Following a lull in the spree of restrictive legislation aimed primarily at weighing the scales in favour of those in power, it appears that a rare piece of legislation that will actually help Sri Lanka clean up its act has finally found its way to the legislative table.
Previously-enacted legislation in the recent past that has proven to be controversial and looked at as largely in favour of the political authority include the Online Safety Act, the yet-stillborn Anti-Terror Act, and the Broadcasting Authority Bill. The new Anti-Corruption Act, though now part of the statute book, is yet to make any noteworthy impact with corruption yet rampant and its implementation lacklustre: lacking political will and enthusiasm to net in the big fish.
The failure of the new Anti-Corruption Act – touted as the panacea for curbing corruption in Sri Lanka – to mobilise law enforcement to act on the big fish already exposed by the Panama and Pandora Papers highlights the greater problem that lies at the root of most problems: the lack of political will to implement existing law. However, whenever a minister or law enforcement is confronted with the allegation of not doing their job, the usual stock answer is inadequacy of the law.
While this is true in the rare case, such as the seizing of ill-gotten wealth, it is not so for most others that simply require application of the existing law. The new law that is reportedly now before Cabinet is therefore an altogether different deal and appears to have stemmed from very specific compulsions – the people’s unrelenting demand for progressive change; the requisite need for legislation to combat ill-gotten wealth, which people see as a key contributor to the current economic crisis; and the International Monetary Fund’s (IMF) insistence on it as a condition for granting the next tranche of its $ 3 b bailout programme.
The people of this nation, overwhelmed by a constant media blitz mostly focusing on the irrelevant, tend to forget what actually caused the current economic crisis; their Government also does everything possible to make them forget that singular issue.
But as the IMF and even the UN have consistently pointed out, Sri Lanka’s core issue remains a crisis of governance that has enabled the committing of economic crimes, which in turn is what led to what is described as the economic crisis. Therefore, if Sri Lanka is to solve this crisis, it cannot put the cart before the horse because economic salvation cannot and will not come about until and unless the country first addresses the core governance issues.
An integral part of addressing that issue is the introduction of legislation to not only prevent and mitigate economic crimes in the future but to also enable and facilitate the recovery of stolen assets. While the draft bill before Cabinet in the name and style of the Proceeds of Crime Act (POCA) allows for the forfeiture and confiscation of property identified as resulting from criminal activity, it seems to fall short of going the extra mile to include the recovery of stolen assets from foreign jurisdictions – most notably the offshore safe havens reputed for parking ill-gotten wealth. Therefore, unless clarified to the contrary, POCA will only cover the tip of the iceberg in the attempt to recover stolen wealth.
Nevertheless, given the circumstances, one should be thankful for small mercies, but the key to POCA’s success lies in its implementation. If the new law is being enacted purely to please the IMF in order to secure the third tranche, it will only offer ornamental value as in the case of the new Anti-Corruption Act.
But looking at it in a positive light, credit for the proposed new legislation must go where it’s due. It has been reported that the proposed new law has been jointly placed before Cabinet by the President and Justice Minister. While the duo can take a rare bow for what is seen as pro-change legislation as demanded by the nation, credit must also go to the main Opposition Samagi Jana Balawegaya (SJB), whose members have been quite vocal in pointing out the urgent need for such legislation, especially during the parliamentary debate on the Anti-Corruption Act, and most importantly the IMF, for, if not for its Governance Diagnostic Report and the monetary authority’s insistence on its adoption ahead of the upcoming third disbursement of funds, this law would never have made it to Cabinet.
Cabinet approval being the first hurdle, the draft legislation thereafter requires parliamentary approval, which should be a breeze in view of the upcoming elections as MPs will vie to be seen as pro-people.
However, as far as the collective Opposition is concerned, being the alternate government, it must follow up on this success by preparing a roadmap for its implementation. This is of significant importance as the current regime, with a lifespan of around six months, will leave its implementation to the next regime while capitalising on it on the election trail.
The main Opposition SJB has taken the stance that the Anti-Corruption Act that was passed into law was deficient as it did not give full effect to the UN Convention against Corruption (UNCAC), which facilitates the tracing and retrieving of stolen assets, especially those parked in foreign jurisdictions. It has cited non-inclusion of provisions in the UNCAC as the basis for that stance.
While there is merit in that observation, it is unfortunate that although the act was amended after three long decades, during which period billions were syphoned out of the country and paupers in politics became overnight billionaires, the final product – the new Anti-Corruption Act – fell short of this requirement.
Given this lapse, one would have expected it to be rectified in the brand new law that is now taking shape before Cabinet, but, going by reports, that does not appear to be the case.
Nevertheless, the people of this nation who have been held hostage to corruption and are now being forced to pay up the ransom in the form of untold economic hardship would surely appreciate the new law that offers some hope for the future.
Including the provisions outlined in the draft POCA in the Anti-Corruption Act would no doubt have been a welcome move, literally killing two birds with one stone, but in hindsight, it appears that a dedicated new law solely providing for comprehensive action – restraint, preservation, seizure, protection, management, freezing, and forfeiture of proceeds of crime – seems eminently more advisable given Sri Lanka’s current circumstances rooted in complex corruption issues.
The new law covers the lacuna in the statute books pertaining to legislation to seize property identified as acquired through the commission of crime – be it plain and simple robbery, bribery, or solicitation and obtaining of commissions or other gratification in whatever form. Besides, the groundbreaking law also fulfils the need for long-suffering victims of economic crimes to seek damages through legal remedies, including and not limited to ‘class actions,’ as in the West. Equally importantly, the new draft legislation also provides for post-conviction forfeiture of proceeds of crime as well as non-conviction-based forfeiture of identified proceeds of crime.
The root problem with Sri Lanka’s governance crisis therefore lies not in the absence of laws but in the lack of implementation of existing laws, and, significantly enough, the non-specification of agencies and entities tasked with handling complex issues spanning diverse agencies and sectors.
POCA, however, appears to have seen through this and has specified the creation of a designated agency named ‘Proceeds of Crime Management Authority’ for the exclusive purpose of protecting, managing, and preserving seized assets for the benefit of the people. It appears that there is hope, after all.