By Harsha Gunasena –

Harsha Gunasena

The International Monetary Fund (IMF), in its press release on September 1st 2022, has identified seven key elements of the programme under the staff level agreement reached with the Sri Lankan Government. Out of these seven key elements five were restructuring related to macroeconomics. Other two elements were a deviation from the traditional IMF approach and those dealt with social safety net and corruption.

The IMF, I think, were able to negate the undue criticisms leveled against its programmes that they were neo-liberal, a term which was used with negative connotations without really understanding the meaning of it.

Following are the two elements referred.

1. Mitigating the impact of the current crisis on the poor and vulnerable by raising social spending and improving the coverage and targeting of social safety net programs.

2. Reducing corruption vulnerabilities through improving fiscal transparency and public financial management, introducing a stronger anti-corruption legal framework, and conducting an in-depth governance diagnostic, supported by IMF technical assistance.

The focus of this article is to explore the opportunities to introduce a stronger anti-corruption legal framework which would be supported by international bodies either by IMF or by United Nations (UN).

Corruption, as every citizen knows, contributed immensely to the economic downturn of the country. At the same time, we all experienced the malfunction of the institutions which are responsible for curbing corruption. 

The reason why IMF has included curbing corruption in its essentially economic recommendations was that the IMF understood the immense impact to the economy by a less corrupted society with strong anti-corruption legal framework. 

Sri Lanka is in the 102 place out of 180 countries in corruption perception index in 2021 published by Transparency International. The score of Sri Lanka was 37 where 100 was very clean and zero was highly corrupt. Score of Sri Lanka was 40 in 2012 and it was deteriorated to 36 in 2016. Thereafter it was 38 up to 2020.

Sri Lanka is a signatory to the UN Convention against Corruption. Sri Lanka signed and ratified the Convention in 2004.

The Bribery Act was introduced in 1954. The appointment of Bribery Commissioner and a Department was established in 1958. Commission to Investigate Allegations of Bribery or Corruption (CIABOC) was established by Parliamentary Act in 1994 as an independent commission and according to the 19A to the constitution the commissioners were to be appointed by the President with the recommendations of the Constitutional Council.  

There were interferences to the Commission even with these checks and balances. After the removal of 19A the function of the Commission was disgraceful. Therefore, we need to empower the Commission more or have an authority which cannot be influenced by the Sri Lankan authorities or by its collectivist culture to deal with corruption in the country. 

Therefore, it is suggested that to establish an institution with the assistance of an international body. Hence by bringing more checks and balances the independence and the forward drive of the institution can be ensured. Since IMF has dealt with corruption in one hand it could be IMF or since Sri Lanka has signed the UN Convention against Corruption it could be UN.

With this type of suggestion, the main question arises is whether the sovereignty of the country is compromised by taking such a route.

Sovereignty 

The earliest reference to sovereignty in our history was recorded around 223 BC in the form of a preaching of Arhat Mahinda to King Devanampiyatissa when they first met during a hunting session of the King. Arahat Mahinda said “O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it…” This thinking, the land belongs not only to the people but also to all living beings, goes beyond the sustainable development goals of UN.

In our constitution, Article 3 defined that the sovereignty is with the people, and it is inalienable.  Article 4 defined five ways to exercise this sovereignty of the people and in subparagraphs a,b and c it was specifically mentioned that the legislative power ‘of the people’, executive power ‘of the people’ and judicial power ‘of the people’ shall be exercised by the Parliament, by the President and by the Parliament through Courts respectively.

Therefore, sovereignty exercised by the State is a borrowed one from the people and it is based on the principle of public trust. No State can be harmful towards the people of that State in the guise of safeguarding the sovereignty of that very State. In any case by signing the UN charter States  allowed to dilute their sovereignties in order to strengthen the sovereignties of their people. 

This is what Kofi Annan when he was the UN Secretary General had to say about State sovereignty in September 1999. “State sovereignty, in its most basic sense, is being redefined not least by the forces of globalisation and international co-operation. States are now widely understood to be instruments at the service of their peoples, and not vice versa. At the same time individual sovereignty by which I mean the fundamental freedom of each individual, enshrined in the charter of the UN and subsequent international treaties has been enhanced by a renewed and spreading consciousness of individual rights. When we read the charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.”

