Image: Jambo Cabintet in Sri Lankaby R.M.B. Senanayake
(February 03, Colombo, Sri Lanka Guardian) One of the Editors of a newspaper in an editorial not long ago, contrasted the action taken against politicians like Narasimha Rao, who have committed acts of corruption in India, with the absolute impunity with which our own politicians practise corruption here. It was argued by some that the previous Government crippled the Permanent Commission on Bribery & Corruption when its investigations came too close for the comfort & security of important persons. Mr. Karu Jayasuriya, the new Minister has commendably spotlighted the need for a Code of Ethics for Ministers & others exercising authority and expending public funds.
Administrative Tribunals Not Courts to try misconduct in office
The UNP pressurized the Government to agree to independent commissions for the Police and for the conduct of elections. But it is equally important for good governance that there should be enacted into law a Code of Ethics, which will be binding on all politicians and public officeholders, whether at the Center or in the Provinces. Democracy has no value unless there is good governance. For forms of government-let fools contend, what is administered well is the best, said Ostrogorski. People are fed up with our fake democracy with its reeking corruption and injustice, where fair becomes foul and foul becomes fair, where truth is suppressed and falsehood is elevated. The trade unions deserve the gratitude of the people for calling for a code of ethics for politicians and public office holders. One hopes the professionals and the Business community too will echo this demand, which should also be taken up by all public interest organizations.
There are some good reasons why such a code cannot be implemented through the normal system of courts. The offence of corruption is not easily defined .As some one remarked, it is like pornography, we know it when we see it but cannot define it easily .In fact Our Bribery Commission has not been able to charge politicians & public servants for "corruption " because there are innumerable difficulties in collecting evidence to prove such an offence in law. The previous Chairman Mr. T.A.P de S Wijesundera would no doubt have explained such difficulties had the Commission been given an opportunity to explain their point of view before the Parliamentary Committee. The general practice in most countries is to try the offence of corruption before an Administrative Tribunal where the strict rules of evidence are not mandatory and the investigation and subsequent trial are conducted only with due safeguards for the rules of natural justice. The punishment also may not be imprisonment but dismissal from public office and recovery of any loss to the public treasury. All corruption is at the expense of the people. The legalistic approach is wrong. What is required is not primarily, to convict people for corruption and send them to jail but to, at least dismiss them from public office and recover any losses caused to the public. For this purpose recourse should be not to the Courts where the strict laws of evidence apply, and accused could get out on technical grounds, but to special tribunals, which can determine their own procedures, provided they follow the rules of natural justice-like the Presidential Commissions of Inquiry. In view of the abuse of the power to appoint the members of the Commission by the Executive, which normally pack them with political hangers on (although they may be lawyers or retired judges), the public has lost confidence in all such commissions, assuming they are kangaroo courts. But the baby should not be thrown out with the bathwater. The power to appoint members of the Commission should be vested with the Chief Justice or the Judicial Commission. Such a tribunal should be provided for or the Permanent Commission itself could constitute such a tribunal but with open sittings.
Independence for the Auditor General, Attorney General and the Permanent Bribery & Corruption Commission are necessary since the enforcement of the Code will depend on them.
Codes have not met with success in developing countries because of the lack of enforcement. An exception according to a World Bank publication (The Role of a National Integrity System in Fighting Corruption by Peter Langseth, Rick Stapenhurst & Jeremy Pope) is Papua New Guinea where the Code is included in the Constitution and there is provision for its enforcement through the Ombudsman and trial by special tribunals provided for in the constitution.
Code of Conduct
Good governance requires that the Ministers should act in the public interest and not in their private interests. They hold government assets in trust, spend money on behalf of the public and collect revenues to carry out such expenditures. They act in a fiduciary capacity and anyone who acts in such a capacity is expected to avoid conflict of interest situations. They are also expected to act honestly. A person bound by the Code under Section 2 of the Papua New Guinea Constitution has to follow certain ethical principles. He must conduct himself both in public and in private life in such a way as to avoid placing himself in a position where there could be a conflict of interests between his public duty and private interests. He should not demean his office or allow his public or official integrity or his personal integrity to be called into question or to endanger respect for and confidence in the integrity of the government. In particular, he should not use his office for personal gain. Nor should he or his spouse, children, nominees act in a way to cast doubt in the public mind that he is complying with his obligations under the Section 2 of the Constitution. He is also obliged to publicly dissociate himself from any activity or enterprise of any of his associates that might give rise to a doubt about his compliance with the section.
