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Corruption by causing a ‘loss to the government’

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Reform of the Anti-Corruption Act – Part II

When Sri Lanka gained Independence, the only anti-corruption legislation in force consisted of Sections 158, 159 and 160 of Chapter IX of the Penal Code, which dealt with public servants accepting or soliciting gratification for doing or forbearing to do any official act, or showing favour to any person, etc. Since these provisions were considered inadequate, the Bribery Act was promulgated in 1954. An amendment to the Bribery Act (No. 40) of 1958 created the office of the Bribery Commissioner.

The accumulation of unexplained wealth was also brought within the ambit of the Bribery Act. Where a person holding public office acquired property or money which could not have been part of his known income or receipts, the presumption was that such money and property had been acquired through the proceeds of bribery. Until 1994, once the Bribery Commissioner’s Department investigated an allegation of bribery against any person and was satisfied that there was a prima facie case, the matter would have to be referred to the Attorney General for prosecution.

1994: the pivotal year

In 1994, the new government that came into power introduced the Commission to Investigate Allegations of Bribery or Corruption Act No. 19, of 1994, which created a Commission that could investigate allegations of bribery or corruption and also institute prosecutions without having to refer the matter to the Attorney General’s Department. The government of 1994 also brought an amendment (Act, No. 20 of 1994), which introduced a new Section 70 to the Bribery Act which made ‘causing a loss to the government’ an offence amounting to corruption, even if there is no evidence of bribe taking or unlawful enrichment by the person concerned.

From the time this Section 70 was enacted in 1994, it attracted the attention of legal experts even before any prosecutions had been instituted under its provisions. In 1999, President’s Counsel (later Justice) Saleem Marsoof writing to the journal of Financial Crime raised questions about the impact Section 70 of the Bribery Act would have on the exercise of the discretionary power held by public servants. Taking the example of the power granted to the Collector of Customs under the Customs Ordinance to reduce the duty imposed on an excisable article if he was of the opinion that the duty was excessive, Justice Marsoof asked whether the exercise of that discretionary power could lead to prosecution under Section 70.

Indeed, the wording of Section 70 left public servants seriously exposed. Section 70 referred to a ‘wrongful’ or ‘unlawful’ loss to the government which implied that some losses to the government could be lawful and correct. However, there was no way proposed to distinguish one from the other. The problem with Section 70 was that it sought to place in a straitjacket an aspect of public administration and governance which could not be dealt with in that manner.

It was after the Yahapalana government came into power, in 2015, that Section 70 of the Bribery Act really came into its own. In January 2018, the Yahapalana cabinet decided to amend Section 70 so as to empower the Commission to Investigate Allegations of Bribery or Corruption to institute prosecutions under Section 70 not only in the Magistrate’s Courts but in the High Courts as well. An amendment to the Bribery Act (No. 22 of 2018) was passed by the Yahapalana government for this purpose.

At the height of this Section 70 prosecutions blitz under the Yahapalana government, another legal heavyweight President’s Counsel M. M. Zuhair wrote to The Island about a case, where Section 70 had been applied to a former Attorney General (no less!). He wrote:

“…Opinions and decisions are required to be taken regularly by the Executive, headed by the President, by Ministers, by the Cabinet and by the Courts. These decisions are often taken both with and without reference to any person benefiting from such decisions.

“To interpret or allege such decisions as wrongful or unlawful particularly after the holders of such office had ceased to hold the office… could become a common occurrence that could lead to abuse of section 70 for personal or political purposes. Public servants would be unwilling to take decisions and governance could ground to a virtual halt, adversely affecting the people …”

Under Section 70, government officials, whether it be the Director General of the Customs Department, the Attorney General or arguably even members of the judiciary, were exposed to the possibility of prosecution. The Bribery Act of 1954 was repealed by the Anti-Corruption Act, No. 9 of 2023, but the old Section 70 continues to exist in the Anti-Corruption Act of 2023 in the form of Section 111. Hence this issue is still very much alive. What makes things worse is that Section 161 of the Anti-Corruption Act of 2023 says that “Where the provisions of this Act are in conflict or are inconsistent with any other written law, the provisions of this Act shall prevail.”

