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Proposal for the Offences and Penalties under new Anti Corruption Laws

According to Transparency International’s 2021 Corruption Perception Index, Sri Lanka has scored a 37 on a scale from 0 (“highly corrupt”) to 100 (“highly clean”). This is an indicator to understand the level of corruption in Sri Lanka. 

A new anti-corruption law proposed by the Government envisages that its intention of creating of an Independent Commission. Neverthless, what is important is not only to establish an independent effective legal framework, strong investigation arm and adjudication mechanism at the same time. 

This proposal is inclined only to deal with legal framework in which proposes a new set of offences that would help to tackle the corruption in Sri Lanka. 

In terms of offences, the new Act also proposed to hold members of the private sector accountable. It states that any person who “directs or works, in any capacity, for a private sector entity, in the course of economic, financial or commercial activities” and who solicits or accepts–directly or indirectly–an advantage for himself or another person (in order that such person does any act or refrain from doing any act in breach of such person’s duties), commits an offence of bribery under the Act. This is an appriciable move. Nevertless,the offences contemplated under the new act does not represant wider scope of offences that are needed to deal with the context and therefore need an improvement. 

The proposals that are made here constitute a new set of offences and penalties to curbe corruption in Sri Lanka. These provisions will help the Sri Lankan state to adopt an overall strategic approach in fighting against corruption. Proposed provisions can be applied across the board, with no distinction made on whether it is a petty corruption or high level corruption. No exception is made for anyone and there are no ‘gray areas’ where the law cannot be dealt with. Therefore, it is emphsized that the state should show its commitment by adopting these provisions into Sri Lankan law in order to eliminate corruption existing at all levels. Proposed provisions are designed after carefull study and consideration of existing anti corruption laws applicable in Singapore and HongKong. 

Proposed provisions explained below in relation to curbing courruption,if incorporated into Sri Lankan anti corruption law will be reflected  definitly on the determination and political will for the fight against corruption in Sri Lanka. We believe that the Political will is a key ingredient in transforming Sri Lanka’s corruption infested past into corruption free society. Proposed provisions provide the soil and the nutrient which allows the seeds of anti-corruption work to germinate and grow. These provisions will help the state to mobilized the public,political society  and the entire public service to fight with corruption. 

We presumes that Effective laws provide the basis for the fight against corruption. The law must first define corruption offences and their punishments and the powers of enforcement against it properly and cohesively.The law must support law enforcement with a cutting edge application. This is vital as corruption offences are particularly difficult offences to deal with. Unlike general crime where there is a victim who tells the investigator  everything that happened if compelled, in corruption offences, both the giver and the receiver are guilty parties who have the motivation to hide and not tell the truth. This makes investigation and evidence gathering more challenging. To be successful, the law must provide sufficient teeth for law enforcement. 

The existing law in relation to an offence of corruption contain in the Commission to Investigate Allegations of Bribery and Corruption Act No. 19 of 1994, and it has made ‘corruption’ as an offence under Section 70 of the said act. Under the existing law only a public officer is made liable for his/her wrongful act that he/her make a benifit by incuring loss to the government. 

 Under the new draft Act offences that are discussed under Schedule A of Section 39 is not provided for review. But Section 100 of the new draft deals with bribery in the private sector. Anyhow this shows that new draft Act needs to be more elaborative on the offences that has to be dealt with the offence of corruption occurs in the way of gratification. 

Therefore in a nut shell following distinctive features are proposed and they would be usefull ingredients to strengthen  when a new offense is indraduced as a law:

(i)                The Proposed provisions allow the state  to investigate corruption in both the public and private sectors and it is provisioned to deal with both the giver and the receiver. It proposes to deal with cases in the private sector. It is of strategic importance for Sri Lanka  to keep Sri Lankan companies clean because if not, other countries will not want to trade with Sri Lanka and they will not want to invest money in Sri Lanka. Propsed provisions also deal with givers of bribes. As a country if we continue to give bribes and escape punishment and such situation will worsen the corruption situation due to the demand-supply dynamics.

 (ii)              The proposed provisions intraduces a presumption clause – presumption of corruption when a public officer is found to have received bribes. Under this proposed presumption clause it proposes that a public officer charged in court has the duty to explain to the court that what he or she received was not received corruptly. If he or she fails to explain to the satisfaction of the court, he or she will be presumed to have received the money corruptly. But this presumption is intraduced not to secure conviction based on the presumption but to bring all necesry evidence relavent to court and the presumption clause is an additional help for the prosecution.

 (iii)             Next provision is that an acceptor of a bribe will be considered guilty even if he or she, in fact, had no power, right or opportunity to return a favour to the bribe giver. Rationale behind this provision is that some corrupt offenders take bribes and then were unable to deliver the expected favour. Even so, they should not escape from the punishment.

 (iv)            The provisions also curbs  the use of business world  practices, for example, giving/accepting of hampers (gift packs/Gift Voucherss)  as an excuse for giving/accepting bribes. By this provision no one can go to court and be excused by saying that the bribe, disguised as a ‘Hamper/gift voucher’, is goodwill money and nothing illegal.

