Sunday Times 2
The offence of corruption and the Public Service
View(s):By Nelum Gamage
There is a lot of discussion and debate whether the offence of corruption in the Bribery Act has a negative impact on the Public Service. There is a misconception that the introduction of this offence has hindered the smooth working of the Public Service due to the reluctance on the part of senior public servants in making decisions.
This is not the correct position.
In this article an attempt is made to explain how the offence of corruption came to be introduced to the Bribery Act in 1994. It also discusses the important aspect of the categories of public servants to whom this offence and other provisions of the Bribery Act are applicable. Especially the wide interpretation of the term public servant has to be noted.
The applicability of the offence of corruption is not limited to senior public servants. It applies to all grades of public officers. It is not a secret that ignorance of the law is not a defence in a court of law. Every public servant as defined in the Bribery Act has to be well aware of the importance of carrying out duties lawfully.
One of the objectives of the Act is to prevent the public servant from carrying out wrongful or unlawful directives.
Even prior to this offence being introduced, senior public servants and others refrained from implementing wrongful or unlawful directives given to them. They were willing to sacrifice their positions and revert to other less important positions giving up some of the perks enjoyed by them. To such persons, holding on to their given perks was not their choice. Instead they adhered to their conviction that one’s duty as a public officer was to serve the State and the public and not to carry out wrongful or unlawful directives given to them.
Historical background of the manner the Commission entertains complaints:
The Bribery Act was amended in 1994 by Bribery (Amendment) Act No 20 of 1994. Under the provisions of this amendment, the position of the Bribery Commissioner was repealed. Simultaneously the Commission to Investigate Allegations of Bribery or Corruption was established by Act No 19 of 1994. The Commission comprises three members, two of whom are retired Judges of the Supreme Court or the Appeal Court and the third, a person with wide experience relating to the investigation of crime and law enforcement.
Prior to the Bribery (Amendment) Act 1994, the then Bribery Commissioner was empowered to initiate investigations on complaints on information received and not necessarily on complaints made by named persons. But this provision was repealed by the Commission to Investigate Allegations of Bribery or Corruption, Act No 19 of 1994. The new procedure to make complaints and commencement of investigations were set out in the Act 19 of 1994.
This too underwent a change in 2015 with the 19th Amendment to the Constitution of Sri Lanka. Under the provisions of the 19th Amendment, Chapter XIXA, Article 156A, the Commission is now empowered to inquire into or investigate into an allegations of bribery or corruption, whether of its own motion or on a complaint made to it.
In the circumstances, the Commission is now empowered to initiate an investigations on information received and not necessarily on a complaint made to it by a named person.
The offence of corruption
The offence of corruption, section 70 of the Bribery Act, was introduced to the Statute of Sri Lanka in December 1994 with the establishment of the Commission to Investigate Allegations of Bribery or Corruption by Act No 19 of 1994.
Several changes were introduced into the anti-bribery laws of Sri Lanka by the Act No 19 (establishment of the Commission) and Act No 20 of 1994 (amendment of the Bribery Act).
The most important changes:
- CIABOC replaced the former Bribery Commissioner’s Department. The three member Commission (Commission) appointed by the Constitutional Council replaced the former position of Bribery Commissioner with much wider powers.
- The Director General for Prevention of Bribery & Corruption (DG) assists the Commission in the discharge of the functions assigned to the Commission.
- All investigations commence only on the direction of the Commission.
- The DG and other officers appointed to assist the Commission carry out the directives of the Commission relating to investigations.
- All indictments and charge sheets are filed in courts of law on behalf of the CIABOC by the Commission and not by the Attorney General. The DG signs the indictments on the directive of the Commission. This is the only instance where an authority other than the Attorney General signs indictments.
- The ‘Secrecy Clause’ under section 17 of the Commission Act No 19 of 1994: Under the provisions of this section it is a punishable offence for every member of the Commission, the DG and every officer or servant appointed to assist the Commission, to divulge any information whilst exercising and discharging the powers and functions under the Act except for the purpose of giving effect to the provisions of the Act.
- The introduction of the offence of CORRUPTION by Section 70 of the Bribery Act, which is the basis of this article.
The Director General is the administrative and financial head of the Commission and also the Chief Accounting Officer akin to a Secretary to a Ministry.
Historical Background to introduce the offence of corruption to the statute.
Under the Bribery Act, prior to the 1994 amendment, bribery detections were possible only during a transaction for a gratification or by an unjust enrichment case under section 23A. Investigations were also possible subsequent to a transaction. But prosecution in such instances was possible only if there was sufficient evidence to prove such a transaction. It was quite apparent that where the transaction could not be proved there was no possibility of apprehending the wrong-doers. Most often, where grand corruption is concerned, it is next to impossible to apprehend the wrongdoers as the giver and receiver are both satisfied parties unlike in petty corruption. (Petty corruption – where the bribe has not much monetary value; grand corruption-where the gratification is of a high monetary value).
