Corruption free governance

By Dr. Justice Chandradasa Nanayakkara

Corruption in the spheres of government has been cited as one of many issues which led to nationwide protests and an unprecedented economic and political meltdown in the country. The public perception of the level of corruption, prevalent in government, has given rise to enormous discontent. The problem of corruption is sometimes perceived by the public as a problem more serious than poverty, unemployment and the rising cost of living.

Furthermore, corruption violates the spirit of the Constitution in addition to undermining the democratic ideals and principles of the Constitution. It erodes trust, weakens democratic form of governance, hampers economic development and further exacerbates inequality, poverty, social division and environmental degradation.

People expect honest, efficient and untainted governance from the new Cabinet to be formed under the newly elected President, while ridding the government institutions of its rampant corruption. People have a right to demand a corruption-free government. It is the duty of the government to ensure all of its affairs are conducted in a manner that promotes transparency, accountability and integrity. Lack of transparency, accountability, as well as institutional weakness, such as in the legislature and judicial system, provide fertile ground for high level of corruption in the country. Moreover, it should be remembered that allegations of corruption have led to the fall of governments and ruined the political careers of many renowned public figures and tarnished their reputation.

Therefore, fighting corruption has inevitably become one of the major challenges the government has to face, under the present circumstances. It behooves the newly elected President to appoint individuals of integrity and impeccable rectitude as ministers of the state. The appointment of ministers should be purely based on objective critia, such as appropriate qualifications, merit and efficiency.

In relation to this, reference to the observations made by the Indian Supreme Court, in a public interest litigation, filed in 2005, seeking the removal of tainted ministers from the Cabinet, would be pertinent. In this case, the Supreme Court advised the then Prime Minister to desist from appointing charge sheeted persons, facing trial for offences involving moral turpitude, as ministers, though there were no specific provisions in the Constitution, debarring such appointment. A five-judge bench, headed by the Chief Justice of India, R. M Lodha, observed that the Prime Minister, as the trustee of the Constitution, was expected to act in accordance with constitutional propriety and not to appoint unwarranted persons as ministers. The bench asked “whether a person who has come in to conflict with the law would be in a position to conscientiously discharge his function as Minister of the State when his integrity is questioned, and whether a person with doubtful integrity can be given the responsibility”. The court,while expressing its concern over criminalization of politics, left it to the wisdom of the Prime Minister to consider the suitability of such a person as a Minister.

Justice Mishra

Justice Dipak Mishra, writing the judgement, observed that although, Article 75 of the Indian Constitution does not embody any restriction as to who could be appointed as ministers and the court could not even by expansive constitutional interpretation prevent the Prime Minister from appointing a member of Parliament against whom charges of corruption have been made, it is always advisable to desist from appointing such charge-sheeted persons as ministers. It further observed that constitutional morality, good governance, constitutional trust and good sense was expected from the Prime Minster. It should be left to his wisdom not to recommend any person with criminal charges from being appointed as a minister. Many things cannot be included in the Constitution but the Constitution cannot, however, be expected to operate in a vacuum. Therefore, the Prime Minister should act in the interest of national polity and avoid appointing unsuitable persons as ministers, against whom charges of corruption have been levelled against, in order to restore people’s faith in democracy.

These observations made by the Indian Supreme Court are equally applicable to the existing circumstances in our country today and it is for the new President to take into consideration views expressed by the Indian Supreme court when appointing the new Cabinet of Ministers.

Global phenomenon

Corruption is an enduring global phenomenon. It is said that trillions of dollars in bribes are paid globally on an annual basis. One of the difficulties in discussing corruption is that of definition, as there is no universally accepted definition. Corruption takes many forms. It is traditionally defined as a form of dishonesty or a criminal offence which is committed by a person, or an organisation, entrusted with a position of authority, in order to acquire illicit benefits or abuse of power for private gain. Political corruption is the manipulation of policies, institutions, rules of procedure and decisions by political decision-makers to abuse their position for private gain. It encompasses such dishonest acts as, bribery, nepotism, misappropriation, double dealing, under the table transactions, manipulating elections, diverting funds, money laundering and extra-legal efforts by individuals or groups to gain influence over the actions of bureaucracy. While the intensity of the problem may vary across countries, it is the third world countries with high levels of poverty that are particularly vulnerable to systemic corruption.

