Features
RECOVERING THE PROCEEDS OF POLITICAL CORRUPTION
M. Sornarajah
Emeritus Professor of Law, National University of Singapore.
Corruption of public officials including presidents is a principal cause of the economic plight of our country. The public outcry against President Gotabaya Rajapakse draws attention to this fact. There is a demand by the demonstrators that the proceeds of corruption be recovered. How this can be done needs to be considered. Obviously, only a new government with leaders untainted by corruption can pull off the task of recovery. It must have a willing Attorney General, a dedicated body of lawyers and investigators and courts with new powers of enforcement created by legislation.
Globally, the World Bank has estimated that of the thirty trillion of global asset transactions, one billion involves bribery. In our country, the popular belief is that around ten per cent of every transaction is siphoned off by politicians and public officials. One politician has earned the sobriquet of Mr Ten Percent.
A former Attorney General of the United States, writing the preface to a joint publication of the US Department of Justice and the Department of State, “U.S. Asset Recovery Tools & Procedures: A Practical Guide for International Cooperation” (May 2012) stated:
“We must work together to ensure that corrupt officials do not retain the illicit proceeds of their corruption. There is no gentle way to say it: When kleptocrats loot their nations’ treasuries, steal natural resources, and embezzle development aid, they condemn their nations’ children to starvation and disease. In the face of this manifest injustice, asset recovery is a global imperative.”
What he said is happening in Sri Lanka today. Our children face starvation and disease. We need to recover the resources stolen from us.
The Sri Lankan public, now aware of the problem and willing to agitate for change, must know the methods available for the recovery of public assets plundered by politicians and officials. The repeated failure of internal procedures for dealing with bribery due to political interference has resulted in a lack of public confidence in domestic mechanisms. It is not that we do not have laws on bribery. We have had a Bribery Commission in Sri Lanka and laws to support it. Yet, there have been spectacular instances of corruption. Often, the very politician against whom allegations of corruption are made is the person in charge of the machinery for the investigation of such corruption.
Every President and his or her administration has been tainted with corruption. The so called Yahalpanya government had its bond scam. During the present regime, a 3.8 billion dollar oil project involving Oman in Hambantota involved allegations of corruption. There were many other scams involving sugar, garlic and oil. Every infrastructure project in the country had involved kickbacks to presidents and politicians.
Each president has protected predecessors. Each was neck deep in corruption even before taking office. The pattern of power rotates in Sri Lanka. There is a reluctance to set precedents that could be used against an incumbent president by a later one. The law has been used as a weapon to prosecute the minions of the previous administrations and political foes but never to build up a deterrent against political corruption generally.
It is not that mechanisms are not lacking. The Bribery Commission has extensive powers given it by the 17th Amendment. But, the machinery that exists has been subverted by corrupt politicians to cloak their misdeeds. It is necessary to look to other states to recover the proceeds of corruption.
Since we started with a quote from a US source, the many ways made available in the United States, which is home to two recent Sri Lankan leaders against whom the protests are levelled, provide good starting points. The Department of Justice has a Kleptocracy Asset Recovery Initiative begun in 2012. There is a dedicated team of prosecutors, financial analysts and experts involved in this work.
They have experience of recovery of assets in different cases. In 2016, several millions of dollars in a corruption involving Vimpel Corporation and Kazahkstan officials were recovered. More recently, over a billion dollars were recovered in a case concerning a Malaysian Sovereign Wealth Fund. All it would take is for the appropriate government officials in Sri Lanka to seek the assistance of the Department of Justice to recover the proceeds of bribery held in the United States. US law also provides criminal and civil actions for the recovery of such assets.
The United States has other mechanisms to prosecute its nationals who are involved in corrupt practices abroad. The Foreign Corrupt Practices Act enables the prosecution of extraterritorial corruption by American nationals. The Island (27.04.2022) reported that measures are being taken in the US Congress to inquire into American nationals who have been responsible for “fleecing assets” in Sri Lanka.
Common law courts have used doctrines like the constructive trust, restitution and unjust enrichment to ensure recovery of property subject to corruption. An illustrative case involves the Singapore courts holding that bribes given to the head of Pertamina, the Indonesian state oil corporation and transferred to the bank account of his mistress in Singapore should be deemed to be the property of Pertamina.
