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.

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.

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 consideration.

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 objective.

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.

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 to corruption.

Continued Tomorrow