Systemic ramifications

It cannot be denied that corruption is pervasive in Sri Lanka, as it has permeated various levels of public administration. Corruption exits practically at every level of society from the top echelons of political power to minor staff level. Corruption has become so widespread it is sometimes seen as a normal and legitimate part of politics and simply a cost of doing business.

The pernicious and systemic ramifications of pervasive corruption in Sri Lanka have been well discussed and documented. According to Transparency International Sri Lanka’s rank in the corruption perception index has worsened with time. Sri Lanka’s score has dropped from 38 in 2020 to 37 in 2021 pushing down its global ranking from 94 to 102. It is alleged that there are massive cases involving corruption in the allocation of resources and in procurement processes which operate without adhering to proper tender procedures etc. Sri Lanka has lost a staggering amount of income as a result of this, and there are a large number of cases pending trial under the Prevention of Corruption Act in our courts.

Although successive governments in Sri Lanka from the time of gaining independence have pledged to eradicate corruption and to that end have taken certain measures to contain it they have not yielded the intended results. Political parties and politicians have often reiterated that they intend to eradicate corruption in their manifestoes at the time of election, however their assurances have only been limited to rhetoric and hardly put in to practice. Therefore, the problem of corruption needs to be addressed on a priority basis if Sri Lanka is to come out of the present political and economic morass the country is mired in. Corruption affects development efforts and the attempts to obtain assistance from international agencies such as the International Monetary fund and The World Bank.

It should be remembered that legal and institutional measures put in place to address the issue of corruption would be of no avail if the government approaches the issue in a halfhearted manner. There should be political consensus on the need to take effective measures to combat the scourge of corruption. For tackling corruption, strong political will and dedication are required, as well as good governance, administrative accountability, procedural facilitation, and public engagement through public audit committees acting as watchdogs. Any investigation of alleged acts of corruption or mismanagement committed by any person regardless of his position should not be left to the discretion of men in power.

If leaders are corrupt, others will be inspired to follow suit. Therefore, it is the government’s responsibility to investigate and prosecute corrupt behaviour in an effective manner.

In many cases, the Police Department and the Court system that should be investigating and prosecuting corrupt behaviour are themselves caught up in the system. Sometimes criminal prosecution may then simply become an instrument for eliminating political opponents. Also, immunity from prosecution enjoyed by certain corrupt politicians has become a hindrance to the prosecution of the corrupt.

Anti-corruption measures undermined

Moreover, government should ensure that the people entrusted with the task of tackling the issue of corruption are people with utmost moral rectitude and are not involved in corrupt practices. Therefore, independence of the investigative authority would be critical in ensuring allegations of corruption are handled in an impartial, fair and unbiased manner. When an act of corruption is committed by powerful and well-connected individuals there is always a possibility of influencing the investigative authorities. The institutional credibility would be important, as legitimacy of any anti-corruption authority is dependent upon the confidence it can command from people. This is dependent on factors like impartiality, operational efficiency and the financial autonomy and most importantly the impeccable integrity and rectitude of the people who conduct the process.

Serious anti-corruption efforts have been undermined due to the lack of an impartial unbiassed approach to investigation and prosecution of cases relating to corruption.

Sri Lankan people doubted the ability of every government that came in to power and continue to doubt the ability of the governments that may be installed in the future, to deal with corruption effectively. The lack of faith and confidence in the government’s ability to combat corruption in an impartial and unbiassed manner has undermined the credibility of every government. Investigations relating to corruption have by and large suffered as a result of this inability and political intervention. In this connection the judiciary too has an important role to play as an important organ of government and it is entrusted with the responsibility to ensure that other organs of government act in accordance with the constitution. The role of media and other members of civil society also becomes important. Media should consistently expose the corrupt actions of politicians and bureaucrats.

Corruption has multiple effects on the society. The impact of corruption is not limited to financial losses, diversions of funds for personal use, political inefficiency or failures. It also impacts welfare of citizens as corruption affects decisions pertaining to public investments in health, education, infrastructure, housing, and plantation etc. A corruption-free government is, therefore, intrinsically connected with basic fundamental rights of every individual.