The Indian solution

Undoubtedly, public servants have infinite opportunities to accept bribes or to show favour to selected parties. However, this discretionary power has been granted to public servants to facilitate the smooth functioning of the government. Without such discretionary power, governance will become impossible. Obviously, some middle ground will have to be found or we may see the entire country grinding to a halt. Bribery and corruption are issues that afflict all of mankind. Our neighbour India appears to have a workable system in place to deal with such issues without paralysing the entire system of governance.

According to the Indian Prevention of Corruption Act of 1988, the authority that investigates allegations of bribery or corruption is the police. Only police officers, above a certain rank, can investigate any offence related to bribery and corruption without the order of a Magistrate or make arrests without a warrant. Under Section 19 of the Indian Prevention of Corruption Act, no bribery or corruption prosecution can be instituted in a court of law against a public servant without the sanction of the Indian central government or a state government as the case may be.

According to Section 17A of the Indian Prevention of Corruption Act when it comes to the investigation of offences relating to recommendations made or decisions taken by public servants in the discharge of their official functions or duties, no police officer can even conduct an inquiry into such matters without the prior approval of the Indian central government, or a state government as the case may be.

The Indian Central Vigilance Commission Act was passed in 2003 to establish a Central Vigilance Commission (CVC) to inquire into offences under the Prevention of Corruption Act of 1988 committed by certain categories of public servants of the Central Government.

In conducting such inquiries, the Indian Central Vigilance Commission can among other things, issue summons, examine any person under oath; require the production of any document; requisition any public record from any court or office etc.

However, under Section 8(1)(c) of the Act of 2003 the Central Vigilance Commission cannot even begin such an inquiry unless a reference has been made by the Central Government requesting the Commission to do so. Under Section 26 of the Central Vigilance Commission Act of 2003 the police cannot conduct any inquiry into any offence under the Prevention of Corruption Act of 1988 alleged to have been committed by certain categories of employees without the prior approval of the Central Government.

The Indian anti-corruption laws have provisions to prosecute wrongdoers for actually taking bribes or for possessing unexplained wealth. The above -mentioned safeguards have been put in place to shield public servants who make bona fide decisions in the discharge of their duties. India has an institutionally strong public service which will not necessarily get swept off their feet by temporary political waves. There is a much stronger institutional consciousness within the Indian public service than in the public service in Sri Lanka.

Indeed, even the Indian political establishment behaves very differently to that of Sri Lanka when it comes to safeguarding the sovereignty and the national interest of that country. In 2010, when a Congress Party government moved to toughen the Indian Foreign Contributions Regulatory Act, the Parliamentary Committee that examined the reforms was headed by the BJP Leader of the Opposition Sushma Swaraj. Due to such conditions that prevail in India, the safeguards for public servants provided for in the Indian Prevention of Corruption Act of 1988 and the Central Vigilance Commission Act of 2003 would suffice to shield public servants from unfair inquisitions, arrest and prosecution and to keep the business of government running smoothly.

(To be continued tomorrow)

by A Special Correspondent
(Continued from yesterday)



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Features

‘Lord Edgware Dies’

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It has been some time since I read an Agatha Christie, the plot of which I cannot remember. So, I was delighted to find on the shelves of a friend Lord Edgware Dies, which I had a vague memory of, but no certainty about who had done it.

When I read it, I found that my memory of who was probably the killer was correct, but I could not be certain and the red herrings Christie threw in were so diverting that until almost the very end I wondered if I had been wrong.

The plot is very simple. Jane Wilkinson, who is married to Lord Edgware, tells him that she is desperate for a divorce since she is in love with a very proper Anglo-Catholic peer, Lord Melton, but Edgware refuses to divorce her. She asks Poirot to talk to him, which he does, and is surprised to find that Edgware has told Jane he is prepared to give her a divorce. This was, after he had categorically refused, through a letter, which Jane said she had not received.

That night Edgware is murdered, after Jane had been to see him, or so the butler said, and also Edgware’s secretary. But Jane had been that evening at a grand dinner many miles away, where a dozen fellow guests could swear to her presence.