There are good precedents which have accumulated over the years for pursuing the wealth of corrupt leaders and their families. The Nigerian leader, Sonny Abacha, stashed over a billion dollars of corrupt money in Swiss banks. The Swiss banks cooperated in the pursuit of this money by the Nigerian government.
Several millions were recovered from Lichtenstein and other European countries. The US repatriated over 311 million dollars of Abacha money to Nigeria. In all over 3.6 billion dollars looted by Abacha were recovered from overseas.https://www.bbc.com/news/world-africa-54929254
The assets of the former Philippines president, Marcos, were similarly pursued. (Interestingly, a scion of the Marcos family is making a political come-back in the Philippines.) There is an accumulation of precedents involving dictators who had stolen the money of their people. In the case of Sri Lanka, most of the proceeds of corruption would by now have found safe havens in foreign lands. Tracing and recovering these assets will involve complex and prolonged litigation.
There is need for the reform of our law on corruption. In many countries, including India, the United Kingdom, Australia, South Africa and Mauritius, courts are empowered to make an “Unexplained Wealth Order”. On proof that a public officer has accumulated wealth disproportionate to his salary or other means of income, a court order can be made freezing the assets of the public officer. The burden then is on the public officer to show that he had obtained that wealth through lawful means. Failure to do so results in the property becoming state property. Legislation to introduce such laws into Sri Lanka must be considered.
The example of the laws in Singapore on bribery and corruption can be used in Sri Lanka. Singapore realised quite early that economic progress is not possible if bribery and corruption are not eliminated. Both public and private corruption must be eliminated. The rise of a corrupt business community can feed power and interact with public authority to fuel corruption. This was demonstrated in Sri Lanka in recent times.
The need to enact legislation based on the United Nations Convention on Corruption is imperative. Sri Lanka, along with some 180 states, signed and ratified this Convention. True to form, it has not made this Convention a part of domestic law by enacting legislation based on it. The Convention creates a duty on each state to assist the other to recover the proceeds of foreign corruption found within its territory.
A future Government of Sri Lanka can invoke this Convention to pursue the illicit wealth obtained through corruption. Under the Convention, a Sri Lankan court can make orders relating to assets situated outside Sri Lanka and have such orders enforced by courts of member states. This is a powerful devise which gives an extraterritorial reach to the courts of Sri Lanka. The use of the convention requires a body of lawyers who have expertise in the working of the growing system of recovering the proceeds of bribery and corruption. The World Bank has established a body that provides assistance in such matters which a new government could use.
The law provides many ways of the recovery of the proceeds of corruption but the question is whether there is a will in Sri Lanka to act against the powerful miscreants and recover the wealth of its people. Good laws may be there but it is good men who work it that make the laws succeed.
The public uprising against corrupt politicians demands that the new administration has the will to move in this matter. But the law will not help relieve problems presented by the present economic crisis as tracing and recovery of assets of corruption takes several years. Yet, a start must be made as soon as possible. Not only must the proceeds of past corruption be recovered, deterrence must be provided for present and future corruption.
Features
Eastern University and the making of a culture of peace
by Jehan Perera
There is an important change in the way peace is being understood in Sri Lanka. The notion that peacebuilding is not simply the responsibility of governments, politicians and peace organisations, but is also a responsibility of educational institutions, appears to be permeating the consciousness of at least a section of the academic community. This was visible on International Peace Day at an event held at Eastern University by the Faculty of Health-Care Sciences. The event was unusual not least because the medical and nursing faculty of the university had decided that peacebuilding was relevant to its academic and professional responsibilities.
Peacebuilding has too often been treated as something undertaken after conflict, when the fighting has stopped and the immediate task is to rebuild relationships between communities. But peace cannot be sustained by governments and peace organisations alone. If it is to become long lasting, the values and practices of peace have to become part of the institutions through which a society educates its younger generations. Universities and other educational institutions are therefore important to peacebuilding. They are among the places where the foundations of a culture of peace can either be built or neglected.
The experience of the Faculty of Health-Care Sciences at Eastern University provides a practical example of what this can mean. Led by its Dean, Prof Thillainathan Sathaananthan, the faculty organised an event which went beyond the ordinary academic scope of a medical faculty. University academics are experts in writing project proposals and applying for research grants. On this occasion, the members of the Faculty of Health-Care Sciences used those skills to apply for a UNESCO grant that they won to conduct an International Peace Day event. The significance lies less in the Rs 200,000 grant than in the decision to use the university’s institutional capacity and resources to invest in peacebuilding. The event at Eastern University needs to be understood as more than a successful university programme. It represents a possible paradigm shift in peace thinking.
