Right to Transparent Governance

Discussion Materials compiled by NDI for the

District Multi stake holder forums on
Constitution and Peaceful Co-Existence

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Content

1. Research paper –Mario

2. Dimensions of Transparency in Governance
3. Recommendations for Transparent Governance
4. Synopsis of Anti corruption and related Laws
5. Bribery and corruption in Sri Lanka -strengthening the
institutional framework
6. UN convention against Corruption
7. The rights and access to information an instrumental right for
empowerment

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 Right to Transparent Governance
Mario Gomez 1
Introduction

Much of Sri Lanka’s decision making processes are shrouded in secrecy. Crucial
decisions that impact on public life are made behind closed doors and public
officers are reluctant to share information on these decisions or the basis for these
decisions. Information that should be in the public domain is seldom released and
the public sector is covered in an ethos of secrecy.

This culture of secrecy is compounded by the state of the media in the country.
The media has a major role to play in creating a culture of transparency and in
exposing corruption. Yet the media as it stands today is unable to perform this
role effectively. Major media institutions are state owned and their coverage of
events is partial to the ruling regime. Some parts of the independent media
engage in investigative reporting and provide alternative views. Yet this is not as
effective as it should be. In recent years independent media institutions that have
dared to confront the government have been subjected to threats, intimidation
and in a few cases their staff has even been assassinated.

Transparent governance deals with government decisions about which the public
has a right to know. Public decisions and decision making processes should be in
the public domain and be easily accessible to the public. The public have a right to
know about national, regional and local budgets; development strategies and
national action plans; agreements with multilateral institutions; plans for
infrastructure development; the expenditure of government Ministers,
departments and other institutions; and about other decisions that impact on the
public.

In a few areas which pertain to national security, the prosecution of crimes,

personal privacy or related matters, the public interest may be advanced by
confidentiality and secrecy and in which case, it may be justified to withhold such
information from the public. However, as a general rule, public decisions should
be accessible to the public and only in those few rare exceptions should
information be withheld.

The public also have a right to know about private sector decisions that impact on
the general public. The private sector should be encouraged to communicate
openly and transparently with all its stakeholders, including the wider

1
LL.B. LL.M. Ph.D. Human Rights Lawyer and Member of the Law Commission of Sri Lanka.

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community on key decisions that impact on public interest. Similarly professional
associations and regulatory bodies should also make their decisions transparent
since many of those decisions have an impact on the public.

Transparency is a key aspect of democratic governance. Secrecy generates

suspicion while openness generates trust, promotes credibility and enhances
public confidence. In spite of the public rhetoric over the years there have been
few concrete steps that governments have taken to promote transparency in
governance and to create a culture of openness.

Establishing a Right to Information

Sri Lanka urgently needs a ‘Right to Information’ law and a legal regime that will
enable people to access information speedily, easily and in a comprehensible
form.

Access to information with regard to the decisions, actions and policy of public
authorities is vital in ensuring the transparency and accountability of these
authorities. It enables the public and civil society to challenge the relevance of
proposed projects and plans. Transparency and openness in public decision
making also minimizes the opportunities for bribery and corruption.

Around 2001 the Law Commission of Sri Lanka presented a rudimentary draft
law on the freedom of information to the government. Civil society and the media
then took up the issue and presented a more detailed draft law. After a concerted
campaign by civil society and the media the draft law was approved by the
Cabinet in 2003. As a result of tensions between the then President and Prime
Minister, Parliament was dissolved in 2004 before the law could be passed.

The Law Commission subsequently took up the issue and presented a revised
draft (based largely on the civil society draft law) to the state around April 2006.
However, no action has been taken since then to present and debate the draft law
in Parliament.

The Law Commission Draft

The draft law submitted by the Law Commission in 2006 established the right of
the public to access official information. It also established the right to receive
reasons for decisions that affect any person.
The preamble recognises that there is a need to foster a culture of transparency
and accountability within public authorities. Ensuring a citizen’s effective access
to information will in turn ‘enable them to more fully exercise and protect all their
rights’.

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According to the Law Commission draft every citizen and incorporated and
unincorporated bodies will have a right to access official information in the
possession, custody or control of a public authority. Information in the possession
of private bodies was not covered by the draft law.

A public authority was defined to include Ministries of Government,

departments, public corporations, higher educational institutions, local
authorities, companies in which the Government had a majority share holding,
any department or other authority established by a Provincial Council and any
body or office established under the Constitution other than the Parliament and
the Cabinet of Ministers. In terms of the draft law the provisions of the freedom of
information law were to prevail over any other law.

Requests for information will be denied in cases where it is necessary to:

- Protect personal privacy;

- Protect the territorial integrity and national security of the state;
- Protect the relations of the state with any other state;
- Protect the life and safety of individuals;
- Preserve confidentiality of certain information;
- Prevent serious prejudice to the economy of Sri Lanka by premature
disclosure;
- Protect trade secrets or avoid harm to commercial interests;
- Protect medical secrets or records of any individual;
- Retain confidentiality on the basis of a fiduciary relationship;
- Prevent grave prejudice to the prevention or detection of crime or the
apprehension or prosecution of offenders;
- Retain confidentiality with regard to certain information in relation to law
enforcement or national security;
- Retain the confidentiality of information supplied in confidence by a third
party and that party objects to the disclosure;
- Avoid being in contempt of court or breaching the privileges of Parliament;
- Retain confidentiality with regard to information relating to an
examination (including the results of any qualifying examination)
conducted by the Department of Examinations or a higher educational
institute about which information is required to be kept confidential.

Where information is over 10 years old the exemptions will not apply except in
specific circumstances. The Freedom of Information Commission to be set up
under the law has the power to order disclosure of information where in its
opinion public interest in disclosure outweighs any of the interests protected by
the above exemptions.

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The draft law envisages a Freedom of Information Commission consisting of three
members appointed by the President on the recommendation of the
Constitutional Council. Every public authority is required to appoint at least one
Information Officer who will deal with requests for information.

Where a request for official information has been refused by an Information

Officer, the draft provides that such person may appeal to the Freedom of
Information Commission. In order to ensure that the information officers will be
free to act impartially the bill confers on them immunity from legal action for
granting access to any information.

Under the draft law public authorities are required to maintain records in a
manner consistent with their operational requirements, duly catalogued and
indexed. Records are required to be maintained for ten years.

The draft law also envisaged a concept of ‘proactive disclosure’. The second
section of the draft law casts responsibilities on Ministers and public authorities to
make official information freely and readily available to the public. Every two
years, every Minister must publish a report containing information giving details
of the functions, activities and duties of the Ministry and of all public authorities
under the Ministry, and the norms and procedures followed in the decision
making process of the Ministry. Additionally the Minster has a duty to inform the
public about any projects that are to be undertaken by the Ministry.

These provisions are an attempt to ensure that official information is available to

citizens as and when decisions are made by public bodies. It entrenches further
the doctrine of the Public Trust according to which governments hold power in
trust for the people and must always act in the interests and on behalf of the
people.

The draft law provides that, notwithstanding any legal or other obligation to
which a person may be subjected to by virtue of being employed in a public
authority, the disclosure of information permitted to be released under the law
should not make such person liable to any punishment. This is particularly
important given that some provisions of the Establishments Code, which
regulates the terms of employment of public officers, explicitly discourage public
officers from sharing information with the public.

The enactment of a Freedom of Information law can potentially enhance the levels
of accountability and transparency within the public sector. However, such
formal access by itself will not ensure accountability or transparency, unless
citizens, civil society groups and the media are vigilant and make constant and

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effective use of the right to access official information, the law will have little
impact.

Supreme Court Jurisprudence on Freedom of Information

In the ‘Galle Face Case’ the Supreme Court interpreted the constitutional right to
free speech, expression and publication as including within its ambit a right to
information.2 In this case a public interest organization, the Environmental
Foundation Limited (EFL), challenged the purported lease of a 14 acre seaside
promenade in Colombo, the ‘Galle Face Green’, to a private company. The
Supreme Court observed:

This is an application filed in the public interest. … the Petitioner, being a well
recognized entity working for the preservation of the environment is entitled to act in
the public interest …. In several cases the Petitioner has assisted this Court in
important matters with regard to the preservation of the environment. In this
instance too the Petitioner has acted in the public interest and exposed acts on the
part of the UDA that are clearly ultra vires.

Although there is no explicit right to information in the Sri Lankan Constitution, the
Supreme Court held that the right to freedom of speech, expression and publication
contained in Article 14 of the Constitution included by implication a right to
information. The Urban Development Authority (UDA), in refusing to provide
information about the purported lease of ‘Galle Face’ to the petitioner, had violated
the petitioner’s right to information.

The UDA’s action was also in violation of the constitutional right to equal protection
of the law since its ‘bare denial of access to official information’ in the absence of
specific reasons was an arbitrary exercise of power. The Court noted:

… I am of the view that the ‘freedom of speech and expression including publication’
guaranteed by Article 14(1)(a), to be meaningful and effective should carry within its
scope an implicit right of a person to secure relevant information from a public
authority in respect of a matter that should be in the public domain. It should
necessarily be so where the public interest in the matter outweigh the confidentiality
that attach to affairs of State and official communications. (Emphasis added)

In at least two previous cases too, the Supreme Court has echoed this reasoning
and upheld the right of access to official information.3

2
Environmental Foundation v UDA, (The ‘Galle Face’ Case), Supreme Court Minutes of 28
November 2005.
3
See Fernando v. Sri Lanka Broadcasting Corporation (1983) 2 Sri L.R. 311 and Heather Mundy
v. Central Environmental Authority and Others SC Appeal 58/03, SCM 20th January 2004.

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The 2000 Draft Constitution included the right to information as an aspect of the
freedom of speech and expression.

Every person is entitled to the freedom of speech and expression including

publication and this right shall include the freedom to express opinions and to seek,
receive and impart information and ideas either orally, in writing, in printing, in
the form of art or through any other medium.4

Some countries have a separate right to information as a part of the Bill of Rights.
For example Section 32 of the South African Constitution states:

(1) Everyone has the right of access to –

(a) any information held by the state; and

(b) any information that is held by another person and that is

required for the exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and
may provide for reasonable measures to alleviate the administrative
and financial burden on the state.

Combating Bribery and Corruption

Eliminating bribery and corruption is vital in ensuring that public power is used
to serve the public interest and public decisions taken for the benefit of the public.
Structured inquiries and anecdotal evidence have established beyond doubt that
corruption is endemic in the public sector and public funds mismanaged, misused
or fraudulently expropriated on a daily basis.

Recent reports from the two Parliamentary oversight committees - the Committee
on Public Enterprises (COPE) and the Public Accounts Committee (PAC) –
established in a striking way the extent of corruption and wastage in the public
sector. The COPE report of January 2007 observed that the 26 government
institutions examined at that time had caused a loss of approximately Rs 150
billion to the public exchequer. A report of the PAC in 2008 revealed a Rs 3.7
billion fraud with regard to the Value Added Tax in the Department of Inland
Revenue. The PAC report estimated that corruption in the public sector is costing
the country around Rs 100 billion every year. Despite prima facie cases being
established by these two parliamentary committees, no action has been taken to
ensure the accountability of those responsible.

4
Article 16(1) of the Draft Constitution of 2000

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Public sector corruption strikes at the very roots of democratic government. It
siphons public resources from the public good and retards the processes of social
and economic growth.

The National Integrity Framework

The current framework for addressing issues of bribery and corruption consists of
the:
Commission to Investigate Allegations of Bribery or Corruption (CIABOC)
set up under Act No 19 of 1994;

Auditor General’s Department;

Parliamentary Committee on Public Enterprises (COPE);

Parliamentary Committee on Public Accounts (PAC); and

Ad Hoc Commissions of Inquiry established under the Commission of

Inquiry Act.

The state established a National Procurement Agency to supervise government

procurements, but this institution has now been wound up.

