formed Association of Chiefs of Police Sri Lanka (ACP) calls for
the early implementation of a UNDP anti-corruption action.
Former IGP Frank de Silva said that the recommendations should
be adopted in full as it would help the battle against waste,
corruption and irregularities.
We, The Association of Chiefs of Police - Sri Lanka – (ACP) are
moved by the UNDP Report on Corruption, serialized in The
Island newspaper from 4th January 2007, to offer our
comments. The ACP was formed later and thus had not the
opportunity to make comments direct to the UNDP Project Officer.
The general comments of the ACP are, briefly as follows:
The Report is commendable for its comprehensiveness
and its form as a Master Plan for National Action. The ACP
congratulates the Consultant and the UNDP for its initiative.
The Report offers a welcome change in seeing through
the crust of ‘establishmentarianism’ that has featured much of
the Commissions of Inquiry in this country since Independence.
The Report has the merit of an overview removed from particular
considerations and in cutting through the encrustation of the
problem from disparate perspectives.
The ACP notes the criticism generated with the release
of the Report and observes that there is yet much partisan view
that still seeks to prevail.
Comments on the particular aspects in the Report are
necessarily, initially, to set out the background, below,
following the same annotation.
4 And 19 (4). Punitive Action.
i. The identified need for effective link of Investigation,
Prosecution and Adjudication for punitive action is the very
seat of the problem in dealing with corruption, within the
present order of the instituted governmental machinery.
Corruption has to be dealt with by the criminal justice, system,
the only apparatus established for this purpose. The need is
then the effectiveness of this instituted process to deal with
corruption. Of the cases taken to courts only 25% result in a
conviction of the accused. 75% of the cases end with no
satisfactory result. That is one measure of the problem. This
low percentage of convictions is the rate for other general
crimes as well. There too the link in the enforcement chain is
weak. There are many reasons for this. A review of a few cases
may have revealed the weak points in the chain. The Report does
not indicate that such exercise was undertaken, or that there
was any evidence to urge this. That is however a larger problem
which has to be addressed separately, though it has much
relevance to this problem of effective action against
corruption. It is plain that instituted action is ineffective
and the result barely punitive.
ii. Effective punitive action is not something unknown. That
has been continuously voiced. But their statement, oft repeated,
sounds trite as it is expressed. "Fear to commit crime is
accomplished primarily through effective investigation and
prosecution", says Transparency International (TI), and are the
means to constitute deterrent punitive action. It is a matter of
note that ‘effective adjudication is avoided, perhaps
judiciously, in the statement of TI. That has relevance to
consideration of the required effective linkage recognized in
the Report, even symptomatic of the problem of the lack of the
identified linkage, as that expression might imply. For
deterrence then, action by the criminal justice system to deal
with corruption is, in quantitative terms, nearly negligible. In
qualitative terms, the action of the instituted system is even
less effective. In question therefore is not only the link in
the chain but the integrity of the system itself, the link just
incidental. The criminal justice system and the criminal law, as
applied, is nevertheless the main plank of anti-corruption
strategy. If this system is thus afflicted in its effectiveness,
then the main thrust of anti-corruption action is blunted. State
action against corruption is then anything but punitive.
iii. The suggestion in the Report to consider other
administrative action as supplementary to judicial adjudication
is a welcome proposal. Partially, though. Supplementary should
not be confused with other sanctions, in the alternative or in
parallel. If the punitive thrust from judicial adjudication is
vitiated, supplementary administrative action flowing from
adjudication will not yield much better. The recommendation for
administrative sanctions by themselves has the merit of
providing other planks for action and at the same time reduce
the monopoly of judicial action in dealing with corruption.
Multi- pronged punitive action, thus projected, would then
secure for the National effort a broader thrust of strategy.
10 (d) Independence within rules of Accountability.