Institutional Commitment
The Peace Day event obtained the support of the university administration, including Vice Chancellor Prof P Peratheepan, and reached out to secondary schools in the vicinity to mobilise their attendance. The event itself was meticulously organised. There were cultural items including traditional and modern dance and song in the three languages, performed by combinations of solo, duet and multiple singers, dancers and actors drawn in part from nearby secondary schools. There was a panel discussion by senior academics on the general theme of peacebuilding and how to prepare for it. A discussion among the students followed, where each student spoke on behalf of a religion that was not theirs. This is significant because peacebuilding cannot remain an idea discussed by specialists at conferences. It has to become part of the way institutions educate and prepare people for life in a plural society.
The Faculty of Health-Care Sciences at Eastern University has provided a model through its Peace Medicine course modules that were introduced to the curricular as a compulsory core course over 10 years ago. Two senior academics, Dr Kuveriel Eliyas Karunakaran and Dr Thillainathan Sathaananthan, have written a book on “Peace Medicine- A Health Care Concern” that was published five years ago. Its Peace Medicine Module integrates principles of medical ethics, compassion, equity, social justice and community engagement into health education and practice. In his introduction, former Vice Chancellor of Eastern University, Prof T Jayasingam noted “This book is an introduction to a theme which had already been operating in the Faculty of Health Care Sciences as a course.”
Doctors, nurses and health workers know better than anyone the harm that war and violence does. They are the people who treat the wounds and trauma that violence leaves behind. In a hospital, a patient is not asked what their religion or ethnicity is before they are treated. Health care is one of the places where peace is practised every day. The Faculty has therefore found a way of connecting its professional responsibilities with the wider social responsibility of peacebuilding. The question is whether this experience can be replicated throughout the country, at universities and at other educational institutions, so that peacebuilding becomes part of the consciousness of education itself. If that happens on a sufficient scale, it can begin to generate a culture of peace that becomes increasingly difficult to reverse.
Local Action
The Eastern University event corresponded closely to the United Nations theme for this year’s International Day of Peace, “Invest in Peace – For Everyone, Everywhere, Every Day”, which honours the “everyday architects of peace”, people driving local action, laying the groundwork for stability and building lasting peace from the ground up. The emphasis on investment is important. An investment means that something is put in: time, courage and resources. There is no more violent conflict in Sri Lanka today. But the absence of war does not automatically produce a culture of peace. The factors that fed the country’s conflict have not disappeared from the world. Racism, corruption and the violation of laws and human rights are the raw materials of conflict. So too are unresolved grievances, discrimination and the failure to recognise the suffering of others.
A country that does not deal with its past does not escape it. The past can return in the next generation. This is why the experience of Eastern University needs to be replicated countrywide, both at universities and at other educational institutions. The objective should not be to turn every academic discipline into peace studies. Rather, peacebuilding needs to become part of the consciousness of education itself. Eastern University shows that a medical faculty can develop Peace Medicine. A law faculty can examine the relationship between justice, rights and peace. Faculties of education can prepare teachers to work in diverse communities, while the humanities and social sciences can examine the different narratives through which communities understand their histories. Every institution can find its own way of making peacebuilding relevant to what it teaches.
Sri Lanka has had many declarations, pledges and programmes in the past. What matters is whether these produce changes in behaviour and institutional practice. Peacebuilding requires confronting difficult issues rather than avoiding them. It requires respect for different identities, but also engagement across those identities. It requires dealing with grievances in the present while also addressing unresolved issues from the past. It requires truth, accountability, reparations and guarantees of non-recurrence. It requires people to learn that the rights of another community do not diminish their own rights. The International Peace Day event at Eastern University was evidence of a change in the way at least some academics in a part of the country deeply affected by war are thinking about their responsibilities. Peace needs to be invested in and the most important investment will be in the minds of those who will inherit the future.
Features
Quality assured education commodities
by Ahilan Kadirgamar
I have always noticed the little paper tags that are inside the packaging of some products that say quality assured or quality control. I often wonder who might have checked the product and stamped that tag, but I also forget the tag soon enough. Decades later, when I entered academia, I was taken aback by the emphasis placed on quality assurance in our universities. It is not something that could be forgotten and done away with; the entire university system is obsessed with quality assurance.