Three other pieces of legislation are also important:

The Bribery Act No 11 of 1974

The Declaration of Assets and Liabilities Act No 1 of 1975
The Financial Disclosure Act

At the moment there is little political will to implement the existing legal
framework. While there are many gaps in the current framework even those
standards that exist are not enforced or applied in an uneven and politicized
manner. If the levels of bribery, corruption and nepotism are to drop, the state
needs to develop a capacity and willingness to investigate and prosecute bribery
and corruption in a sustained, principled and effective way.
The Commission to Investigate Allegations of Bribery or Corruption (CIABOC)
was set up in 1994 amidst much public debate. It was the first piece of legislation
passed consequent to a change of government in August that year. Bribery and
corruption had been a major issue in the run up to the Parliamentary elections of
that year and public expectations were high at the time the law was passed.

The objective of the enabling legislation was to create an independent and

powerful institution capable of investigating and prosecuting all forms of bribery
and corruption. At the time the legislation was passed there were expectations

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that the new Commission would be able to address the issue of bribery and
corruption in a serious way. Yet in almost 15 years of operation the Commission
has failed to make a significant impact. In theory, the law sets up an independent
institution with financial and operational independence. In practice, this
independence has not materialized and the Commission has functioned under
many constraints: political, human and financial.

A total of 120 prosecutions were initiated in a three year period between 2001 and
2003. Ninety trials were concluded during this period and 25 cases resulted in a
conviction. 5 Almost all those convicted were low ranking public officers. The ‘Big
Fish’ got away.

The Commission is a reactive institution: it can only respond to complaints

received. It cannot initiate investigations on its own. This is in contrast to the
previous Bribery Commissioner who could initiate investigations on his or her
own. Complainants may choose to identify themselves or remain anonymous.
While there have been some prosecutions, the widespread public perception is
that the Commission has made little impact in the case of large scale corruption.

The law and institutional framework are just two elements in a larger matrix of
relevant factors. The best laws with poor implementation will have little impact.
At the same time weak laws with imaginative implementation could have a better
impact.

Laws however, do posses the capacity to trigger political will on the part of
decision makers. They need to be supported by effective pressure from civil
society groups, social movements, the media and the public in general. Given the
right degree of public pressure and the right personalities, laws and institutions
can be made to work and influence political decision making with regard to
bribery and corruption.

Three jurisdictions that have had significant successes in combating corruption

have been Hong Kong, Singapore and Australia, especially the state of New South
Wales. The experiences of all three jurisdictions demonstrate the need to have a
well thought strategic plan and a multi-pronged strategy with interventions in
different strategic areas if bribery and corruption are to be reduced.

The Hong Kong experience has provided a model for other countries that
subsequently then set up a dedicated anti-corruption agency. In 1974 the
Independent Commission Against Corruption (ICAC) was set up in Hong Kong.

5
Lawyers for Human Rights and Development, ‘Bribery and Corruption in Sri Lanka: A study on Law and
Enforcement’ (November 2005) p 37.

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At that time corruption was a way of life in Hong Kong and as one seasoned anti-
corruption campaigner notes ‘existed from womb to tomb’.6 There were close
connections between law enforcement agencies and crime syndicates, and several
forms of organized crime were protected. In its first three years the ICAC
prosecuted 247 government officers including 143 police officers. In 30 years the
ICAC achieved important successes in bringing down the levels of corruption in
Hong Kong, including corruption that occurred within the private sector. The
Hong Kong experience with anti-corruption shows us that the necessary political
will accompanied with effective institutions and committed personalities can
make a huge difference.

The Supreme Court’s Jurisprudence on the use of ‘Public Power’

Transparent governance requires that public power be exercised openly,
rationally and in good faith. All public transactions, involving the expenditure of
public funds must be conducted in a transparent way and according to clear and
publicly available criteria. This requires clear and elaborate systems of governance
and independent and credible institutions to ensure compliance with these norms.

The Sri Lankan Supreme Court, in a period of about 10 years developed an

imaginative jurisprudence that set standards of conduct with regard to the
exercise of public power by public officials. This jurisprudence was developed
from about 1990 to 2000. Three high profile cases in the last two years have
strengthened this jurisprudence. The jurisprudence was developed through a
series of fundamental rights cases filed over this period, largely in those cases
alleging a violation of the equality and equal protection of law guarantees in
Article 12 of the Constitution. While dealing with allegations of fundamental
rights the Supreme Court at the same time developed a broader set of standards
that public officials should observe when they wield public power.

Two key ideas shaped this jurisprudence: the idea of a public trust and the notion
of fairness. According to the Supreme Court public power is vested in public
officials to be used in trust only for the purposes for which it is conferred. It
cannot be used for any extraneous or ulterior purpose and if it is so used, would
then amount to an abuse or misuse of public power. Concurrently public power
must be exercised fairly which in the view of the Court means a range of different
things.

It is possible to distil from the Supreme Court’s jurisprudence over this period a
set of principles that should guide and structure the exercise of public power in
this country. It may even be possible to transform this code into an enforceable

6
Tony Kwok, (Former Deputy Commissioner and Head of Operations, ICAC, Hong Kong)’ How
to Formulate an Effective Anti-Corruption Strategy in an Organisation: Hong Kong Experience’ .

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standard for which sanctions would attach if those standards were breached. If
an Ethics and Integrity Commission is established as discussed below, then it
would be possible for such a Commission to draw inspiration from the
jurisprudence of the Supreme Court.

Advancing the Rule of Law

The Rule of Law has for long been at the heart of the legal system of Sri Lanka and
its constitutional government. Its content has been enhanced after the enactment
of a justiciable Bill of Rights in the 1978 Constitution and by many
pronouncements of the Supreme Court and Court of Appeal since then. As we
noted above, the idea that no one is above the law and that all institutions that
exercise public power should act in accordance with the Constitution and the law
and as a trustee of that power, is now an integral part of the legal fabric of this
country. The judiciary, as one of the three main organs of state power, ensures
that the executive and legislature act within their designated realms and do not
usurp or abuse their powers.

An independent and accountable judiciary and legal profession are essential

requirements for any system of government based on the Rule of Law to flourish.
Independent and impartial institutions lie at the centre of any effective system for
the administration of justice. Justice can be effectively delivered only in an
environment in which the institutions administering justice are protected from
harassment and intimidation from the other institutions of the state.

The protection afforded to the judiciary is reflected in the constitution which

makes it an offence for any person to interfere in the exercise or performance of
judicial powers or attempts to influence the decisions of the Judicial Service
Commission.

In more recent times, in many parts of the world, civil society groups have begun
to play an important role in advancing the Rule of Law. Consumer groups,
environmental groups, human rights groups and women’s groups have begun to
bring cases on behalf of victims before the courts in several countries. Public
interest litigation has emerged as an important branch of litigation not just in
South Asia, but in other parts of the world too. In Sri Lanka several public interest
petitioners have brought cases before the Supreme Court and Court of Appeal.
One of the advantages of public interest litigation is that the petitioner is able to
provide legal arguments and material that victims may not be able to present to
court. They thus enhance the range of materials available to the court and
consequently enhance the court’s capacity to address and resolve complex aspects
of economic and social policy.

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The Politicization of the State
Public life in Sri Lanka has been characterized by a high level of politicization.
Political office is now more a means of pursuing individual ambitions rather than
serving the public interest. The abuse and misuse of public office for personal gain
is a constant feature of Sri Lankan public life.

The public service, which at one time was independent, has now been infused
with a large number of political appointees and has lost independence and
credibility.

At the moment there is no single institution that commands widespread

credibility. Appointments to public institutions have been tainted by political bias
and friends and family have been appointed to positions of power.

The police force is an illustration of the extent of politicisation. An independent

police force should be capable of maintaining law and order and investigating
crimes impartially and effectively. This however, seldom occurs. The majority of
police investigations are manipulated especially in politically sensitive cases and
seldom is anyone with connections to the ruling elite subjected to the due process
of the law.

The Constitutional Council introduced by the 17th Amendment sought to de-

politicize some major public appointments. However, the Constitutional Council
has not been active for the past three years and appointments have been made to
public institutions by the ruling regime in violation of this constitutional
requirement.

If the state is to be de-politicized appointments to the public service must be

based on merit and need and must be scrutinized by an independent body.
Politicians should not be permitted to appoint family members and friends to
positions of public power.

Appointments to the independent institutions should also be free of political bias

and be based on merit. It is only if independent institutions are staffed by
independent and capable people will those institutions be able to police the
corridors of power and ensure that public power is employed in the public
benefit.

Independent institutions such as the police and the judiciary must exhibit both an
institutional independence and an individual independence. Institutional
independence requires that public institutions be independent from executive or
legislative interference. Individual independence requires that the members who

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staff these institutions be free from influence, whether it is from their peers or
from external sources.

Public Interest Litigation:

Since emerging in the sixties in the United States, and then in a more vibrant form
in the seventies in India, Public Interest Litigation (PIL) has emerged as a
potentially rich legal concept to enhance access to justice and to increase
transparency in government. Over the years PIL has made a significant
contribution to South Asian legal thought, jurisprudence and social action and
changed the way lawyers, judges and activists view the law. It has emerged as a
useful tool to control the abuse of public power and to ensure that the law is
observed by all entities, state and non-state.

The number of PIL cases has ballooned in recent years as the courts in Sri Lanka
have relaxed ‘standing’ requirements. It has begun to attract a lot of public
attention mainly because of three high profile decisions given by the Supreme
Court in the past few years.

PIL: Its Indian Origins

Beginning around the mid 1970s, there emerged in some Indian courts a new kind of
litigation. It became possible for any person, even if he or she was not personally
affected, to initiate this litigation by merely addressing a letter to a judge of that
court. In this manner a large number of public interest issues affecting large groups
such as prisoners, workers, children and other disadvantaged groups were brought
to the notice of the courts. Most often these issues related to the infringement of
constitutionally guaranteed fundamental rights or the non performance of legal
duties.

Six features came to characterize this litigation:

1. An expansion in the doctrine of standing (locus standi) which permitted any

bona fide petitioner to bring matters of public interest before the court. The
petitioner was not required to show that he or she was personally affected.

2. Formal court procedures were dispensed with. Thus actions could be

initiated by writing a letter to the court which would then be converted into a
formal petition and notice issued on the respondent.

3. The use of novel methods to gather facts. Often the court appointed a socio
legal commission of inquiry to investigate the disputed facts and submit a
report to the court.

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 4. A creative interpretation of some of the fundamental rights provisions of
the Indian constitution. For example, the right to life clause in the
constitution was broadly interpreted to include a right to livelihood, a right
to speedy access to justice and the right to a clean and healthy environment.

5. The use of international standards as an aid to interpretation.7

6. Many of the cases pertained to socially disadvantaged and vulnerable

groups.

This litigation has been referred to as public interest litigation or social action
litigation. In developing this litigation the Supreme Court of India has argued that
court procedures must be deformalised to enable all segments of society to have
access to the courts. Most disadvantaged and economically underprivileged groups
lacked the capacity to the approach the courts on their own. Thus the court should
permit non governmental organizations (NGOs) and other public interest groups to
litigate on their behalf.

Rationale for PIL

 The matter will never get litigated otherwise. It is better to deal with an
alleged injustice than to allow it to go unchecked because there is no
petitioner.

 One of the goals of public law litigation is to control public power and to
ensure governmental accountability.

 It does not matter who invokes the jurisdiction of the court. Some victims
may not have the capacity to approach the courts and thus a third party
should be allowed to petition on their behalf.

 The victim is not the best placed to argue the matter in every case. A public
interest petitioner can bring new material and enhance the quality of the
judgment. Third parties may have better expertise and resources to present
to the court all the relevant material and facilitate a ‘better’ judgement.

 If the victim is not always the most competent person to argue the case,
then there is a strong case to allow a third party to intervene or for the
court to appoint an amicus curiae to assist the court, in appropriate cases.

7
See Article 27(15) of Sri Lankan Constitution according to which the state shall endeavour to foster
respect for international law and treaty obligations in dealings among nations.

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PIL is a great legal innovation. It is a powerful tool for the public spirited citizen
to control the exercise of public power and to ensure that public officials always
act in the best interests of the public. It is a powerful tool for ensuring greater
transparency in government and for creating a culture of openness.

