TISL presents these Observations and Recommendations after careful study of the functions of the Commission. However, the internal affairs of the Commission have not been adequately considered for obvious reasons.TISL has, nevertheless considered the recently released 2001 Annual Report of the Commission that divulged a wealth of information on the Commission.
TISL had the benefit of considering views of a cross section of persons at a seminar organised in collaboration of the AHRC on 27th August 2003.TISL is also grateful for those who made representations on the working of the Commission.
1. Observations on the Bribery Commission
Insufficient investigation officers. It should also be noted that these officers are selected from serving police officers. The training received by these officers are grossly inadequate, particularly in the light of present scientific frauds. No attempt has been made by any authority to train the investigation staff seriously into corruption related issues.
The fact that the investigation officers have to be drawn from the police department itself raises the issue of credibility of the Commission, which is solely dependent on the police.Moreover, the Commission does not have capacity to recruit personnel on their own.
Lack of financial independence has made the commission dependent upon the Treasury, and thus the Commission is subject to indirect control of the executive.
Both investigation and prosecution branches of the Commission appear to be ineffective. This is clearly reflected in the 0% conviction rate in Magistrate Courts.
There does not seem to be transparent and accountable decision-making process, upon a complaint. The decision of the Commission could therefore be arbitrary and contrary to the findings of the investigators.
As interpreted by the Commission, the Law does not authorise the Commission to investigate a complaint on its own initiative (suo moto investigations). Thus reports in media on corruption are totally disregarded by the Commission.
Public perception on the credibility of the Commission is very low. Public appear to expect Commission to inquire into massive allegations of corruption that appear in the media and expect serious persecutions against sharks.No serious attempt is being made either by the Government or by the Commission to develop a good relationship with the public, so as to enable the public to play a major part in anti corruption activities.
As interpreted by the Commission, if any corruption could come under the purview of any other authority, the Commission does not invoke its powers. For example, election related corruption is completely ignored by the Commission. This suggests that the Commission is interpreting the statute narrowly.
There is no Institutional Development Plan (IDP) or strategy developed or introduced either by the Government or by the Commission.
Generally the Commission does not act with enthusiasm and the legal structure is partly responsible for this status quo. For example, two of the Commissioners have to be retired judges, whose decision-making capacity may undoubtedly be far ahead but their investigation capacity and commitment to counter corruption may be negligible.
It is also observed that the Commission has made certain positive marks, which are as follows: Anti corruption education and awareness programmes. This is a commendable new approach to curtail corruption in the long term. It is also significant that the Commission has recognised civil society as a necessary partner in its work.The Commission has been able to receive an increased number of complaints while increasing the quality of complaints.Given the insufficient resources, the Commission has continued with operations.
2. Recommendations:
2.1. Legal Framework
(a)All anti corruption laws (i.e. Bribery Act, Commission Act, Assets and Liabilities Act) should ensure the Commission is entitled to exercise its powers on their own without any communication or complaint from another person or authority.
(b)The Commission should be empowered to exercise its powers in respect of bribery or corruption, notwithstanding general powers exercised by any other authority. Accordingly, the Commission should be free to deal with corruption in all public activities including elections related corruption, matters arising out of audits, cabinet decisions and public appointments.
(c)Definition of corruption should include corruption in judicial administration.(d)Commission should be authorised to handle corporate frauds and private sector corruption (in public companies) should also be handled by the Bribery Commission. The law must be changed accordingly.
(e)The requirement of having Retired judges should be changed to attract more committed mid career professionals and other qualified persons.
(f)The structure should also be changed to permit the Commission to function notwithstanding any vacancy.
(g)The Law should specifically encourage social interaction such as anti corruption education while making it a duty for the Commission to take appropriate acting to eliminate bribery and corruption.
(h)Commissioners should be excluded from the category of public officers under the Constitution enabling the Commission to act effectively. The Commission should be permitted to make public announcements, especially on matters warranting public dialogue and meet any allegations made against the Commission.
(i)Decision-making process of the Commission viz-a-viz investigators should be transparent and if any complainant requests for the reasons for a decision, reasons must be given to the parties concerned.
2.2. Administrative Steps
(a)Urgent steps should be taken to prepare an IDP, after a diagnostic study. It may be necessary to identify strengths and weaknesses upon a genuine stakeholder meeting. If any financial assistance is required to strengthen the Commission, needs must be carefully understood, with priority being given to operational branches.
(b)Capacity building needs to be done urgently on all aspects upon a stakeholder discussion.
(c)Build the Commission on a strong structure with technical assistance. Persons in key positions should be given wide exposure nationally and internationally.
(d)Ensure the investigation staff does not include serving police officers unless they are fully released from Police.