalistic approach. The perspective of the writer is much wider and is not confined to the legal frame. The wider public perception is more realistic. The state response through all these legal measures adopted over time to time are even myopic in the face of the problem at hand. It is inevitable then that official action is only of a nominal nature.

Another perspective of bribery and corruption relating to rights has been advancedxxii. Bribery and corruption in whatever way conceived "results in the rights of the People being denied or impaired….People of Sri Lanka enjoy a fundamental right…free of any form of corruption, whether defined widely or narrowly"xxiii. This view is indeed a perceptive projection of the problem, since the matters of rights underline all the other problems from corruption, referred to above. The individual transacting with the governmental agencies is exercising his right. The manner in which the individual person is treated by the agency can be either a denial of impairment of his right. Correspondingly, the function of the government agency is to secure and advance rights of the people. The other perspectives of corruption as economic, good governance, public service etc. taken together, are, in effect, issues of rights of the people. The practical significance of this is that rights can be denied or impaired by the legislature, the executive and by the judiciary. Mismanagement of cases in courts can amount to denial or impairment of rights. The wronged person in bribery and corruption cases is a victim initially by the respective agency, and subsequently by the system for administration of justice or courts, in a form of double jeopardy. The link is broken. It is significant that the onus to secure rights is cast only on the "Legislature and the Executive"xxiv and not on the Judiciary. The ‘holy trinity’ is disjoined in the process. Law enforcement fails in the process.

Even within the narrow conception of law enforcement the system still does not give. Collapse of the system is partly due to the passive view of the legal machinery and process instituted for the purpose of control of bribery. Adjudication problems are seen as inevitable. Another view sees this as an aspect termed ‘capture’. There are two forms of capture, ‘state capture’ where the corrupt influence is exerted from outside the state apparatus and the other a form of administrative capture from corrupt exploitation of the institutional and legal weaknessesxxv. These ideas are borrowed from the references below. The functions of the organs in the legal process through prosecution and adjudication are ‘seized’ and do not operate rigourously towards the required end. The low rate of conviction is the result. ‘Laws delays’ facilitate acquittals and engender low rate of conviction. Delays in the legal process are either systemic or structural. Either way the ‘holy trinity’ of investigation, prosecution and adjudication comes unbound to lead towards a desultory end. Expeditious disposal of cases considerably reduces risk of malfunction. Delays on the other hand bear heavily on the evidence of witnesses leading to variation of evidence, marked contradictions, which serve to impeach the credibility of witnesses. Such is a general profile of such proceedings. Acquittals in bribery cases in many cases are determined on ‘flimsy’ grounds of minor and inessential variations in the evidence of witnesses. There is another fact of experience that the laws delays are manipulated precisely to secure this effect. Persons of eminence avail themselves of this more than minor officials could. Larger objectives of good governance and interests of society recede from the general reckoning. The administration of criminal justice is generally afflicted by these weaknesses, in respect of conventional crime as with bribery and corruption. Mismanagement of cases in court and the judicial process has the marks of ‘capture’of the system.



Investigation.

Investigation is fundamental to the whole process of law enforcement. Investigation prepares the material which then will be confronted by much of the problems discussed above. Some reservations are however expressed over bribery investigations particularly as the investigations are conducted by the Police. These criticisms are only of a general nature. The effectiveness of investigation can be gauged by the conviction rate of bribery cases. This is a clear index. The conviction rate ranges between 3% and 10%. There is no reliable data in the Administration Reports to ascertain the rate of conviction in the relevant cases indicted in courts. The spill over at the end of each year is not reflected continually. Therefore these figures were obtained through personal communication. Allowing though for a margin of error, the statistics reflect an appalling inadequacy in the total law enforcement programme instituted with much effort and expense. The problem is not necessarily with investigation, commonly alleged in other areas. The investigative procedure is directed through a Bribery Commission of competent persons, assisted by many lawyers. They ensure the standard of investigation.