However, it should be used in a balanced way. It must strike a balance between

legal certainty and past illegalities. Creative remedies need to be developed and
processes to monitor their implementation ensured. It must be used in a way that
secures the rights of all the different stakeholders. And it must be practiced in
ways that ensures that natural justice is observed at all stages.

The Parliamentary Oversight System

The Executive Presidency has marginalized the legislature and made it of limited
relevance in the country’s scheme of constitutional government. The system of
government is so heavily weighted in favour of the President that today
Parliament plays only a marginal role both in a de facto and de jure sense.

There is however, still some space for reviving the vibrancy of the Parliamentary
oversight system even in the context of strong Executive Presidency. A strong
Parliamentary oversight system could potentially play an important role in
enhancing transparency, ensuring that public power is not abused and in
delivering accountability.

The Committee on Public Enterprises (COPE) and the Public Accounts Committee
(PAC) set up under Standing Orders 125 and 126, are important ways in which
Parliament plays its role as the controller of public finance. Parliament has control
over public finance and in theory the executive is prohibited from using public
funds unless such expenditure has been approved by Parliament. According to
the Constitution it is Parliament’s role to approve the allocation of funds for
projects and services and to supervise and scrutinize the expenditure of such
public funds.

COPE and PAC are both members of multi party committees who between
themselves share the burden of scrutinizing public finance. Both are key
mechanisms for ensuring that public funds are used for a public purpose and are
not mismanaged or embezzled. They have wide powers that enable them to
summon any person to appear before them and to request to see any documents
or records.

The COPE is a 31 member multi-party Parliamentary committee that oversees the

functioning of government corporations, boards, authorities, state owned banks
and state owned companies and scrutinizes their budgets, accounts, financial
procedures and management practices. The 31 member PAC on the other hand,

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scrutinizes the work of government departments and local authorities. COPE and
the PAC in combination enable the legislature to keep track of public expenditure
and ensure that public funds are used for a public purpose.

The effective functioning of these two bodies is important if Parliament is to

exercise its role as the controller of public finance. Regrettably though the
Parliamentary oversight committees have functioned in a deeply politicized way
and have seldom performed their role in an independent and credible manner.
Where they do operate independently their findings are rarely followed through.
This is illustrated by the recent experiences of COPE.

In 2007 COPE released two reports one in January and the other in August, both
of which attracted significant public attention. Both reports were released after a
process of inquiry that lasted several months and highlighted the rampant
corruption, waste, and inefficiencies in the public sector.

After heated debates within Parliament, it was decided to refer 16 public

institutions that were identified in the COPE reports for further investigation to
CIABOC (Commission to Investigate All Forms of Bribery and Corruption). Soon
after this the Presidential Secretariat transferred the Director General and two
officers of CIABOC. Despite prima facie evidence of corruption, waste and
mismanagement contained in the COPE reports there have been no attempts to
pin accountability on those responsible.

Parliament was then prorogued on 6th May 2008 by the President without
assigning any reason and the commencement of the new session was fixed for the
5 th of June 2008. The prorogation provided an opportunity for the two key
Parliamentary committees to be reconstituted. The former Chairman of COPE,
who was responsible for producing an independent and credible report on waste
and corruption in the public sector, and had developed a strong public reputation
for his willingness to tackle corruption, was not re-appointed. He was instead
replaced by a government Minister and a member of the Executive. Similarly the
chairman of the Public Accounts Committee was also replaced by a government
Minister. In terms of previous Parliamentary practice, oversight committees were
generally headed by a member of the opposition, even though the previous chair
had been a member of the governing party.

The purpose of COPE and the PAC is to enable Parliamentary oversight over
government institutions that expend public money. Having two members of the
Executive head two important oversight committees that oversee public
enterprises and public expenditure is a clear conflict of interest since the Ministers
sit in committees that scrutinize their own conduct.

17
Parliamentary Questions
The other important way in which the legislature exercises control over the
exercise of executive powers is by way of questions, directed at government
Ministers.

According to Standing Orders the first 45 minutes of every Parliamentary session

are reserved for questions that members may want to ask of government
Ministers with regard to the institutions that come within their purview.
Questions are presented in advance and the Minister concerned has an
opportunity to obtain the relevant information from his or her officials. Where a
Member of Parliament is not satisfied by the Minister’s response he or she could
direct additional questions.

Currently ‘question time’ in Parliament has descended into a charade.

Government Ministers are seldom present to answer questions from the
Opposition and most questions are fielded by the Government Whip who is often
ill equipped to answer supplementary questions.

Recommendations

1. Freedom of Information Law

The Constitution must be amended to secure a right to access information that
should be in the public domain. Parliament must enact a Freedom of Information
law immediately. The law should be drafted in consultation with the media and
civil society and should establish the right of the public to:

a. Access official information

b. Access information from private bodies that perform a public function or
whose decisions impact on the public.
c. Access information from professional associations and regulatory bodies.
d. Access the reasons for a decision where such a decision affects a member
of the public.

Provided that information may be withheld where there is a public interest in

preserving the confidentiality of such information (such as national security, the
prosecution of crimes or personal privacy).

The law should contain in detail:

a. The types of information that could be accessed.
b. The institutions and bodies to which requests could be made.
c. The procedures for ensuring that all public bodies designate an
information officer to which requests should be forwarded.

18
 d. The process for accessing information which should be simple, cheap
and widely accessible in all parts of the country and to all social groups.
e. The process for filing an appeal where the initial request for
information is refused.
f. Processes for ensuring that public institutions proactively disclose
information at least once in every two years.

The Establishments Code should be amended and provisions that may prevent
public sector employees from disclosing information should be deleted.

2. Bribery, Corruption and ‘Integrity in Public Life’

Sri Lanka’s institutional and legal framework should be reformed to ensure the
following elements:

1. An Independent Anti-Corruption Body. This may be an entirely new

institution such as an ‘Ethics and Integrity Commission’ or a revamped
CIABOC (Commission to Investigate Allegations of Bribery or Corruption).
The Commission should be able to:

A. Investigate and prosecute all forms of bribery and corruption.

B. Monitor systems and procedures in the public sector and suggest
changes to minimize opportunities for bribery and corruption
(there will be some overlap with the Auditor General in this
regard).
C. Engage in public education.
D. Develop capacities within civil society.

An ‘Ethics and Integrity Commission’

An independent Ethics and Integrity Commission will seek to ensure that public
life is infused with standards of probity. Such a Commission will look not only at
issues of bribery and corruption but will also ensure that public and political
office is not used for extraneous purposes and that public power is exercised
fairly and reasonably. Such Commissions are concerned with the holders of public
and political office and seek to set standards of conduct for these officials of state
and the exercise of their power.

According to the Draft Constitution of Kenya the Ethics and Integrity

Commission, among other things, will:

Put in place measures aimed at the prevention of corruption and abuse of

office, including preparing guidelines and codes of practice … for elected
or appointed state officers …(emphasis added).

19
 Issue guidance, warnings and comments with respect to behaviour that it
considers may violate a code of practice or the principles of probity in
public life.8

Such Commissions will frame and supervise standards to ensure that public office
is not used for personal gain or to pursue partisan political interests. This includes
ensuring that public property is not used for personal use and ensuring that
public funds are used in an efficient and effective way. They would also seek to
preclude holders of public office from engaging in specific post-retirement
activities to prevent the perception that the officer holder’s conduct was
influenced by the prospect of a post-retirement benefit.

While an Anti-Corruption Commission focuses on the narrow concept of

corruption, an Ethics and Integrity Commission will address the broader notion of
abuse of power that accompanies the exercise of public office.

Public life in Sri Lanka, especially with regard to those who hold public office, has
been characterized by a high level of politicization. The abuse and misuse of
public office for personal gain has also been a feature of Sri Lankan public life.
Needed is an institution that can ensure that public power is exercised in an open,
fair and efficient manner and that public office is not used for personal gain. An
independent institution with a broader mandate than the current CIABOC and
staffed by dynamic and honest personalities will provide better way of addressing
this problem.

Strengthen CIABOC; or
Create a New Institution?
There are two options with regard to institutional reform:

1. Reform the existing Commission to Investigate All Forms of

Bribery and Corruption (CIABOC) and create a more robust
institution (through legislative and other changes).

2. Create an entirely new entity such as an ‘Ethics and Integrity

Commission’ that will have a stronger impact than the current
Commission.

Whether either option is pursued the following points should be kept in mind:

8
Article 178 2(b) and (d) of the Draft Constitution of Kenya (2002)

20
Operational Autonomy and Independence
Independence and autonomy both as a principle and in operational terms is
fundamental if bribery and corruption are to be reduced.

The current Commission or a new Commission cannot function unless the

institution is completely free of political or administrative control. One of its
major functions is to investigate corruption and bribery within state structures
reaching to the highest levels of administration. This function cannot be
effectively discharged without complete independence from all state structures
and state officials.

The principle of independence needs to apply to all aspects of its operations. The
Commission must be able to assess a complaint, investigate a complaint and
prosecute a complaint without any interference direct or indirect. Pressure cannot
be brought to bear on the commission however indirectly, whether by way of
suggestion or inducement of any form. A common form of inducement is the
promise of some reward or high appointment to the commission members. This
needs to be avoided and should be specifically provided against.

Beyond this it must have autonomy with regard to deciding on the ambit of its
operations. It must have the freedom to recruit its own staff; decide on terms and
conditions of work; design and execute training programmes for its staff; exercise
disciplinary control over its staff; and make other decisions pertaining to staff
management.

Composition
The current requirement that at least two members of the Commission should be
retired judges of the Supreme Court or Court of Appeal has proved to be an
obstacle in practice. While it may desirable in some cases to have retired Supreme
Court or Court of Appeal judges, this need not be a requirement. This condition
should be removed and the Constitutional Council should be permitted to
recommend other persons for appointment. The focus should be on honest and
dynamic persons. It would be useful to have at least five Commissioners from
different disciplines and backgrounds and at least three should work full time. A
gender balance must also be maintained.

The Commission should be able to function even in the event of one or more
vacancies.

Functions
The Commission should engage in four broad functions:

1. Investigating and prosecuting bribery and corruption at all levels.

21
 2. Monitoring systems and procedures in the public sector and suggesting
changes to minimize opportunities for bribery and corruption.
3. Educating the public including school children and youth, and
mobilizing the public in the fight against corruption.
4. Enhancing the capacities of civil society organizations and social
movements so as to improve their ability to monitor, report and combat
corruption.

Investigative Skills and Capacities

The investigative capacities of the Commission need to be substantially enhanced.
The Commission needs to have access to a broad range of skills for the purposes
of investigating a complaint. Many cases of modern corruption are sophisticated
and subtle. They would require a wide range of multi-disciplinary skills if an
investigation is to unravel evidence against the perpetrator. It is important that
the Commission have the managerial autonomy to recruit persons with
appropriate skills and remunerate them accordingly. In some cases it may be
appropriate for the Commission to rely on specialized expertise from within the
country or from outside. This power too should be explicitly vested in the
Commission.

Other Skills
If the Commission is going to perform the other functions mentioned above, it
would also need other skills. Apart from a well equipped investigative team the
Commission would require staff with strong and innovative managerial skills, IT
and financial skills, public education skills and public relations skills. While
some skills may be recruited immediately, others will take some years to build
and so the Commission will do well to plan for a substantial and sustained
training programme for its staff.

Independent Prosecution as a Key Strategy

The experiences of Hong Kong drew attention to the importance of prosecutions
as a form of deterrence. While the ICAC in Hong Kong had a multi-pronged
strategy which embraced deterrence, prevention and education, deterrence
through prosecutions was given priority over the other two areas.

The ICAC in Hong Kong ran three departments: the Operations Department to
investigate corruption; the Corruption Prevention Department to look at systems
and procedures in the public sector, to identify the opportunities that exist for
corruption and fill in the gaps; and the Community Relations Department which

22
focused on public education. Yet 70% of the resources were ploughed into the
Operations Department with a view to prosecute corruption seriously.9

Prosecution however, to be effective must be independent and principled. This

would mean that political interference of any sort should not be tolerated by the
Commission. At the same time prosecutions should not turn into ‘witch hunts’
against political opponents and others.

