Guiding Principles For A New Asset Law For Sri Lanka

Guiding Principles For A New Asset Law For Sri Lanka

Why a new law

The existing law on Declaration of Assets and Liabilities is complex and ineffective. There is no provide for any effective mechanism to follow up and prosecute offenders or to recover the stolen assets by state officials.The Law is weak on several aspects including the burden of proof. It does not correspond to the international obligations of the State under the UNCAC.

Basic Principles in the Proposed Enactment

1. Composite Law on Assets and Liabilities of Public Officials

Repeal all existing laws (name them) on Declaration of Assets and Liabilities including section 23A of the Bribery Act. The new law shall prevail notwithstanding anything contrary to any other law.
2. Reviewed and Implemented by Single Authority

All declarations of Assets and Liabilities of public officials shall be duly signed and submitted to Assets Division of the CIABOC, within specified time.

The Asset division shall be strengthened by the CIABOC. It shall be the duty of the State to ensure required financial independence of the CIABOC.

3. Public Officers covered by the Law

3.1 For the purpose of this law, Public officials mean and include the following:

Employees of all public institutions including public corporation and government owned business undertakings or companies with over 50% shares vested in the government. (Salary limitations?), provided their salaries and emoluments exceeding the specified amounts.
Employees of Provincial Councils and Local Authorities (salary Limitations)
Secretaries, additional secretaries, assistant secretaries of Ministries
President, Cabinet and non cabinet Ministers, Deputy Ministers, Members of Parliament, Members of all Provincial Councils and local authorities.
Staff of all descriptions, whether permanent or otherwise, attached to the President, Ministers, Deputy Ministers, PC Members. This includes the personal staff, private secretaries, coordinating secretaries, advisors and all those who are directly or indirectly paid by the State or any public
All judges of Supreme Court, Court of Appeal, High Court and judges of all courts of first instance including Labour Tribunals
3.2 Declarations should also cover the assets and liabilities of the official, the spouse and children. In the event the CIABOC so requires, the assets and liabilities of the family members of the officer or the spouse or extended family may also be investigated.

3.3 Special category of persons who shall, in addition to the public officials, submit assets and liabilities:

Candidates of Parliamentary Elections, Presidential Elections, Provincial Council Elections, Local Authorities Elections
Office bearers of all Political Parties, contesting any of the elections, directly or in coalition with other parties.
3.4 Immunity applicable to the President under Article 35 of the Constitution will be removed for the purpose of this Act. In the alternative, the CIABOC shall examine all returns of the President, as being covered under the law, and shall be entitled to prosecute the President upon him ceasing to be the President.

4.Manner of submitting asset declarations

Candidates to submit to the CIABOC with copy to the Commissioner of Elections
Ministers and all MPs to submit to the CIABOC with copy to the Speaker
All others submit to the CIABOC
CIABOC shall issue to each of these persons a letter of acknowledgement by registered mail. If any person does not receive it, it shall be the duty of that person to make immediate representation to ensure obtaining of a receipt.

5.Period of Submitting Annual Declarations

Candidates of any election two weeks prior to the relevant election.
Elected officials within two month from the date of assuming of office (this is in addition to the declarations submitted prior to the relevant election). Thereafter, the regular declarations shall be submitted annually on the 1st date of April, until such person holds office.
All other categories- annually
6.Public entitled to copies of Declarations
Public are entitle to obtain copies of declarations on payment of Rs.1000 or as prescribe by the CIABOC.

7.Information to be included in a Declaration

Normal Sources of Income
Previous employment/professional background
Description of the property (whether in Sri Lanka or otherwise)
Source of Income of each property
Value of each item (e.g. Fixed assets, fixed deposits)
Date of acquisition of each property (of any description)
Transfer of property if any
Value of transfer of property, if any
Reason for transfer
Reason for not disclosing market value
Tax file numberif the person is a tax payer
8.Access to information by Inland Revenue Department (IRD)

IRD shall have access to any of the information so given to the CIABOC.

Nothing in this law prevents the CIABOC or any other lawful authority to investigate into wealth of any description of an official covered under the Act in relation to a possible prosecution.

9. Offences

Failure to disclose full wealth and correct value thereof
Failure to submit initial or annual declarations
Undervaluation of property or any category of wealth
Unlawful accumulation of wealth, not explained by any officials
Aiding, abating or instigating a public official to commit any of the offences or concede any wealth of an officer covered by the Act
Suppression of wealth from the Declarations
10.Duties of the CIABOC

Maintain separate record for each person systematically and in a manner easily utilized for any future lawful purpose.
Issue to any citizen a copy of declarations, without observations of CIABOC, if a request is made with required payment. If no declaration is made in respect of that person, CIABOC shall inform the said citizen of that fact.
Conduct investigations on its own or on information received by them into any of the offences in the Act.
Examine all Declarations
Conduct appropriate inquiries, if so required, with a view to prosecuting any person under this law.
Initial prosecutions in respect of the offences authorized under the law.
Require Customs, Inland Revenue and Auditor General to assist the investigations.
11. Prosecutions

Prosecutions of offences would be indicted or conducted by the CIABOC.
Any citizen of Sri Lanka can initiate a prosecution in MC Colombo in relation to failure to submit Declarations by any person required to do so.
Nothing prevents any prosecutions by other authorities under any revenue law by the relevant authority.
12. Burden of Proof

Burden of proof shift to the accuse to establish that the wealth described in an indictment has been accumulated by lawful means.

13. Punishment and Penalties upon conviction

Forfeiture (confiscation/seizure)of wealth of all description, whether in Sri Lanka or outside Sri Lanka.
Wealth so recovered shall be vested in the State. Those who give information to the CIABOC for a successful prosecution will be entitled to rewards as prescribed.
Imprisonment up to 10 years and Fine up to the value of the wealth the accused was unable to explain.
Direction to the Inland Revenue and Customs to conduct further inquiries and take steps according to law and report to Court.
Debar any elected official from contesting any election for 7 years

Extradition law is amended to make Corruption and any offences under this law to be an extraditable offence.

15.Cooperation between National Authorities and other entities

It shall be the duty of all national, regional and local authorities, all public institutions and the public to assist the CIABOC to identify and trace the proceeds of crimes derived from offences, the property or the value corresponding to such proceeds.
If any property is invested or otherwise utilized in any private entity, trust or any other organization, it shall be the duty of the management of such entity to cooperate with the CIABOC in investigations.

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