Beginning with the staff induction programme, quality assurance is drilled into the newly recruited lecturers. It is the norm, not seen as doing any harm and only trying to improve quality. It is accepted as given, and not questioned. Quality Assurance Cells and Committees are omnipresent and hover above the Departments and, at times, even the Faculty Boards. Quality Assurance reviews are feared by the Deans and Vice Chancellors. University life itself seems secondary to the rule of quality assurance. What do we make of this system of quality assurance and what are its implications for our university system?
Corporate speak
Universities globally have been going through major changes with neoliberal education policies. In many countries, universities increasingly became corporatised to be run like businesses in the 1980s. As state support for universities declined, cost cutting became the norm. They started hiring adjunct or part-time staff. Many public non-fee levying universities around the world began to charge fees. Decade by decade, tuition fees became more and more exorbitant, forcing students to take student loans. The total student debt in the United States now stands at close to US$ 2 trillion; which is about 20 times the GDP of Sri Lanka. As the higher education landscape transformed in the West, university administrations began to recruit Presidents, Vice Chancellors and administrative officials with corporate backgrounds and experience.
Such corporatisation of universities in the West has since been imported into countries like Sri Lanka, introducing a new corporate vocabulary, including quality assurance, graduate competencies, programme outcomes, intended learning outcomes, etc. University teaching has become secondary to documenting so-called outcomes. The teacher-student relationship, the environment of the lecture hall and even administering the university have been over-determined by the processes of ensuring quality. How did such major changes come about in such a short time? Indeed, academics of just two generation ago, would never have heard of these terms and processes in the Sri Lankan university system.
World Bank Trojan horse
Since the early 2000s there have been a number of World Bank projects that have drastically changed the character of Sri Lankan universities. Quality assurance as a central agenda within universities, and many other changes to the working of our universities, came through these World Bank initiatives. The Improving Relevance and Quality of Undergraduate Education (IRQUE) project and Higher Education for the 21st Century (HETC) project were two such earlier projects that set up the Quality Assurance and Accreditation Unit (QAAU) under the University Grants Commission (UGC) and established systematic quality assurance reviews for state universities. The public often thinks these are grants from the World Bank to modernise our universities. However, they are not grants but loans.
The most recent such project, Accelerating Higher Education Expansion and Development (AHEAD) is a US$ 100 million loan from the World Bank implemented from 2018 to 2023, which consolidated the quality assurance structures from the earlier projects. Furthermore, these projects are implemented with tremendous arrogance, prioritising their implementation over all other concerns in the universities, when the project over six years for example accounts for just one fourth of our budget allocation for universities this year.
The AHEAD project drastically changed course curricula, sought to increase student enrolment in science, technology, engineering, mathematics (STEM) disciplines, commercialise the university research agenda and create university-business linkages. All of this was pushed to supposedly help us face development challenges. We have heard the ideological attack on our universities and even students claiming they are “unemployable graduates”. These changes to our higher education system were supposedly going to create jobs and increase employment.
The irony of the AHEAD project is that just as it was ending in 2023, apparently after having reached its targets, the Sri Lankan economy was collapsing. The World Bank often gets the direction of causality wrong. It is the economy that creates jobs for graduates, and not the training or kind of graduates that create jobs. It is decades of World Bank policies, and those of its ideological twin the IMF, that have led to such high youth unemployment, not only in Sri Lanka but also in many other countries in the global South.
Sri Lanka entered an IMF agreement in March 2023 and started a new Country Partnership Framework with the World Bank in June 2023. These programmes have little to say about, and actively discourage, government initiatives that aim to create an industrial policy or an employment creation policy. Instead, they push for austerity measures, which not only restrict the allocation for education among other sectors, but also end up contracting the economy to the detriment of increasing employment. Their goal is the commercialisation of higher education, to make universities into businesses and run them like factories.
In this context, the ideology of quality assurance is powerful. The International Organisation for Standardisation (ISO), whose different standards are necessary for marketing, is the institution that came up with the concept of “quality assurance”. It promoted quality assurance as a process of identifying defected products. Therefore, when the World Bank promotes this conceptual framing, our students are, in fact, seen as products on the assembly line, with quality assurance processes aiming to prevent the release of defected products from the university system. For the US$ 100 million we borrowed for the AHEAD project and the many more million dollars in similar World Bank projects, there is no evidence of increased employment of graduates.