Public Complaints
The Commission would need to develop an effective system for receiving and
responding to public complaints. The ICAC in Hong Kong had a 24 hour hotline,
which was highly publicized and CIABOC may want to consider a similar model.
The capacity to respond speedily in those cases where a ‘quick reaction’ is
required is also important. This would also operate as a serious deterrent to
corrupt activity.

The Hong Kong ICAC has adopted an effective review system to ensure that all
complaints are promptly investigated. Successful prosecutions are given
prominent publicity in the media and media exposure is used as another way of
deterring corruption. Where a complaint is rejected reasons should be provided
by the Commission to the complainant.

Financial Autonomy
Independence means little without financial autonomy. Although Parliament
approves the annual budget of the Commission, in practice the funds are
controlled by the Treasury. This needs to be changed. Parliament should decide
on the annual budget of the Commission based on an estimate provided by the
Commission. This could be done through one of the standing committees of
Parliament. Once that sum has been approved the Commission should then be in
a position to manage these funds according to internationally approved auditing
standards.

Public Education
While prosecuting and publicizing the prosecutions should remain one
substantial focus of the Commission’s work, this should not be its sole focus. The
Commission should also engage in public education work in a bid to create an
environment that is free of bribery and corruption.

Public education in three languages will require a set of entirely different skills.
Public education as an area has grown and developed so much in recent years

9
Tony Kwok,’ How to Formulate an Effective Anti-Corruption Strategy in an Organisation: Hong
Kong Experience’,

23
and the Commission must be able to access the state of the art knowledge in this
respect. This will mean that the Commission should be able to recruit and train a
team of educators who will design and then execute the public education
programme.

Public education has the potential to swamp the Commission. The Commission
will thus be forced to prioritize the sectors with which it will work. It could have
programmes that will broadly target the public but beyond that may want to
focus on particular sectors such as youth, the judiciary and the public sector.

Media and Public Relations Unit

Since Commissions of this nature are often in the public spotlight because of the
nature of their work the Commission would benefit by having a media strategy
and a media unit to manage its public image. This would have at least two
aspects. One is to mange how the public perceive the Commission. This would
include disseminating information about the prosecutions and about the other
work it is doing. The other aspect would be to respond to criticism of the
Commission that may emanate from political actors and the state.

There have been a few instances in the recent history of the Commission where
the state has criticized the Commission and attempted to tarnish its reputation.
The Commission should ideally have the capacity to respond to this criticism and
maintain its reputation.

Criticism of independent institutions from political actors is always possible given

that these independent institutions ‘police’ the actions of those actors. It is
important that these institutions have skilled personnel within those institutions
to be able to respond and maintain the public integrity of these institutions in the
event of unfair hostile public criticism from political actors.

3. An independent and effective Auditor General’s Office.

The Auditor General is an office set up under the Constitution with an obligation
to audit the accounts of all public institutions including local authorities and other
undertakings vested in the state.10 In some countries the institution has a stature
comparable with the office of a Supreme Court judge. In Sri Lanka however, the
office has functioned with little prestige and marginal impact.

While the Constitution envisages that the Auditor General will assist Parliament
in the scrutiny of public enterprises and public finance it currently functions as an
arm of the executive with the executive having control over many aspects of its
operations including the disbursement of funds to the institution.

10
Articles 153 – 154 0f the Constitution.

24
Ideally the institution should be able to examine the performance of all public
institutions, including looking at issues pertaining to economy, efficiency and
effectiveness, and be able to release its reports to the executive, the legislature and
the media.

In 2005 a draft Audit Act and constitutional amendments were prepared to

provide greater autonomy and to make the office more effective. Although
Cabinet approval was obtained for these proposals, they have not been passed by
Parliament.

One of biggest constraints of the Office is a lack of trained staff with the broad
range of skills required of an institution of this nature. There is an urgent need to
upgrade the competencies of its staff through training in modern and
sophisticated audit techniques including the use of computer assisted audit
techniques.

While many other audit institutions in other parts of the world have embraced a
wider array of auditing methodologies including environmental, performance,
investigative and ‘value for money’ audits, the Sri Lankan Auditor General tends
to focus largely on financial auditing. The generation of high quality audit
reports is key aspect of an institution of this nature. Generating such reports will
mean that the capacities of the Department need to be significantly strengthened.

An independent and effective Auditor General’s Office should be able to:

A. Effectively audit all public sector institutions not just for financial
accountability but for efficiency and effectiveness as well. It should be
capable of conducting a wide variety of audits such as environmental,
performance, investigative and ‘value for money’ audits.

B. Monitor systems and procedures in the public sector and suggest

changes to minimize opportunities for corruption (there will be some
overlap with the Anti-Corruption body in this regard).

Draft Audit Act

Parliament should, as a matter of urgency, enact the Audit Act. In 2005 a draft
Audit Act and constitutional amendments were prepared to provide greater
autonomy and to make the office of the Auditor General more effective. Although
Cabinet approval was obtained for these proposals, they have not been passed by
Parliament.

25
One of the main objectives of the Draft Audit Act is to provide greater operational
and functional independence for the Auditor General’s office. In addition the
draft Act aims at strengthening the capacities of the Auditor General to conduct a
wide variety of audits that go beyond the conventional financial audit. For
instance, in carrying out an audit, the Auditor General has the power to examine
whether satisfactory procedures are in place to assess the environmental impact of
a project.

The Draft Act envisages the creation of an independent Auditor General, a

National Audit Office which will be under the Auditor General, and a National
Audit Service Commission which performs an advisory and supervisory role.
Further the draft Act seeks to establish a Constitutional Audit Council which will
act as the body which will hear complaints made against surcharges imposed by
the Auditor General, where for instance a transaction is illegal or fraudulent.

The draft spells out in detail the different powers and duties that each of these
bodies would have. The objective of establishing these institutions is to ensure
that the Auditor General will have the required independence and ability to audit
accounts of public bodies and to ensure that there is transparency and
accountability in the audit procedures. For instance the Auditor General’s
accounts too are subject to an audit by an independent auditor.

The draft Act seeks to impose criminal sanctions on any ‘audited entity’ which
fails to assist the Auditor General in the discharge of the Auditor General’s
functions. This includes the failure to furnish necessary information and the
refusal to appear before the Auditor General when called to do so. Such actions
can be punished through an indictment in the High Court and will attract either
one year’s imprisonment, a fine of one hundred thousand rupees or both. This
section underlines on one hand the need to introduce penal sanctions in order to
bring about a culture of co-operation with regard to auditing and on the other the
high degree of importance given to the duties that are to be fulfilled by the
Auditor General.

4. Protecting the Whistleblower

At the moment Sri Lanka does not have legislation that protects the
‘whistleblower’. Legal protection, by way of separate legislation, for those who
expose acts of corruption will help in creating a culture of transparency and
accountability. People who take the risk of exposing acts of corruption must not
suffer any reprisals or sanctions as a result.

An ideal whistleblower law should provide physical security, identity protection

and employment security. It should also instruct people in a clear and concise

26
way how acts of corruption may be exposed without subjecting themselves to any
reprisals or sanctions.

Whistleblower protection laws are likely to have a stronger impact if the agency
to whom the act is reported takes action based on the information provided. Even
if the whistleblower does not suffer any reprisals, lack of follow up action by the
agency concerned will discourage others from taking the risk.

5. An Independent Elections Commission

An independent Elections Commission to ensure that all elections are fair and free
of corruption and illegal practices must be established. Such a Commission must
operate in accordance with the procedures contained in the 17th Amendment to
the Constitution. The Elections Commission should ensure that the funding of all
registered political parties are a transparent process, place limits on campaign
financing and monitor the processes of campaign financing.

6. A National Procurement Agency

A National Procurement Agency (NPA) must be established to ensure that all
public procurements are awarded according to common, fair, transparent and
efficient standards. The NPA should have the power to sanction officials where
such standards are breached.

7. Restoring the Vibrancy of Parliament

The vibrancy and effectiveness of Parliament needs to be restored. Sri Lanka’s
current constitution tilts the balance too far in favour of the Executive and has
made the legislature of limited relevance. A more equitable balance between the
executive and legislature needs to be established.

The Executive Presidency should either be abolished or amended and a more

equitable balance of power must be established between the Executive and the
Legislature.

If the Presidency is amended the President should not be permitted to hold any
ministerial portfolio. The Cabinet of Ministers should consist of Members of
Parliament, only.

Even if the Executive Presidency is not abolished or amended, Parliament must

exercise its constitutional role as the controller of public finance. Controlling
public funds requires at least two things:

a. Ensuring that there is no mismanagement of these funds, no corruption

in the public sector and no fraudulent use.

27
 b. Ensuring that public funds are used efficiently and in ways that
maximizes output.

This means that Parliament must allocate funds for projects and services through
the annual budget and supervise public expenditure in accordance with such
projections. The procedure for the preparation of the annual budget must be
streamlined and there must be greater consultation between executive and the
legislature in the preparation of estimates and budgets.

Parliament must scrutinize the disbursement of public funds through an effective

multi-party oversight committee system. The Parliamentary oversight system
need to be strengthened and COPE and the PAC must be headed by members of
the opposition. Both committees should not include Members of the Cabinet.

Both committees should have the power to summon and examine Ministers,
heads of institution and other staff. They should have the power to examine and
scrutinize any organisation in which the government has a substantial number of
shares. Government loans which create a liability on the Treasury should receive
the prior approval of Parliament.

Ideally the Minister of Finance should be a Member of Parliament and should be

available to answer questions from members of the legislature. The President
should not, under any circumstances, hold the Finance portfolio.

Parliamentary Standing Orders must be amended to ensure that Ministers cannot

continually evade answering questions posed by Members of Parliament.

In the event that the Executive Presidency is not abolished, the unbridled
immunity provided to the acts of the President in Article 35 of the Constitution
should be removed.

8. Strengthening the Independence of the Judiciary

The courts play a crucial role in ensuring transparent governance, promoting
governmental accountability and ensuring that public power is exercised only for
a public purpose. While there have been several independent commissions that
have been established in the recent past, few of them have been able to generate
the credibility that has inspired public confidence in their work. Ensuring that the
judiciary can function effectively, independently and creatively then becomes
vital.

The Constitutional Council must be re-established as a matter of priority.

Presidential nominees to the Court of Appeal, Supreme Court and Judicial

28
Services Commission must be approved by the Council prior to their appointment
as required by the Constitution.

A National Judicial Academy should be established that will provide regular

training for all levels of the judiciary, including the Court of Appeal and Supreme
Court. The trainers should include retired judges, sitting judges, academics,
lawyers and other independent experts.

The procedures for the removal of judges should be strengthened. The current
procedure for an inquiry before a Select Committee of Parliament should be
changed. Judges of the Court of Appeal and Supreme Court should be removed
only after an inquiry before a panel of three peer judges from one or more
Commonwealth countries, or after inquiry before an independent panel of the
Judicial Services Commission set up specifically for that purpose.

The proceedings of the Judicial Services Commission should be open and

transparent and their records publicly accessible. Appointments to the Judicial
Services Commission should be in accordance with the Constitution,

The Constitution should be amended to provide for citizens to initiate

fundamental rights actions that are caused by judicial action.

Retired judges should be provided a pension that is linked to the rate of inflation
in the country. This will strengthen their financial independence after retirement
and make them less susceptible to pressures and inducements from the state.

Retired judges should not be appointed to any public office, except as members of
the independent commissions. Where retired judges are appointed as members of
independent commissions their appointments should receive the prior approval
of the Constitutional Council.

9. Public Interest Litigation

The Constitution should be amended to permit public interest litigation both with
regard to the enforcement of fundamental rights and the application for writs.

The following formulation, taken from Section 38 of the South African

Constitution could provide a model:

Anyone listed in this section has the right to approach a competent court, alleging that
a right in the Bill of Rights has been infringed or threatened …. The persons who may
approach a court are –

 anyone acting in their own interest;

29
  anyone acting on behalf of another person who cannot act in their own name;
 anyone acting as a member of, or in the interest of, a group or class of persons;
 anyone acting in the public interest; and
 an association acting in the interest of its members.