Therefore, what is suggested is a mechanism which will strengthen the sovereignty of the people and dilute the sovereignty of the State. Since the sovereignty is with the people and it is inalienable, we are in the right direction. 

Iraq experience

Iraq entered into an Extended Fund Facility programme with IMF in July 2016 and Iraq agreed to make amendments to the 2011 law of establishing the Commission of Integrity in order to strengthen its governance, accountability and oversight, and independence, and provide it with powers in line with UN Convention Against Corruption. Later Iraq signed an agreement with United Nations Development Programme  where Iraq got EUR 15 Mn to enhance Iraq’s compliance with the UN convention and to provide staff and legislation support in the investigation of  cases of corruption.

Guatemala Experience

Guatemala had a civil war from 1960 to 1996. It was started as a revolt by the left- wing junior military officers against the authoritarian government. After the peace accord  there were several human right defenders were killed including Roman Catholic Bishop Juan Gerardi Conedera. Civil society leaders started a conversation about the need to establish an international commission with the mandate to identify members of paramilitary groups who were responsible for the killings. By 2002 the idea of a United Nations backed international commission has grown and the Government asked UN to suggest ways to make it a reality. However, this was not materialized.  

In 2005, the government decided to establish a negotiation process aimed at creating the necessary political consensus and legal support for fighting impunity in Guatemala and by 2007, a new legislation for Congress consideration was produced. The initiative was called the International Commission for Fighting Impunity in Guatemala (CICIG-Spanish acronym).

The CICIG’s objective is to support and strengthen the Guatemalan State institutions in charge of the investigation and criminal prosecution of crimes committed by illegal groups that have infiltrated state institutions promoting impunity and undermining the democratic gains made in Guatemala since the end of the internal armed conflict in the 1990s.

According to the agreement which was signed in December 2006, which is considered a treaty between UN and the Government of Guatemala, the Commissioner, who is the head of the institution, shall be appointed by the UN Secretary General and the Secretariat shall be headed by an international official. The expenditure of CICIG shall be met by the voluntary contributions of the international community and the Commission shall act within the law of Guatemala.

Although the main aim of establishing CICIG was to bring the assassins under the law, the Commission has done a remarkable work in combatting corruption. For example, in “La Linea” Case (2015), CICIG together with the Attorney General was able to discover a tax fraud in the customs system and public charges were made against the Vice President and the President which forced them to leave their offices.

The CICIG assisted in filing more than 120 cases in the Guatemalan justice system, implicating more than 1,540 people. Joint investigations by the Guatemalan Attorney General’s Office and the CICIG also resulted in more than 400 convictions. The CICIG did not have prosecutorial powers, nor could it independently carry out raids, arrests, or wire taps. The CICIG has played a fundamental role in promoting important reforms to Guatemala’s justice system.

The story of CICIG is no doubt a successful one. It has delivered what it promised regarding greater enforcement of the law, strengthening of the justice system (particularly public prosecution), and weakening of powerful criminal rings that preyed on state institutions. Above all, it has helped Guatemala in its fighting against corruption and impunity.

Conclusion

Experience of Iraq was an IMF monitored programme whereas the experience of Guatemala was UN assisted programme which was more credible and result oriented. If Sri Lanka solicits the support of UN at this critical juncture in order to save our Democracy, certainly we would get it. Model of Guatemala was effective and sustainable. If this model is established in Sri Lanka its support to the Attorney General’s Department and to CIABOC would be immense.

The values behind the concept of democracy are in line with values of the individualistic societies where rule of law and individual liberty is upheld, and majority opinion is carried out while respecting the opinion of the minority. In our type of collectivist countries rule of law and individual liberty is yet to be established and minority views are crushed by the majority opinion. we have an absurd form of democracy, and we all experience it.

Therefore, we have to act to save our Democracy and thereby the sovereignty of the people even by introducing additional checks and balance coming with the support of UN of which we are a member nation and within the laws of Sri Lanka.