There was a solution however to the mystery of two Jane Wilkinsons, namely a skilful impersonator called Carlotta Adams who, in the opening chapter had impersonated Jane Wilkinson, who had also been at the performance. But when Poirot goes to see her, he finds that she had been found dead on the morning after Edgware had been killed, of an overdose. And in her bag was a gold case, with a strange inscription, that contained the drug, along with a pair of pince-nez.

Her maid said she had written a letter to her sister in America and posted it the previous night. Poirot asks Inspector Japp to get the letter, and a transcript is received from America, and in it the name of Edgware’s nephew Ronald Marsh is mentioned; he had taken Carlotta to dinner after her performance, with which the book opens, and had then set her a challenge. Japp arrests Marsh, but Poirot is not happy and asks for the original of the letter, which the sister sends him. That shows that a page is missing, and the tear is obvious, though that raises the question as to why it had not simply been cut.

Matters are further complicated by the fact that Marsh had gone in a taxi to the Edgware house, along with Edgware’s daughter Geraldine, in the interval of an opera which had previously seemed to provide them with cast iron alibis. Geraldine had gone in to fetch her pearls so that Marsh could raise money he needed, and thus had an opportunity to kill Edgware, as did Marsh, for the driver said he had got out of the taxi while waiting and gone into the house.

Agatha Christie

Marsh explained why he had gone to the house on the night of the murder as having followed Bryan Martin, an American actor, who had been in love with Jane, whom he saw go into the house with a key. But there was no one visible when he entered, and Geraldine almost immediately came down and they left together. And Martin too has become an object of suspicion to Poirot, for he had been to see him before the murders were discovered with a story of being followed by a man with a gold tooth – a story Poirot immediately realized was false when he was asked how old the man was, and was told he was young, for young people did not have gold teeth.

A heap of French money Edgware had got for a trip to Paris was missing, but since Marsh had no need for it after his cousin’s offer of help, Poirot deduces that it must have been taken by the butler, who has disappeared. Christie has stressed that he is astonishingly handsome, unusual in a butler, and Poirot notes a resemblance to Martin, so he thinks the mysterious man going into the house must have been him.

Incidentally, later Poirot assumes that Edgware’s change of mind was because he was involved in some scandal, and I believe Christie intends us to see the cause of this in his handsome butler, though this is not specified.

Meanwhile, Poirot has asked Japp to find out the provenance of the case found in Carlotta’s handbag, and it turns out to have been made in Paris, specially commissioned, and collected by a woman with pince-nez.

But then another murder occurs—that of another guest at the grand dinner, which provided Jane with her alibi. The victim is an actor who had been bemused when Jane, at a lunch, thought the Judgment of Paris referred to the city. He told Hastings he wanted to see Poirot, but was killed before he could get to the appointment. Poirot had rushed there when told about his request, but it was too late.

Meanwhile, Poirot has tried out the pince-nez on Edgware’s secretary, but she could not see through these. It was only a chance remark heard outside the theatre that led him to try them out on Wilkinson’s maid Ellis, a spare pair that had been appropriated for the night of the murders.

Poirot then lays things out, having summoned Martin and told him that he probably suppressed Edgware’s letter, as he had been dropped by then and he did not want Jane to marry another. But after teasing Martin, Poirot says that Jane was in fact the murderer, and she got Carlotta to impersonate her at the dinner while she went to the house and killed her husband. After meeting Carlotta later and checking with her through a call that she had not been rumbled, Jane had gone ahead with the murder – she put veronal into her drink and the case with veronal into the handbag. She forgot to take out the pince-nez she had used earlier to imitate an American. Carlotta had registered as the American in a hotel and Jane had gone to see her, and there they exchanged identities. After seen the letter, she made use of it by tearing off the page that referred to her, and the S of She, so that the person who had challenged Carlotta to impersonate her seemed to be a man.

There is a coda in which Jane, condemned to death, writes to Hastings, still full of pride at her ingenuity hoping she will be remembered.