10. Review of Parliamentary Bills

Articles 120, 121, 122 and 123 should be amended to ensure that the process for
challenging the constitutional validity of Parliamentary Bills is amended. The
following principles should be entrenched:

All Bills must be published in the gazette and made widely available
before being debated in Parliament.

A period of 60 days should be provided for citizens to challenge Bills, save

in those exceptional circumstances where urgent legislation needs to be
enacted.

DIMENSIONS OF TRANSPARENCY IN GOVERNANCE

By Jeremy Pope

30
INTRODUCTION
There have been 3 phases in the global movement against corruption.
1 st Phase: In the 1980s there was growing intolerance to corruption in a number of
countries such as the Philippines, Bangladesh, China, Brazil, Venezuela among
others.
2 nd Phase: Convention making and standard setting
 Inter-American Convention Against Corruption (1996)
 OECD Convention Against the Bribery of Foreign Public Officials in
International
 Business Transactions (1997
 Council of Europe’s Criminal and
 Civil Conventions (1999)
 UN Convention Against
 Corruption in Mexico in December 2003

3rd Phase: The current phase is implementation and enforcement. This has proved
the most challenging phase, with countries facing unique challenges. While the
laws and institutions may be in place, the challenge is in ensuring they are
respected and adhered to.
I. ETHICS ADVANCES, CORE PUBLIC SERVICE VALUES, AND
STANDARDS
IN PUBLIC SERVICE
In 1994 the United Kingdom developed the 7 Principles of Public Life
 Selflessness – Holders of public office should take decisions solely in terms
of the
public interest. They should not do so in order to gain financial or other
material
benefits for themselves, their family, or their friends.
 Integrity – Holders of public office should not place themselves under any
financial or other obligation to outside individuals or organizations that
might influence them in the performance of their official duties.
 Objectivity – In carrying out public business, including making public
appointments, awarding contracts, or recommending individuals for
rewards and benefits, holders of public office should make choices on
merits.
 Accountability – Holders of public office are accountable for their decisions
and actions to the public and must submit themselves to whatever scrutiny
is appropriate to their office.
 Openness – Holders of public office should be as open as possible about all
the decisions and actions that they take. They should give reasons for their
decisions and restrict information only when the wider public interest
clearly demands.

31
  Honesty – Holders of public office have a duty to declare any private
interests relating to their public duties and to take steps to resolve any
conflicts arising in a way that protects the public interests.
 Leadership – Holders of public office should promote and support these
principles by leadership and example.

In 1996, the United Nations promulgated an International Code of Conduct for

Public Officials (Resolution 51/59: Action Against Corruption adopted by the
General Assembly on 12 December 1996), which was recommended to Member
States as a tool for guiding their efforts against corruption. Similar to the United
Nations’ Code is the Council of Europe’s Model Code of Conduct for Public
Officials (2000).The Code contains some mandatory items, but the document itself
is a Recommendation and is intended to set a precedent for countries drafting
their own mandatory codes of conduct.

Codes of Conduct for Ministers and Public Officials: Codes of conduct for
ministers, legislators, civil and foreign services officers, the judiciary, and local
government can assist countries in putting principles to work. Guatemala is
among the countries that have instituted codes of conduct for ministers and
permanent secretaries. In the United Kingdom, the Standards Board for England
is active in setting and enforcing standards of conduct, transparency, and
accountability across local government structures. The Board is responsible for
promoting high ethical standards and investigating allegations that members’
behavior may have fallen short of the required standards.

Citizens’ Charters: These are intended to improve public sector accountability as

well as service delivery. In India, Citizen’s Charters are being used to tackle low-
level corruption by providing citizens with access to information about services
where bribes are often levied. The Charters describe the services that the
government will provide, the time frame for each service, the government officer
who should be contacted and a remedy should the service not be provided. In the
typical Charter, a government department or agency sets out its commitments to
the public it serves. Copies of the Charter are then displayed prominently
wherever the department or agency is doing business with the public.
Ethics officers: To be effective, over-all responsibility for public ethics
development and training must be vested in a particular agency of government.
Frequently, this is within the ministry for government administration.

Conflicts of Interest: Most countries consider the question of conflicts of interest

so important and so fundamental to good administration, that they enact a
specific conflict of interest law. This can provide, for example, that “a State officer
or employee shall not act in his official capacity in any matter wherein he has a

32
direct or indirect personal financial interest that might be expected to impair his
objectivity or independence of judgment.”

Monitoring and Surveys: Monitoring the progress of state agencies in combating

corruption is central to effectively eradicating it. The National Integrity System
(NIS) concept offers a systematic approach not only to what is being measured
and how, but also can encourage countries to use it as the basis for national plans
and to identify areas for further reform. The NIS Country Reports outline a formal
framework which provides for anti-corruption measures, in the following areas of
public affairs: conflict of interest, declaration of assets, lifestyle monitoring, access
to information, freedom of the press, freedom of speech, post employment
restrictions, whistle-blowing, codes of conduct, blacklisting, and complaints
mechanisms. This is followed by an assessment of what actually takes place in
practice. The assessment highlights deficiencies, both in the formal framework
itself and in its implementation.

The Public Integrity Index is the centerpiece of the Global Integrity Report,
produced by the Center for Public Integrity. This provides a quantitative
scorecard of governance practices in a range of countries. It brings together data
on 292 corruption related governance variables for 25 countries and assesses the
institutions and practices that citizens can use to hold their governments
accountable to the public interest. The Public Integrity Index does not measure
corruption itself, but rather the opposite of corruption: the extent of citizens'
ability to ensure their government is open and accountable.

II. TOOLS TO ENHANCE INTEGRITY IN GOVERNANCE INCLUDING

CODES
OF CONDUCT AND CONFLICT OF INTEREST POLICIES
Open Public Procurement: Corruption in Public Contracting is one of the most
pervasive forms of corruption. A possible approach is Transparency
International’s so-called ”Integrity Pact” under which all the parties to a tender
agree in advance that there will be no bribery, and civil society provides oversight
to assure the integrity of the process. It is designed (a) to enable companies to
abstain from bribing by providing assurances to them that their competitors will
also refrain from bribing; (b) for government agencies to undertake to prevent
corruption, including extortion, by their officials and to follow transparent
procedures; and (c) to enable governments to reduce the high cost of corruption
on public procurement, privatization, and licensing.

Declarations of Asset: Although forms providing for the disclosure of assets and
income are unlikely to be accurately completed by those who are taking bribes,
the requirement that they formally record their financial positions can lay an
important building block for any subsequent prosecution.

33
Political Party Financing: Political parties need adequate funding for offices, staff,
and communication with the electorate, but individuals or companies often agree
to fund a political party with the expectation that they will benefit in some way, if
the party is elected to office. There are two models for political financing – the
public model (for example, Japan, France, and Spain) and the private model (for
example, the United States and the United Kingdom). However, few systems are
exclusively one or the other. Donations by foreign donors to political parties can
often raise greater concerns among democratically-minded citizens. Such
donations can easily be represented as an attempt by foreign powers, companies
or individuals to place in power a party most likely to do their bidding. Political
parties in the US, Britain, Germany, and Australia have all been asked to explain
why foreign individuals and corporations have given them massive donations.
Some countries, such as Poland, avoid the problem completely by simply
prohibiting all foreign contributions to political parties. If the funding process is
not transparent and political parties are not required to disclose the sources of
sizeable donations, then the public is left to draw its own conclusions when it sees
those suspected of secretly funding political parties as openly benefiting from
handsome contracts and other government business. The election process can
quickly degenerate into an auction of political power.

III. CITIZENS’ NEEDS - THE RIGHT TO INFORMATION

In building a successful open society, guaranteed access to information is the most

critical element. Freedom of speech and freedom of association also play a crucial
part. Citizens should be able to discuss the issues of the day, challenge the media
and government, and, when they see fit, take to the streets to register their protest
in peaceful demonstrations. In turn, those in positions of public trust and
authority should listen to citizens’ concerns. Underpinning these processes should
be a lively and independent media, ready, willing, and able to hold those who
hold positions of public trust to the standards of an open society. The government
should accept the media’s legitimacy to challenge its policy and accept the
public’s support for such critiques.

Access to Information: One can begin with the assumption that all information
belongs to the public. For unless there are compelling reasons why it should be
withheld, information is held in trust by a government to be used in the public
interest.38 This is the approach adopted in such countries as Brazil and New
Zealand, where there is a legal requirement that all official information be made
available to anyone who seeks it, unless there is adequate cause to withhold it. In
Latvia, the rights of the citizen are specifically provided for in the constitution.
The 1998 Law on Freedom of Information guarantees public access to all
information in “any technically feasible form” not specifically restricted by law.

34
Bodies must respond to requests for information within 15 days. Moldova and
Bosnia-Herzegovina also require that government institutions respond within 15
working days.

Home to some 16 million people in China, Shanghai adopted the country’s first
provincial level open information legislation in January, 2004. It has worked hard
to transform itself into an international financial, trade, and shipping center, with
a goal to become a "global metropolis." Shanghai was an early proponent of e-
Government and the nationwide movement for more "open government affairs,"
recognizing that making more information available to its citizens would
stimulate economic activity, help curb corruption, and ensure more efficient and
effective governance. In May of2004, Shanghai launched its Transparent
Government Programme, and the new legislation came into force. There is a
presumption of disclosure, making secrecy the exception rather than the rule. The
law provides citizens, legal persons, and other organizations with the right to
request government information from government agencies, including
information about individuals themselves. It also imposes a legal obligation on
government agencies to all information not covered by a specified exemption.

The Media: A free, independent and pluralistic media is essential to a free and
open society and to accountable systems of government. While many journalists
have been killed while reporting on violent conflict, many more have been killed
in the course of reporting on issues of corruption. Governments should embrace a
basic set of principles to inform their policies towards the media. In general, these
argue against legislation and restriction. A good example is the Charter for a Free
Press, approved by journalists from 34 countries at the Voices of Freedom World
Conference on Censorship Problems.

IV. ANTI-CORRUPTION COMMISSIONS AND THEIR EFFECTIVENESS

The Hong Kong model has proved effective because of the quality of its staff, the
readiness of the executive to provide adequate funding and the legal framework
which has facilitated its work. The concepts of prevention and prosecution have
both been functions of the commission. Prevention policies have often been
informed by the revelations of investigators working on the enforcement side.
This has enabled the commission to develop a coherent and coordinated set of
strategies. The positioning of the office was also a key factor in Hong Kong's
highly successful onslaught, where it was placed in the office of the governor, but
where at the same time, it reported to the legislature. Its separateness from the
public service and its autonomy of operation were and are reflected in both law
and practice. Whether this particular feature is a model for others to follow
depends very largely on the accountability mechanisms that are in place.

35
The agency has enjoyed independence from political interference, political will
has been in abundance, adequate resources have been provided, and the agency
has been able to rely on the support of independent courts committed to the Rule
of Law. Those who have tried to copy the model have largely failed when they
have lacked one or more of these elements.

Civil Law Remedies: The Council of Europe’s Civil Law Convention on

Corruption (1999) is a unique attempt to provide remedies for victims through the
civil process. It deals with such questions as compensation for damage and loss
sustained by victims; liability (including state liability) for acts of corruption
committed by public officials; validity of contracts; protection of employees who
report corruption; and the clarity and accuracy of accounts and audits.

A highly successful initiative in South Africa has been a strategy of civil asset
forfeiture. Their Asset Forfeiture Unit is placed within the Office of the National
Director of Public Prosecutions. When property is tainted by criminal activity, the
Unit can commence court proceedings for its forfeiture to the state. Under the
Prevention of Organized Crime Act 1998, such property is liable to be forfeited to
the state by way of a civil action. Civil asset forfeiture enables the state to
confiscate suspected criminals’ assets purely through a civil action against the
property, without the need to obtain a criminal conviction against the owner of
the property.

Immunities and Privileges: One of the greatest problems for anti-corruption

commissions and other criminal law enforcement agencies is presented by the
immunities possessed by high officials. This can render them effectively above
and beyond the reach of the law. Immunity from prosecution is meant:

• To ensure that the elected representatives of the people can speak in the
legislature without fear of criminal or civil sanctions and a host of claims for
defamation;
• To protect elected representatives from being arbitrarily detained and so
prevented from attending the legislature; and
• To act as a shield against malicious and politically-motivated prosecutions
being brought against them.

