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It is only in singularly paradoxical Sri Lanka that Parliament can proudly announce its ‘unanimous’ passing of the country’s newest anti-corruption law while blithely counting in its ranks, a gold-smuggling parliamentarian and others on both sides of the political divide in regard to whom multiple allegations of gross corruption have vanished miraculously into thin air.

Leaving the Bill to the tender mercies of the House

Citizens cannot be blamed for looking a tad askance at this ‘IMF driven anti-corruption effort’ as the media bluntly puts it. The exact amendments to the Bill have been left to the tender mercies of a House at which the people look with more than the usual degree of scepticism, remain to be disclosed. But at the minimum at least, President Ranil Wickremesinghe’s boast that the country will soon have the best anti-corruption law in Asia must be corrected.

We have said this several times and say this again with force. It is not the law that is to blame when a nation continues for decades to be endemically corrupt as Sri Lanka is. The focus should be the collapse of the detection, investigation and prosecutorial process, no more and no less. Can it be claimed, with the passage of this Bill, that these highly subverted systems, struggling helplessly with ‘political capture’ by Governments of all shades and colours, will right themselves, with a magical flourish as it were?

Certainly not. President Wickremesinghe may look at perhaps the best example in Asia, to understand just how absurd these claims of a ‘best law’ are. His visit to Singapore a few months ago may have better included some tips on how that country tackled its corruption problem, the success of which had more to do with political will and good investigation rather than with law. Singapore still has a 1960’s law (Prevention of Corruption Act) which has served that nation well.

Presidential claims of a ‘best law’ defied by reality

Besides this, there are a plethora of separate statutory penalties for bribery and corruption. Those together with the Confiscation of Benefits Act (1999) and the Political Donations Act (2000) which regulates donations to political parties, associations, candidates and elections agents to a particular amount and declares which are ‘impermissible donations,’ form important core points of Singapore’s anti-corruption framework.

Interestingly, parliamentary privilege in that country does not cover only the Erskinian definition of the ‘sum of the peculiar rights of the House enjoyed collectively.’ This is the concept that we are more (negatively) familiar with here. Rather, that ‘privilege’ has been stretched to ensure that Singaporean MPs will not benefit from a debate on the floor if he or she has a pecuniary interest (past or present) thereto.

This is all, of course, a far cry from the practice in Sri Lanka where, among other scandalous examples, we once had a Law and Order Minister and a senior lawyer himself no less, defending (what was later disclosed as) his onetime client embroiled in a messy maritime weapons smuggling exercise, more popularly known as the Avant Garde controversy. The current Minister of Justice, the presenter of the instant Bill, was caught up in the controversy in no small measure.

Independent investigative Bureau as important as the laws itself

Add to that mix, a political heavyweight of the United National Party was also implicated in that scandal at the time and who, more to the point, still continues to attract media interest in regard to corrupt practices, as easily as a bee is drawn to honey. All in all, perhaps one can see why Sri Lankans are reluctant to believe in ‘good’ anti-corruption laws with all the best intentions in the world.

For what Singapore teaches us is not solely about the law but its doughty and determined Corrupt Practices Investigation Bureau (CPIB) which, most recently, has moved against the country’s Transport and Trade Relations Minister, a senior party member. Upon announcement of the CPIB investigations, the Minister has been immediately directed to take a leave of absence until investigations are concluded.

While Singapore’s classic authoritarian practices in regard to protecting and preserving human rights and fundamental freedoms of its citizens may be deplorable, there is little doubt that its corruption fighting policies are admirable. That, together with a rigorous Court which has handed down several hundred decisions without political fear or favour in regard to both private and public sector corruption has been the twin deterrent arms of the state.

A bad history of fighting political corruption

Our expectations in Sri Lanka are vastly more minimalistic. The existing law was, by itself, quite sufficient for its purpose. In particular, an amendment in 1994 encompassed the concept of ‘conferring a wrongful or unlawful benefit and favour or advantage to persons contrary to law’ into the reach of the definition of ‘corruption.’ This was a novel provision. But the provision was never used effectively.

Or when in fact, it was used by the Commission to Investigate Bribery and Corruption against gross corruptors, prosecutions were withdrawn due to political pressure. In 2015, when a new Government headed by a doomed ‘yahapalanaya’ (good governance) coalition promised a different future to fighting corruption, what took place was a politicised exercise soon to be discredited and discarded.

That bad history sets a long shadow over current anti-corruption  exercises. At this point, the Government has announced that the massive number of revisions to the Bill includes amendments in consequence of the Supreme Court ruling as well as ‘some amendments’ from the Opposition. It remains to be seen if these amendments, introduced at committee stage, would have the effect of twisting the nature of the contents thereto as has been the unpleasant experience in the past.

Investigation and institutional failures

Regardless, there is a persuasive, nay even an imperative argument for an independent investigation bureau of elite anti- corruption officers, as is the case in Hong Kong and Singapore, rather than relying on police officers assigned from the regular police forces. Historically, Sri Lanka’s corruption-fighting Commission which has abject failures of corruption cases to its demerit, has not been able to govern its own investigations.

That investigation failure goes to the root of institutional failure. The nexus between organised corruption, political corruption and members of the police force is of record, its seeping into the investigative arms of the Commission is unsurprising. That same argument goes for creating a skilled unit of highly competent legal officers, as differentiated from retention/secondment of legal personnel from the Attorney General’s Department.

The Commission’s lack of financial independence has been enhanced by the Commission being dependent upon the Treasury for its resources, resulting in the indirect control of the Commission by the executive. This is the case in regard to many so-called ‘independent’ oversight bodies whether set up under the Constitution or otherwise.

Integrity and courage needed for the law to work

Most importantly, the body that comes into being under this new law must be transparent and accountable in terms of its own decision-making including giving reasons for decisions if complainants so request. It must claim for itself, a proactive role in the investigation of corruption and bribery, particularly in respect of elections related corruption, matters arising out of audits, cabinet decisions and public appointments and corruption in judicial administration.

Even with enhanced powers as provided for in the new law and with stronger safeguards for the appointment of diverse members, (without the emphasis being necessarily on retired judges) to this body and key staff, tackling bribery and corruption in Sri Lanka goes beyond the letter of the law as it were. Men and women of integrity and courage need to serve on the Commission for the law to work.

In the alternative, it would be better if Sri Lanka has no anti-corruption law at all. That would be better than this continuing farce that we are forced to reluctantly witness, IMF or not.