The newly formed Association of Chiefs of Police Sri Lanka (ACP) calls for the early implementation of a UNDP anti-corruption action. Former IGP Frank de Silva said that the recommendations should be adopted in full as it would help the battle against waste, corruption and irregularities.
We, The Association of Chiefs of Police - Sri Lanka – (ACP) are moved by the UNDP Report on Corruption, serialized in The Island newspaper from 4th January 2007, to offer our comments. The ACP was formed later and thus had not the opportunity to make comments direct to the UNDP Project Officer. The general comments of the ACP are, briefly as follows:
The Report is commendable for its comprehensiveness and its form as a Master Plan for National Action. The ACP congratulates the Consultant and the UNDP for its initiative.
The Report offers a welcome change in seeing through the crust of ‘establishmentarianism’ that has featured much of the Commissions of Inquiry in this country since Independence. The Report has the merit of an overview removed from particular considerations and in cutting through the encrustation of the problem from disparate perspectives.
The ACP notes the criticism generated with the release of the Report and observes that there is yet much partisan view that still seeks to prevail.
Comments on the particular aspects in the Report are necessarily, initially, to set out the background, below, following the same annotation.
4 And 19 (4). Punitive Action.
i. The identified need for effective link of Investigation, Prosecution and Adjudication for punitive action is the very seat of the problem in dealing with corruption, within the present order of the instituted governmental machinery. Corruption has to be dealt with by the criminal justice, system, the only apparatus established for this purpose. The need is then the effectiveness of this instituted process to deal with corruption. Of the cases taken to courts only 25% result in a conviction of the accused. 75% of the cases end with no satisfactory result. That is one measure of the problem. This low percentage of convictions is the rate for other general crimes as well. There too the link in the enforcement chain is weak. There are many reasons for this. A review of a few cases may have revealed the weak points in the chain. The Report does not indicate that such exercise was undertaken, or that there was any evidence to urge this. That is however a larger problem which has to be addressed separately, though it has much relevance to this problem of effective action against corruption. It is plain that instituted action is ineffective and the result barely punitive.
ii. Effective punitive action is not something unknown. That has been continuously voiced. But their statement, oft repeated, sounds trite as it is expressed. "Fear to commit crime is accomplished primarily through effective investigation and prosecution", says Transparency International (TI), and are the means to constitute deterrent punitive action. It is a matter of note that ‘effective adjudication is avoided, perhaps judiciously, in the statement of TI. That has relevance to consideration of the required effective linkage recognized in the Report, even symptomatic of the problem of the lack of the identified linkage, as that expression might imply. For deterrence then, action by the criminal justice system to deal with corruption is, in quantitative terms, nearly negligible. In qualitative terms, the action of the instituted system is even less effective. In question therefore is not only the link in the chain but the integrity of the system itself, the link just incidental. The criminal justice system and the criminal law, as applied, is nevertheless the main plank of anti-corruption strategy. If this system is thus afflicted in its effectiveness, then the main thrust of anti-corruption action is blunted. State action against corruption is then anything but punitive.
iii. The suggestion in the Report to consider other administrative action as supplementary to judicial adjudication is a welcome proposal. Partially, though. Supplementary should not be confused with other sanctions, in the alternative or in parallel. If the punitive thrust from judicial adjudication is vitiated, supplementary administrative action flowing from adjudication will not yield much better. The recommendation for administrative sanctions by themselves has the merit of providing other planks for action and at the same time reduce the monopoly of judicial action in dealing with corruption. Multi- pronged punitive action, thus projected, would then secure for the National effort a broader thrust of strategy.
10 (d) Independence within rules of Accountability.
It is nearly the whole truth that independent organizations in this country have not discharged their obligations and responsibilities commensurate with the independence vested in them for that purpose. Oversight and accountability over these independent bodies is, given at present, the inevitable consideration.