Immunity for politicians is designed to protect the democratic process – not to

establish a class of individuals who are above and beyond the reach of the law.

In Belgium, the police can investigate the activities of parliamentarians without

political interference – including searches, seizures, and questioning – but
authorization is required for a member of parliament to be committed to trial. In
addition to legislators, a head of state is generally immune for the period of his or

36
her office (as confirmed in a recent decision in France). Constitutions usually
provide for the impeachment of a president, and serious criminal acts would
provide those grounds. Therefore, there is usually a remedy, but it lies with the
legislature, rather than with the judiciary.

Judges: Members of the judiciary present special difficulty. They are generally
immune from being sued personally for errors they may have made in their
judgments (for example, for exceeding their jurisdiction). To protect them from
political pressures, they are generally also immune from criminal prosecution,
unless the immunity is lifted. In the case of Estonia, the GRECO review
recommended that any decision to lift the inviolability of judges should be free
from political influence. It should be a decision based on a request from the
prosecutor, supported by the Supreme Court.

V. CROSS-BORDER CORRUPTION AND THE ROLE OF MULTINATIONAL

ORGANISATIONS
The UN Convention against Corruption is fortified by several regional
conventions. There is also the OECD Convention on Combating Bribery of
Foreign Public Officials in
International Business Transactions. World Bank and national government
debarments (discussed elsewhere) can also be expected to add pressure to the
bottom lines of corporations who flout the new rules.

Steps are also being taken in the fight against corruption to improve information
sharing and best practices across the United Nations and other agencies, starting
with an inter-agency anticorruption coordination meeting held in Vienna in
February 2002.

Corporate Governance: The Global Accountability Project of The One World

Trust focuses on three main types of organizations that operate at the global level
– transnational corporations, intergovernmental organizations, and international
non-governmental organizations – in an effort to ensure that the most powerful
global organizations are answerable to the people they affect.

VI. ROLE OF THE JUDICIARY IN TRUST AND TRANSPARENCY

If judges are not impartial, professional in their work, and independent, the
criminal law cannot be relied upon as a major weapon in the struggle to contain
corruption. If they are actually corrupt, the situation is even worse. Judicial
independence is asserted internationally in the Universal Declaration of Human
Rights and in the International Covenant on Civil and Political Rights.

In a landmark development, chief justices drawn from a variety of countries

drafted and adopted the Bangalore Principles of Judicial Conduct (2002). The

37
principles assert that judges should be accountable for their conduct to
appropriate institutions established to maintain judicial standards, which are
themselves independent and impartial.

In the European context, there are a number of major instruments in this field.
Among them are The Judges’ Charter in Europe, a Recommendation on the
Independence, Efficiency, and Role of Judges made by the Council of Europe, and
the European Charter on the Statute for Judges adopted by participants at a
multilateral meeting in 1998.

The mechanism for the appointment of judges is often a matter of controversy.

Many believe that politicians are only interested in appointing judges who will do
their bidding. To prevent judicial appointments and case management from
becoming a means by which judicial independence is compromised, many
countries have created, or are in the process of creating, judicial councils. These
are bodies separate from other government branches, and are entrusted with the
selection and promotion of judges, and otherwise overseeing the court system,
including responsibility for discipline.

In cases where a large number of the judiciary has become corrupt, as has been
seen in countries such as Kenya and Ecuador, a mechanism to address this needs
to be developed.

VII. SYSTEMS AND PROCESSES OF CHECKS AND BALANCES AMONG

THE
EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHES

Integrity Systems and Horizontal Accountability: Such a system integrates

instruments (parliament; judiciary; civil service; media; civil society, etc.). to work
in totality and each sustains, serves, is served by, or protects, some or all of the
others. If a system is wholly dependent on a single element or “pillar” (perhaps a
benign dictator), or if it possesses very few pillars, then it is vulnerable to collapse.
With a near-universal collapse of trust in government, and a public deeply
suspicious of decision-making taking place behind closed doors, there is an
increasing recognition of the part civil society can play in strengthening
“horizontal accountability” in support of their own national integrity systems.

Records Management: In Mexico, where a freedom of information law was

enacted in April 2002, a report stated that”public records, transcripts, and notes
from important meetings have been purposefully kept from public view, leaving
almost no official record of how key decisions have been made. In many cases,
official records have been destroyed or taken home by officials when they left
office.” It is here that the role of the Chief Archivist can be very important in

38
ensuring accountability. In the United Kingdom, this position is held by a public
servant appointed through a competitive process.

VIII. INNOVATIONS AT SECTORAL AND SYSTEMIC LEVELS

“Due Process”: Beset though Nigeria is with rampant corruption, a highly

successful initiative there has been the establishment of a “due process” office to
clean up public procurement undertaken by the federal government. The Office of
Budget Monitoring and Price Intelligence Unit (BMPIU), otherwise known as
“Due Process”.

The objectives of the BMPIU include:

 Harmonizing existing government policies/practices and updating these on
public procurement;
 Determining whether or not due process has been observed in specific
procurement exercises;
 Introducing more honesty, accountability and transparency into the
procurement process;
 establishing and updating pricing standards and benchmarks for all
supplies to the federal government;
 Monitoring the implementation of projects during their execution to
 Provide information on performance, output and compliance with
 Specifications and targets; and
 Ensuring that only projects which have been budgeted for are admitted for
execution.

The awarding of contracts is meticulously scrutinized by the BMPIU, with

projects being cleared on the basis of financial prudence and the ability of a
tendering company to perform effectively. This has curbed colossal wastage and
has prevented public funds from being embezzled through bogus projects.

Licensing: In Bolivia, reforms there have included the publication of details on all
government procedures and fees. All government offices now have to display
posters explaining the required paperwork and the exact costs of each transaction.
This is designed to prevent government employees from demanding bribes, and
to dispense with the need for “middle men” to help citizens through their
transactions. Alongside this, “positive silence” has been introduced. This means
that citizens applying for occupational licenses, car registrations or other
government certificates will be considered to have had their applications
approved automatically if the applications have not been rejected within 15 days.

Police: INTERPOL (International Criminal Police Organization-Interpol officially

abbreviated to ICPO-Interpol) actively promotes integrity in policing the world

39
over. Not only does it make use of a panel of anticorruption experts, but it also
has developed a set of standards for fighting corruption in police forces
worldwide. Its Global Standards to Combat Corruption in Police
Forces/Services76 seek to ensure that police forces of member states have high
levels of probity. Each member state commits to making corruption by a police
officer a serious criminal offence. Other standards include establishing and
maintaining high standards of conduct for the honest, ethical and effective
performance; and setting up and maintaining effective mechanisms to oversee
and enforce high levels of conduct in the performance of policing functions.
INTERPOL is now developing ways in which to provide practical assistance and
training to the forces of member states that require it.

Integrity Testing: Systems are being developed to ensure that police integrity
receives continuous attention instead of being isolated to investigating selected
‘rotten apples’. In this, “integrity testing” has emerged as a particularly useful tool
in metropolitan areas such as New York and London.

The NYPD’s Internal Affairs Bureau in New York now creates fictitious scenarios
based on known acts of police corruption, such as the theft of drugs and/or cash
from a street level drug dealer, to test the integrity of their officers. Those who fail
the tests are either disciplined or dismissed from the force.

The concept need not be confined to police activities. In some countries, hidden
television cameras have been used in the ordinary process of criminal
investigations to monitor illicit activities conducted in the private offices of
judges. These cameras have captured corrupt transactions between judges and
members of the legal profession. It would also seem to have potential use in other
areas where the public sector is engaged in direct transactions with members of
the public, particularly in customs.

Revenue Collection: In some countries (e.g. Peru and Uganda), corruption related
to state revenues had become so endemic that governments decided to close
down existing tax administrations and to replace them with new ones. Corrupt
customs officials also mean porous borders. Through these can flow not only
untaxed goods, but also arms and illicit drugs, illegal immigrants etc. The
organizational structure of Latvia’s State Revenue Service was improved to
integrate tax, customs, and social security collections, and to create strong internal
control and anticorruption functions. A Vigilance Unit, operating independently
from the tax police, was also established. Implicit in this was the need to ensure
that tax assessments were simple to calculate, and that levied rates were realistic.
A code of conduct, based on the WCO model, was developed that includes
instructions on the proper response for staff when offered a bribe. In the
Philippines, automation has been used to reduce transactions, from 10 documents

40
in triplicate and about 91 steps, to one single administrative document for the
whole process. This has simplified work and minimized red tape, corruption, and
tax evasion and at the same time has reduced cargo release times from 6-8 days to
as little as four hours.

Independent Revenue Authorities: Three African countries (Ghana, Tanzania

and Uganda) are among those that have undertaken comprehensive reforms of
their tax administration to increase revenue and curb corruption. In doing so, they
have established special tax collection authorities outside the conventional public
service as a way of increasing the salaries of staff beyond the levels of their
counterparts in public service. Tanzania has also introduced a telephone hotline
and a system of rewards for informants reporting tax evasion

E-Procurement and E-Government: Another powerful instrument against

malpractice is the Internet. Several countries (Mexico, Chile, Colombia and, more
recently, Austria) and a number of major municipalities (e.g. Seoul, Korea) have
placed their entire procurement information systems on the web and allowed free
access to the documentation. This has yet to be fully developed and at present
electronic systems have not proved entirely reliable.

Mobile Phones: Mobile phones showed their usefulness in countering corruption

in the local elections in Senegal in November 1996. Senegal’s interior minister was
caught out when he admitted, in a low voice near an open mobile phone, that
there had been fraud. As a result, the president was obliged to annul the election.
Then in the presidential election of 2000, the use of mobile phones forced the two
presidential candidates to accept the results when the results of the counts were
announced almost instantaneously by private radio stations. The two main
stations had sent reporters to cover polling stations all over the country. Equipped
with mobile phones, they were able to announce the results as soon as the votes
had been counted. The organized presence of journalists, and the speed with
which the results were announced, facilitated the peaceful handover of power
from the defeated president to his successor. No fraud was possible, and the
much-feared clashes between supporters of the two political leaders were avoided

Debarment: Corruption scandals and criminal prosecutions in Lesotho against

major western corporations have led to several companies being debarred (or
“blacklisted”) by the World Bank. Those found to have bribed, committed price-
fixing or bid-rigging, or to have provided substandard or sub-specification goods
or services - whether or not in collusion with any official should be debarred from
future contracts with the government. This should either be indefinitely, or for an
appropriate period of time. They should also be subject to:

• Loss or denial of contractual rights;

41
• Forfeiture of their performance bond; and
• Liability for damages, both to the government principal and to competing
bidders
(for the losses they have incurred through an unsuccessful bid).

Complaints Systems: A major obstacle has been the reluctance of individuals to

‘blow the whistle’ on corrupt activities. Fear of retribution from employers or
colleagues dissuades many from reporting cases of corruption. The Protected
Disclosures Act, in South Africa, is one example of legislation that sets out
procedures by which both public and private sector employees who report
unlawful or corrupt activities by their employer or colleagues are protected from
reprisals.

Visa Refusals: A recent innovation has been the adoption by the United States of
a policy limiting entry to the United States for politicians accused of corruption in
their own countries.

Privatization and Competition Policy: Few would disagree with the proposition
that ambitious privatization programmes were urgently needed in transition
countries to end the grossly inefficient, state-owned monopolies which dominated
the economy. Riddled with cronyism, bled to provide illicit funding for the party
in power, plundered by corrupt managers and pilfered by staff at all levels, many
of these companies were as bankrupt as they were unproductive. Privatization
can result in a reduction of corrupt practices by shifting the emphasis of an
operation to the transparent discipline of the private sector’s pursuit of profit.
Privatization can reduce forms of corruption: managers of companies make
decisions that ultimately have to satisfy owners instead of public officials;
government assets for which no one is held accountable cease to exist; and once a
particular privatization has been completed, the company can conduct its affairs
without government interference. To be effective, however, policies must go
beyond the mere process of privatization and address the integrity of the markets
in which the privatized concerns are to function. Experience in Eastern and
Central Europe and elsewhere has shown how privatization can create
opportunities for politicians to distribute favors to their friends.