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Desilt reservoirs, learn from our ancient irrigation systems

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Polgolla

by Prof. O. A. Ileperuma

Silting of reservoirs is a major problem today affecting our hydropower production and irrigation systems. The main Mahaweli reservoirs are silted to a considerable extent reducing the water holding capacity of them. Due to poor soil management practices, floodwaters deposit large amounts of silt in these reservoirs. When the Polgolla reservoir was fully drained about two years back, one could see mountains of silt in the lower reaches of the reservoir. A rough estimate is that 50% of the total capacity of these reservoirs has been lost to siltation. This is a serious issue which affects not only power and agriculture but also flood control.

Our ancient irrigation systems ensured that desilting of reservoirs took place under royal decree where all users of the reservoirs were ordered to carry out desilting of reservoirs during the dry season. The clay thus collected was used in making bricks for the construction of great stupas which dot the landscape of our ancient kingdoms. This ensured that the reservoirs had their full capacity filled with water for the next cultivating season. Our ancient kings were clever enough not to construct reservoirs by blocking main rivers such as the Mahaweli. A classic example is the Minipe left canal where they tapped only the surface water of Mahaweli. Even the bigger tanks such as Nuwara Wewa and Parakrama Samudraya were fed with minor rivulets. There were also other ingenious features in the cascade irrigation systems built by the ancient kings, such as mud sluice canals and forest reservations between the reservoirs in the cascade system. These reservations helped trap silt and remove excess nutrients, which could otherwise contribute to increasing salinity as water flowed from one reservoir to another.

Victoria

Moragahakanda

A classic engineering marvel is the former Yoda Ela, which carries water from Kalawewa to Nuwara Wewa and Tissa Wewa. It is 87 km long although the straight distance between these points is only about 40 km. The gradient of this canal is about 10 cm per km or 6 inches per mile. Yodha Ela functions as a moving reservoir and feeds about 4,600 hectares of paddy lands. It is a winding canal with about 120 smaller reservoirs on its way. It was constructed during the reign of King Dhatusena around 459 AD and later expanded by King Parakramabahu by connecting more reservoirs to the network. Unfortunately, during the Mahaweli project our modern-day engineers constructed a concrete canal replacing the winding path of this Yoda Ela also called Jaya Ganga. This effectively removed the ability of the old Yoda Ela to remove silt and nutrients. The bank of this Ela has wet zone trees such as jak and areca nut growing well. They take up the nutrients from the flowing stream making the water suitable for irrigation later.

Ancient Mesopotamian civilisations depended on dams constructed along the two main rivers, Euphrates and Tigris. After continuous irrigation of their fields over several thousand years, salinity of the irrigated lands increased making them unsuitable for agriculture. People died due to famine and this clearly illustrates the danger of blocking main rivers for agriculture. There is scientific evidence that the salinity of paddy soils in the Mahaweli C area is increasing.

We saw the devastation caused by Cyclone Ditwah. The sluice gates of the Kotmale Reservoir were opened, and Kandy and Peradeniya were flooded. If the reservoir had had greater storage capacity, couldn’t the opening of the gates have been delayed? This may not be an argument that modern-day engineers would readily accept, and I am not an irrigation expert. These ideas may well be naïve. But most of us tend to think of reservoirs mainly in terms of hydropower generation and irrigation, while their role in flood control receives much less attention. The question therefore deserves serious consideration. Could restoring lost reservoir capacity through desilting help improve our ability to manage extreme rainfall and reduce flood risks?

Desilting our reservoirs should be considered a national priority.

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Losing out to Ethiopia

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From Trailblazer to Tailender

Export diversification – Missing the wood for the trees – Part III

by Gomi Senadhira

In Sri Lanka, the word “Ethiopia” is often used as disparaging slang to describe individuals or areas experiencing extreme poverty, starvation, or severe economic hardship. This linguistic habit originated in the 1980s with the Western media coverage of the devastating Ethiopian famine of 1983-85. That media coverage shocked the world but also left an outdated and offensive global stereotype that the country is permanently starving. Much has changed since then. By now, with an annual growth rate of around 9%, it is the fastest-growing economy in sub-Saharan Africa. Ethiopia has also emerged as a highly competitive exporter and is challenging not only its competitors in the region but also countries like Sri Lanka. This article is on how Sri Lanka has lost ground to Ethiopia (and a few other countries) in the GCC markets for agricultural and floricultural products.

