Anti-Corruption Bill working draft dissected
- How three Acts will be repealed to make way for a new, empowered anti-corruption commission
BY a Special Correspondent
In response to past and present members of the Government of Sri Lanka as well as the Sri Lankan State being accused, both locally and in the international arena, of perpetrating and committing “economic crimes”, the Ministry of Justice has put forward its working draft of the proposed Anti-Corruption Bill.
This article will set out aspects pertaining to the establishment of the new Commission to Investigate Allegations of Bribery or Corruption (CIABOC), including the appointment of its Director General (DG) and staff, the finances of the commission, and some of its powers and functions excluding investigations, which will be discussed in Part II of this article. The article will also discuss aspects concerning the declaration of assets and liabilities.
The preamble of the working draft’s states that the proposed Anti-Corruption Act – which will have the effect of repealing the Bribery Act, No. 11 of 1954, the CIABOC Act, No. 19 of 1994, and the Declaration of Assets and Liabilities Law, No. 1 of 1975 – seeks to give effect to certain provisions in the United Nations (UN) Convention against Corruption, and other related international norms, standards, and best practices; to establish an independent CIABOC to detect and probe allegations of bribery, corruption, and offences related to the declaration of assets and liabilities, and to direct the institution of the prosecution of the same; and to prevent corrupt practices.
Objectives of the CIABOC
The objectives of this proposed Law are to enhance transparency in governance (systems and processes to ensure accountability, transparency, responsiveness, the rule of law, stability, and the participation of civil society in the administration of the Government); to strengthen integrity of governance and to increase accountability; to strengthen public participation to eradicate corruption; to establish an independent CIABOC to exercise and perform the powers and functions, and carry out the responsibilities imposed under this Act; to mandate the CIABOC to conduct preliminary inquiries and investigations into, and to prosecute, bribery, corruption, and associated offences; to conduct and co-ordinate educational activities on the prevention of bribery and corruption; to introduce an effective system for the declaration of assets and liabilities in order to prevent illicit enrichment by public officials; to promote inter-agency co-operation and international collaboration (including the active participation of civil society, and non-governmental and community-based organisations) in preventing bribery and fighting corruption; to give effect to obligations incurred under the aforementioned UN Convention and related international conventions to which Sri Lanka is a State party; and to recognise international standards and best practices so as to establish a culture of integrity.
Towards this end, the CIABOC shall also be vested with the sua sponte/suo motu/ex mero motu (on its own accord and motion) power. The CIABOC is also to be made answerable to Parliament.
Composition of the CIABOC
Regarding the composition of the CIABOC, which is to be appointed (its chairperson included) by the President upon the recommendation of the Constitutional Council (CC), it shall be made up of three commissioners/members who have expertise, have reached a status of eminence, and have at least 20 years of experience in one or more fields specifically including law, forensic auditing and accounting, engineering, international relations and diplomatic services, the management of public affairs, and public administration.
Furthermore, it is required that every commissioner/member shall be “competent, honest, of high moral integrity, and of good repute”, while persons elected to represent political offices – the latter being undefined in the working draft – are disqualified from being commissioners/members of the CIABOC. They should also declare any conflicts of interest in terms of the matters that come before the CIABOC.
The quorum for deciding on certain matters before the CIABOC is two, while for others, it is the triumvirate. The removal of commissioners/members can only be done by the President upon a Parliamentary resolution on the grounds of “proved misconduct or physical, mental, or other permanent incapacity” that receives the support of the majority of Parliament, including those not present in the House. Their appointments are only for a single term of three years, without the possibility of reappointment.
There is, however, a discrepancy concerning whether their salaries are to be determined by Parliament, and whether these should be commensurate with the salaries of the judges/justices of the Supreme Court. It is hereby recommended that the salaries be on par with those afforded to other such commissions named in the relevant Constitutional Schedule (which include the Election Commission, the Public Service Commission, the National Police Commission, the Audit Service Commission, the Human Rights Commission of Sri Lanka, the Finance Commission, the Delimitation Commission, and the National Procurement Commission).
