By Chandra Jayaratne –
An open letter to Minister of Justice, Wijeyadasa Rajapakshe
This note is further to the submission handed over to you, during the public presentation of the draft Anti Corruption Law held at the Sri Lanka Foundation Institute on 3rd April 2023, a copy can be read here. You are kindly requested to consider the following “Post Script” submissions, along with the submissions aforesaid and we urge you to incorporate necessary amendments in the draft Anti Corruption Law prior to its tabling in Parliament:
1. As provided for in Article 156 A (1) requiring the establishment of a Commission to investigate allegations of bribery or corruption and stating that such law shall provide for “(c) measures to implement the United Nations Convention Against Corruption and any other International Convention relating to the prevention of corruption, to which Sri Lanka is a party”, we reiterate our appeal for you to take effective steps to concurrently incorporate the said Convention as a part of the substantial law of Sri Lanka
2. We reiterate once again that the proviso incorporated under sections 99 stating “that it shall not be an offence for a public official to solicit or accept any gratification which he is authorized by any written law or by the terms of his employment to receive” and 101 stating “that such offer of a gratification to a public official as is referred to in paragraph (b) of this section shall not be an offence under this section if the offeror proves that the gratification was bona fide offered for a purpose not connected with and not relating to such dealings as are referred to in that paragraph” since this proviso will be leveraged by the defense to negatively impact on effective judicial review of the charges framed as falling within the scope of coverage of the word “gratification” as interpreted in section 162.
3. We further reiterate the need to amend Section 69 of the draft enactment permitting the Commission, at its discretion, to seek assistance of specialist prosecutors from the private bar, where deemed essential in the prosecution of high profile/high value cases.
4. Revalidate whether the transitional provisions in Part V especially sections 163 (2) (d) and (f) as well as 163 (3) adequately encompass the following areas of the work of the present Commission:
* to continue with investigations yet in progress and / or where cases filed under the repealed Act are yet in progress,
* supported by both old and new investigation, intelligence, information, data analysis and evidence secured, including those secured via networking with authorized local and overseas third parties/agencies and / or received in response to Mutual Legal Assistance requests and external investigation/law enforcement authority network facilitations
* complaints received prior to the new Act, where investigations had not commenced any new intelligence or new referrals secured from other local and overseas agencies post enactment of the new Act but relating to periods prior to the new law becoming effective
5. Consider expanding objects of the Commission as specified in the provisions of section 40 – stating that “Measures to prevent corruption and proper discharge of its functions” by the addition as sub clause (j) to read as:
“To publicly promote, develop Codes of Conduct and Ethics and advocate legal reforms towards developing a culture that any direction or order given by an empowered Superior including a Minister or Secretary of a Ministry, which conflicts with any law or regulation or best practice guidelines/codes of conduct and ethics or is connected with any action that will cause a loss or damage to the state or to the national economy or society at large, should not be carried out and that any such requests should lead to “whistle blower declarations” and assure that any such declarer will be protected by the “whistle blower” protection provisions of the Act.
6. In due recognition of the United Nations Convention Against Corruption (UNCAC) covering the concept “Illicit Enrichment”, commonly defined “as the enjoyment of an amount of wealth that is not justified through reference to lawful income”, kindly consider incorporating within the new draft enactment the legislative format for Civil Illicit Enrichment penalization, with provision for issue of “Unexplained Wealth Orders” along with Non Conviction based Civil Confiscations. Thereby allow Courts to sanction a person for acquiring or enjoying an amount of wealth which has not, or cannot, be explained by reference to lawful sources of income – and judicial determination be done without the court being satisfied, to either a civil or criminal standard, that a separate or underlying criminal action has taken place.
7. Consider expanding/aligning section 106- dealing with Bribery in the Private Sector – by introducing a section similar to Section 7 of the UK Bribery Act reading as: “Failure of commercial organisations to prevent bribery
(1) A relevant commercial organisation (“C”) is guilty of an offence under this section if a person (“A”) associated with C bribes another person intending—
(a) to obtain or retain business for C, or
(b) to obtain or retain an advantage in the conduct of business for C.
(2) But it is a defense for C to prove that C had in place adequate procedures designed to prevent persons associate with C from undertaking such conduct.
(3) For the purposes of this section, A bribes another person if, and only if, A—
(a) is, or would be, guilty of an offence under section 1 or 6 (whether or not A has been prosecuted for such an offence), or
(b)would be guilty of such an offence if section 12(2)(c) and (4) were omitted.
Looking forward to a duly updated draft Anti Corruption Bill being tabled in Parliament.