Corruption prevention: The tone set from the top

The authorities use such tools to squeeze people’s democratic space continually until people start reacting to reclaim the lost space

A country can have the necessary laws and regulations to curb corruption but the success rests with the people involved in business and their genuine cooperation to enforce the law. This cooperation starts from the top. If the President and the Cabinet Ministers do not support equitable enforcement of the law, the rest of the mortals cannot eradicate corruption. If the head and the director board of a public sector institution are corrupt, the whole organisation will thrive in corrupt acts from top to bottom. So, it is paramount to set the tone at the top

As a Sri Lankan citizen, it is very uneasy for me to observe the irrational behaviour of our political leaders. In my view, they are afraid of taking political risks and doing conventional right things in a civilised manner. As I always say, I don’t care who leads the nation, but I care about what is being done and how. In general, our leaders have a constant fear that the general public who elected them is out there hatching a plot to remove them from power undemocratically. This paranoia has made them invent so many draconian legal tools for use on inappropriate occasions disproportionately to the scale of the issue. Some of these tools have not even been tested by the rest of the democratic world. 

The authorities use such tools to squeeze people’s democratic space continually until people start reacting to reclaim the lost space. At this point, the authorities cry foul that the masses respond undemocratically. The danger of playing this game is that at a certain point, a human mentally snaps, and past that point, the animal hidden in the human soul would come out and take over the response. Animals don’t follow rule books.

Our island is a part of the world, not the other way around as the majority uneducated public thinks. Countries in the world are members of a family and we, as a country, must display that our way of living is democratic, civilised, and law-abiding. Otherwise, the rest of the family members would feel embarrassed of our existence and without any hesitation, they would banish us from the family and distance themselves from any close association. Being a poor family member is not an excuse to be irrational, idiotic, tribal, and uncivilised. 

Sri Lanka has an exemplary legal system. The issue is the lack of equitable enforcement. The Government should not have any fear of offering democratic freedom in speech, association, assembly, religion, movement, and protest for people or holding elections as per the schedule if the Government is doing the right things the right way. People elect their representatives and people have the right to withdraw their consent if the representatives are underperforming. Public representatives are temporary custodians of the country for a given term. It is an honorary service offered to a selected group of people by the majority. In the past, rejected public representatives happily accepted the people’s verdicts and moved on with their lives. The lives and actions of such representatives are being celebrated by the public even now. What is the big fear of people withdrawing their offered consent? Surely, it can’t be dignity because they must have it first to lose it. 

ATA

It is a straightforward task for Sri Lanka to adopt an internationally acceptable Anti-Terrorism Act (ATA) by getting technical assistance from a United Nations Agency. Then, we could follow a step-by-step process by first applying normal laws against the suspected person/s and allowing eminent judges in the Sri Lankan Court to approve whether the crime can be re-categorised as a terrorist act. Consequently, ATA can be applied against the suspect. The whole country would agree on such a robust and fair process. Why does a Government waste precious time and resources on combating resistance by purposely producing controversial legal instruments and making situations more complex and inflicting collateral damages to international relations? 

Nevertheless, the leaders are adamant to invent a unique set of laws under ATA, which can be a double-edged knife given to the hands of a public officer who does not have a clue about the legal implications. Maybe the intention is to mount fear among the public before they exercise a form of democratic freedom. Testing public patience is a dangerous game. Until someone uses the new weapon against the very people who developed it, the inventors would not realise its detrimental effects. One may say that having a dangerous weapon doesn’t pose any danger to anyone if it is not used. The same was said when countries started developing nuclear weapons. Then, countries got together under the patronage of the United Nations and signed a treaty on the non-proliferation of nuclear weapons. Maybe I am wrong. One would say that all in the higher echelons of society are friends and they look after each other so that ATA would only be used against people outside the elite group. If so, isn’t modern slavery in progress?

The link between ATA and corruption

I am not a lawyer. I only briefly know contract law. Hence, I don’t talk about the legal provisions of the proposed Anti-Corruption Bill but I want to talk about social impacts. My focus today is the prevention of corruption. Misuse of power by someone is related to corruption. If a legal instrument can be misused to protect a corrupt person by applying it against a whistle-blower, wouldn’t it be a corrupt act?  

