Friday Jan 03, 2025
Tuesday, 31 December 2024 00:05 - - {{hitsCtrl.values.hits}}
To effectively combat corruption at the official level, it is crucial to address its root causes and close the channels that enable unethical practices
Corruption is recognised worldwide as a cancerous force that erodes good governance and hinders national development. For decades, the people of this country have dreamed of a government dedicated to eradicating corruption. This dream has come true in the form of the new NPP Government, whose primary focus is to combat corruption that is rampant in both the political and bureaucratic spheres.
The overwhelming and unprecedented support for the NPP Government comes with high expectations. However, this support is a double-edged sword—high expectations mean that, as recent history has shown, any failure to meet them can lead to a strong public backlash.
Types of corruption
Corruption can be classified into two main types based on its origin:
1. Political corruption: This involves the abuse of public power, office, or resources by elected officials for personal or partisan gain, prioritising personal interests over public welfare.
2. Bureaucratic corruption: This refers to unethical or illegal actions by public officials within government institutions to exploit their positions for personal gain at the expense of public benefit.
While both forms are harmful, bureaucratic corruption is often more insidious and pervasive. It operates at the implementation level and is difficult to detect due to systemic loopholes and discretionary powers granted to public officials.
Key features between political and bureaucratic corruption
It is encouraging that the NPP Government is taking every possible step to root out corruption at the political level. However, the biggest challenge is to prevent corruption at the bureaucratic level.
Closing the loopholes for corruption at the bureaucratic level
To effectively combat corruption at the official level, it is crucial to address its root causes and close the channels that enable unethical practices. The root causes can be traced to the following:
Role of discretionary powers
Discretionary power is essential to the performance of public functions. At the same time, when it is misused, it becomes a tool of exploitation and allows for corruption. Many public officials engage in corruption (misdeeds) by using discretionary powers granted to them to perform duties for the benefit and needs of the public and the State.
Discretionary power is not a wild-ass freedom
Recent revelations made in Parliament by the Minister of Health, Dr. Nalinda Jayatissa, have exposed instances of corruption or malpractices involving the President’s Fund. Several politicians received huge amounts including one politician alone received Rs. 300 million from the fund of which primary objective is relief of poverty.
The objects of the President’s Fund are clearly stated in Section 6 of the President’s Fund Act, No. 7 of 1978.
“It shall be the duty of the Board to apply the moneys belonging to the Fund in such manner as the Board may determine, subject to the directions of the President-
a) for the relief of poverty; or
b) for the advancement of education or knowledge; or
c) for the advancement of religion or the maintenance of religious rites and practices; or
d) for other purpose, which is in the opinion of the President and the Board, of benefit or interest to the Public.”
The Act confers discretionary power on the President to allocate funds – subject to his directions. However, this discretionary power is not absolute. It is subject to conditions and limitations to prevent misuse and to ensure alignment with the original intention of the law. The misuse of such authority undermines public trust and defeats the purpose of the fund which is intended to serve the public welfare.
The distinction between absolute and limited discretion was clearly explained by Justice Fernando in the famous case of De Silva v. Athukorala (1993, 1 SLR 283 pp. 296-297). An ordinary person has absolute power to sell his property and can dispose of it as he pleases at any price. However, a public officer cannot dispose of public property as his power is limited. He must act fairly and in good faith and for reasons that are lawful and relevant to the public interest.
The act of an ordinary person cannot be challenged in a court of law because he has unlimited and unfettered power and freedom to act as he pleases. However, the act of a public officer can be challenged in a court of law because his power and freedom to act are limited.
Loopholes in the law
Loopholes in the law are unintended gaps or ambiguities that can be exploited to achieve results that are inconsistent with the intended purpose of the law. Abuse of these loopholes for corruption often involves exploiting legal grey areas to gain unfair advantage, siphoning funds, or evading accountability.
Let us consider again Section 6 of the Presidential Fund Act, which clearly states that its primary purpose is “the relief of poverty.” However, the Act’s Interpretation Clause (Section 13) defines the central bank but specifically omits a definition for the term “poverty.” This omission creates a loophole that can be exploited by corrupt public officials, including political leaders and presidents, for personal or partisan gain, prioritising personal interests over public welfare.
Poverty is inherently subjective and can be categorised as relative or absolute. Common sense dictates that the poverty addressed in the Act refers to absolute poverty – a condition that can be clearly defined and measured. In contrast, relative poverty is more vague and open-ended, and difficult to define within the confines of the law.
Such legal ambiguities allow corrupt officials and elected leaders to misuse the law to evade their true intent and gain undue and unintended benefits. This not only defeats the purpose of the Act but also erodes public confidence in governance.
The lenience of the superiors towards corruption
Another important factor that hinders the prevention of corruption is the laxity of the superiors towards corruption. This is where higher authorities tolerate, ignore or fail to act decisively against corrupt practices. This attitude can significantly undermine efforts to combat corruption, as it signals impunity and can encourage unethical behaviour within an organisation or system.
