Observing that the proposed Anti-Corruption Bill contains several laudable provisions that seek to improve upon the existing anti-corruption legal framework in Sri Lanka, Transparency International Sri Lanka (TISL) Deputy Executive Director Sankhitha Gunaratne said that the TISL has proposed several Amendments to the Bill to make it more effective and progressive.
In an interview with the Sunday Observer, however, she said that it would not be a panacea for all ills of corruption and bribery plaguing the country, but is certainly a step in the right direction.
Excerpts
Q: What important changes the proposed Anti-Corruption Bill seeks to bring in to the anti-corruption legal framework in Sri Lanka?
A: The proposed Anti-Corruption Bill seeks to replace the Bribery Act (Chapter 26), the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994, and the Declaration of Assets and Liabilities Law No. 1 of 1975. According to the agreement that Sri Lanka has signed with the International Monetary Fund (IMF), this law is intended to be brought to Parliament and enacted by June this year.
The discussion around this Bill started long before the IMF involvement. The Commission to Investigate Allegations of Bribery or Corruption (CIABOC) has had many deliberations and consultations on it. Lately, it has taken into account the recommendations by the civil society and other experts as well to a certain extent.
One important change we find in the proposed bill is that it increases the transparency of Declarations of Assets and Liabilities (DAL). This is something the civil society has been advocating for years. If a DAL works well, it should show us how politicians and other people in positions of power and influence are unjustly enriching themselves. However, we know that the current law has secrecy provisions, where a person can be liable to a fine and/or imprisonment for publishing a DAL that he or she has obtained.
The DALs, hitherto, hidden away in files, offices and cupboards of public authorities, will be available in one place for public scrutiny once the proposed Anti-Corruption Bill becomes law. That central electronic system at CIABOC can flag up if there has been a sudden acquisition of wealth or a suspicious transaction, enabling law enforcement to take action.
The proposed law, in its current form, brings within its ambit the bribery that the private sector engages in vis-à-vis other private sector actors and sports-related corruption.
The issue of sexual bribery is also brought within the law’s ambit. Even the current law has the ability to capture sexual bribery within its ambit, but the current law does not specifically recognise sexual bribery by name, as an offence. By way of legally recognising the issue of sexual bribery, it empowers the people to complain about it, also making it the norm for prosecutions to happen on that basis, and not merely on the basis of sexual harassment.
Q: Does this anti-graft legislation give enough teeth to the CIABOC to fight bribery and corruption?
A: The law has teeth, but how effective it is, will depend on how well it is enforced.
This law, along with the 21st Amendment to the Constitution, re-emphasises the power that the Bribery Commission would have, to carry out investigations on its own motion, without having to resort to the previous position, where it would wait for a complaint to be made, even when there is a big conversation happening in society about a particular incident of corruption that has happened.
Under the proposed law, extensive powers are given to the CIABOC. This law increases the fines for bribery and corruption offences coming under it. The law allows the Bribery Commission to have a relatively free hand and powers to address the issue of corruption. It allows the Commission to carry out surveillance, to do undercover video and audio recordings, and tap phone lines. These powers, however, should be used subject to due process, with the authorisation of the Court. Such powers should not be abused by those in power.
Q: Do you identify any regressive provisions in the proposed legislation?
A: TISL wants to highlight two key shortcomings in the law. Firstly, it has a section that says that it prevails over all other written law, including the Right to Information (RTI) Act.
This law requires every official that joins the CIABOC to sign an oath of secrecy. All the officers, including the Information Officer, will be bound by secrecy. The only exception provided for that is that the Director General may, with the authorisation of the Commission, release certain information to the social media and the mainstream media purportedly to maintain transparency. That creates a different regime to what is foreseen under the RTI Act, and therefore, flies in the face of transparency and accountability. Such a law, especially at a time like this, when the citizens have lost faith in law enforcement and lost faith in accountability for all the crimes of corruption that have brought this country to its knees, is problematic.
The second problem we have identified is Section 119 which relates to false allegations. There is an equivalent of this section in the current law. However, to the best of our knowledge this provision has never been used in Sri Lanka. No prosecution has happened under this offence. What then, is the need for us to bring in such a regressive provision into the new law, because it can create a situation where people hesitate to complain, fearing that they might be witch-hunted or targeted for doing so?
We should create a situation that encourages whistleblowing and informants to come forward to make complaints about bribery or corruption. If a complaint does not amount to anything, the CIABOC has the ability to resort to the existing Penal Code, which has similar provisions. There is no requirement for such a provision to come into the new law just because it existed in the old law.
Q: Does this law deal with the bribery and corruption related to Government procurements?
A: This law does not specifically go into the nitty-gritty and the process of procurements. It is still the 2006 procurement guidelines that would apply in Sri Lanka and those need to be converted into law. There is, however, one provision in the proposed Bill that talks about bribery for the purpose of withdrawing or procuring a tender. Beyond that this law does not sufficiently solve the issue of corruption in procurements.
In Sri Lanka, so much money is stolen from the public purse by the process followed in awarding tenders for large scale infrastructure projects. We can feel the impact of this type of corruption in our day-to-day lives.
State resources are often subverted for personal gains. This is why we need to push for digital systems where people can access available data, provided it is accurate, to check whether corruption is taking place to throw up red flags and take action. This will help ensure that public services, works and goods that are obtained through such procurement processes are of high quality and do not cause harm to the people.
Additionally, our anti-money laundering law needs to be updated. We need to have a proper law on beneficial ownership transparency. We need to have better law enforcement coordination, both in terms of investigations and filing action.
Q: The recovery of stolen public money is a topic that has attracted public interest lately. Do you think it is feasible in our country?
A: There were calls to bring the assets that have been stolen and stashed away, back to Sri Lanka. However, Sri Lanka does not have a law that can manage such a process, for the moment. This law provides for a certain level of international cooperation, but if assets come back to the country, there needs to be a process that ensures that such assets are not stolen again.
The Asset Recovery Law or what is called the ‘Proceeds of Crimes Act’ still needs to be enacted in Sri Lanka. We are conscious that it is a part of the agreement that the IMF has also reached with Sri Lanka.
However, if law enforcement initiates a legal process, asset recovery is possible, even without the new law. Identifying, freezing and seizing of stolen assets can be carried out under existing criminal laws in Sri Lanka, including the Financial Transactions Reporting Act of 2006, Banking Act of 1988, Criminal Procedure Code, Customs Ordinance of 1870, Prevention of Money Laundering Act of 2006 and Code of Criminal Procedure Act of 1979. The question is will they?
Despite the prevalent belief, it is impossible to use recovered stolen assets to pay off Sri Lanka’s debt or use that money to purchase essential imports. It cannot be a solution to our immediate problems because the process of the recovery of stolen assets takes on average 10 years, even if law enforcement in all the relevant countries co-operate. It is a complicated process that needs to go through asset tracing, evidence-building and a judicial phase to show how the assets were stolen.
Once the ‘how’ is figured out, the authorities would have to find where the assets have been hidden and work with law enforcement in other countries to track down the money. We need the political will to pursue stolen assets. However, it is important that the public keep their pressure up, and continue to demand accountability, however long it may take.