Compromising accountability in the name of ‘good faith’? | The Daily Star
12:00 AM, July 23, 2019 / LAST MODIFIED: 12:00 AM, July 23, 2019

People’s Voice

Compromising accountability in the name of ‘good faith’?

With regard to corruption by public servants, the Penal Code (the Code) has created a strict regime. In light of Section 161 of the Code, accepting or obtaining anything other than legal remuneration for one’s own gratification or for any other person’s gratification, is a punishable offence. Interestingly, agreeing to accept or to obtain something for gratification has been equated on a par with in fact accepting and obtaining the thing. It is immaterial whether it is done as a motive or as a reward for doing or forbearing to do any official act. The commission of the act will be an offence regardless of its being done for showing or forbearing to show favour or disfavour to any person, or for rendering or attempting to render any service or disservice to someone. This provision having bearing on corruption has gone on to define gratification, legal remuneration and there appears no specific exception to this provision with regard to ‘good faith’ as such.

The Code further provides in Section 165 that it would be an offence when a public servant accepts or obtains, agrees to accept or attempts to obtain, any valuable thing without consideration or for a consideration that he knows to be inadequate. Another element of the crime is formed with the help of the characteristics of a person who gives, offers or attempts to give the said valuable thing to the public servant concerned. The Code states that it can be any person ranging from whom the public servant knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, to any person having any connection with the official functions of the public servant himself or of anyone to whom he is subordinate.

Sections 31 and 32 of the Anti-Corruption Act 2004 provide for good faith clauses. Section 31 states that if injury is sustained by someone as a result of an act done in good faith by anyone associated with the Anti-Corruption Commission in official capacity, neither the commissioner nor anyone associated with the commission can be made liable. Section 32(1) speaks of a prior authorisation to be given by the Commission without which, no court can take cognizance of an offence under the 2004 Act. These two Sections, in conjunction, keeps the sphere of subjective exercise of discretion by the public servants working for the Anti-Corruption Commission wide open.

The concept of good faith defence and the very concept of corruption do not go in hand in hand and cannot be made to go so either. The defence of good faith has been defined in the Code. The defence is not as good as it sounds. It is rather a twisted and complicated one to invoke. The definition that the Code provides for good faith starts with a negative adverbial. It states ‘[n]othing is said to be done or believed in good faith which is done or believed without due care and attention’. Any other kind of definition could have the potential of widening the domain of good faith in a not-so-good manner. The definition as it stands keeps the doors constricted in a creative way. The definition of corruption has been given by neither the Code nor the Act (albeit rightly because the word is self-sufficient, implying a certain kind of conduct that invariably involves dishonesty). Therefore, by no stretch of imagination, can good faith may be made to accompany corruption; more so, when the same is done by someone who is a public servant.

One of the general exceptions enshrined in the Code however states that nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it. This is a general exception to anything done by anyone. Mistake of fact implies acting or labouring under a mistake in absence of an intention of committing a crime. Corruption, for that purpose, can barely be said to be done under a mistake of fact. Even if it is considered that good faith can be a defence in corruption cases, that will render the entire regime of corruption by public servants nugatory. Having a good faith defence would render the accountability on part of the public servants a complete nullity because it would leave room to interpret it subjectively bypassing the application of law.

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