Additionally, a Director General (DG) is to be appointed to the CIABOC on the CC’s recommendations, whose primary function is to institute criminal proceedings via indictments upon the directives of the CIABOC. In addition to the requirements related to the qualifications applicable to the commissioners/members also applying to the said DG, they should be an attorney with a minimum of 20 years of experience in conducting criminal prosecutions, which would mean that it is an officer of the Attorney General’s Department or the Police who would be considered for the post. The DG is appointed for a single term of five years, sans possibility of reappointment. The DG can be removed by the President within reason if approved by the CC, and upon giving the official an opportunity to present their case.
For the discharge of the CIABOC’s functions, officers and employees of the CIABOC will be appointed by the CIABOC. The CIABOC can also obtain the services of professionals, consultants, experts, and investigators on fixed-term contracts.
Functioning of the CIABOC
The CIABOC is also tasked with: Monitoring and co-ordinating the implementation of effective governmental anti-corruption policies and practices; the examination of laws, practices, and procedures of any public authority to discover acts of corruption, and methods of work or procedures which may be conducive to corruption; advising and assisting any public body on the ways and means to eliminate acts of corruption; and making recommendations on future legislative reforms necessary to minimise corruption, and for the adoption and ratification of international instruments relating to anti-corruption.
Further, with regard to measures that the CIABOC can take to prevent corruption, the CIABOC may: Liaise with any public authority to facilitate the principles of the rule of law, the proper management of public affairs and property, integrity, transparency, and accountability; liaise with the Government to review the relevant institutional, legal, and procedural provisions to implement a coherent and co-ordinated anti-corruption strategy; advise heads of Government departments or public authorities of changes in practices or procedures compatible with the effective discharge of the duties of such departments or authorities, and which are necessary to reduce the likelihood of the occurrence of corrupt practices; monitor the implementation of such anti-corruption measures by public authorities, and require such public authorities to report to the CIABOC on the status of its implementation; provide consultation, guidance, and advice to any institution that is public or private on prevention strategies or measures to eradicate corruption; instruct, advise, and assist any person on the ways in which corruption may be eliminated; introduce codes of conduct that shall be adhered to by private sector entities in order to develop the proper conduct of business for the promotion of good commercial practices; and take measures to prevent corruption in contractual relations between the Government and private sector entities.
In the context of this working draft of the Bill, assets and liabilities are defined as assets, liabilities, income, expenditure, and interests which give rise to, or may give rise to, conflicts of interest, within and outside Sri Lanka.
Declaration of assets and liabilities
Part II of the working draft of the Anti-Corruption Bill deals with the declaration of assets and liabilities, where it seeks to: Compel all public officials to make periodic declarations of their assets and liabilities contained within and outside of Sri Lanka; provide for a centralised electronic system for the submission of such declarations; provide for reference to be made to such declarations by the appropriate authorities; for investigations to be conducted against an applicable person upon the receipt of any information concerning such individual; provide for appropriate measures to be taken in respect of late submissions, non-declaration, and for furnishing false declarations; and to, by way of public scrutiny, prevent illicit enrichment and conflicts of interest arising in the discharge of public functions or official activities.
The ambit of this proposed Law is applicable to the President; the Prime Minister; MPs; Provincial Governors; Provincial Councillors and staff officers of the Provincial public service; Local Government (LG) Authority Councillors (Municipal and Urban Councils) and Members (Pradeshiya Sabhas), and staff officers of such LG bodies; judges and public officers appointed by the President; public officers appointed by the Cabinet; judicial officers and scheduled public officers appointed by the Judicial Service Commission; staff officers in ministries and Government departments; non-MP members of the CC; chairpersons and members of the commissions in the aforementioned Constitutional Schedule; staff officers of the Central Bank; staff officers of commissions; chairpersons, commissioners, members, and staff officers of regulatory and supervisory commissions or bodies; chairpersons, directors, board members, and executive officers of any public corporation established by a Provincial Council; the private staff members of MPs, Provincial Councillors and Councillors, and LG Authority members; officers of the Army and Navy and commissioned officers of the Air Force; office-bearers of recognised political parties for the purposes of the Presidential election, the Parliamentary election, the Provincial Councils election, and the Local Authorities election; executives of trade unions (TUs) registered under the TUs Ordinance; candidates nominated for the abovementioned elections; chairpersons, directors, and staff officers of companies registered under the Companies Act, No. 7 of 2007, in which not less than 25% of the shares are held by the State or by a public corporation; heads of Sri Lankan diplomatic missions; officers appointed by the Cabinet to Sri Lankan diplomatic missions; proprietors, editors, and members of the editorial staff of newspapers per the Newspapers Ordinance, No. 5 of 1839, and media companies licensed under the Telecommunications Act, No. 25 of 1991; and such categories of other officers as may be specified by regulations upon taking into consideration the vulnerability of such officers to bribery or corruption owing to the nature of the work that they perform in their offices.