A leader, who fails to comply with any of the obligations imposed under the section of the Constitution, is guilty of misconduct in office. (Note its not defined as corruption). A leader (defined to include all politicians at all levels of government and top public servants) who fails to comply with any of the obligations imposed upon him by the provisions of the Constitution (Section 2) is guilty of misconduct in office. This is similar to the practice applicable to public servants in the old Administrative Regulations (now the Establishment Code). Apart from the constitutional provision there is also the "Organic Law on the Duties & Responsibilities of Leadership" which spells out in detail the constitutional provision. It contains many specific offences considered as misconduct in office. A leader is guilty of misconduct in office if he misappropriates government funds, uses his or her office for personal gain, fails to disclose his interest in a matter dealt with by him in his official capacity, (he is not expected to deal with a matter in his official capacity if he has a material interest in its outcome). Of course, taking bribes, accepting gifts or loans from a person which could compromise him in the discharge of his public duties, are all instances of misconduct in public office. The leader is also personally responsible if his family members or associates engage in such conduct and can be prosecuted for misconduct in office even if there is no personal involvement by him in the alleged misconduct.
Avoid conflict of interest situations
A person bound by the Leadership Code under Section 2 of the Constitution of Papua New-Guinea, has to conduct himself in a way in both public and private life, to avoid placing himself in a position where there could be a conflict of interest with his public duties. Nor should he, his spouse, children or nominees act in a way to cast doubt in the public mind that he is complying with this section. Many Ministers here, appoint their wives or close relatives as Private Secretaries. The Minister must publicly dissociate himself from an activity or enterprise that might give rise to the impression that he is not complying with this obligation. Ministers are full-time officers and are paid accordingly and hence should not be involved in business activities that could place them in a conflict of interest situation.
The Nolan Committee in UK made similar recommendations to create a legal offence called abuse of power. The present Labor government appointed an official attached to the secretariat of Parliament to monitor the rules of ethical conduct binding on Members of Parliament.
There is an independent Commission in Papua New-Guinea, the Ombudsman Commission, like our Permanent Commission on Bribery & Corruption, whose job it is to enforce the Leadership Code. The Declaration of Assets by politicians is to be made to this Commission.We should ask the new Government to include the fundamental obligations of public office holders in the Constitution itself as in Papua New-Guinea Constitution, and empower the Permanent Bribery Commission to sit as a tribunal to implement such Code.
A distinction has to be drawn between the ethical rules applicable to Ministers and Parliamentarians. The latter are, or are not expected to be directly involved in government decision making which involves the grant of contracts and financial favors & benefits. There is of course the unfortunate tradition that developed after 1956 for MPs to exercise undue influence on Ministers and officials to obtain favors for their cronies or constituents. They should confine themselves to raising complaints by their constituents against the departments either in Parliament or Parliamentary committee where officials can be summoned to appear. Since then there have been instances where some MPs have sponsored financial schemes or projects before Ministers & officials on behalf of businessmen, which constitute acts of misuse of public office if not corruption.
The investigation of complaints should be on the Commissions own initiative without the need always to receive a complaint from the public to do so. The Ombudsman Commission in Papua New Guinea administers the Code by collecting declarations of assets of leaders. It can also entertain complaints from the public or can investigate on its own the conduct of leaders. Investigations are private but the Commission need not inform the party under investigation. The Commission can obtain information from anyone, can summon anyone to appear or produce documents. The person involved can be summoned even when he is holding office. The Commission should adopt the practice of appointing independent counsel to advise them and even engage independent prosecutors. This will avoid situations like in the past where the commission was crippled by the withdrawal of personnel loaned by the Police and the Attorney General’s department.
