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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh



Issue No: 183
March 26, 2005

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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

 
 
 


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