Star Law analysis
Combating
corruption: From good intention to good action
Abdullah
Al Faruque
Corruption
is one of the most pressing social problems that Bangladesh
confronting today. Corruption is plaguing all development
efforts and remains a major stumbling block to the realisation
of basic human rights in Bangladesh. Corruption has two
main impacts on the society irrespective of political
and social system: firstly, it has distributional impact
as it promotes social inequality by causing unjust enrichment
of some of the people at the expense of well being of
vast majority of people. In most cases, poor and most
vulnerable people are the direct victims of corruption.
Secondly, it undermines the credibility and legitimacy
of the public institutions. Corruption affects quality
of governance and public service, violates trust and confidence
bestowed upon public bodies by the public. Corruption
retards economic growth, reduces the effectiveness of
foreign aid, and lowers the flow of foreign investment,
and creates a climate of secrecy, which in turn, contributes
to the inefficiency of the public administration.
Undeniably,
any effort of combating corruption requires good intention
and concerted actions of the government and other elements
of society. Combating corruption also requires systemic
change, which can be initiated by legal and policy instruments
of the government. It is widely believed that corruption
can be largely eliminated, if not completely, by undertaking
following steps:
*Structural
reform, which broadly includes economic policy of raising
income level of government officials, equitable distribution
of resources, building democratic institutions and ensuring
transparency in existing institutions. Economic structural
changes like privatisations of corrupt state owned corporations,
and downsizing the bureaucracy, and reform of banking
and financial regulations are also seen imperative for
the prevention of corruption. However, privatisation process
without adequate competition policy for controlling market
excesses and restrictive trade practices can be counter
productive and can breed corruption.
*Legal
reform for criminalisation of corrupt activities in order
to define corrupt behaviour and their consequences by
law. In this regard, legal reform initiatives requires
not only formulation of appropriate laws, and regulation
aiming at criminalization of the activities of corruption
to a greatest extent possible but also their neutral,
impartial and effective application and avoidance of overlapping
of anti-corruption laws. A major legal reform and initiative
is urgently needed for facilitating freedom of information
in order to provide public's access to information on
government activities.
*Administrative
and civil service reforms for preventing nepotism and
cronyism in public appointments, imposing check and balances
in governance system and reducing wide discretionary power
of the public officials. In order to prevent corruption,
merit based procedure in civil service recruitment, performance
evaluation and qualification in promotion of public officials,
establishment of equitable pay scale, adoption of disciplinary
measures and remedial action for corruption, disclosure
of assets of civil servants, strengthening ethical standards
and public responsibility of public officials is pre-requisite
and should be strictly enforced. The effective use of
independent and external audit of government functions
and of private sector can ensure best utilisation of public
resources and reduce corruption. As bureaucratic 'red
tapism' remains one of the major sources of corruption,
automating and computerisation of government activities
can modernise bureaucracy and can reduce source of corruption.
Furthermore, government procurement process should be
carried out under transparent and well-defined procedures
for tendering and bidding system in order to prevent corruption.
Similarly, transparency should be ensured in investment
decisions, and undertaking of international contracts.
*Promotional
activities including providing education, and training
programmes on ethical standards on public service to enable
public officials to meet the requirements for the proper
performance of public functions should be highly emphasised.
Training programmes on ethical standards can enhance their
awareness of the risks of corruption inherent in the performance
of their functions.
*Establishment
of institutional mechanisms and institutional reform aiming
at to ensure greater transparency and accountability at
the all levels of decision making process in the governance
system. Institutional mechanisms that envisage accessible
and effective grievance remedial devices for correcting
errors of decision makers and rectifying abuses is essential
component of strategies for combating corruption. Institutional
mechanisms include a variety of institutions such as office
of ombudsman, independent anti-corruption commission,
auditor-general, public accounts committee, etc.
The
establishment of independent anti-corruption commission
by government of Bangladesh is salutary effort and must
be welcome. Given the prevailing rampant corruption in
Bangladesh and its pervasive negative impact on overall
living standard on mass people, public expectation from
the commission is very high. Therefore, the commission
should assume to undertake real actions to yield tangible
results in combating corruption. However, it should be
acknowledged that elimination of corruption is a daunting
task and commission can not alone perform this task. But
commission can definitely make a breakthrough in combating
corruption provided that it is supported by necessary
financial and human resources, independence to carry out
its functions at the operational level, and co-operation
of other agencies of the governments. Success of commission
depends upon how far it acts with integrity and independently
without external or political influence and demonstrates
motivation to prevent corruption. It is widely expected
that commission should be really outcome oriented and
contribute to the overall improvement of the situation.
It
should be mentioned that the establishment of anti-corruption
commission cannot diminish the importance of appointment
of Ombudsman a well recognised institutional mechanism
functioning in many parts of the world to prevent corruption.
More importantly, appointment of Ombudsman can fill up
a constitutional vacuum. The office of Ombudsman can provide
for effective channels and avenues through which citizens
can lodge complaints about corruption of public officials
for holding them accountable. The appointment of ombudsman
can greatly supplement the efforts of the anti-corruption
commission against corruption. The main functions of ombudsman
include independent investigation of complaints from individuals
regarding administrative malpractices, to make reports
and to put forward recommendations in order to improve
administrative processes and to provide remedial measures
to the aggrieved individuals. Ombudsman can ensure both
procedural and substantive fairness in public administration
through its recommendations. Although reporting of the
ombudsman is only recommendatory in nature, publishing
of report, 'naming and shaming' of public officials and
its wider circulation to public and legislature will definitively
have persuasive effect on the prevention of corruption.