It is to overcome this setback that section 70 of the Bribery Act for the offence of corruption was introduced by Act No 20 of 1994, where the proof of a transaction of a gratification was not necessary.
Section 70 of the Bribery Act revolutionised the anti-bribery laws in Sri Lanka.
The offence of CORRUPTION like other offences under the Bribery Act, is applicable to ‘public servant’ as set out in Part VII, the chapter on interpretation.
The definition of public servant under the Bribery Act is quite wide and is reproduced for easy reference. It is more than a definition – it is an inclusive clause:
Public Servant includes
- Minister of the Cabinet of Ministers,
- Minister appointed under Article 45 of the Constitution
- Speaker
- Deputy Speaker
- Deputy Chairman of the Committees
- Deputy Minister
- Governor of a Province
- Minister of the Board of Ministers of a Province
- Member of Parliament
- every officer, servant or employee of the State
- Any Chairman, director, Governor, member, officer or employee whether in receipt of a remuneration or not, of a Provincial Council, local authority or of a scheduled institution, or of a company incorporated under the Companies Act in which over fifty per centum of the shares are held by the Government
- Member of a Provincial Public Service,
- Every juror, every licensed surveyor and every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court or any other competent public authority.
The above is an inclusive clause and as such certain institutions which are not scheduled under the Bribery Act nor scheduled under the provisions of particular statutes may by interpretation be brought under the Bribery Act, under the clause every officer, servant or employee of the State.
‘Scheduled Institution” is interpreted in Part VII of the Bribery Act. That is, any such board, institution, corporation or other body set out in the Schedule to the Bribery Act. Additionally, any such board, institution, or other body which is deemed to be a scheduled institution under the provisions of any enactment.
Section 70 of the Bribery Act (Bribery Amendment At No 20 of 1994), which deals with the Offence of Corruption, says:
“Any public servant who, with intent, to cause wrongful or unlawful loss to the Government, or to confer a wrongful or unlawful benefit, favour or advantage on himself or any person, or with knowledge, that any wrongful or unlawful loss will be caused to any person or to the Government, or that any wrongful or unlawful benefit, favour or advantage will be conferred on any person”.
(a) does, or forbears to do, any act, which he is empowered to do by virtue of his office as a public servant;
(b) induces any other public servant to perform, or refrain from performing, any act, which such other public servant is empowered to do by virtue of his office as a public servant;
(c) uses any information coming to his knowledge by virtue of his office as a public servant;
(d) participates in the making of any decision by virtue of his office as a public servant;
(e) induces any other person, by the use, whether directly or indirectly, of his office as such public servant to perform, or refrain from performing, any act,
shall be guilty of the offence of corruption and shall upon summary trial and conviction by a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding one hundred thousand rupees or to both such imprisonment and fine.”
The offence of corruption is not an indictable offence. The offenders have to be charged in the Magistrate’s court. On being convicted for the offence of corruption the offender would be liable to imprisonment for a term not exceeding 10 years or to a fine not exceeding one hundred thousand rupees or to both such fine and imprisonment. A penalty is not imposed on the offender as in the case of offences of bribery.
The Act has to be amended to make corruption an indictable offence and also the sentence should be enhanced and section 26 of the Bribery Act should be extended to be made applicable to the offence of corruption which is to levy a penalty in addition to the fine.
In discussing the applicability of the offence of corruption, it is a moot point whether the Cabinet of Ministers would come under this Law. Would a wrongful or unlawful decision taken by the Cabinet of Ministers, that has the ingredients for an offence of corruption become legal on the basis of a cabinet decision?
The following flow-chart makes the above definition of corruption easier to comprehend.
Flow chart – For the offence of Corruption
Public Servant with intent or knowledge indulges in any one of the 5 following situations would be liable to be charged in the magistrate’s Court for the offence of corruption.
Conclusion
All public servants as defined in the Bribery Act should be well versed with the provisions of section 70 of the bribery Act. The provisions are of importance to complainants whether anonymous or not, as to what a corruption offence is.
Corruption is not a new offence. This offence has been in the statute for 22 years.
It is quite clear on the definition and flow-chart on the offence of corruption, the misconception that the introduction of this offence to the statute hinders official work in Public Service cannot be accepted. In fact this section ensures that official work in public service is implemented without fear or favour.
The problem lies in delays in investigations, especially investigations involving serious financial matters. Such delays should be minimised and there should expeditious disposal of cases in courts of law.