Corruption does not take place only within the public sector. Nor is it restricted to
public procurement transactions involving both the public and private sectors. It
can also take place within and between private sector organizations, when
corporations abuse market power in areas of the economy that should be
governed by a country’s competition policy. The development of a sound
competition policy is an essential tool for protecting and promoting economic
activity, and for underwriting the integrity of private sector activities. It
determines appropriate ways in which the private sector should function, thus

42
ensuring that its performance serves the best interests of all. A prime purpose in
developing a sound competition policy is to minimize the scope for rigging
markets.

IX. CONCLUSION – ARE WE MAKING PROGRESS? THE IMPACT OF

PUBLIC
SERVICE ETHICS ON THE MILLENNIUM DEVELOPMENT GOALS (MDGS)
For over a decade now, the international community has engaged with the issue,
giving rise to a web of international conventions, some with monitoring
provisions, others, as yet, without. Progress is being made, however tentative, in
putting many of these into practice. In these efforts, the Global Compact, between
leading private sector interests and the United Nations, with its “tenth anti-
corruption principle” launched in June 2004, has the potential to achieve
meaningful change. An interesting development is the establishment by USAID of
the $US5 billion Millennium Challenge
Account, a "new compact for global development …which links greater
contributions from developed nations to greater responsibility from developing
nations”

These advances have been boosted by the emergence of a range of networks.

Within the UN, the inter-agency anti-corruption coordination meeting (the
International Group on Anti-Corruption) has been established; the Development
Assistance Committee (DAC) of the OECD is addressing the issue; a group of
donor countries has been formed to share experience and pool resources; the
GRECO Group of States Against Corruption has been conducting peer
evaluations, as have the signatories to the OECD Convention Against the Bribery
of Foreign Public Officials in International Business Transactions under the
auspices of its active Working Group on Bribery in International Business
Transactions. The same processes are getting underway in sub-Saharan Africa
with NEPAD. The OECD has also been providing a lead in promoting best
practice in the field of public sector ethics, both with its member countries and
beyond, with the wider world.

As well as governments, others have come together. These include the Group of
Parliamentarians Against Corruption (GOPAC), the chief justices of the Judicial
Integrity Group ; academics and training institutions under the rubric of the
Public Integrity Education Network (PIEN); members of the International
Chamber of Commerce with its Commission on Anti-Corruption107; and global
banks under the caption of the Wolfsburg Principles. In almost every country,
there are civil society groups active on the ground – lobbying for institutional
change, public awareness raising and working to empower citizens in their day-
to-day lives.

43
At the national level a very steep learning curve continues. New tools and
approaches are being generated, and many lessons are being learned along the
way, among them being that:

1. It is not enough for an incoming president to be personally committed to anti-

corruption reforms and there must be sufficient support throughout the
administration;
2. When leaders come to power on high-profile anti-corruption platforms, public
expectations for immediate reductions in corruption levels can be unrealistically
high, leading to swift disillusionment;
3. Making a break with the past is difficult, as amnesties and the like run into
public and legislative opposition;
4. “Country strategies” to combat corruption are frequently no more than “wish
lists”, quite incapable of implementation within existing frameworks and without
a realistic roll-out plan
5. It is insufficient to address problems in isolation
6. There are no “quick fixes” or “magic bullets”, and a single anticorruption
agency is unable by itself to address deep-seated problems;
7. Anti-corruption laws are not a complete answer in countries where there is
systemic corruption in the judicial system;
8. Transparency does not necessarily bring accountability;
9. Building an ethic of “public service to serve the public” throughout an
administration that has been experiencing serious systemic corruption problems
is a huge undertaking, but without major changes in attitude and behavior
significant progress is unlikely – institutional integrity management is key to any
public service reform programme;
10. Countering corruption in the public sector is the task of every manager in his
or her daily work, and this calls for continuous training in the recognition of “red
flags” and in corruption risk management;
11. The pursuit of “absolute integrity” is unrealistic and counter-productive –
managers will always need areas of discretion or administrations will become
rule-bound; and
12. Donors must achieve much higher levels of cooperation if their collective
efforts are to bear fruit and accept that imposing conditions often has little impact.

It is generally accepted that crude, single figure country “corruption scores” have
their uses for awareness-raising purposes, but are not designed to measure
progress on the ground, or to provide data indicating precisely where attention is
needed. Fortunately, three new approaches to meet these needs have evolved. The
first, a Public Integrity Index, provides a quantitative scorecard of governance
practices in a range of countries to assess the extent of citizens' ability to ensure
their government is open and accountable. The second is the Country Assessment
in Accountability and Transparency (or CONTACT) model, developed by the

44
UNDP with the main objective being to “assist governments in conducting a self-
assessment of their financial management and anticorruption systems.” Under a
third and complementary approach, the functioning of National Integrity Systems
are starting to be “mapped”, and in ways that can provide much greater insight
than hitherto, as to where things are going wrong, and why, and where progress
is being made. The tracking of the success or otherwise of reforms provides
information that is presently not available.

The most effective way forward would seem to involve two complementary
approaches. One, at the macro level, focusing on strengthening national integrity
systems in a holistic and informed manner. The second, working with citizens on
the ground, actively involving them in the formulation and implementation of
policies that affect their daily lives.

Recommendations for Transparent Governance

45
(Conclusions of a Commonwealth Parliamentary Association and
World Bank Institute Study Group on Access to Information Held in
partnership with the Parliament of Ghana Accra, Ghana, 5-9 July
2004)

Freedom of information is a fundamental human right, crucial in its own right and
also as a cornerstone of democracy, participation and good governance.
Recognition of this key right is essential to empowering all members of society,
including Parliamentarians, to strengthening parliamentary democracy, to
reversing practices of government by the few and to improving the relationship
between Parliament and the media. It is essential that legislation be adopted to
give proper effect to this right and countries around the world, and within the
Commonwealth in particular, have either adopted, or are in the process of
adopting, such legislation.

The Commonwealth Parliamentary Association (CPA) Study Group on Access to

Information urges Parliaments to play a leading role in promoting access to
information in accordance with these Recommendations. The Group notes
international standards in this area, including Article 19 of the United Nations
Universal Declaration of Human Rights, the Declaration of Principles on Freedom
of Expression in Africa, the Inter-American Declaration of Principles on Freedom
of Expression, Recommendation (2002)2 of the Committee of Ministers of the
Council of Europe to Member States on Access to Official Documents, the
recommendations of the UN Special Rapporteur on Freedom of Opinion and
Expression, the freedom of information standards developed by the
Commonwealth, and the ARTICLE 19 publication, The Public’s Right to Know:
Principles on Freedom of Information Legislation. It also notes the Principles for
an Informed Democracy drawn up by the CPA Study Group on Parliament and the
Media in Perth. The Group notes the central role of Parliament and its Members in
giving effect to the right of access to information, as well as the importance of
access to information to Parliamentarians in the performance of their duties.

(1) Right of Access

(1.1) Parliaments should pass as a priority effective access to information
legislation, in accordance with these Recommendations, giving everyone a right to
access information held by public authorities.

(2) Scope of Application

(2.1) The obligations set out in access to information legislation should apply to all
bodies that carry out public functions, regardless of their form or designation. In
particular, bodies that provide public services under public contracts should, to
that extent, be covered by the legislation. The Group commends the situation in
South Africa, whereby even private bodies are obliged to disclose information
where this is necessary for the exercise or protection of any right.

(3) Routine Publication

46
(3.1) Public bodies should be required by law to publish and disseminate widely a
range of key information in a manner that is easily accessible to the public. Over
time, the amount of information subject to such disclosure should be increased.

(3.2) Public bodies should be required to develop publication schemes, with a

view to increasing the amount of information subject to automatic publication over
time.

(3.3) Public bodies should make use of new information technologies so that, over
time, all information that might be the subject of a request, and that is not covered
by an exception, is available electronically. This will not only significantly promote
public access to this information but also result in considerable savings for public
bodies due to the drop in the number of requests that this will occasion.

(3.4) Where information has been disclosed pursuant to a request, that

information should, subject to third party privacy, be routinely disclosed.

(4) Processes to Facilitate Access

(4.1) No one should have to state reasons for their request for information.

(4.2) Public bodies should be required to respond to requests within set time
periods. A failure to respond to a request within that time period should be
deemed a refusal of the request.

(4.3) Any refusal to provide information should be accompanied by the reasons for
that refusal, including which provision in the legislation is being relied upon, as
well as information detailing any right of appeal the requester may have.

(4.4) Requesters should have the right to appeal any refusal to provide
information to an independent administrative body. A final appeal should also lie
to the courts.

(4.5) Wilful obstruction of the right of access, including by destroying or damaging

information, should be a criminal offence.

(5) Costs
(5.1) Costs for access to information should not be so high as to deter requesters.
When putting in place statutory fee systems, consideration should be given to the
following:

(5.1.a) requesters only have to pay for the cost of reproducing the information;

(5.1.b) requests for certain types of information – such as personal information –

are free or very low cost;

(5.1.c) requesters cannot be subject to higher charges simply because public

officials do not maintain their records in a sufficiently accessible format;

(5.1.d) if the information is not provided within a set time period after the fee has
been paid, the money will be returned and the request will be free of charge;

47
(5.1.e) costs are charged only where requests go beyond a certain size or
complexity; and

(5.1.f) costs be waived for requesters who are unable to pay.

(6) Exceptions
(6.1) The right of access should be subject to a narrow, carefully tailored regime of
exceptions to protect certain overriding public and private interests. Exceptions
should not be phrased in vague or subjective language but should, as far as
possible, be set out in clear and objective terms.

(6.2) Exceptions should apply only where there is a risk of substantial harm to the
protected interest, and where that harm is greater than the overall public interest
in having access to the information. The practice in Scotland in this regard is
commended.

(6.3) No public body should be completely excluded from the ambit of the
legislation; rather, exceptions should be applied on a case-by-case basis in light of
specific information requests.

(7) Inconsistent Legislation

(7.1) Where there is a conflict between the access to information law and any
other legislation, the access to information law should, to the extent of that
inconsistency, p
prevail.

(7.2) Urgent steps should be taken to review and, as necessary, repeal or amend,
legislation restricting access to information.

(8) Records Management

(8.1) Effective systems of record management are key not only to the effective
functioning of an access to information regime but also to good governance. The
introduction of such systems, where they do not already exist, should be a part of
the access to information legislation.

(8.2) Codes of practice relating to record maintenance can help promote a

consistent approach across public bodies and can be used to ensure the highest
possible standards in this area. Access to information legislation should require
such codes to be developed in consultation with public bodies and then laid before
Parliament.

(8.3) Assistance for improved record management should be provided, for

example in the form of training and guidance, to public bodies to ensure that
records are maintained in an appropriate manner.

(9) New Information Technologies

(9.1) New information technologies, and in particular the Internet, have the
potential to make a very important contribution in the area of access to information
and open governance in general, and should as a result be promoted. New

48
technologies can significantly facilitate record management, promoting better
record maintenance practices.

(10) Addressing the Culture of Secrecy

(10.1) There should be a concerted effort by government and public bodies to
address the problem of a culture of secrecy. This should include comprehensive
training programmes on implementation of the access to information regime, as
well as the importance of openness in society. Such training should also seek to
promote an understanding among civil servants of the benefits of openness to
them, including through a better two-way flow of information that can enhance
policy development.

(10.2) Parliamentarians should play a leadership role in this area, sending a clear
signal to public officials that they fully support openness and setting a positive
example through their own openness. Parliamentarians should also seek to
employ innovative strategies to address the culture of secrecy and to involve
public officials in promoting openness. The Group commends in this regard the
good practice in Trinidad and Tobago.

(10.3) Individuals who disclose information pursuant to the access to information

law should be protected against sanction and victimization, including for
defamation.
(10.4) Individuals who in good faith release information that discloses evidence of
wrongdoing should be protected by law against sanction.