11 (d). Experience and Training.
i. Experience and training are loudly touted in explanation of the problem; in most problems subject to national inquiry there is the stress on training. Training is not to be discounted out of hand. It must not however shift the focus from the very seat of the problem. Thus the police officers who bring in the detections are said to be in need of the identified training and need of experience. As it is, the position appears that the Bribery Commission depends heavily on the detections of the police officers in the Bribery Commission to project an image of effective action, with little reservations in respect of their training and experiential skills. At the base therefore, it is the detecting police officer corps, which gives some foundation for the action of the Commission.
ii. Experience and training are always and continually desirable. Any insufficiency in this respect may have some relevance to the need for punitive action. But the problem cannot be centered on training and experience in the abstract. Training has to be for the job, the action and the process in the job, all being duly instituted. Where the action and the procedure for effective strategy against corruption are wanting, and even the definition of corruption is said to be inadequate, the job itself and the action is in need of effective specification. Specification must precede and inform the training. "Corruption is multi-dimensional and the mandate of the Bribery Commission must necessarily be widened beyond it present boundaries: both as to definition and procedure, they are pathetic" observes Gamini Seneviratne -The Island, 4th Jan. 2007, p 5 col. 5. The ACP follows this observation, to suggest that the question of definition and procedure to deal with this problem be dealt with initially. Training and experience must be set firmly once the function in the job, the definition of the offence and the procedure to be adopted, are made clear.
iii. Thus, for example, if the work of the Bribery Commission is to commence action against corruption only once a formal complaint is received the job specifications, the required training for investigation would be of a limited nature. If on the other hand intelligence before investigation into the formal complaint is a considerable component of the job,, then training and experience will have to meet with those requirements. The present Commissioners appear to think that their function is to institute a formal investigation upon complaint., On the other hand there is much representation urging a more proactive function to deal with corruption as the other view. Clearly the Commission’s stand and the public view are at odds. The Report includes a heavy component of intelligence work under Chapter IV dealing with capacity building for investigative ability, making it clear that the function of the Commission needs to be broader than it perceives for itself. The problem with a preponderance of retired judges in the Bribery Commission would be seen then in their stance adopted, according to the law as they state, which has the result of converting the Commission into another court which acts only once formally moved. Presumably this body was termed a Commission in the law because it was expected to act as not just another court. Discussion of training and experience in this mix of conception will not serve the objective.
12 Adjudication and Special Courts.
i. Definition and procedure to deal, with corruption needs to be reinstituted for effective punitive action against corruption. The Report identifies some of the problems that enervate effective action. At Chapter 11, 2 (c), the Report calls for a coherent system of case management, reducing the Judiciary’s vulnerability to management of cases, and much else of a similar nature. Adjudication is the simple issue. Management of cases in adjudication would be but an euphemism, if it does not include manipulation or misfeasance in the process that takes it toll on effective punitive action. They are best not left unsaid; they are a problem for all crime, including bribery. It is not clear how that aspect can be dealt with; judicial reforms need to be equal to this challenge. The discomforting fact is that mismanagement, manipulation and malfeasance feature much in the adjudicative process. Regrettably it needs to be recognized that this is but an abuse of process, of power and so of a corruptive nature, unabashed.
ii. Against such background establishing special courts, as accepted in principle, is fraught with the prospect of the continuing problem. There was an earlier institution of Special Bribery Courts and that experience may be consulted.
13. Pre-empting corruption.
The proposal to set up a Special Department may involve much expenditure. The results may not be commensurate. The scope of the envisaged pre-emptive action may be unwieldy. From practical experience it can be asserted that effective action has the effect of preempting corruption; that alone. There is however a greater truth in the negative of this, that ineffective action cannot pre-empt corruption, but serves instead as an incentive to corruption.
15. Good Governance
The need is to institute a system where the public can expect a certain level of service and need not pay bribes to receive those services. The Report can hardly have said that the climate in this respect is precisely to the contrary. There is hardly an organization that meets these standards of conduct. A few examples are of unauthorized constructions and flouting of municipal regulations, forcible seizure of land with the help of police security officers, threats of reprisals if complaints are made to the Bribery Commission. A bare inquiry on the physical and standing facts, the evidence of which stares in the face all the time, can reveal the corruption that permitted them. Those matters are said to be the field of some other process, dilatory and desultory; not matters for the Bribery Commission which will await a formal complaint before it goes into action. The result is simply this, that absence of corruption and good governance are rhetorical concessions. The incentive to corruption is strong. It is a pathetic concession that in this morass, the known reaction is to look for whistle blowers. That is the indictment on the system.