 (v)              The proposed provisions  also empowers the Court to order bribe receivers to pay a penalty equal to the amount of bribe received apart from punishment in the form of fines and/or imprisonment terms. This means if accused took Rs 1 million , he or she has to surrender back that amount. This emphasized the principle that the accused ought not to enjoy any benefit from any corrupt activity.

 (vi)            When a person is found to have committed corruption offence, the Principal could recover the amount of the bribe as a civil debt. An example is the manager of a multi-national company (MNC) convicted of a corruption offence for receiving kickbacks for contracts he granted to others. He was sentenced to for  imprisonment and ordered to pay a penalty, being the total of bribes received by him. After the sentencing, the MNC can be commenced a civil action under the proposed provisions  to recover the bribes from the Manager. It will be not amounting for double jeoperdy.

 (vii)         Propose provisions renders Sri Lankan citizens liable for punishment for corrupt offences committed outside Sri Lanka and to be dealt with as if the offences had been committed in Sri Lanka.

The draft provisions that are stated below contains aforesaid distinct features and they may be considered as new offences when the new Act is drafted and produced to the parliament.

Effective Enforcement

We believe that having tough laws is no guarantee to have an effective enforcement. If there are tough laws but lax enforcement, corruption will still flourish because the corrupted escape detection and investigation. The situation will be like having a good battle plan but poor troops. It is therefore crucial to devote priority and attention to setting up an effective enforcement agency. In this regard transforming the existing Bribary and Corruption Commission into a independent, fully fledge and effective enforcement agency is a prerquisite for establishing a curruption free society in Sri Lanka.

  Effective Adjudication:

 Proper detection and strict enforcement of laws, no matter how effective, must however be complemented by effective adjudication. Detection, prosecution and subsequent court conviction have specific deterrence on offenders. Aided by the tough laws, the judiciary can be successfully created a regime of punishment that is deterrent enough to hammer home, loud and clear, the message that corruption does not pay devident. 

 It is proposed that with the court’s sentencing, it will sent a strong message to the corrupted and to would-be offenders to think twice before committing corrupted acts. As part of sentencing, it is proposed that the court will be also imposed a financial penalty on the offender equal to the amount of bribes the offender had taken. So this kind of stringet measur once again sends a clear message that the offender is not allowed to enjoy any of his or her ill gotten gains. On top of this, in cases involving government procurement or contracts, administrative actions are taken to cancel the contract and/or to debar suppliers who were convicted of corruption offences from future government contracts for up to five years. Apart from criminal sanctions, proposed provisions also provides for recourse to civil suit for recovery of bribe monies in addition to criminal prosecution.

 Proposed provisions that define the offence of corruption:

1.     Any person who shall by him/herself or by or in conjunction with any other person —

a.     corruptly solicit or receive, or agree to receive for him/herself, or for any other person, any gratification as an inducement to or reward or advantage for, or otherwise on account of —

b.     corruptly give, promise or offer to any person whether for the benefit of that person or of another person, any gratification as an inducement to or reward for, advantage  or otherwise on account of —

I.                 any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or

II.              any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned; or

i.                    any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or

ii.                   any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned,

Shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Rs 1,000,000 or to imprisonment for a term not exceeding 5 years or to both.

 Punishment for corrupt transactions with agent

2.      If:

a.    any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward or advantage for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavor to any person in relation to his principal’s affairs or business;

b.   any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward or advantage for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavor to any person in relation to his principal’s affairs or business; or

c.    any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal,

He shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Rs.1, 000,000 or to imprisonment for a term not exceeding 5 years or to both.

 Increase of maximum penalty in certain cases

A person convicted of an offence under section 1 or 2 shall, where the matter or transaction in relation to which the offence was committed was a contract or a proposal for a contract with the Government or any department thereof or with any public body or a subcontract to execute any work comprised in such a contract, be liable on conviction to a fine not exceeding Rs. 2,000,000 or to imprisonment for a term not exceeding 7 years or to both.

Presumption of corruption in certain cases

3.Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received or advantage obtained by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.

Acceptor of gratification to be guilty notwithstanding that purpose not carried out, etc.

4.—(1)  Where in any proceedings against any agent for any offence under section 6(a), it is proved that he corruptly accepted, obtained or agreed to accept or attempted to obtain any gratification, having reason to believe or suspect that the gratification was offered as an inducement or reward or advantage for his doing of forbearing to do any act or for showing or forbearing to show any favour or disfavor to any person in relation to his principal’s affairs or business, he shall be guilty of an offence under that section notwithstanding that he did not have the power, right or opportunity to do so, show or forbear or that he accepted the gratification without intending to do so, show or forbear or that he did not in fact do so, show or forbear or that the act, favour or disfavor was not in relation to his principal’s affairs or business.

(2)  Where, in any proceedings against any person for any offence under section 6(b), it is proved that he corruptly gave, agreed to give or offered any gratification to any agent as an inducement or reward for doing or forbearing to do any act or for showing or forbearing to show any favour or disfavor to any person having reason to believe or suspect that the agent had the power, right or opportunity to do so, show or forbear and that the act, favour or disfavor was in relation to his principal’s affairs or business, he shall be guilty of an offence under that section notwithstanding that the agent had no power, right or opportunity or that the act, favour or disfavor was not in relation to his principal’s affairs or business.