A Minister of Fisheries in Papua New-Guinea was convicted and sentenced to 4 months imprisonment after due trial. After investigation by the Commission, if there is a prima facie case the Commission can refer the matter to the Public Prosecutor to prosecute before an independent leadership tribunal. If the Public Prosecutor (he is independent) fails to prosecute within a reasonable period the Ombudsman Commission itself can prosecute. The Chief Justice appoints the Leadership Tribunals. As the leadership code is not a criminal code, the standard of proof before the leadership tribunal has been held by the Supreme Court to be less than ‘beyond reasonable doubt’, but a little higher than the standard of proof in civil cases. If the leader is guilty the constitution requires his dismissal from office, unless there is a finding that there was no "serious culpability’ and public policy and the public good does not require dismissal. The tribunal in such cases will recommend alternative penalties like a fine or suspension or reprimand. This procedure is what operates in respect of public servants. In fact the code of conduct can be applied to politicians holding public office by making he Establishments Code and the Financial Regulations applicable to them by law, a very necessary measure since Ministers are since 1972, engaged in administrative and financial decision making. Gone are the days when the Ministers had to interfere covertly by seeking to influence the Heads of Departments and Permanent Secretaries. Now the Ministers have the power to interdict, transfer, dismiss public officials and with this power the officials can be cowed into submission. One Minister even sat on a Tender Board. There was an outcry but the problem was not faced fairly and squarely by deciding that the Minister should be bound by the same rules as applicable to the officials serving on the tender board. Today it is the Ministers who take all the important decisions regarding tenders, contracts, purchases etc. So if the Ministers do not have to follow a code of conduct in the course of transacting public business, we might as well forget about good governance and resign ourselves to our fate that the Ministers will rob government funds and enrich themselves. Much of our public administration has been regulated, not by law as in U.S.A but by Treasury Circulars, Departmental Circulars in addition to the Financial Regulations & the Establishment Code. Ministers have never bothered to observe them, dismissing them as red tape. But good governance requires such rules & regulations since the public office holders are spending other people’s money (the public) and dealing with the assets belonging to the public, which means to no one in particular. If the Ministers are not bound to follow any rules of conduct then there will be no good governance. As Benjamin Franklin remarked the government will be no better than a gang of brigands. The U.S. Congress passed the Ethics in Government Act in the 1980s. Its time our the new Government, what with so many Project Ministers, should make a survey of laws & practices in functioning democracies and prepare a report to be tabled in Parliament.
Many politicians are ignorant of the ethical standards expected of them. The new Prime Minister is reported to be organizing training in public administration for the politicians. Such training should include ethical standards expected of them. It’s not only the Ministers but also their wives and staff members should also be educated in ethics and made sensitive to ethical issues.
(February 03, Colombo, Sri Lanka Guardian) One of the Editors of a newspaper in an editorial not long ago, contrasted the action taken against politicians like Narasimha Rao, who have committed acts of corruption in India, with the absolute impunity with which our own politicians practise corruption here. It was argued by some that the previous Government crippled the Permanent Commission on Bribery & Corruption when its investigations came too close for the comfort & security of important persons. Mr. Karu Jayasuriya, the new Minister has commendably spotlighted the need for a Code of Ethics for Ministers & others exercising authority and expending public funds.
Administrative Tribunals Not Courts to try misconduct in office
The UNP pressurized the Government to agree to independent commissions for the Police and for the conduct of elections. But it is equally important for good governance that there should be enacted into law a Code of Ethics, which will be binding on all politicians and public officeholders, whether at the Center or in the Provinces. Democracy has no value unless there is good governance. For forms of government-let fools contend, what is administered well is the best, said Ostrogorski. People are fed up with our fake democracy with its reeking corruption and injustice, where fair becomes foul and foul becomes fair, where truth is suppressed and falsehood is elevated. The trade unions deserve the gratitude of the people for calling for a code of ethics for politicians and public office holders. One hopes the professionals and the Business community too will echo this demand, which should also be taken up by all public interest organizations.
There are some good reasons why such a code cannot be implemented through the normal system of courts. The offence of corruption is not easily defined .As some one remarked, it is like pornography, we know it when we see it but cannot define it easily .In fact Our Bribery Commission has not been able to charge politicians & public servants for "corruption " because there are innumerable difficulties in collecting evidence to prove such an offence in law. The previous Chairman Mr. T.A.P de S Wijesundera would no doubt have explained such difficulties had the Commission been given an opportunity to explain their point of view before the Parliamentary Committee. The general practice in most countries is to try the offence of corruption before an Administrative Tribunal where the strict rules of evidence are not mandatory and the investigation and subsequent trial are conducted only with due safeguards for the rules of natural justice. The punishment also may not be imprisonment but dismissal from public office and recovery of any loss to the public treasury. All corruption is at the expense of the people. The legalistic approach is wrong. What is required is not primarily, to convict people for corruption and send them to jail but to, at least dismiss them from public office and recover any losses caused to the public. For this purpose recourse should be not to the Courts where the strict laws of evidence apply, and accused could get out on technical grounds, but to special tribunals, which can determine their own procedures, provided they follow the rules of natural justice-like the Presidential Commissions of Inquiry. In view of the abuse of the power to appoint the members of the Commission by the Executive, which normally pack them with political hangers on (although they may be lawyers or retired judges), the public has lost confidence in all such commissions, assuming they are kangaroo courts. But the baby should not be thrown out with the bathwater. The power to appoint members of the Commission should be vested with the Chief Justice or the Judicial Commission. Such a tribunal should be provided for or the Permanent Commission itself could constitute such a tribunal but with open sittings.
