Governance update
Paradox of Law and Politics
Empowering Anti-Corruption Commission
Ershadul Alam
WHAT is the most talked about issue in our politics or in our everyday life? To me it is corruption. Blaming others in our politics is also as old as the corruption is. The corruptions done by the leaders, especially the leaders of the party in power, are disclosed after the formation of another government. The debate continues as to the responsibility of making the country a champion of corruption. But regrettably enough, no government took any realistic and effective actions to prevent corruption in the country. It is true that total prevention of corruption is not possible in any society.
After partition from India, we have got the Anti-Corruption Act in 1947 to get rid of corruption by the public servant. Enactment of this Act gave us an idea of the already prevailed corruption in the public service. So, the corruption we are within is the legacy of our predecessor, divided politically and geographically. The Act has been carried from Pakistan to Bangladesh. The Act was made applicable to whole Bangladesh and its citizens and the persons in the service of the republic as referred in section 21 of the Penal Code.
The offences as defined from section 161 to 165 and 165A of the Penal Code are punishable under this Act and are cognizable as referred to in the Criminal Procedure Code. The offences committed by an employee of any corporation or other body or organization or even by people's representative were also found place in this Act. The abettors are not exclusive of that Act.
To give effect to this Act the police officer not below the rank of Inspector was made authorized to investigate the cases of corruption, which is also present in the existing Act of 2004 in a different way. To initiate an investigation of an offence, an order from a first class magistrate, a public servant, was required. The present Act of 2004 does not contain that provision. Much could be done to give this Act an institutional framework, which was ignored by the subsequent governments. Little but expansion of offices at the provincial level was done to prevent corruption.
The limitations of the Act of 1947 were tried to overcome by the Act of 1957. Some other specific offences other than those covered by the Act of 1947 were included in the latter one. The dependency on some other state and regional authority was tried to minimize in this Act. A full-fledged office was formed at least to the investigation level of the offence. The officers were empowered to investigate the cases of corruption and related crime. The offices expanded from provincial level to district level in 1964 and the Bureau of Anti-Corruption had to depend on the district level administration for obvious reasons. Though a level of independence was ensured but dependency at the local level could not be evaded for lack of resources, cooperation and political stance by the then ruler.
The system of check and balance from the field level to the highest level was ensured to prevent unnecessary harassment of the public officials or the powerful leaders for which the present government is very concerned with. All political parties are now in silent mode and are observing the role of the government in reducing the powers of the ACC.
Shifting of the Bureau from the domination of one to another is another dilemma over the commission. After 1975 with the changing of the form of government the Bureau was brought under the President Secretariat, which was shifted to the Prime Minister Secretariat after 1992.
To give a fresh look on increasing corruption, the government has enacted the Act of 2004 with renewed vigour and views. More areas of offences were included in this Act with more specifications to deal with those. A sort of check and balance is maintained from the appointment of the commissioners to their discharging of duties. The commissioners are appointed by the President with the recommendation from the select committee consisting of five members. Three of those five members are from the executive organ of the state. The government has a very strong checkpoint in selecting the commissioners. Though the justice of the Appellate Division is the chairman of the select committee, he cannot take any unilateral decision in selecting the commissioners.
The select committee makes recommendation to the President for appointing commissioners and the committee select two commissioners against own post in this behalf. The President cannot go otherwise than the recommendations of the committee. One may be complacent enough to think that the commissioners are appointed by the President, not by the Prime Minister. The appointing authority of the commissioner is not as important as strengthening of the commission. In addition to this reference may be made to Article 48 (3) of our constitution where it is said that the President shall (not may) act in accordance with the advice of the Prime Minister in the exercise of all his functions except in appointing the Prime Minister and the Chief Justice of Bangladesh.
Like that of the select committee the commission cannot take unilateral decision in any case. All the decisions are to be taken in the meeting with the consent of at least two commissioners present and voting. The commissioners are answerable to the Chairman for their functions. The commission can appoint officers to perform it activities.
What is unique of this Act is the initiation of an investigation or case of corruption. The commission can initiate a case at its own desire or upon the application of the aggrieved. A checkpoint is needed to be established at this point of functions of the Anti Corruption Commission (ACC). The ACC was condemned for these shortcomings of the law. But what the commission could do but to be used in de-politicisation and minus-two formula. A check and balance is required in filing of cases, issuing of summons and ensuring presence of a person (before he is proved to be guilty) to avoid future harassment.
The power vested to the officers to arrest a person accused of corruption need to be given a second though unless a check and balance is established at this point. The offences are cognisable and non-bailable. The provision of the Act of 1957 was retained in the Act of 2004. If a person is arrested by the officer without his case being vetted, he has to stay in custody and to prove himself innocent.
We do not see any initiative from the government to work on those issues. We observe no sign of concern to make the commission independent and impartial to prevent corruption. The Awami League (AL) manifesto prioritised five issues which included eliminating corruption from the society. It is the second priority of AL election manifesto. Effective actions against corruption are pledged in the manifesto. We failed to see any multi-pronged measures to fight corruption as pledged in the manifesto to put into place. What about submission of wealth statement annually by the powerful people? What about Vision 2021; where a society free from corruption was dreamt.
The proposal that the government is considering for the Act of 2004 will make the commission a mere witness of corruption in fact. Taking permission from the government for initiating any case against the government officials is not a realistic proposition for any authority to make it functional. The democratic government should not match it with the undemocratic one. The role of the ACC after 1/11 was an error of law and fact. But for those errors the ACC as an institution should not be obliterated instead of making it audacious, strong and independent enough to stand against any unlawful exploitation of its entity in future.
To make the commission independent, impartial and strong implementation of the commitment made before the election is mandatory. Social resistance alongside the legal steps can promote the drive against corruption. But only an institution cannot prevent corruption in the country. Playing of positive and cooperative role by all institutions and organization is important factor in this regard. A concerted and coordinated approach by and amongst the ACC, Information Commission, Human Rights Commission and the Judiciary cannot be ignored in any way. But for doing so an institutional framework is prerequisite. The ACC is that institution. The government does not need to do more beside its manifesto to prevent corruption in the country. To quote from there: “All possible steps will be taken to stop corruption such as Charter of Citizens' Rights, Right to Information, Computerization of Official Documents, and Decentralization of Power.” If the government concentrates on the implementation of those promises with genuine spirit, corruption will be prevented at a significant level earlier before 2021.
Ershadul Alam is an advocate and researcher.