It is nearly the whole truth that independent organizations
in this country have not discharged their obligations and
responsibilities commensurate with the independence vested in
them for that purpose. Oversight and accountability over these
independent bodies is, given at present, the inevitable
11 (d). Experience and Training.
i. Experience and training are loudly touted in explanation
of the problem; in most problems subject to national inquiry
there is the stress on training. Training is not to be
discounted out of hand. It must not however shift the focus from
the very seat of the problem. Thus the police officers who bring
in the detections are said to be in need of the identified
training and need of experience. As it is, the position appears
that the Bribery Commission depends heavily on the detections of
the police officers in the Bribery Commission to project an
image of effective action, with little reservations in respect
of their training and experiential skills. At the base
therefore, it is the detecting police officer corps, which gives
some foundation for the action of the Commission.
ii. Experience and training are always and continually
desirable. Any insufficiency in this respect may have some
relevance to the need for punitive action. But the problem
cannot be centered on training and experience in the abstract.
Training has to be for the job, the action and the process in
the job, all being duly instituted. Where the action and the
procedure for effective strategy against corruption are wanting,
and even the definition of corruption is said to be inadequate,
the job itself and the action is in need of effective
specification. Specification must precede and inform the
training. "Corruption is multi-dimensional and the mandate of
the Bribery Commission must necessarily be widened beyond it
present boundaries: both as to definition and procedure, they
are pathetic" observes Gamini Seneviratne -The Island, 4th Jan.
2007, p 5 col. 5. The ACP follows this observation, to suggest
that the question of definition and procedure to deal with this
problem be dealt with initially. Training and experience must be
set firmly once the function in the job, the definition of the
offence and the procedure to be adopted, are made clear.
iii. Thus, for example, if the work of the Bribery Commission
is to commence action against corruption only once a formal
complaint is received the job specifications, the required
training for investigation would be of a limited nature. If on
the other hand intelligence before investigation into the formal
complaint is a considerable component of the job,, then training
and experience will have to meet with those requirements. The
present Commissioners appear to think that their function is to
institute a formal investigation upon complaint., On the other
hand there is much representation urging a more proactive
function to deal with corruption as the other view. Clearly the
Commission’s stand and the public view are at odds. The Report
includes a heavy component of intelligence work under Chapter IV
dealing with capacity building for investigative ability, making
it clear that the function of the Commission needs to be broader
than it perceives for itself. The problem with a preponderance
of retired judges in the Bribery Commission would be seen then
in their stance adopted, according to the law as they state,
which has the result of converting the Commission into another
court which acts only once formally moved. Presumably this body
was termed a Commission in the law because it was expected to
act as not just another court. Discussion of training and
experience in this mix of conception will not serve the
12 Adjudication and Special Courts.
i. Definition and procedure to deal, with corruption needs to
be reinstituted for effective punitive action against
corruption. The Report identifies some of the problems that
enervate effective action. At Chapter 11, 2 (c), the Report
calls for a coherent system of case management, reducing the
Judiciary’s vulnerability to management of cases, and much else
of a similar nature. Adjudication is the simple issue.
Management of cases in adjudication would be but an euphemism,
if it does not include manipulation or misfeasance in the
process that takes it toll on effective punitive action. They
are best not left unsaid; they are a problem for all crime,
including bribery. It is not clear how that aspect can be dealt
with; judicial reforms need to be equal to this challenge. The
discomforting fact is that mismanagement, manipulation and
malfeasance feature much in the adjudicative process.
Regrettably it needs to be recognized that this is but an abuse
of process, of power and so of a corruptive nature, unabashed.
ii. Against such background establishing special courts, as
accepted in principle, is fraught with the prospect of the
continuing problem. There was an earlier institution of Special
Bribery Courts and that experience may be consulted.
13. Pre-empting corruption.
The proposal to set up a Special Department may involve much
expenditure. The results may not be commensurate. The scope of
the envisaged pre-emptive action may be unwieldy. From practical
experience it can be asserted that effective action has the
effect of preempting corruption; that alone. There is however a
greater truth in the negative of this, that ineffective action
cannot pre-empt corruption, but serves instead as an incentive