Hence, I could see how Anti-Terrorism Act can be misused to protect a corrupt person.  The issue here is the lack of clear definitions for ‘terrorist’ and ‘terrorism’. In my view, there is no need to define the term “terrorist”. What we need is to define the act of “terrorism”. Whoever performs acts of terrorism is automatically termed a terrorist. It is a difficult task to identify the clear intention of an act and what external forces are behind an act. I will leave it to legal luminaries to develop a sound methodology to identify the intentions of an act and categorise it as a criminal act.  As a peace-loving citizen, I earnestly request that the authorities add a clause in the ATA, listing activities that are not considered as terrorist activities. As a start, if all democratic freedom-related activities and human rights exercised within demarcated boundaries are listed and declared as no-terrorist acts and the people who perform such activities and who enjoy such rights would not be called terrorists. Those boundaries must be set in line with internationally accepted norms. Therefore, the public will be amply protected and relieved. National leaders must give people a fair go. National leaders have been appointed by the people for the people.

The world is struggling to define “terrorism” although every Sri Lankan knows in their heart what terrorism is. The easiest way to define terrorism is to distinguish “no terrorism” from “terrorism” and add it as a qualification to the terrorism definition. The danger of not having such exclusions is the labelling of a general penal code offender as a terrorist. Imagine the mental condition of a father or a mother whose son or daughter is charged as a terrorist after catching him/her while exercising democratic rights or freedom of expression or legitimate protest. Wouldn’t the whole family become real terrorists against the democratically elected Government to vent their anger over personal injustice? If that is what the Government wants, shouldn’t we name this Act as Pro-Terrorism Act in its current form? I cannot comprehend why a Government wants such an outcome from an Act of Parliament which is meant to catch real terrorists.

The following short conversation between a husband and a wife would hit home the natural human feelings about ATA.

Wife: You are a decent person. You mind your own business without hurting anyone. You love me dearly. You don’t do any political activities or anything to terrorise anyone. So, Anti-Terrorism Act has no impact on you at all. Why are you worried about it and against it?

The husband smiled and said, “It is too late in the night to discuss this. We will do it tomorrow. Shall we go to bed?” and walked away for a minute. He returned with a kitchen knife, put it under his pillow, gave a goodnight kiss to his wife, and started sleeping.

His wife looked at him horrified.

Wife: Why do you keep a knife under the pillow? I am scared and I cannot go to sleep now. Husband: Why are you worried? I am your husband. I never treated you badly. Why don’t you trust me? I won’t hurt you. I will not use the knife to hurt you forever. Trust me. It is to be used only for someone who would hurt me or you. If you believe yourself as a good wife, you have nothing to worry about. Don’t you?

Wife: No. I feel uncomfortable. Having a weapon with you while sleeping with me, makes me constantly nervous. If you wrongly suspect me of something and use the knife, I will be in grave danger. You will not wait to ask an independent person whether it is the right action before you act because the knife is readily available at arm’s length. I may not have a chance to prove I am innocent, and your mind gave the wrong signal. Please put the knife back in the kitchen.

Husband: Do you now understand why I don’t like ATA in its current form? It is a dangerous weapon placed at the policeman’s arm’s length.

Unfortunately, our leaders are not empathetic and do not show any sensitivity to public sentiments. 

Bankruptcy and corruption

Sri Lanka has been declared a bankrupt country around a year ago. However, after the IMF bailout, we declared ourselves as a “Solvent”. We are very good at self-proclamation and live in a fantasy bubble. Time teaches us the reality but always it is delivered too late.

Why did Sri Lanka become bankrupt? When one lives beyond means, it leads to bankruptcy. To avoid such a situation, either living standards must be lowered to match the means in hand or find ways to increase the means in line with your standard of living. There is a third element of this. It is the sustainability of available means. If the available means are stolen, wasted, misused, or improperly invested preventing the regeneration of more means, the residual balance of means would not be enough to live the expected life. The third element is related to the activity called “corruption”. 