Such laxity on the part of superiors in corruption by their subordinates may be due to several factors, including their complicity, fear of repercussions from political authorities and trade unions, and fear of revealing their past history, etc.
Inefficiency of law enforcing agencies
Another major roadblock of prevention of corruptions at bureaucratic level is the inefficiency of the relevant law enforcing agencies such as CID, CIABOC (Bribery Commission) and AG Dept. It is nothing but fitting to quote the eloquence of President AKD expressed on the International Anti-Corruption Day of 9 December 2024 in front of the relevant highest ranking officials for the prevention of the bribery and corruptions.
“Each year, as we mark the occasion, the unfortunate reality is that corruption has escalated rather than diminished, while we celebrate on 9 December, which is fine, but I must emphasise that our right to celebrate stems not from the date itself, but from how well we have honoured the aspirations and expectations associated with it. If we fail to uphold these ideals, I believe that sitting down to commemorate the occasion next December will serve no purpose.”
“In my time, I have witnessed many people, to be honest, misusing their power. It is implausible that the Attorney General’s Department has kept a file locked away for seven years. Similarly, it is unacceptable that certain files remain untouched from the day they are filed until they are deteriorated. Investigations by the CID should not drag on until the evidence and documents deteriorate. These are not mere institutional issues but reflect the misuse of authority entrusted to these entities. Without addressing such abuse, meaningful progress cannot be achieved.”
“Does the weight or lightness of a file depend on the name it contains?”
“I request you as a group of experts to support us in this noble effort. If we here today fail to act, who will? Will a farmer living in a remote village such as Dehiattakandiya, or an ordinary citizen, take on this task? It is our responsibility, and if we do not fulfil it, no one will. Therefore, I believe you must fulfil the duties entrusted to you. Let us all work together to ensure that by December 9th next year, we will have added real value to this commemoration.”
I am sure further explanation was not necessary to stress the inefficiency of the law enforcing agencies concerned.
What are the immediate and effective ways to eliminate corruption at the bureaucratic level?
The four main reasons mentioned above are the main causes of corruption. They are: discretionary powers given to public officials, loopholes in the law, laxity of higher officials and inefficiency of law enforcing agencies. Effective and efficient measures taken to prevent these causes will result in the elimination of corruption at the bureaucratic level.
A high-powered committee consisting of representatives of the following departments and institutions should be appointed or rather, heads of public authorities should be directed to carry out the following tasks aimed at preventing corruption.
Representatives:
I. Attorney General’s Department
II. Auditor General
III. Ministry of Finance
IV. Department of Inland Revenue
V. Department of Customs
VI. Department of Exercise
VII. Department of Police, Sri Lanka
VIII. Institute of Chartered Accountants of Sri Lanka and
IX. Chamber of Commerce, Sri Lanka
Expected tasks/terms of reference
nFixing discretionary powers: The following steps can be taken in this regard
o Minimising discretionary powers as much as possible,
o Identifying discretionary powers that can be misused for ulterior purposes,
o Issuing clear and rule-based explanations to be followed by officials.
o Making such rule-based explanations available to the general public.
nMaking the law foolproof: The following steps can be included in making a law fail-safe and abuse-proof.
o Bringing in necessary amendments – if necessary – to remove ambiguity and misinterpretation.
o Provide official definitions and rulings on the grey areas where such abuses may occur.
o Make such official definitions and rulings available to the general public.
nZero tolerance for corruption by senior officials: The following actions can be taken to ensure zero tolerance for corruption.
o Protect and encourage individuals who report corruption, empower whistleblowers by ensuring anonymity and security.
o Engage civil society by encouraging the media, NGOs and citizens to act as watchdogs and decoy and report laxity or corruption.
o Hold senior officials accountable for corruption committed by their subordinates until proven innocent.
nInefficiency of law enforcement agencies: The following steps are recommended to improve the efficiency of these agencies:
o Accountability for negligence: Each officer should be held personally accountable for any negligence that results in unfavourable judgments or case dismissals due to technical issues or procedural non-compliance.
o Merit-based promotions: Promotions should be based on merit, using performance appraisals. A key performance indicator (KPI) should include achieving a success rate of over 75% in case completions.
o Periodic reporting by agency heads: Agency heads should provide bi-annual reports to the relevant ministers, detailing reasons for case successes or failures and offering recommendations for improvement.
Finally, a holistic approach that combines strong institutional reforms, transparent systems and active public participation is needed to prevent corruption at the bureaucratic level. By fostering a culture of accountability, improving oversight mechanisms, and promoting ethical practices, governments can ensure that bureaucracy serves the public good rather than private interests. Only through sustained efforts, collective responsibility, and unwavering commitment can a governance system that is truly resilient against corruption and committed to equitable progress be built.
(The writer is retired Deputy Commissioner General, Inland Revenue Department. He can be reached at [email protected].)