Commodity fetishism
Over a century and a half ago, Karl Marx critiqued the economic analysis prevalent at that time that associated some inherent or monetary value for commodities without considering the social relations that underlie the production of those commodities. Marx called this commodity fetishism. Furthermore, he theorised that such commodity fetishism was also a reason for the alienation of human beings from the world. If our labour and what we produce is seen devoid of the social relations that underlie them, we lose our connection with the people and the world. In this process we become alienated from what we produce and the world.
We are now in a world where our students themselves are fetishised as commodities for the market. Universities are no longer communities concerned about knowledge and human growth, but mere factories producing commodities, which have to be produced without defects to be marketed. In this way, quality assurance has become the cause for the alienation of students, academics and our universities themselves, from the larger relationship with our economy and society.
Our university system does need reform. It is grossly underfunded and not providing the financial support and facilities for our students. Universities have become hierarchical spaces without the academic freedom and democratic ethos necessary for producing knowledge. Academics and students need to engage more with their communities to make their learning and research meaningful, not to mention their contribution to and integration with society. However, when it comes to even questions of governance and regulation of the universities, such concerns are merely reduced to improving quality. In our contemporary times, this singular focus on quality assurance, as opposed to addressing the larger structural issues, is crippling our universities. There may be no way out, but to put back quality assurance where it started, those little tags on goods, to perhaps be noticed but quickly forgotten.
Ahilan Kadirgamar is a political economist and Senior Lecturer, University of Jaffna.
(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies)
Features
Thailand’s biggest new global star …
The entertainment scene, globally, is agog with excitement, and, why not!
Yes, a new global star has emerged … from Thailand, and she hit the headlines by winning America’s Got Talent.
Rattikarn Amloy, known to millions by her stage name Nene Royal, was crowned the winner of America’s Got Talent (AGT) Season 21 at the live finale at Pasadena Civic Auditorium, California, taking home the USD 1 million grand prize.
The 16-year-old rocker, from the holiday island of Phuket (I’ve been to Phuket, courtesy Tourism Authority of Thailand), has struck a power chord around the world, and is the first Thai national ever to win the hit NBC show.
She beat nine other finalists, including runner-up magician Geno Ploeger, after a blistering final performance.
Nene’s story is pure rock and roll fairy-tale. She says she picked up a guitar at age seven, fell in love at the first chord, and taught herself mostly by watching videos online. That dedication earned her a music scholarship to Kajonkiet International School Phuket.
Her audition at America’s Got Talent — a swaggering, shredding rendition of The Cranberries’ classic ‘Zombie’ — exploded online, amassing over 200 million views across AGT’s platforms, more than any act this season.
She kept wowing: ‘Hysteria’ by Muse, then ‘Black Hole Sun’ by Soundgarden which earned her Spice Girl Mel B’s Golden Buzzer, sending her straight to the live shows.
For the final, she unleashed ‘Seven Nation Army’ by The White Stripes. Judge Howie Mandel shouted: “You should win. Give her the million, America.” Mel B praised her “mysterious, mystical stage presence”.
And for the grand finale, she lived every teen rocker’s dream — performing on stage, alongside US rock giants Linkin Park.
When host Terry Crews announced her as winner, the teenager collapsed to the stage floor in tears. “I’m very happy and you know I’m emotional right now,” she said.
And Thailand erupted. Her school held watch parties, posting: “You did it, congratulations, champion. We are so proud of you.”
Even Prime Minister Anutin Charnvirakul sent a personal congratulation. He had earlier hosted Nene at Government House in July, where she played guitar while he sang a Thai rock song. His office said her talent “brought pride to Thai people.”
Corporate Thailand also rallied behind her — Charoen Pokphand Foods, owned by billionaire Dhanin Chearavanont, even rented a giant billboard in Times Square, New York, to cheer her on.
With her blistering guitar solos, rock-ballad shrieks and fearless spirit, little Nene Royal has just become Thailand’s biggest new global star.
What’s more, this amazing teenager will be bringing her powerful vocals, guitar skills and signature rock-metal style to the stage, as opening act, before one of the world’s biggest rock bands, America’s Avenged Sevenfold, in Singapore, on 13 October.
Unfortunately, we are still to see a local artiste, grab the spotlight, on a global scale … like Thailand’s Nene.
Yes, they do shine, but mostly on social media, and that, too, with the aid of AI (Artificial Intellegence).
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