Other
institutions like judiciary, public accounts committee
and office of Auditor-General have an important role to
play in combating corruption. For instance, higher judiciary
can play an important role to play in combating corruption
within itself through its supervisory powers. Judiciary
can also prevent corruption prevailing in society at large
through objective interpretation of law, upholding rule
of law, proper review of executive actions and decisions
and applying law fairly and equally.
The
effectiveness of anti-corruption institutions depends
on following criteria: their independent power to investigate,
fairness in process, open procedure, absence of political
interference with their activities and their accessibility
to the public. The performance of national institutions
in combating corruption depends upon their image as credible
institutions and their capacity to act with neutrality
and impartially. This again depends on how far selection
process of members and personnel of these institutions
are fair and impartial and to what extent the persons
appointed have track record of personal integrity, honesty
and neutrality. The credibility of these institutions
also depends on the extent to which they are accountable
to the public and legislature for their performance. The
accountability of these institutions can be ensured through
publication of annual public reports regarding their functions,
financial audit requirements, existence of a right of
appeal to a higher court from their decisions, where appropriate,
and giving reasoned explanations of their decisions. Apart
from these formal mechanisms, accountability of national
institutions can be ensured through informal mechanisms
such as their interaction with the civil society, media,
and the professional groups.
It
is axiomatic that every form of corrupt practice entails
violation of human rights to some extent. Hence, corruption
should not only be treated as criminal offence, but also
as a violation of human rights obligations of the state
in a broader policy context. A human rights approach can
be a powerful resistance to fight against corruption at
least in the conceptual level. Corruption violates the
foundational principles of rule of law, which is basic
safeguard of human rights because corrupt activities are
deviation of legal rules and are prompted by factors extraneous
to the law. To the extent that corruption leads to diversion
of public funds for the private gains, which could be
otherwise used to benefit the poor and for the furtherance
of social development, health care and infrastructure
development constitutes violation of social and economic
rights. Taking bribery by the public servants and law
enforcing agencies jeopardises procedural neutrality in
the administration of justice and in turn, violates civil
and political rights. Moreover, an element of discrimination
is inherent in the corruption because making undue favour
through taking bribes creates preferential and undue treatment
to the persons giving bribe on the basis of unlawful and
irrational criteria. On other hand, corruption causes
unfair treatment or discrimination against people who
refuses to pay bribes or unable to pay bribe. In this
way, corruption violates equality before law, which is
starting point for human rights.
Accepting
this bold statement that corruption involves violation
of human rights, it can be proposed that corruption free
services should be regarded as basic human right and a
provision to this effect can be incorporated in the constitution.
Treating corruption free services as a fundamental human
right will pave the way for initiation of public interest
litigation on behalf of the aggrieved public who are the
victims of corruption. Such proposition can be further
justified by the fact that most of the corruption takes
place in secret transaction and it is highly unlikely
that either party will disclose the corrupt act. Such
secrecy in corrupt transaction prevents makes legal action
against corrupt activities difficult in most cases. In
this circumstance, public interest litigation by the aggrieved
person or groups of persons on the ground that wider social
or public interest has been jeopardised by corruption,
can be powerful tool to resist corrupt practice. Such
a proposition may seem to be unrealistic on the ground
that allowing PIL for corruption can cause floodgate of
litigations resulting in backlogging of cases. But its'
careful use can be an important strategy to mitigate adverse
impact of corruption, particularly when anti-corruption
commission or government agencies fail to act in the event
of corruption.
Adoption
of international standard for preventing corruption through
the incorporation of national law can enhance government's
efforts to reduce corruption. The most important international
development regarding anti-corruption measures occurred
when the UNO adopted Convention against Corruption in
2003, which is a comprehensive multilateral treaty so
far covering various anti-corruption strategies.
The
preamble of the Convention recognises that corruption
can pose instability and securities of societies, jeopardise
sustainable development, the rule of law, damage to democratic
institutions. The Convention urges the states to take
anti-corruption measures for corruption in both public
and private sector and in international transaction. It
emphasises on preventive measures including anti-corruption
policies and practices, establishment of preventive anti-corruption
bodies, codes of conduct for public officials, management
of public finances, public reporting, and participation
of civil society in prevention of corruption. It requires
the States to develop and implement effective and coordinated
anti-corruption policies and practices to ensure transparency,
competition and objective criteria in decision making
relating to public procurement, to take measures to enhance
transparency in public administration and to prevent opportunities
for corruption among members of the judiciary and to prevent
corruption in private sector through enhancing accounting
and auditing standards and to institute a comprehensive
domestic regulatory and supervisory regime for banks and
non-banks financial institutions. The Convention also
lays down provisions for criminalisation of corrupt activities
as much as possible, and sets out the modalities of state's
action in prevention of corruption at international level
through the international co-operation.
Bangladesh
has not yet signed the Convention. It is widely believed
that signature and ratification of the Convention by the
government of Bangladesh will not only bring the anti-corruption
laws and measures in line with international standards,
but also will increase its international image, which
has been eroded as the most corrupt nation.
While
presence of some degree of corruption can be found in
all societies and all cultures, its pervasive presence
in Bangladesh has made global champion of corruption for
consecutively four years. It would make more sense if
the government undertakes effective actions to prevent
corruption rather than discrediting this truth. While
the establishment of anti-corruption commission is an
important step in this direction, still much should be
done to combat corruption.
The
author is Assistant Professor, Dept. of Law, University
of Chittagong