16. Regulatory and Enforcement Environment
i. Good governance involves the whole system of public service. Vicarious responsibility of superior officers for deviations by their men does not exist. There is no idea of good governance here. There is no action to enforce responsibility. On the contrary, upon a detection of bribery, that whole organization, superiors and all, are engaged in a conspiracy to defeat the detection. Investigators know this for a plain fact. It is not known whether the evidence before the Consultant was to this effect. The Report says that superior officers should know this. They know it, but they can blatantly avoid any action, regulatory or enforcement. That reduces ‘good governance’ to a platitude.
ii. This is because there is no enforcement responsibility for this on the part of superior officers. There is no machinery for this. There is no law for this. This aspect merits further examination. Bribery and corruption are sanctioned as criminal offences. Thus superiors and others are responsible only if they were engaged in a conspiracy with the perpetrator of the offence, if they had aided and abetted him, to meet the criminal definitions. Superiors and others, in a criminal law sense, are far removed from the offender to have any prospect of bringing them within the pale of the law.
iii. Taking this aspect out of the sphere of the law, is perhaps that envisaged under punitive action Chapter 112 (c) which suggests administrative sanctions as supplementary to effective adjudication – when the case does not meet the rigours of criminal adjudication. The precise manner in which this may be applied requires close examination. In practical terms however, court adjudication subsumes all, meaning that upon acquittal that is the end of the matter. The offender resumes with a cleaned sheet. If the point of punitive action is then so diffused and thus of little practical impact, a regulatory and enforcement environment cannot be sustained.
Problem in perspective
In summary therefore, the problems for an effective anti-corruption strategy may be reiterated, in brief, as follows:
i. The need for a national strategy and action to deal with bribery and corruption, the clear requirement, is made explicit in the UNDP Report. The Bribery Commission has not been able to project itself as the National Front for this action. Instead, the Commission as it has for long functioned, has done so as yet another government department, though vested somewhat differently.
ii. The Commission has not made a dent on the problem of bribery and corruption as a Commission, any more than as a court of law – the Commission alone is not to blame. The lack of effective action remains then a matter of public concern with little expectation of any progress. Public apathy recoils on the Commission. The UNDP has stepped into this void of inaction to publish its Report.
iii. Punitive action, critical to control bribery and corruption, not operating as deterrent is then the burning issue, the lack of effective action. Effective punitive action has however to be taken through the existing machinery, the existing order.
iv. The criminal justice system and its settled institution are inadequate though it remains the main plank of action to dispense effective punitive action.
v. Other strategies for punitive deterrence, alongside the criminal justice system, need therefore to be devised to function as other planks for deterrent action.
vi. The law itself, relating to bribery and corruption and the criminal procedure, may be insufficient to ideal effectively with the problem. On the other hand the law may be sufficient, as the Report makes out. Some comment is appropriate in this context. Crime involves the liability and responsibility of the individual, offender. The mens rea and the actus reus of the individual offender are that in issue in normal crime. The crime of bribery, unlike normal crime, has an extended profile, of the actus reus if not of the mens rea. His crime is not merely that of the individual alone but that of his person qua public servant. Acting thus, the public service is at once the perpetrator and the victim of the crime of bribery. As perpetrator the offending public servant commits the crime of bribery in association with others in the public service. Such association is not the traditional criminal association of accomplice or abettor or conspirator, known to criminal law. The association in the crime of bribery is then more insidious and invidious than can be captured within the principles of criminal law liability. The legal nexus of association in normal crime is immediate and precise while the complicity in crimes of bribery is illdefined but is certain and sure.
