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law opinion

without independent Anti-corruption Commission corruption cannot be stopped

SHEiKH HAFiZuR RAHMAN KARZoN
CORRUPTION has become an inextricable global problem creating difficulties for development and good governance. Keeping administrative functions of the governments and activities of political parties at the centre corruption has taken strong hold in all the countries, both developed and developing. Not only the third world countries are encountering this problem, even the developed countries like Japan, France, Italy, U.S.A. etc. are experiencing the vice of corruption. All the countries have been taking various measures to combat corruption, some measures have been proven very effective.
Bangladesh has again been listed as the most corrupt country in the world, a rare success (?) that has been achieved by this delta land for the consecutive third time. It may furnish some sort of complacency (!) for those people who contain agony for continuous poor performance of Bangladesh in all the sectors. The publication of the ranking of the most corrupt countries by the Transparency International brought corruption and its multifarious implications on the table of discussion. Here I try to focus anti-corruption measures of some foreign countries and to make a critical analysis of the Anti-Corruption Commission Bill, 2003 (of Bangladesh) awaiting approval of Parliament and President.
Anti-Corruption Measures of u.S.A., u.K., and Hong Kong The United States of America is fighting corruption for long time. Nearly 15,000 people have been convicted under the federal corruption statutes in the last two decades. In Illinois it was Operation Gambit, in Tennessee it was Rocky Top, in South Carolina Operation Lost Trust and in Chicago Operation Silver Shovel. Under these operations corruption of hundreds of federal, state and local officials were investigated. Huge amount of money is required to secure an elected office, that's why politicians take money from different interest groups. This is the main cause of political corruption. Federal Bureau of Investigation (FBI) and other investigators are now experiencing new offences like extortion, mail fraud and racketeering.
In all the civilised and democratic countries the public servants form a class by themselves and require special protection of law and subject to rigorous penalties if they deviate from the corresponding duties and obligations. They are the main actors by whom law and administrative policies are being executed, so usually they are accorded with many privileges and immunities. Moreover, they are not directly responsible to Parliament. The administrative officers develop corrupt practices by taking advantage of these privileges and lack of proper accountability to any other body of the state. Mal-administration, abuse of power and corrupt practices of bureaucrats cause unbearable suffering to the citizens of different strata. Neither court nor any tribunal can offer any remedy. Many of them remain unredressed due to the malfunctioning or nonfunctioning of the existing remedy giving mechanism.
Good governance and rule of law administered by a responsible government can ensure a corruption free administration. This type of government can protect rights of the citizens effectively on the one hand, and ensure overall development of the country by keeping corruption unpenetrated into the administration on the other. The responsibility and accountability of government, in the United Kingdom, for long has been ensured by parliamentary questions, vote of censure, cut motion, adjournment motion, no-confidence motion and by committee system. All these modes of scrutinising the activities of administration had become ineffective which paved the way for passing the Parliamentary Commissioner Act, 1967. By this law a Parliamentary Commissioner with independent status was appointed in the United Kingdom whose functions would be to similar to those of the Ombudsman known to the Scandinavian countries. Later on three offices of Health Service Commissioners for England, Wales and Scotland were established in 1972 and 1973. Two Commissioners for Local Administration, one for England and one for Wales were appointed under the Local Government Act, 1974. The Commissioners were appointed for minimizing mal-administration and corrupt practices of governmental departments and authorities.
In the context of unprecedented corruption an Independent Commission Against Corruption (ICAC) was formed in Hong Kong in 1973. Since its inception the ICAC have been directing its 'war' against corruption very efficiently. In course of time this organisation has been recognised as the best anti-corruption unit in the world. It continues its functions with the aid of three departments. With a purpose (1) to investigate the allegations of corruption ICAC does its activities through the Operations Department; (2) to prevent corruption through the efforts of the Corruption Prevention Department; and (3) to educate through the Community Relations Department.
