Anti-corruption law: Should false allegations be decriminalised?

Do we really want to declare open season for the making of false allegations? 

Some well-meaning citizens are concerned about the Anti-Corruption Bill creating a new offence that will make it possible to prosecute/persecute persons who bring up cases of bribery and corruption. They want section 119 of the Anti-Corruption Bill to be excised.

“119. Every person who makes an allegation in any information or complaint made by him to the Commission under section 43 knowing such allegation to be false or having reason to believe that such allegation does not constitute an offence under this Act shall on conviction after summary trial before a Magistrate be liable to a fine not exceeding one million rupees or imprisonment for a term not exceeding ten years or to both such fine and imprisonment and shall in addition, be liable to the payment to the person in respect of whom the communication was made, of a sum of money as compensation as the court may think fit.”

Nothing new 

What they do not appear to realise is that this is not a new offence. What they are asking for, in effect, is the decriminalisation of the making of false allegations about bribery and corruption. The current law defines an almost identical offence:

“21. Every person who makes an allegation in any communication made by him to the Commission under section 4 knowing such allegation to be false nor having reason to believe that such allegation is not true shall be guilty of an offence and shall on conviction after summary trial before a Magistrate be liable to imprisonment for a term not exceeding ten years or to a fine not exceeding two hundred thousand rupees or to both such imprisonment and fine and shall in addition, be liable to the payment to the person in respect of whom the communication was made, of compensation of such sum as the Court may think fit.”

The operative clauses of the two sections are similar: “knowing such allegation to be false” and “having reason to believe that such allegation is not true/does not constitute an offence under this Act.” No difference in who can institute the case (the Commission) and who hears the case (Magistrate). The fines differ: the upper limit of two hundred thousand rupees in the 1994 Act has been increased fivefold to one million rupees. The imprisonment element is the same as is the compensation element.

Unless the debate is about the fine being too high (not evident in any of the objections), it is about decriminalising the making of false allegations.

What is the signal we want to send?

Do we really want to declare open season for the making of false allegations? 

The harm caused by corruption is serious. It destroys the trust in the system. But so is the harm caused by false allegations. In addition, it will lead to prevarication by those who have to take decisions likely to generate opposition, such as those on procurements. 

No allegations will arise if no decisions are taken. Why take a risk when the legislature has signalled open season for those making false allegations? If a false allegation is made against an official and the offence of making false allegations has been excised, the official is on her own. The only remedy is seeking damages by initiating a civil case in District Court. 

Even if section 21 was never used, which is what I suspect, its removal will send a signal. Not a good one.

How likely is abuse?

The speculation is that “people who make genuine complaints will be prosecuted harassed. Even if they can establish their innocence at the end of the trial, they would nonetheless have to endure financial and other losses for highlighting potential corruption.”

There is no need to speculate. The offence of making false allegations on bribery or corruption has been in the law books since 1994, for almost three decades (perhaps longer). How many times has the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) initiated a case under section 21? Note that individuals cannot initiate criminal cases. 

I know of the case of former Chairman of the Board of Investment Thilan Wijesinghe, against whom false allegations were made by a now discredited high official in Government. He was fully exonerated upon examination of the evidence by the courts. But no action was instituted under section 21.

One may have legitimate concerns about the impartiality of the Attorney General’s Department. Being the Government’s lawyer and impartially exercising prosecutorial discretion are not necessarily compatible roles. That is why the setting up of a separate and independent Office of Public Prosecutions has been advocated. 

But it is not the Attorney General’s Department that will initiate cases under section 21. It will be the successor to CIABOC that has been established as an independent body under the 21st Amendment to the Constitution. The Commission has no conflict of interest, as long as it is not stuffed with Presidential loyalists as was done under the 20th Amendment.

So, it is not a vindictive person in authority who will initiate the case but the independent Commission. And it is not the vindictive individual nor the Commission that makes the ruling. It is the magistrate.

If the critics cannot trust the magistrate, the independent Commission, the constitutionally laid out procedure for appointing Commission members, and the procedures set out in the relevant statutes, they have bigger problems than section 119 of the new law. They have lost all faith in independent commissions, the court system, and the law. They are wasting their time debating legal or other reforms in Sri Lanka. The rational options open to them are revolution or migration.