Measures for control of corruption

by Frank de Silva

(July 21, Colombo, Sri Lanka Guardian) Measures for control of bribery and corruption need serious review. The Bribery Commission and the legal measures for control of bribery, though much acclaimed, are only of limited effect. Their means touch only the fringe of the problem. The bulk of the problems thrives unaffected.

Even the limited legal means of the legal process are clogged within to deliver effective control. The low rate of conviction underlines these problems. Conviction is itself discriminatory; the small fry are netted in, the big fish escape. A serious review of the legal regime is necessary, once again, to reconsider the effectiveness of the instituted machinery for control of bribery and corruption. The given legal means are largely of a problematic nature. Their deployment too militates against effective action. Other means as administrative measures need therefore to be considered to supplement the legal regime for control of bribery.

The extent of governmental efforts to curb bribery and corruption reached its furthest in 1999. A Commission to Investigate Allegation of Bribery and Corruption (Commission) was instituted in 1999. This official arrangement was legally conceived for the purpose. The governing law was enacted accordingly in considerable measure. A long series of laws and amendments preceded this pinnacle effort. Effectiveness of the law and machinery for their execution, however, still remain, in review, a question. Bribery remains a problem in this country, long and unabated, assuming proportions of grave public concern. This is the reality. The results of such governmental action to contain this problem, the effort and expenditure incurred for an effective programme are, however, barely encouraging. There is, in fact, little impact all these have had on the problem of bribery. Reviews have therefore followed reviews to identify problems which occur. All reviews have a story to relate of much that is amiss. None of these reviews evaluates performance.

As it now stands, neither the law and the legal machinery nor the public service administration hold themselves responsible or accountable for the state of bribery and corruption.

This paper is a review limited to examine the question of the effectiveness of the legal regime instituted in this country for control of bribery and corruption. Only two lines of inquiry are focused on here, the legal and the administrative. Against the background of the current problem of bribery, the legal means for control are seriously called into question. Considerable effort and expenditure is defrayed by the government but has not made for an effective strategy. The legal machinery is of very limited impact in terms of effectiveness of controls. The simple legal conception forecloses other means. There is the prospect of administrative measures which can supplement the legal means.

These aspects are discussed under two headings, law enforcement and administrative measures. The viability of the strategy for control of bribery and corruption through law enforcement is vitiated in many respects, which are discussed below under subheadings. The legal machinery and legal process have made administrative measures for control of bribery inoperative. The possibilities from administrative means, to serve the same object alongside the legal means, merit attention.



Law enforcement

This section deals with the different notions of law enforcement, the law and its adequacy, intelligence as an aspect of investigation, the gap between occurrence of bribery and formal communication for investigation, the limited definition of the offence of bribery and corruption, the limited idea of investigation, the scope of the problem and the end result of all action.

Law enforcement is the term to include the entirety of legal means instituted to deal with this problem, as with crime. The principal components of law enforcement are the law, investigation, prosecution and adjudication. They link to form a chain. This statement needs to be asserted categorically. In popular parlance, however, law enforcement is understood as limited to police investigation action. Many writings of a legal nature are also to this point, that law enforcement is limited to police investigation. In this tenor of legal writings, the idea is not advanced that law enforcement action by investigation can be nullified at the later stage in the process.

The oneness of the whole process for law enforcement had, therefore, to be firmly asserted, perhaps for the first time, in express terms, by Chua Cher Yak the Consultant 2006. He asserts unreservedly, that "the ‘holy trinity’ covering investigation, prosecution and adjudication, encompassing the entire criminal justice system is a continuous process. This is the critical feature in the law. "The investigative agency is just not an island unto itself" noted the Consultant. He firmly asserts that a sound court administration or sound judicial system is vital. Such ample view of law enforcement, figures rarely in other legal writings.

Legal writings within this country do not contend with this fact of composite law enforcement. One such instance of local writing is cited to illustrate the failure of such composite view of the problem of law enforcement. A research on the subject of ‘Police Corruption’, identifying causes for police corruption, titled ‘In pursuit of Absolute Integrity’ published by Transparency International Sri Lanka (TISL) is cited here in illustration. Weliamuna, Executive Director of TISL, refers here to ‘law enforcement’ in discussing police corruption. There was no attempt in this essay to define law enforcement. Instead, references are made to ‘police corruption’, ‘misuse of authority’, ‘lack of law enforcement’ ‘lawlessness’, one leading to the other. This equation for breakdown of law and order relates only to the police; lawlessness is failure of police in law enforcement. There is no idea here of the prosecution and court adjudication in failure of law enforcement leading to lawlessness, by failure of enforcement.

A composite view of law enforcement would indeed have been detrimental to the limited purpose of the TISL survey. This survey was only to project police corruption from failure of enforcement with no reference to other attendant circumstances. Failure of court adjudication was avoided, perhaps discreetly, since the author is a lawyer himself regularly appearing in court. Other such references would blunt the edge of the survey which was only to project police corruption. It is a moot point whether such writing was in pursuit of absolute integrity as the author’s title suggests. Another perspective was from the point of view of ‘rights’ where the onus was cast on the legislature and the executive; the judiciary is disconnected from the total process. Just one more connected reference from one unconnected with the law and judicial system is cited. JB Muller states: "…should start the cleaning up process with Health, Education, the Judicial system" (emphasis added).