In NSW, Australia, corruption is defined as “deliberate or intentional wrongdoing, not negligence or a mistake” as per the Independent Commission Against Corruption Act 1988. Sri Lanka is not politically mature enough to use this definition as it is open to misuse, by the people with vested political and personal interests. Transparency International (a global not-for-profit organisation) defines corruption as “the abuse of entrusted power for private gain”. This is a better starting definition for Sri Lankan use as the general public has concerns about the behaviour of elected members of the Government and its delegates; the public sector officials and its contracted products and services providers; the corporate sector players. People entrusted power to those parties and expected certain ethical behaviour in return. However, even this definition needs a bit of expansion with specifically targeted culprits in mind.

Corruption is a deliberate, serious wrongdoing. It involves dishonest or partisan conduct, a breach of public trust, or the misuse of information or material. There is another term “Fraud” is used together with the term “corruption”. It refers to dishonestly obtaining a benefit or causing a loss, by deception or other means. 

I would like to propose the following definition of corruption for Sri Lanka.

“The abuse of entrusted power for private gain or benefit or causing a loss public through deception or other means by the elected members of all levels of government, by the delegated public sector officials and by the legally appointed local and international contractors for delivery of public sector projects, programs, services, and products.” 

Legal luminaries can transform this into a legal definition, without diluting the essence.

Code of Conduct

Corruption is closely connected to human behaviour, more closely to the animalistic behaviour of humans. Hence, we face the difficulty of identifying what acceptable behaviour is. This is why developed countries have “Codes of Conduct” introduced for public-elected representatives, all government entities, corporate industries, and professional institutions. All are bound by the Codes of Conduct. Corrupt acts breach one or more clauses of the Code of Conduct.

Every public entity must have a Code of Conduct. It sets the standard of behaviour expected from the people associated with the entity. The Parliament is a public entity. People who elected them expect acceptable behaviour from them, inside and outside the parliament. Elected members of parliament have parliamentary privileges. Privileges are not open licences to misbehave. On the contrary, privileges are to be used responsibly to display their status as role models.

The same is applied to public sector organisations. There should be a Code of Conduct to inform all stakeholders, of the standards of conduct they can expect from the staff. A Code of Conduct reminds staff of two behavioural elements. One is their professional and societal behaviour as public officers because the public pay their salaries and expects such behaviour in return. The second element is corruption-free performance. The focus of a Code of Conduct is corruption prevention. It is about the avoidance of conflict of interest and the avoidance of misuse of resources and the power delegated to them.

In Australia, public sector employees are expected to behave professionally even outside their organisational domain without harming the reputation of the employer. Especially, when using social media, if someone posted a disparaging comment against his/her employer, there will be disciplinary action against the employee. However, all employees can exercise democratic freedoms and rights, and the employer should follow due process in front of an independent observer when investigating as the employer’s actions can be challenged in a legal court.  The usual practice of governments in developed countries is to issue Model Codes of Conduct to all public sector entities to maintain the minimum level of conduct expected from the relevant parties covered by the Code. Public sector organisations can supplement their respective codes with additional provisions but are not allowed to alter or subtract from the model codes.

Adopting a Code of Conduct is only the first step of the process. Not only it must be implemented across the entity and the top management must be model performers of the Code of Conduct. The behaviour of following the Code of Conduct has to be habitual and a part of organisational culture. There should be a fair and robust process for dealing with breaches of the code and there should be a proper training and awareness program for staff on Code of Conduct clauses and the consequences of misconduct. This ensures that the staff knows what they are supposed to do and ignorance is not an excuse.

Prevention of corruption

There is a multitude of actions to prevent corruption in an organisation. The organisation could be a public sector or a corporate sector entity as I have included elements of fraud in the definition of the term ‘corruption’. The action set at the pinnacle is ‘The Tone at The Top’.

The tone set from the top

When one observes the behaviour and the body language of the head of an organisation and the director board, the culture of the organisation can be understood. From a management perspective, an organisation can develop the world’s best strategies, processes, procedures, and guidelines in place to curb corruption but if the top-level management fails to understand what has been developed, fails to demonstrate their genuineness to following the set initiatives, and fails to commit to support staff who follow those measures, such organisation would never succeed under such top management in preventing corrupt acts. Poor leadership can encourage non-compliance and corruption.

Signs of good tone at the top

There are no universally accepted parameters to measure a good tone. However, the popularity of the boss among employees is not a correct measure of good tone as some popular leaders indirectly support employees in corrupt acts casting a blind eye. Hence, it is required to assess the leader’s demeanour, attitude, and reputation objectively to understand the tone.