Independence for the Auditor General, Attorney General and the Permanent Bribery & Corruption Commission are necessary since the enforcement of the Code will depend on them.
Codes have not met with success in developing countries because of the lack of enforcement. An exception according to a World Bank publication (The Role of a National Integrity System in Fighting Corruption by Peter Langseth, Rick Stapenhurst & Jeremy Pope) is Papua New Guinea where the Code is included in the Constitution and there is provision for its enforcement through the Ombudsman and trial by special tribunals provided for in the constitution.
Code of Conduct
Good governance requires that the Ministers should act in the public interest and not in their private interests. They hold government assets in trust, spend money on behalf of the public and collect revenues to carry out such expenditures. They act in a fiduciary capacity and anyone who acts in such a capacity is expected to avoid conflict of interest situations. They are also expected to act honestly. A person bound by the Code under Section 2 of the Papua New Guinea Constitution has to follow certain ethical principles. He must conduct himself both in public and in private life in such a way as to avoid placing himself in a position where there could be a conflict of interests between his public duty and private interests. He should not demean his office or allow his public or official integrity or his personal integrity to be called into question or to endanger respect for and confidence in the integrity of the government. In particular, he should not use his office for personal gain. Nor should he or his spouse, children, nominees act in a way to cast doubt in the public mind that he is complying with his obligations under the Section 2 of the Constitution. He is also obliged to publicly dissociate himself from any activity or enterprise of any of his associates that might give rise to a doubt about his compliance with the section.
A leader, who fails to comply with any of the obligations imposed under the section of the Constitution, is guilty of misconduct in office. (Note its not defined as corruption). A leader (defined to include all politicians at all levels of government and top public servants) who fails to comply with any of the obligations imposed upon him by the provisions of the Constitution (Section 2) is guilty of misconduct in office. This is similar to the practice applicable to public servants in the old Administrative Regulations (now the Establishment Code). Apart from the constitutional provision there is also the "Organic Law on the Duties & Responsibilities of Leadership" which spells out in detail the constitutional provision. It contains many specific offences considered as misconduct in office. A leader is guilty of misconduct in office if he misappropriates government funds, uses his or her office for personal gain, fails to disclose his interest in a matter dealt with by him in his official capacity, (he is not expected to deal with a matter in his official capacity if he has a material interest in its outcome). Of course, taking bribes, accepting gifts or loans from a person which could compromise him in the discharge of his public duties, are all instances of misconduct in public office. The leader is also personally responsible if his family members or associates engage in such conduct and can be prosecuted for misconduct in office even if there is no personal involvement by him in the alleged misconduct.
Avoid conflict of interest situations
A person bound by the Leadership Code under Section 2 of the Constitution of Papua New-Guinea, has to conduct himself in a way in both public and private life, to avoid placing himself in a position where there could be a conflict of interest with his public duties. Nor should he, his spouse, children or nominees act in a way to cast doubt in the public mind that he is complying with this section. Many Ministers here, appoint their wives or close relatives as Private Secretaries. The Minister must publicly dissociate himself from an activity or enterprise that might give rise to the impression that he is not complying with this obligation. Ministers are full-time officers and are paid accordingly and hence should not be involved in business activities that could place them in a conflict of interest situation.
The Nolan Committee in UK made similar recommendations to create a legal offence called abuse of power. The present Labor government appointed an official attached to the secretariat of Parliament to monitor the rules of ethical conduct binding on Members of Parliament.
