Human Rights analysis
Legal aspect of anti-corruption programs
Issues and dilemma
In a county like Bangladesh, where majority of the people live under the poverty line, corruption as a social disease play a critical role to thwart its overall development process. Development means not only the economic growth but also the state of affairs relating to Human Rights and general wellbeing of the citizenry of the country. Considering its potential implications on the human rights issue, the concept of corruption needs to be evaluated in line with the societal factors. Besides hampering the activities in private and public sectors, it infects the whole society like an epidemic which is reflected in our day-to-day activities. Corruption is no more limited to activities relating to monetary gain only. Yet, we do not have any single and distinctive definition of corruption which is acceptable and relevant to all societies irrespective of the economy of the country. However, we mean by it the activities in which the corrupts enrich themselves improperly, unfairly and above all unlawfully. It is unlawful because it is done by misuse of power which they are entrusted with as a public or private servant.
It is pertinent to mention that Corruption existed since before the British rule here in this subcontinent. The ruler applied a highly corrupt system of governance where its employees were used to be paid wages which compelled them to be involved in private business and extortion. The legacy continued to subsist for 24 years of Pakistani regime. However, the attempt to curb corruption did not come to an end after the independence.
Bangladesh as a party to the international body demonstrated its keen interest to curb corruption from the country. Under international arrangement it is the obligation of the country to ensure a society free from corruption in all levels of state administration and society at large. Men cannot grow in a society filled with terrorism and corruption which bars the complete development of the personality of a human being. Thus it is the responsibility of the country as well as the individual to contribute to ensure a society where free and full development of the personality is possible as enshrined in Article 29 of the Universal Declaration of Human Rights.
The preamble of the UN Convention Against Corruption says that corruption is a threat to the stability and security of the society which undermines the values of democracy, ethical values, justice and jeopardise sustainable development and rule of law. The Convention recognises the link between corruption and crime in the society as we are experiencing in our country. Under the Convention, it is the duty of all the nations to cooperate each other to eradicate corruption from the country. The states can attract support and cooperation from the people of all sectors out side of public sector, such as civil society, non-governmental organisations and community organisation to make an effective drive against corruption. There are three specific purposes of this Convention. Under the Convention the state party shall promote and strengthen measures to prevent and combat corruption more effectively and efficiently. The state party shall extend international cooperation and technical assistance in the prevention of fight against corruption and recovery of asset. For performing the above mentioned activities integrity, accountability and proper management of public affairs and public property is required which is one of those three purposes of the Convention. States may take necessary legislative and administrative measures to implement the obligations laid down in the convention. Obviously the measures are to be taken under the purview of domestic law. States are allowed to take stricter and severe measures which are not provided in the convention.
The preamble of the Inter American Convention Against Corruption like that of the UN Convention Against Corruption articulated that corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples. It is observed that the Conventions recognised the threat of corruption at national and international level. It is a threat to development and wellbeing of a nation. The purposes of both the conventions are analogous to each other. The purposes of this Convention are to promote and strengthen the development by each of the State Parties of the mechanisms needed to prevent, detect, punish and eradicate corruption; and to promote, facilitate and regulate cooperation among the State Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance. Like in UN Convention Against Corruption, the State Parties are entitled to adopt all necessary legislative or other measures to establish the acts of corruption as criminal offences under their domestic law as described in Article VI(1) of the Convention. Taking necessary legislative and administrative measures are also granted in the Convention Against Transnational Organised Crimes. Within the scope of this Convention, the governments have the responsibility to separate organised criminal groups from their ill-gotten funds by confiscating the property within their existing judicial system. If the existing judicial system is not empowered enough for this purpose, the concerned government can take necessary method to empower the courts or other authorities in this regard. Framing of rules and laws is integrated within this scheme. Article 9 of the convention says that each state party shall adopt legislative and administrative or other effective measures which are appropriate and consistent with their exiting legal system. The purpose of adopting such measures would be to promote integrity with a view to prevent, detect and punish the corruption of the public officials. Voice against corruption in international arena has also been raised in the United Nations Declaration Against Corruption and Bribery in International Commercial Transactions.