The reason of the high reputation achieved by the Hong Kong Independent
Commission Against Corruption lies in the fact that every allegation of corruption which is pursuable, no matter how small, will be investigated and worked out. Within the system of ICAC the confidentiality of sources from which reports of corruption come have been protected. In fact ICAC has been given draconian powers to achieve its goal. Following the model of Hong Kong, ICAC of New South Wales of Australia and Directorate on Corruption and Economic Crime of Botswana were set up. On the basis of its good record "the ICAC (of Hong Kong) has been described as the Rolls Royce of anti-corruption agencies."
Critical Analysis of the Anti-Corruption Bill, 2003
Corruption has penetrated its teeth into different level of society. Corruption has grown to such an extent that it has become an unofficial truth in the every day life of Bangladesh. From top executive to the lowest staff are coming within the extensive jurisdiction of corruption. Corrupt practice is frequent in business world, political arena, media and even in judiciary. Corruption is a major obstacle in the way of achieving true development of Bangladesh. It constitutes the largest cause for which reputation of Bangladesh is severely suffering in foreign countries. In this context present government has introduced the Anti-Corruption Commission Bill, 2003.
In accordance with the provisions of the Bill, Commissioners of the AntiCorruption Commission shall be appointed by the President from among persons nominated by the Select Committee. Here Select Committee has been consigned a heavy responsibility of finalising a list of six persons from whom the President shall appoint three persons as Commissioners. There shall be six members of the Select Committee among whom four shall be government functionaries. They are Finance Minister, Minister for Law, Justice and Parliamentary Affairs, Comptroller and Auditor-General of Bangladesh and Chairman of the Public Service Commission [Sections 5, 6 and 7 of the AntiCorruption Commission Bill]. Here people associated with government constitute clear majority. They can easily execute the will of the government. This, in my
view, is the major weakness of the proposed Bill. Because the selection of the Commissioners should be neutral and fair. Otherwise the people in the good book of the government shall be appointed as Commissioners who will let the government tension free and ensure that government will not be disturbed. In all the countries corruption takes strong hold encompassing the governmental functions and administrative activities. So, the Commission as an institution and the Commissioners as individuals should keep vigilant eye on the governmental activities. So, the selection of the Commissioners should be independent of government. Representative of government may be member of the Select Committee, but they must not constitute the majority.
The provisions providing for the tenure, qualification and disqualification and procedure concerning the removal of the Commissioners are good. Regarding qualification of the Commissioners only experience has been emphasized. The matter of integrity, honesty, sincerity and high reputation should be taken into account and included in the concerned provision.
Section 18 of the proposed AntiCorruption Commission Bill enumerates the functions of the Commission. The list has been presented in a generalised form without specifying the responsibility what functions shall be disposed of by whom and by which department. The Bill should have provided that the Commission would have three departmentsone for the investigation of the offences of corruption, one for the prevention of corrup-
tion, one for making the people conscious about the bad consequences of the corruption.
Section 31 of the Bill provides that, previous sanction of the Commission shall be required to file a suit of corruption. This provision should be more elaborate in providing the rationale and guideline of granting sanction. Previous approval of the Commission in filing a suit shall be required to protect the honest public servants from harassment, at the same time no public servant shall take advantage of the provision that should be ensured.
In accordance with the provision of section 33 the Bureau of anti-Corruption shall be abolished, but its infrastructure, officers and staffs will be attached with the Commission. In this context an apprehension is mountingwill the legacy of the Bureau cloud the starting of the Commission?
Concluding remarks
We, the people of Bangladesh, are experiencing social instability and total anarchy. Social transition, titanic inequality, crminalisation of politics and economics, lack of good governanceall the factors give rise to this total anarchy. Moreover, private profit economy and satellite culture has developed a consumerist ethos, which causes high rate of criminality and corruption. We require some strong institutions (like Anti-Corruption Commission, Ombudsman etc.) to fight corruption. Simultaneously lesson of honesty and ethics should be given to every child from their home and other institutions of the society. Otherwise the eradication of corruption will remain a distant dream as it remains now.
Sheikh Hafizur Rahman Karzon is a Lecturer, Department of Law, Dhaka University.