Defeating the dragon; Weapons for fighting corruption

A Young Analyst Owl (YAO) seeks the counsel of the Wise Old Owl (WOO) and states “In the world of jungle business, there were four recent cases of corruption led injustice. In one case, the most deserving tender, (based on price, quality, service and fit to specifications) was overlooked and the third placed competitive offer was awarded the tender at a much higher price.
The overlooked firm was advised to seek legal remedies in the halls of justice. Instead, they chose the option of a close network connection that took them before the king of the jungle, with an opportunity to present their woe.

The king having carefully reviewed the presentation told the businessmen to lay by any ideas of pursing a process towards rectification. In another case, the official agent for the supplies was overlooked and the order was placed at a significantly enhanced price through another source.

The official agent then met the king of the jungle and was promised redress when the next consignment was ordered. The aggrieved agent was requested to send in the more competitive offer for the next consignment direct to the king. Lo and behold, despite this competitive offer, the next order was also placed with the previous supplier at the enhanced price. In another case, before the supply specifications were cleared the prospective bidders were informally asked to present separate bids to the Head of function, stating the ex-gratia payment guaranteed as ‘santhosam’ for certifying suitability of the supply specifications. Thereafter only could the formal bid be made by the specification approved bidders. In the fourth case of a major infrastructure project, some bidders were disadvantaged by a change in specifications to suit favoured bidders, who also appeared to have more detailed information than in the public domain, made available at pre bid meetings and in tender documents”.

“What can business do within bent rules of Jungle Governance?” asks YAO. WOO promptly replies “Ask business to review and follow the guidelines in ‘The Book of Mark’, titled ‘Defeating the Dragon; Weapons for Fighting Corruption’, which concludes thus; “The dragon of corruption may breathe fire, but it is by no means invincible. Dragon-fighters already have a range of reliable weapons with which they can successfully attack that dragon from all sides.”

A White Paper authored by Justice Mark Fernando for the USAID ARD Anti Corruption programme clarifies the rights and duties and the way forward for business to operate, meeting commitments to stakeholders and good governance principles. These include;

1. Corruption extends beyond bribery and nepotism to include extravagance, waste, neglect malpractice, dishonesty, abuse, misuse and unreasonable exercise of power. It also covers everything done, or left undone, which results in People being denied or impaired.

2. Freedom from corruption extends to a right and a duty to expose corruption, right to information to detect and expose corruption and a right not to disclose sources of information about corruption.

3. The Sovereignty of the People and ‘Public Trust’ doctrine ensures People have an entrenched Constitutional right to freedom from corruption

4. Rights also emanate from the Constitutional provision that “All persons are equal before the law and are entitled to the equal protection of the law”.

5. A quote that ‘information is the staple food of thought’’; thus freedom of thought and right to information extends to strengthen anti corruption action.

6. There is a fundamental duty (in addition to a right) cast upon People to expose corruption and towards this to obtain necessary information.

7. No person (including the private sector) shall on the grounds of race, religion, language, caste or sex, be subject to any disability or restriction with regard to access public places and public services

8. The Constitution provides judicial remedies for corrupt acts and omissions The Executive, Legislature and Judiciary owe a fiduciary duty to every citizen, who is entitled to judicial remedies without a failure for want of locus standi.

9. The anti corruption led legal remedies may also be sought based on the doctrine of unjust enrichment and the duty to mitigate

10. Affected persons are entitled to specific performance.

Justice Weeramantry in the foreword to the above publication states that public should be sensitized to their duties and powers and average citizens enabled through class action or other procedures to fight corruption.

All good men and women of business, firstly enjoy seeing ‘Dragon Hunters’ the cartoon series created by Arthur Qwak and produced by the French company Futurikon, next don the suit of armour, arm yourselves with the range of reliable weapons recommended and join hands with civil soiety in a joint attack on the Corruption Dragon. Your fear to enter a fair fight in open court of People and Judicairy is why the Dragon is today invincible.