Corruptly procuring withdrawal of tenders

5.  A person —

a. who, with intent to obtain from the Government or any public body a contract for performing any work, providing any service, doing anything, or supplying any article, material or substance, offers any gratification to any person who has made a tender for the contract, as an inducement or a reward for his withdrawing that tender; or

B. who solicits or accepts any gratification as an inducement or a reward for his withdrawing a tender made by him for that contract,

Shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Rs1, 000,000 or to imprisonment for a term not exceeding 7 years or to both.

Bribery of Member of Parliament

6.  Any person —

a. Who offers any gratification to a Member of Parliament as an inducement or reward or advantage  for such Member’s doing or forbearing to do any act in his capacity as such Member; or

b. who being a Member of Parliament solicits or accepts any gratification as an inducement or a reward or an advantage for his doing or forbearing to do any act in his capacity as such Member,

Shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Rs.1, 000,000 or to imprisonment for a term not exceeding 7 years or to both.

Bribery of member of public body

7a.who offers any gratification to any member of a public body as an inducement or reward or advantage for —

b. Who, being a member of a public body, solicits or accepts any gratification as an inducement or a reward or an advantage for any such act, or any such abstaining, as is referred to in paragraph 1(a)(I), (ii) and (iii),

I. the member’s voting or abstaining from voting at any meeting of the public body in favour of or against any measure, resolution or question submitted to that public body;

ii.the member’s performing, or abstaining from performing, or his aid in procuring, expediting, delaying, hindering or preventing the performance of, any official act; or

iii.the member’s aid in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person; or

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding Rs.1,000,000 or to imprisonment for a term not exceeding 7 years or to both.

8.—(1)  Where a court convicts any person of an offence committed by the acceptance of any gratification or advantage in contravention of any provision of this Act, then, if that gratification or advantage is a sum of money or if the value of that gratification can be assessed, the court shall, in addition to imposing on that person any other punishment, order him to pay as a penalty, within such time as may be specified in the order, a sum which is equal to the amount of that gratification or is, in the opinion of the court, the value of that gratification, and any such penalty shall be recoverable as a fine.

2)  Where a person charged with 2 or more offences for the acceptance of gratification in contravention of this Act is convicted of one or some of those offences, and the other outstanding offences are taken into consideration by the court under relevant Criminal Procedure Code  for the purpose of passing sentence, the court may increase the penalty mentioned in subsection (1) by an amount not exceeding the total amount or value of the gratification specified in the charges for the offences so taken into consideration.

Principal may recover amount of secret gift

9.—(1)  Where any gratification has, in contravention of this Act, been given by any person to an agent, the principal may recover as a civil debt the amount or the money value thereof either from the agent or from the person who gave the gratification to the agent, and no conviction or acquittal of the defendant in respect of an offence under this Act shall operate as a bar to proceedings for the recovery of that amount or money value.

(2)  Nothing in this section shall be deemed to prejudice or affect any right which any principal may have under any written law or rule of law to recover from his agent any money or property.

10.Abetment of offences

Whoever abets, within the meaning of the Penal Code;

a.     the commission of an offence under these provisions; or

b.     the commission outside Sri Lanka of any act, in relation to the affairs or business or on behalf of a principal residing in Sri Lanka, which if committed in Sri Lanka would be an offence under this Act, shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

11.Attempts

Whoever attempts to commit an offence punishable under this Act shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

12.Conspiracy

Whoever is a party to a criminal conspiracy, within the meaning of the Penal Code, to commit an offence under this Act shall be deemed to have committed the offence and shall be liable on conviction to be punished with the punishment provided for that offence.

13. Interpretation:

“agent” means any person employed by or acting for another, and includes a trustee, administrator and executor, and a person serving the Government or under any corporation or public body, and for the purposes of section 3 includes a subcontractor and any person employed by or acting for such subcontractor;

“gratification” includes :

a)   money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable;

b)   any office, employment or contract;

c)    any payment, release, discharge or liquidation of any loan, obligation or other liability whatsoever, whether in whole or in part;

d)   any other service, favour or advantage of any description whatsoever, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary or penal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and

e)   any offer, undertaking or promise of any gratification within the meaning of paragraphs (a), (b), (c) and (d);

“public body” means any Ministry, Department, corporation, board, council, commissioners or other body which has power to act under and for the purposes of any written law relating to public health or to undertakings or public utility or otherwise to administer money levied or raised by rates or charges in pursuance of any written law;

       “Advantage” means

(a)    any gift, loan, fee, reward or commission consisting of money or of 

any valuable security or of other property or interest in property of any description;

              (b) any office, employment or contract;

              (c)any payment, release, discharge or liquidation of any loan, obligation

                  or other liability, whether in whole or in part;

     (d) any other service, or favour (other than entertainment), including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted;

               (e) the exercise or forbearance from the exercise of any right or any 

                    power or duty; and

               (f) any offer, undertaking or promise, whether conditional or

                    unconditional, of any advantage

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