The difference in the two approaches to the matter of law enforcement is clear. The reasons for the difference of perspective and emphasis are equally self-evident. Disjunction of the total criminal process is the result. Discontinuity of process is therefore fraught with problems, one stage not supporting the other. Effectiveness falls in between. The instituted process is then dysfunctional, yielding results other than that which the law intended. Law enforcement at the police stage of action can be rendered negative by failure at later stages. Prosecution can falter at adjudication. Each stage of action will be discussed in turn, to consider their effectiveness.

Law

The bribery law has an ample base for effective control of bribery. The law has been examined exhaustively by many who assert to its adequacy. The report of a UNDP funded survey concludes, "All in all, the laws are more than adequate. If I can rate the ‘enforceability quotient’ of the laws (i.e. whether the laws are enforcer-friendly or not), I will readily give 9 points out of a possible 10 points. But, it must be reiterated that all laws are only as good as they are enforced". Some weaknesses of the law are identified but they are dwarfed by the strengths, the report observes.

An example is that the law relating to corruption provides for instances of corruption through a list, as at section 70 of the Bribery Act. Listing offences in a legalistic form closes the possibility of other forms of corruption which may transpire later. The Report of Consultant Chua Cher Yak recommends, instead, an open- ended base to determine corruption. The law is yet more than adequate. A National Consultant previously stated: The Act "empowers the Commission with vast and sweeping powers for the purpose of discharging its functions". The legal base of the law is then firm. But, it must be reiterated that all laws are only a good as they are enforced, noted Consultant Chua Cher Yak, vide above.

Enforcement, thereafter, is then the matter of concern for effectiveness of the law. Assessing the effectiveness of the law, a caveat is added by the Consultant, that having laws is one thing. Stringently enforcing them is another. Without enforcement, meaning effective law enforcement, such laws, no matter how well crafted, will remain as ‘dead-letters’. Failure of law enforcement in court is specifically adverted to in the UNDP report of 2006 as the need to ‘reducing the Judiciary’s vulnerability to mismanagement of cases’. Mismanagement of cases defeats the purpose of the law. Mismanagement of cases in courts takes many forms. There is no proper survey of the nature of mismanagement of cases in courts in these reviews. Only a few can be cited. A few instances can illustrate the manner in which the process goes astray. ‘Almost all those convicted were low-ranking public officers’ said the Lawyers for Human Rights and Development, ‘Bribery and Corruption in Sri Lanka: A study on Law and Enforcement’ (November 2005) p 37. Persons of some eminence generally escaped conviction. The discriminatory effect of the adjudication within the law is very much the popular perception. Annual Administration Reports of the Bribery Commission carry an annex which lists the names and office of persons convicted, but carries no parallel list giving designations of persons acquitted. This reinforces the perception of mismanagement of cases in courts. Delay and postponement of cases, the low rate of convictions entered, the high rate of acquittals, and the tenuous nature of some grounds for acquittal are some other means of mismanagement of cases.

There are at the same time structural problems and systemic problems which defeat the due course of the law. Problems of due court administration have been discussed more fully elsewhere. The analysis dealt with problems of a structural and systemic nature for due adjudication of justice in crimes and offences in general. The agencies were hardly linked in a common endeavour or objective. Their result is termed ‘Judiciary’s vulnerability to mismanagement of cases’. The same problems affect administration of justice in bribery cases too, with an additional link brought in by way of the Commission and its legal officers. The change of hands for prosecution in bribery cases from one agency to another was symptomatic of the tension within the whole instituted process. Even within the Commission there was want of coordination between the investigation and legal review. These problems have a deleterious effect ultimately on the administration of justice and the programme for control of bribery and corruption. Taken together these problems are termed mismanagement of cases in courts.

The problem for effectiveness of the law to control bribery has another dimension. These stem not so much in the substantive law but in relation to the process involved in the abuse of power and position for bribery and corruption. Abuse of process and position in the public office by the offending bribe-taker is the critical means by which the crime is committed. This is unlike with the case of conventional crime. Others are invariably involved in the commission of the offence of bribery. Others who helped the offender would, however, be legally liable only to the extent their participation is in the nature of aiding, abetment or agreement in conspiracy. This would be in line with the general principles of criminal liability. But the abuse of process for bribery and corruption in the public service involves a myriad ways, than legally formulated, ways in which the offence is facilitated. Criminal liability does not extend to these. Short of criminal liability of others in the process of bribery and corruption, there is an administrative liability of those others in the public office who allowed for the commission of the offence. The difference between criminal liability and administrative liability here are clearly differentiated, in the main. There is, however, an area in between which fuddles the distinction. The different processes entailed, meshes with each other almost imperceptibly in their determination. For purpose of criminal law, such unclear distinction is of no avail.

Of necessity, the criminal liability is enacted in a legalistic frame appropriate to criminal law. But for the larger phenomenon of bribery and corruption, the administrative aspects are important. The administrative circumstances which gave space for the offence of bribery are, in the main, ignored because they do not lend themselves easily to legal formulation. The suggestion here is that abuse of process which constitutes corruption has an inbuilt procedural aspect.

In effect there is an overlap here of the substantive law in corruption with the procedural law inherent in the process for abuse. Effectiveness of the law for control of bribery can be enhanced by resolution of the two seemingly disparate thrusts of the two aspects of criminal liability and administrative liability. This matter is discussed further, presently.