vii. Criminal law can scarcely contend with the incidence of that loose nexus of complicity and liability. The Report spoke of a definition of the offence and noted that listing out instances of corruption in the definition is fraught with difficulties for interpretation. The report does not discuss the definition of the offence in practical terms, distinct from the criminal law perspective. In practical terms, in the offence of bribery the mens rea is clear. The actus reus however is much diffused as it involves an informal association with others in the public service to commit the crime of bribery. In other words the offender in bribery cases cannot commit the offence except in loose complicity and association with others. The repetition of this is inevitable, it may be pardoned. That extends the profile of the crime of bribery beyond the closely defined confines of normal crime. Documents, ledgers and files maintained by others will provide the evidence of that loose complicity. The perceived inadequacy of the criminal law is in this respect, of the admissibility and relevance of such within the law of evidence. There is no allusion to such viewpoint in the Report, perhaps in the absence of evidence to this effect.
viii Definition of the offence, as much as the problem, would thus need some review. As a background comment therefore, the need to seek punitive action under a more comprehensive definition of the law, even outside the pale of the conventional criminal law, is equally pertinent. Stated in different terms, the offence has at once, a legal aspect, an administrative aspect and a political aspect to its commission. From the legal perspective the law is framed and defined in conventional legal terminology. This serves the criminal law purpose of the definition. It must be noted however that this competent definition of the criminal offence is subject to many vagaries in the adjudication. That applies to conventional crime and affects the adjudication in bribery cases to, in like manner and in like measure. The low rates of conviction in both categories are a testimony to this unpredictability of decision and of punitive action. There is not much that can be done in this respect, it must be conceded. The state must then look outwards, in an administrative perspective, to supplement criminal action with alternate means, through administrative sanctions, as the extended idea of corruption suggests.
ix. The problem is equally with the personnel, who are judiciary oriented, apart from the law, to deal with the problem. The problem of bribery requires not simply a reactive stance to a formal complaint that might be made, in the attitude of a case coming before a judge. For conventional crime too that stand is unproductive. Proactive pre-emption [3 (b)] is of little meaning if there is no proactive punitive action, through such stance. In the general criminal law, the police are empowered and are required to act on intelligence and information of crime, initially as appropriate, and to proceed thereafter on a formal complaint. Police officers in the Bribery Commission do not act in terms of their police statutory authority when dealing with the crime of bribery, although the same police officers dealing with general crime would do so and have a duty and obligation to so exercise their duty. The resulting position is then the interposition of the retired judges in the Bribery Commission have made the difference and even denied to the police officers the exercise of their statutory duties and responsibilities.
x. 10 (a ) of the Report refers to the incidence of retired judges in the Commission, as ‘disproportionate’ in numbers. The problem is not quantitative. But it is that that their expertise, their training, their capacities and for these reasons their stance and approach, are inappropriate to deal with the problem. The perceived inappositeness of retired judges for this purpose is then of a qualitative nature. Presumably evidence to this effect may not have been forthcoming to the Consultant.
xi. Administrative sanctions discussed under punitive action at 2 (c) of the Report, requires further consideration. Administrative sanction seen as supplementary to judicial sanctions would be of little use if the base position is that criminal sanctions are themselves ineffective. Administrative sanctions need to be imposed parallel to judicial sanctions, imposed usually after the court case. The Establishment Code provides for this.
1. The UNDP Report should be adopted in as full a measure as is feasible. The proposals reading as a raft of recommendations has the dispersing effect on the implementing authorities. There is considerable experience of this. The ACP recommends that one or two critical steps be taken initially. Their effectiveness will help to mobilize the many other aspects of the Master Plan, infusing a dynamism and momentum to the total effort.
2. Recourse may also be had to the United Nations Convention against Corruption and the principles enshrined therein, at Chapter 11 Article 5. at 2 and 3 specifically for an adequate formulation of the national strategy to control bribery and corruption.
3. The relevant legal instruments need to be evaluated as to their contribution and their adequacy to prevent and fight corruption. Prospective judicial reforms currently proceeding may be directed towards serving this perceived purpose.
4. That the administrative measures the UN envisages for the control of bribery and corruption be considered in that light and formulated in specific terms to cover the public service. The Bribery Commission in association with the Public Service Commission should engage in this endeavour.
5. The Association of the ACP will extend assistance.