There is an independent Commission in Papua New-Guinea, the Ombudsman Commission, like our Permanent Commission on Bribery & Corruption, whose job it is to enforce the Leadership Code. The Declaration of Assets by politicians is to be made to this Commission.We should ask the new Government to include the fundamental obligations of public office holders in the Constitution itself as in Papua New-Guinea Constitution, and empower the Permanent Bribery Commission to sit as a tribunal to implement such Code.
A distinction has to be drawn between the ethical rules applicable to Ministers and Parliamentarians. The latter are, or are not expected to be directly involved in government decision making which involves the grant of contracts and financial favors & benefits. There is of course the unfortunate tradition that developed after 1956 for MPs to exercise undue influence on Ministers and officials to obtain favors for their cronies or constituents. They should confine themselves to raising complaints by their constituents against the departments either in Parliament or Parliamentary committee where officials can be summoned to appear. Since then there have been instances where some MPs have sponsored financial schemes or projects before Ministers & officials on behalf of businessmen, which constitute acts of misuse of public office if not corruption.
The investigation of complaints should be on the Commissions own initiative without the need always to receive a complaint from the public to do so. The Ombudsman Commission in Papua New Guinea administers the Code by collecting declarations of assets of leaders. It can also entertain complaints from the public or can investigate on its own the conduct of leaders. Investigations are private but the Commission need not inform the party under investigation. The Commission can obtain information from anyone, can summon anyone to appear or produce documents. The person involved can be summoned even when he is holding office. The Commission should adopt the practice of appointing independent counsel to advise them and even engage independent prosecutors. This will avoid situations like in the past where the commission was crippled by the withdrawal of personnel loaned by the Police and the Attorney General’s department.
A Minister of Fisheries in Papua New-Guinea was convicted and sentenced to 4 months imprisonment after due trial. After investigation by the Commission, if there is a prima facie case the Commission can refer the matter to the Public Prosecutor to prosecute before an independent leadership tribunal. If the Public Prosecutor (he is independent) fails to prosecute within a reasonable period the Ombudsman Commission itself can prosecute. The Chief Justice appoints the Leadership Tribunals. As the leadership code is not a criminal code, the standard of proof before the leadership tribunal has been held by the Supreme Court to be less than ‘beyond reasonable doubt’, but a little higher than the standard of proof in civil cases. If the leader is guilty the constitution requires his dismissal from office, unless there is a finding that there was no "serious culpability’ and public policy and the public good does not require dismissal. The tribunal in such cases will recommend alternative penalties like a fine or suspension or reprimand. This procedure is what operates in respect of public servants. In fact the code of conduct can be applied to politicians holding public office by making he Establishments Code and the Financial Regulations applicable to them by law, a very necessary measure since Ministers are since 1972, engaged in administrative and financial decision making. Gone are the days when the Ministers had to interfere covertly by seeking to influence the Heads of Departments and Permanent Secretaries. Now the Ministers have the power to interdict, transfer, dismiss public officials and with this power the officials can be cowed into submission. One Minister even sat on a Tender Board. There was an outcry but the problem was not faced fairly and squarely by deciding that the Minister should be bound by the same rules as applicable to the officials serving on the tender board. Today it is the Ministers who take all the important decisions regarding tenders, contracts, purchases etc. So if the Ministers do not have to follow a code of conduct in the course of transacting public business, we might as well forget about good governance and resign ourselves to our fate that the Ministers will rob government funds and enrich themselves. Much of our public administration has been regulated, not by law as in U.S.A but by Treasury Circulars, Departmental Circulars in addition to the Financial Regulations & the Establishment Code. Ministers have never bothered to observe them, dismissing them as red tape. But good governance requires such rules & regulations since the public office holders are spending other people’s money (the public) and dealing with the assets belonging to the public, which means to no one in particular. If the Ministers are not bound to follow any rules of conduct then there will be no good governance. As Benjamin Franklin remarked the government will be no better than a gang of brigands. The U.S. Congress passed the Ethics in Government Act in the 1980s. Its time our the new Government, what with so many Project Ministers, should make a survey of laws & practices in functioning democracies and prepare a report to be tabled in Parliament.
Many politicians are ignorant of the ethical standards expected of them. The new Prime Minister is reported to be organizing training in public administration for the politicians. Such training should include ethical standards expected of them. It’s not only the Ministers but also their wives and staff members should also be educated in ethics and made sensitive to ethical issues.
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