By R.M.B Senanayake –
There is much talk about the alleged corruption of the previous regime. But what is corruption? There is the UN Convention on Corruption. I think it requires Member States to declare certain financial malpractices as crimes. They include the obstruction of justice ( there are many such allegations against the previous regime) concealment, conversion or transfer of resources allocated already, embezzlement, trading in influence ( a la Wele Suda statement) illicit enrichment, concealment of illegal assets, misuse of public money or property other than as authorized by law. If these are enacted as crimes in law then private citizens should also be allowed to file action against officials accused of corruption in Audit reports, reports of COPE COPA etc. But the law must first prohibit all public officials subject to the present Bribery Law, from the abuse of power, misuse of government resources or their conversion for uses not authorized already,
What are the crimes relating to corruption in our law? Bribery was an offence punishable under the Penal Code as far back as 1883. It was during the British rule that bribery was introduced as a criminal offence into the Statute Book. In 1954 the Bribery Act was enacted to contain bribery in the Public Service. In 1958 the Bribery Commissioner’s Department was established by the Act No.40, under the Ministry of Justice. In1994 the Act no.19 created the Commission to Investigate Allegations of Bribery or Corruption. Ministers are brought in under the law.
Corruption has been defined under Section 70 of the Bribery Act. Accordingly, a 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 or any person, does any act in contravention of this provision commits the offence of corruption.” All these relate to the solicitation and acceptance of bribes. But modern day corruption indulged in by Ministers is not straight forward bribes which can be proved easily.
The allegations of corruption on the part of the previous President and his Ministers arise from giving contracts to their favorites without calling for tenders, accepting unsolicited offers and awarding contracts at exorbitant or excessive prices padding their commissions into such offers. Are they covered by our Bribery and Corruption Law? I don’t think so for the Financial Regulations that require competitive tenders and selection of the best tender apply only to the public officers who alone are subject to the observance of the Financial Regulations. The contracts are not signed by the Ministers. Nor are their orders minuted in the files. HOW THEN CAN BE HELD RESPONSIBLE?
The responsibility for financial management is vested not with the Ministers or the President as the Minister of Finance but only with the Secretaries and Heads of Departments as the Chief Accounting Officer and Accounting Officer. But in practice the Minister intervenes and decides to do away with tenders, accept unsolicited offers and award tenders to their favorites at excessive prices padded by their own commissions. So who should be held responsible for any irregularity with regard to them? Other countries have enacted laws such as the Canadian Financial Administration Act where in the responsibility for financial management is vested with the Ministers. The World Bank prepared a draft law- the Public Finance Act of 2002 which provided for the same. But it was not passed. Will the new Government pass such an ACT which holds them responsible?