The declaration of assets and liabilities has to include all such persons’ assets and liabilities, including those of their spouse, each of their dependent children (regardless of age), any other person dependent on them, and any other person who cohabits and shares the common household with them, and has done so for a minimum of six months prior to the date of the declaration, except where such person does not share mutual rights and obligations with the individual in question.
The declarations of assets and liabilities must be made within three months of the date of appointment; annually; within two weeks after the end of the tenure of employment, or the date of retirement or dismissal from office; in two consecutive years immediately succeeding the year of making the declaration; where a significant change in the value of assets and liabilities amounting to Rs. 10 million or more takes place within a month from the date of such occurrence; and when nomination papers are submitted for the abovementioned elections.
When submitting the declarations, both the submission and verification of such will be made through the centralised electronic submission system administered by the CIABOC, known as the Central Authority. Electronic declarations can be submitted in a trilingual (Sinhala, Tamil or English) manner, while manual submission is to be allowed during the transitional period. The Central Authority can also call for additional required information (including records and documents) from the declarant or another person. All electoral candidates should also submit a copy of the form and summary of the declaration to the Election Commissioner at the time of tendering the nomination paper application form.
The Central Authority will verify the declarations to detect any prima facie proof of illicit enrichment, and conflicts of interests, per the procedure prescribed by the CIABOC’s rules; upon the receipt of a complaint from anyone on alleged illicit enrichment or a conflict of interest; or when the Central Authority on its own accord and motion, detects, through public sources or its own probe, prima facie proof of a possible violation. An investigation will follow upon the detection and verification of such illicit enrichment.
The Central Authority has access to records and databases of all other public authorities (as defined under the Right to Information [RTI] Act, No. 12 of 2016) within Sri Lanka for the purpose of the verification of declarations.
A database will be maintained by the Central Authority for the purpose of securing information in the electronic form. Although the centralised electronic system automatically generates a redacted version of every declaration which is to be made accessible to the general public through the official website of the CIABOC, it should be vetted in keeping with both the RTI Act and the Personal Data Protection Act, No. 9 of 2022. The Central Authority will also have an Information Officer and Designated Officer, with the latter also being the head of the Central Authority.
If a relevant individual fails to comply with the requirements pertaining to the declaration including submission by the due date, they will be liable to the following: The Central Authority will issue them warning letters within two weeks from 30 June; a daily administrative fine imposed by the Central Authority, equivalent to one-thirtieth of the last drawn gross monthly salary of the declarant for the period commencing from the due date of the declaration up to 31 July, while an enhanced daily administrative fine equivalent to one-thirtieth of the last drawn gross salary (including on remuneration or retirement benefit) will be imposed (including as surcharge) for late submissions from 1 August to 31 August; if they fail to submit by 1 September, for committing this offence, upon conviction after a summary trial before a magistrate, they will be liable to a fine equivalent to the last drawn gross salaries for 12 months and/or a maximum term of imprisonment of one year; if they fail to submit by 28 days after the due date, a fine of Rs. 100,000 and/or a maximum term of imprisonment of a year; anyone who makes any false statement or willfully omits any asset or liability, is liable to a maximum fine of Rs. 200,000 and/or a maximum term of imprisonment of one year; and anyone who fails without reasonable cause to provide any additional information as required by the CIABOC is liable to a maximum fine of Rs. 100,000 and/or a maximum term of imprisonment of a year.
A convict can, within 14 days upon conviction, appeal against such. Upon conviction for a certain offence, the asset in respect of which the offence was committed will be vested in the State, free of all encumbrances.
To be continued.