The head of the organisation should not be involved in any corrupt activity if he or she needs to develop a reputation and tone. However, he or she cannot stop there. He or she should proactively stop any corrupt conduct by others. Very often we see the senior management arranges Code of Conduct training for staff but fails to attend the same training themselves assuming they know the requirements better as they developed the presented content. 

However, it gives the wrong message to employees. It is a given fact that during the holiday seasons, the private sector service providers who are associated with the public sector organisations, exchange token gifts to celebrate the occasion. The bosses need to disclose any conflict of interest and gifts given to them, irrespective of the monetary value of the gifts so that the whole staff gets the message and compels to do the same. Such disclosures by staff allow the senior management to contact those corporate sector organisations and discourage them from delivering gifts to the staff by highlighting the staff are bound by the code of conduct.

Conducting investigations requires robust and fair processes and procedures and also sufficient resources. Rogue bosses provide inadequate resources and direct investigators to carry out shallow investigations, knowing that it would deliver a half-baked outcome. This is a bad tone on display. Prevention is better than conducting investigations after the occurrence. Hence, sufficient resources must be deployed for preventative initiatives, if the head of the organisation genuinely wants to display a true tone.

I have often encountered senior managers in my working life asking me to get the job done quickly without wasting time on following processes and procedures because they are only worried about quick outcomes. My resistance to following such instructions was based on the fact that it is my responsibility to do it the right way to get the right outcome. 

Some bosses would contest your values. To be a true employee, your values should be aligned with the organisational values. Even when such alignment exists, some bosses try to skew this alignment. The corrupt conduct starts with absolutely ridiculous justifications like “It is not your money to be worried about or We did this way so many times but no one objected”. When the head of the organisation or senior management provides false rationalisations, it is the worst possible tone set at the top and it is impossible to prevent the breeding of corruption in such organisations. 

I have produced a series of articles on organisational risk management. The senior management has the utmost responsibility to establish Risk Management Framework in their organisation. Corruption is a risk for an entity and it must be managed. There should be built-in mechanisms to identify signs of corruption before it hurts the organisation, its stakeholders, and its reputation. Often, we can see some do live beyond their legitimate means. This is a warning sign that something illegal is going on. In Australia, all legal earnings are recorded in an integrated system and the police can identify people who drive expensive cars or live in expensive houses beyond their means. One cannot deposit more than ten thousand Australian dollars via an ATM without presenting cash to a teller inside a branch. In 2018, the Commonwealth Bank of Australia agreed to pay a A$700 million fine to Austrac, the financial regulator for the way its ATM system was used by organised criminals and terrorists to deposit funds to ATMs to evade Australian money laundering regulations. It was known as a Coding error in the ATM System but it was not accepted as a valid excuse. Also, a person cannot legally pay more than A$ 10,000 in cash to buy a new product from a shop. For such a transaction, one requires either to use a Credit/Savings Account Card or give a Cheque. If such a cash transaction happens, both the customer and the seller are considered to have made an illegal monetary transaction. These measures are to control money laundering activities and corruption. 

The healthy tone set at the top is on display if periodic internal audits are directed and implemented within the organisation as a norm. The head of the organisation must encourage staff to speak up and alert senior management if staff see anything suspicious happening. The bosses should have an open-door policy for staff to reach them. The staff knows better if one of their colleagues lives beyond her or his means, takes excessive personal calls, attends meetings alone with strangers during work, stays at work station well after others leave without pressing work requirements, opts to take no leave, resists others covering his/her duties, is defensive in accountability, etc. Those are signs of something suspicious happening.

The way forward

A country can have the necessary laws and regulations to curb corruption but the success rests with the people involved in business and their genuine cooperation to enforce the law. This cooperation starts from the top. If the President and the Cabinet Ministers do not support equitable enforcement of the law, the rest of the mortals cannot eradicate corruption. If the head and the director board of a public sector institution are corrupt, the whole organisation will thrive in corrupt acts from top to bottom. 

So, it is paramount to set the tone at the top.

Stay tuned for the next episode of corruption prevention.

(The writer is a Professional Engineer working in the Australian NSW Local Government Sector. He intends to share his views on various social development areas, in addition to his chosen professional discipline to inspire youth to think differently. He is contactable via [email protected].)