Sri Lanka is known for the quality of its legal scholarship, and the draft anticorruption bill the government gazetted April 6 leaves little doubt the reputation is warranted. It contains many thoughtful, well drafted provisions other nations looking to reform their laws will want to borrow. Too bad for the drafters they can’t copyright their work.
At 162 pages I did not have time to give it the the intensive review the legislature will want to conduct before approving it. But I did find several provisions that I would urge legislators should examine as part of that review —
- Sections 9 and 24 provides that parliament will set the pay of the three members of the anticorruption commission and its director general. Setting aside the obvious area for abuse — salaries cut for doing too good a job — I would think one would want a fixed salary pegged to the salary of judges or some other public official. It removes any possibility of gamesmanship, eliminates tensions that might arise if the commissioners and DG are paid far above others in the legal system, and removes any hesitation potential candidates might have about applying for the job given the uncertainty of the pay.
- I read the bill as providing that corruptly acquired assets forfeited as a result of a criminal or civil proceeding go directly to the commission. Similar provisions in American federal law and the laws of the 50 states have been widely misused. Law enforcement personnel wield that power to enhance their budgets. Why shouldn’t the assets go to the treasury? (A learned discussion of the issues forfeiture has raised in U.S. law is here. Putting “abuse civil forfeiture” into a search engine will bring back thousands of studies and articles about the U.S. experience.)
- Joint investigations. I am not sure on this one, but I think clarification on the commission’s power to conduct a joint investigation with another domestic law enforcement agency might be needed in cases where corruption is one of many crimes arising from the same factual nexus. Suppose a murder suspect bribes or tries to bribe a prosecutor. The police and the commission should be able to jointly investigate. Not clear that type of joint investigation permitted given the way the section on joint investigations written.
- The general language on handling assets frozen pending a forfeiture proceeding seems quite tight. But given the vagaries of cryptocurrency, I am not sure it covers all possible scenarios. A separate section for crypto? The FBI is one of many law enforcement agencies which, having grappled with the problem, could provide first-rate advice.)
- The section that requires officials to disclose their income and assets raised several questions —
- Are too many officials required to disclose? Filing puts a burden on the person required to file and makes administration of the program more time consuming and expensive. Is it necessary that all staff officers of the armed forces file? Why not just those involved in procurements?
- Is requiring media personnel to file also necessary? Infringement on privacy right of individuals who are not in the public service?
- Gifts are not required to be disclosed. They should be although as the current flap about American Supreme Court Justice Clarence Thomas shows, gift disclosure rules can be tricky. They typically contain an exemption for family or close personal friends. After all, we don’t need to know what a public employee’s spouse or children gave the employee for his or her birthday. With American judges, the exclusion from reporting gifts extends to those of “personal hospitality” such as a dinner or overnight stay. But these exceptions do open a window for abuse. Justice Thomas did not report being flown around the world on a private jet and put up on a superyacht for a week on the grounds it is was “personal hospitality.” That omission has raised questions his integrity. But even with the problem of how to exclude gifts from family and (real) friends, overall, some provision on gift disclosure is essential.
- Disclosure is limited to assets and liabilities which “gives (sic) rise or may give rise to conflicts of interest,” section 81(2). I do not know of any other nation or any state in the U.S. with such a limitation, do not see any need for it, and think it invites mischief. What asset or liability would not give rise to a conflict or potential conflict under some possible circumstance?
- Section 104 provides that “trading in influence” is punishable by up to seven years in prison. The UN Convention Against Corruption recommends parties “consider” making trading in influence, also known as “influence peddling,” a crime. The paradigmatic case is a former official persuading an ex-colleague to issue a public contract or other benefit to a third party in return for a fee.
- Of all the provisions of UNCAC, this one has been the one most criticized. The reason, as one commentator put it, is that “it lacks the precision found [in other articles] and can encompass conduct widely considered to be legal.” Aloysius Llamzon, Article 18: Trading in Influence,” chapter in The United Nations Convention Against Corruption: A Commentary, Rose, Kubiciel, and Landwehr, eds., Oxford University Press, 2019. UNCAC’s drafters anticipated the criticism by including the proviso that for the influence to be a crime, the party receiving the benefit must not otherwise be entitled to receive the contract or benefit, that it must be “undue.” Would suggest adding that or a similar qualifier to section 104.
- The conflict of interest provisions in section 107 address only financial conflicts of interest. Friendships and family ties can also affect an official’s ability to act impartially. It’s harder to draw lines here than with financial conflicts and my advice is to leave to them to ethics codes enforced administratively. The omissions are understandable so long as they are picked up in an ethics code. The same goes for another knotty but real problem: the appearance of a conflict of interest. It’s again an issue that should not be ignored but should also be dealt with in an ethics code.
- The corporate liability provisions in section 117 seem sound. A growing trend in OECD countries is to require corporations to take measures to prevent employees from paying bribes and committing other criminal acts and to fine the company for not preventing crimes. The United Kingdom is the midst of a discussion on broadening it “duty to prevent” offense. A useful summary of the pros and cons by a global law firm is here.