Sri Lanka – A Pioneer in the Agriculture and Floricultural Market in the GCC

As discussed in Part II of this article, by the mid-1980s Sri Lanka had established a strong foothold in the GCC’s fruit, vegetable, and floricultural market. Geographical proximity and well-established shipping and air links gave Sri Lanka a strong comparative advantage over Southeast Asian and African nations. Thailand, Vietnam, and Kenya were not even in the market. At that time, Ethiopia was experiencing (as BBC news reports described) “a biblical famine”.

The market was not very large, but it was lucrative and growing. Trade Minister Lalith Athulathmudali as well as the Chairman of the Export Development Board, Victor Santiapillai, who visited Kuwait (and the GCC countries), recognised the market potential for these products and encouraged us to continue with our work. The minister was particularly keen to further develop links between the market for these products, exporters, and his Export Production Villages (EPVs). So, it was becoming a successful case not only for export diversification but also for transferring gains from exports directly to rural households.

From Trailblazer to Tailender

As a result, even by the beginning of this century Sri Lanka had a larger market share than most of its competitors from Asia or Africa. But since then, our competitiveness has weakened significantly. The tables below provide a comparative snapshot of Sri Lanka’s performance vis-à-vis Thailand, Vietnam, Kenya and Ethiopia in the GCC market for vegetables, fruits and floricultural products. As illustrated therein, in 2001 Sri Lanka was ahead of Thailand, Kenya and Ethiopia in this small but rapidly growing market. Since then, we have fallen behind Thailand, Kenya and many other countries in that lucrative market. If this trend continues, Sri Lanka will fall behind Ethiopia within the next few years. (See Table 1)

In the GCC market for vegetables (covered in HS chapter 07), Sri Lanka was ahead of most other competitors in 2001. As illustrated in Table 1 , Sri Lanka had failed to develop this market, while Thailand, Kenya, and even Ethiopia had very efficiently increased their market shares. The GCC is a market to which Sri Lanka can supply some vegetables, like cabbages, by sea. It appears Sri Lanka had also failed to exploit this mode of supply.

We can see a similar trend in the market for fruits. Vietnam, Kenya, and Thailand have emerged as major players, while exports from Sri Lanka have staggered on slowly. In this segment, Vietnam has emerged as a leading player during the last twenty years and the GCC imports from Viet Nam have shot up from US$44 thousand in 2001 to US$346 million by 2024. In part one of these articles, I discussed the remarkable increase of jackfruit exports from Vietnam “…just $3 million in 2015 to an impressive $236.8 million in 2023” while most of our jackfruit production rots under the trees. This explains how countries develop their markets, geographically and product-wise. (See Table 2)

Sri Lanka’s performance has been weakest in the market for floricultural products (HS Chapter 06), which groups live trees, cut flowers, and ornamental foliage. When we first entered the market in the 1980s, the market was dominated by the Netherlands, and Kenya and Ethiopia were not even in the market. At that time, we identified the Gulf states as a market where Sri Lanka could have a dominant presence due to geographical proximity. Even in 2001, Sri Lanka was ahead of Kenya, Ethiopia, and Thailand. But by now, Kenya has emerged as the dominant supplier. Ethiopia is also expanding its market share and is the third-largest exporter. (See Table 3)

Missing the Wood for the Trees

In the mid-1980s, Sri Lanka first established its foothold in the GCC market. Since then, Thailand, Vietnam, Kenya, and even Ethiopia have moved well ahead of us and have become leading players. Why did we lag behind in our export diversification efforts in general and, more particularly, in the GCC market?

The reasons are very clear. After the initial attempts in the 1980s and early 1990s, Sri Lanka has not been proactively involved in identifying, developing, and promoting new products and markets, or protecting and further developing new markets already established. The focus has simply been on traditional exports: tea, coconut, cinnamon, and garments, while other products were almost ignored. In essence, we have been and continue to focus intensely on a narrow group of products and markets, and we have lost sight of the bigger picture.

(The writer can be reached at senadhiragomi@gmail.com)

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