Besides the above said Conventions, there are some other Conventions which were adopted by international bodies. The conventions highlighted different issues of corruption. We have some regional conventions in hand like the Convention on the Fight Against Corruption involving officials of the European Communities or officials of Member States of the European Union adopted by the Council of the European Union on 26 May 1997. The Committee of Ministers of the Council of Europe adopted two separate conventions viz. Criminal Law Convention on Corruption and Civil Law Convention respectively on 27 January 1999 and 04 November 1999. The Heads of State and Government of the African Union adopted a Convention on Prevention and Combating of Corruption on 12 July 2003. Economic Cooperation and Development on 21 November 1997 adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
During Pakistani regime, the government enacted a law with a view to curbing corruption in the country. It can be traced back to the year 1947 when the existence of corruption was evident even at the state level. The government admitted the fact by endorsing the Prevention of Corruption Act. It was the 2nd Act of 1947. The special focus group of this Act was the officers in the public service. It was passed to limit bribery and corruption of the public officers and police. Other than enactment of laws, separate anti-corruption institution at the provincial level was fashioned by the government. The Criminal Law Amendment Ordinance was promulgated in the same year. The purpose of this Act was to prevent procurement of property or money by illegal means. This amendment Act was applicable with reference to some provisions of the Penal Code of 1860. To constitute an offence under this Act, the accused must be a public servant who accepted or agreed or attempted to accept gratification beyond the legal remuneration due for him. The plain reading of the provision shows that the acts of offence have been done as a gratification or reward for himself by illegal means. This provision includes both the public servant and any person other than pubic servant. But in both cases, the motive remains the same. Besides the abovementioned objects of offences a person is also said to conduct criminal misconduct if he misappropriates property dishonestly or fraudulently. The punishment provided under the said act is seven years imprisonment or fine or both.
Later in Bangladesh we have got plethora of legislations by different governments during last two decades. Lastly, the government has enacted the Anti-Corruption Commission Act in 2004 (Act 5 of 2004) which has been amended in 2007 (Act 7 of 2007). The Act of 2004 was enacted to prevent corruption and to inquire into the corruption related issued as articulated in section 17 of the Act. The commission has jurisdiction to deal with the offences under this Act and also other offences under i. the Prevention of Corruption Act 1947, (Act II of 1947), ii. Money Laundering Prevention Act 2002 (Act 7 of 2002), iii. sections 161-169, 217, 218, 408, 409 and 477A of Penal Code and 109, 120B, and 511 of Penal Code. Section 161 of the Penal Code deals with taking gratification by public servant and its punishment. The word gratification is not restricted only to pecuniary gratification or to gratifications estimable in money. The sections from 161 to 169 deal with the offence of public servant. Sections 217 & 218 of PC deal with the public servant to save others from punishment or forfeiture of property. Section 408 deals with criminal breach of trust by public servant, clerk, banker, merchant and agent. Section 477A of PC deals with the falsification of accounts by clerk, officer and servant etc. Thus a plain study of the Act proves that both public and private servant can be taken into account.
The Act was enacted to have a better one than of 1995 with a view to having better governance and a transparent and accountable administration. The constitution also has a provision in this regard. The provision of ombudsman is expressed in Article 77 of the constitution. An Act was enacted in 1980 to implement the provision which is yet to be materialised. Under the aegis of our supreme law we are ensured with participation in all accessible level of the statehood. But the letters of the laws are not realised in practice. To a build a society free from corruption more participation and access to information is unavoidable. The effort to curb corruption will not sustain and succeed without ensuring the people's right to information at every level. Time is up to reconsider the effectiveness of the Official Secrets Act 1923 in present context where we are in a state of unremitting changes of science and technology. Conservative approach of laws is indispensable to cope with the present situation. In addition to this, empowering the institutions like the judiciary, anti-corruption body and other law enforcing agencies can bring a positive and effective change in the anti-corruption drive which will last until corruption is curbed in the county. An independent anti-corruption body, if worked freely and most importantly, fairly, can control corruption to a significant level. A proficient and professional law enforcing institution like police or local authority free from direction and manipulation of political force, along with civil society members, would certainly bring a result to this effort. However, the significance of the massive participation cannot be overlooked.
Ershadul Alam is an advocate and human rights activist.