The recently-gazetted Anti-Corruption Bill, while containing a host of positive new features, could undermine its goal of fighting corruption due to major flaws.

The bill has been developed by a committee led by former Director General of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) and President’s Counsel Sarath Jayamanne, appointed by the Ministry of Justice. It aims to address the current economic crisis and allegations of financial crimes by entrusting the CIABOC with additional responsibilities.

Under the proposed bill, the CIABOC will be responsible for monitoring and coordinating the implementation of anti-corruption policies, examining the laws and procedures of public authorities to identify corrupt acts and practices, advising and assisting public bodies to eliminate corruption, and recommending legislative reforms to minimise corruption.

The bill also includes provisions for the declaration of assets and liabilities by public and private sector officials.

Moreover, the Anti-Corruption Bill grants the commission the power to use special investigative techniques, such as authorising individuals to give or receive bribes as demanded, surveillance and observation, undercover operations, video recording, and intercepting communications.

It also provides protection for whistleblowers, including informers and witnesses, and extends this protection to both public officials and private sector employees.

TISL commends positives

Transparency International Sri Lanka (TISL) commended the Government’s effort to introduce a more holistic piece of legislation to tackle corruption.

“We are happy about the bill to the extent that it has added new areas within the anti-corruption legal framework of the country. It has added features that we have advocated for over the years, such as asset declaration, public disclosure, and having all declarations in a digitalised and centralised manner. It has also included private sector corruption, including company to company corruption, and it has also identified sexual gratification as a form of bribery,” TISL Executive Director Nadishani Perera said.

She made note of some of the positive salient features in the new bill: “It enhances the powers of the Bribery and Corruption Commission that is to be formed and gives it more powers than the current commission, such as the ability to carry out surveillance without the need for a prior complaint. The proposed commission can also recruit specialists while its staff will have Police powers. The commission will also be able to collaborate with international agencies in investigations.”

Independence of commission members essential 

Perera added that the independence of the commission members was essential to properly implement the features of the bill.

“What is important is that for all these to work, the commission needs to be independent. The law says that the commissioners are appointed by the Constitutional Council and that is as much independence as can be given within our legal framework. 

“However, one thing we have noted is that while there may be independent commissioners, if they have to work within a negative environment like what we see now, where civic space is being curtailed and an environment of fear is being created with the Anti-Terrorism Bill, you can’t expect people to act independently.” 

Overriding the RTI Act

Moreover, she asserted that the bill overriding the Right to Information (RTI) Act could not be accepted: “One major concern we have with this bill is that it overrides the other existing laws, which includes the Right to Information Act. There is a high level of secrecy that the officers in the commission have to uphold, because when they are part of an investigation, they have to sign oaths of secrecy. 

“However, there are certain things that the people have a right to know. This commission needs to be transparent on certain things. But the way it is drafted now, our right to information will not have any place because the information officer will have to get permission for everything from the commission and the commission will come to know of it. Therefore, we urge the Government to change this provision to ensure that it does not override the Right to Information Act of Sri Lanka.” 

Problematic penalties against complainants 

Pointing out another flaw, Perera said that provisions relating to penalties against false complaints were problematic. 

“The other issue we see is with Section 119, which basically gives the commission the powers to take legal action against complainants who make complaints with malicious intent. A similar provision is there in the current law as well, but it has never been used. 

“If we are to make a progressive law, this is not the kind of provision you should have because it gives the wrong signal as it creates an environment of fear for the complainant. The commission doesn’t need to win a case against a complainant; if the commission files a case against someone, that person will waste time at the courts. That alone is discouraging. The law should encourage and provide protection for whistleblowers.” 

She added that TISL would seek legal intervention to rectify the shortcomings on the bill. “We are communicating our concerns to the ministry and parliamentarians, because there is still time for them to fix this. If they don’t, we will look at taking the matter to the courts, particularly the matter of the Right to Information Act being overruled.”

March 12 Movement Convener Rohana Hettiarachchi too warned of the negative repercussions of heavy penalties against those who made false complaints. “I have doubts on the issue of action being taken against a complainant. I have spoken about this with the Minister as well, but I am yet to receive an answer on this. 

“This will have a negative impact. In Sri Lanka, it is very hard to prove corruption, but that doesn’t mean that politicians are not corrupt. We know that at least 50% of politicians are corrupt as well as a fair percentage of Government officials, but we cannot prove it. If there is a provision in this new bill regarding complaints that ultimately cannot be proven, then there is a risk to the complainant. This will greatly discourage any whistleblowers and others looking to reveal incidents of fraud and corruption.”

Room for improvement 

Meanwhile, former Director General of the Department of Commerce Gomi Senadhira stated that the clauses on asset declaration were a positive step forward, while noting that false complaints should not be strictly penalised.

“The provisions on asset declaration are positive. The fact that the bill proposes that declared assets can be viewed by the public on a website is progress towards transparency. However, the provision on strong penalties against false complaints is quite a concern. This will discourage people from coming forward and complaining. This is my view of the bill from the brief look I had,” he said.

The Centre for Policy Alternatives (CPA) too noted that there was room for improvement. “This is a law that is needed, but there is a lot more that needs to be done in terms of prevention of corruption and effecting punishment. Once it is brought to Parliament, hopefully, we can lobby for parliamentarians to take a more active role in terms of the amendments at the committee stage,” CPA Executive Director Dr. Paikiasothy Saravanamuttu said.

He asserted that stronger measures to prevent corruption were needed: “How does the bill seek to prevent corruption? What are the fines? Yes, there are increased powers with regard to prosecution, but the bill can be a lot stronger.”