(11) Publicising the Right to Information

(11.1) Public education campaigns should be undertaken to ensure that the public
are aware of their right to access information.

(11.2) Parliamentarians have an important role to play in this process by making

sure that their constituents are aware of their rights. A range of other bodies also
have a role to play here, including the independent administrative body that is
responsible for implementation of the law, human rights groups, the media (and
the broadcast media in particular), public bodies themselves and civil society
generally. Use should also be made of regular educational systems, including
universities and schools, to promote civic understanding about the right to access
information.

(12) Role of the Independent Administrative Body

(12.1) There should be an effective independent administrative body which should
be allocated a range of statutory functions to ensure appropriate implementation
of access to information legislation. This may be either an existing body or a body
specifically created to serve that function. In either case, the body should be
adequately resourced and protected against official or other interference, including
through the appointments process, funding mechanisms and control over the
hiring of its own staff.

(12.2) The independent administrative body should have the power to hear
appeals from any refusal by a public body to provide information, along with all
necessary powers to effectively exercise this role. This should include the power

49
to mediate disputes, to compel evidence and to review, in camera if necessary,
the information which is the subject of the request, to order the disclosure of
information. and, where appropriate, to impose penalties.

(12.3) The independent administrative body should also play a role in ensuring
that public bodies properly implement access to information legislation. This
should include an obligation to keep the performance of public bodies under
effective review, as well as the power to review the performance of any particular
public body. The independent administrative body should be required to report
annually, as well as on an ad hoc basis as necessary, to Parliament.

(12.4) The independent administrative body should also play a role in ensuring
that other legislation is consistent with the access to information law. This should
involve reviewing existing legislation and making recommendations for reform of
any inconsistent laws, as well as being consulted on whether or not proposed
legislation would impede the effective operation of the access to information
regime.

(13) Parliamentary Oversight of Access to Information

(13.1) Parliaments have a key role to play in overseeing and reviewing access to
information regimes and in ensuring the public’s right to know is guaranteed.
Parliaments should take these responsibilities seriously and actively pursue their
oversight functions.

(13.2) The access to information legislation should be reviewed on a regular basis

to ensure that it is effective in ensuring the public’s right to know. We commend
the practice whereby in some jurisdictions the law requires the legislature to
conduct regular reviews, such as in British Columbia where it takes place every
six years.

(13.3) All public bodies should be required to provide a full annual report, either to
the responsible minister or to the independent oversight body, on the information
requests they have received and how they have been dealt with. This information
should then be laid before Parliament in a public document.

(13.4) Parliament’s oversight role includes such mechanisms as questions to

ministers and holding ministers to account for any failures to implement the
access to information law in their ministries.

(13.5) Parliament should play a key oversight role regarding the independent
administrative body responsible for implementation of the access to information
legislation. Parliament should, in particular, play a leading role with respect to
appointments to and funding of the body. Consideration should be given to an
appointments process that requires either unanimous approval or a super majority
vote. The appointments process should be conducted in a transparent manner.
The body should, in addition, formally report to and be accountable to Parliament.
(13.6) Consideration should be given to regular parliamentary review, for example
on a biannual basis, of implementation of the access to information regime.

(14) Parliamentary Openness

50
(14.1) Parliament should play a leadership role in promoting open government by
opening up its own practices and procedures to the widest possible extent.
Parliamentary debates should be televised and records of these debates should
be made publicly available as soon as possible, including through the Internet.

(14.2) Constituency offices, as well as elected officials at all levels, should be

used as a means of promoting parliamentary openness.

(14.3) There should be a presumption that committee meetings are open to the
public, so that closed meetings are the exception rather than the rule. Where it is
necessary to hold a meeting, or part of a meeting, in private, a decision to that
effect should be taken in public and reasons for that decision should be given. The
Group notes, in this regard, Recommendation 8.9 of the CPA Study Group on
Parliament and the Media’s meetings.

(15) Promotional Measures

(15.1) The Group notes the importance of international assistance to implement a
number of these Recommendations, including promoting awareness of the right of
access to information, developing public educational materials, training public
officials, addressing the issue of laws that are inconsistent with the right to access
information and improving record maintenance. We therefore call on the
international community to provide assistance to achieve these ends.

(15.2) The Group commits itself to active promotion of these recommendations,

including by disseminating them widely to their fellow Parliamentarians, civil
society, the media and their constituents.

(15.3) The Group notes the following specific areas of interest and we encourage
the Commonwealth Parliamentary Association, the World Bank Institute, the
Commonwealth Human Rights Initiative, the Commonwealth Secretariat, NGOs
and the international community to provide assistance for the following:

(15.3.a) Certain jurisdictions, such as small states, countries in transition and

specific regions face greater challenges and needs for technical and expert
assistance in the field of access to information and, therefore, the above bodies
should give prompt attention to their requests for activities, information, targeted
meetings and advice;

(15.3.b) The Group recognized the need for better information on access and, as
a result, recommended that Commonwealth-wide comparative studies be
conducted in key thematic areas; and

(15.3.c) The Group supported the idea of developing a code of record

maintenance practice for the Commonwealth.

Conclusion
The Group recognizes the enormous variety that exists within the Commonwealth
and that the implementation of these Recommendations for access to information
will vary from country to country. At the same time, we believe that these
Recommendations represent a foundational set of standards to which all

51
Commonwealth jurisdictions should aspire. We call on all Commonwealth
Parliaments and their Members to take effective measures, as soon as possible,
to implement these Recommendations in practice.

Synopsis of Anti-Corruption and Related Laws

The Bribery Act of 1954 and Commission to Investigate Allegations of Bribery
or Corruption Act No. 19 of 1994

52
The Government established a Permanent Commission to Investigate Allegations
of Bribery and Corruption by Act No 19 of 1994. The Commission comprises of
three members, two of whom are to be retired judges of the Supreme Court.
Definition of Bribery Under the bribery Act No. 11 of 1954, Bribery can be defined
as ‘The offer, solicitation or acceptance of any gratification.
Corruption is defined as an act by a public servant that will cause wrongful or
unlawful loss to the Government or confer a wrongful or unlawful benefit on
himself or another person wherein the public servant:
 Does or forbears to do any act which he is empowered to do by virtue of his office
as a public servant
 Induces any public servant to perform, or refrain from performing such acts
 Uses any information coming to his knowledge by virtue of his office as a public
servant
 Participates in the making of any decision by virtue of his office
 Induces any person by virtue of his office to perform or refrain from performing
any act.

Those who commit the offence of corruption shall be liable to a jail term of not
more than 10 years or a fine of up to Rs 100,000.
Purpose Under the Bribery Act No. 11 of 1954 as amended, the Bribery
Commission is empowered to direct and investigate all allegations of bribery
made to or that come to the knowledge of the Bribery Commissioner.
Powers of the Commission
The Commission has the power to:
 procure oral and written evidence
 examine witnesses under oath
 request the production of documents or other material from banks, the Inland
Revenue Department or any other person or institution
 prohibit a person from leaving the country
 enter any place and seize any documents or materials

Weaknesses
 The Commission must depend on the IGP to provide officers to conduct
investigations and on the Ministry of Public Administration for administrative
work
 The Director General of the Commission is appointed by the President and
accountable to the President, not the Commission. The term of the Director
General is not secured and he could be removed by the President.
 The Commission requires a written complaint of Bribery or Corruption to take
action

Comments

53
  Members of the Commission should be appointed for 3 and not 5 years
 The appointment of retired Supreme Court Judges to the Commission could
compromise the independence on the judiciary
 There is no witness protection scheme in Sri Lanka. The Act further appears to
penalize informants and if the complaint is deemed false the informant can be
penalized
 In some countries minor complaints are dealt with by a panel and offenders can
avoid charges by resigning from their posts and paying a fine
 The Commission should be empowered to act on oral complaints, anonymous
petitions and even newspaper articles. In Hong Kong, the Commission has a 24
hour hotline for complaints
 There should be units in the Provinces to investigate
 Public awareness needs to be created on the ill-effects of corruption
 The Commission could be called the Ethics and Integrity Commission. It should
have financial autonomy. The Commission should monitor state institutions to
ensure funds are not misused

The Declaration of Assets and Liabilities law (Act no. 1 of 1975, 29 of 1985 and
Amending Act No 74 of 1988
Purpose The purpose of the law was to monitor the acquisition of wealth by
Politician, Public Servants and others with a view to contain Bribery and
Corruption. The law requires MPs, members of local authorities, Chairmen and
Directors of State Corporations, Office Bearers of Political Parties, Trade Unions
and also other categories referred to in Section 2 to make a declaration of their
assets and liabilities as at 31 March each year.
Offences
 Failure to submit a return within 3 months
 Making a false statement
 Willfully omitting any asset or liability

Punishment A fine not exceeding Rs1000 or imprisonment not exceeding one year
or both.
Weaknesses
 There is no central authority vested with the power to receive and monitor the
filing of Declarations. Nobody knows or monitors who has filed a report and
there is no process for verification.
 Section 9 (a) requires a complainant to deposit security for cost and damages. No
one will initiate action given this requirement.

Comments
 Without a Central Authority to monitor declarations, no one appears to know
whether all the relevant officers have sent their declarations and if any assets have

54
 been omitted. It is reported that up to 31 December, 2005 only 7 MPs had made
Declarations.
 The Election Law should be amended to prohibit the acceptance of the
nomination of a candidate who has not filed a true declaration of his assets and
liabilities.

The Ombudsman
The office of the Ombudsman was established by the Parliamentary
Commissioner for Administration Act No. 17 of 1981 and amended by Act No 26
of 1994.
Purpose The purpose of the office was to provide the public with a cheap and
expeditious means to resolve injustices and disputes. The Ombudsman is
appointed by the President.
Functions Any person can complain to the Ombudsman directly. He can
investigate into any matter in respect of an infringement of a fundamental right or
other injustice by a public officer or corporation officer providing that it does not
contravene any other laws.
Determination of the Ombudsman Act No 26 or 1994 amended Section 17 spelled
out what kind of determination the Ombudsman could make. The Ombudsman
will determine whether there has been or is likely to be an infringement of a
fundamental right, contrary to the law, oppressive or discriminatory or unjust.
The Ombudsman is required to forward his determination to the Minister, Head
of Department and Public Petitions Committee. If no action is taken on the report
or recommendation the Ombudsman shall forward a report to the President and
to Parliament.
Comments
 Sometimes the directions given by him are ignored and the law is rendered
virtually impotent. In some countries the Ombudsman has wide powers and can
give orders and directions and ensure that they are implemented.
 The Ombudsman should be able to open offices in the Provinces to enable greater
access
 The term and background of the Ombudsman should be reconsidered. At present
the term is not fixed and mostly the appointees are retired Judges. This should be
open to a wider range of persons of integrity.

The Human Rights Commission

The Human Rights Commission was established by Act No. 21 of 1996.
Purpose “Fundamental” Rights are those which are declared and guaranteed in
the Constitution. Only violations of fundamental rights are actionable under the
Act and can be subject matter for a Fundamental Rights application.
Functions of the Commission
 To investigate into complaints in respect to the violation of Fundamental Rights
and to promote observance of such rights

55
  To investigate the infringement of imminent infringement of fundamental rights
and to provide for settlement by conciliation and mediation
 To advise and assist the Government in formulating legislation to further
Fundamental Rights
 To make recommendations to the Government to ensure that national laws and
administrative practices are in accordance with international Human Rights
norms and standards
 To recommend to the Government to ensure that national laws and
administrative practices are in accordance with international Human Rights
norms and standards
 To recommend to the Government on the need to subscribe or accede to treaties
and other international instruments in the field of human rights
 To promote awareness of and provide education in relation to Human Rights
 Powers of the Commission
 To investigate violations or imminent violations of Fundamental Rights
 To appoint sub-committees at Provincial level to carry out the duties of the
Commission
 To intervene in any proceeding relating to the infringement of Fundamental
Rights pending before any Court.
 To monitor the welfare of persons detained by the state and to make
recommendations to improve the conditions of detainees.
 To take steps as directed by the Supreme Court.
 To undertake research and promote awareness of Human Rights by conducting
seminars etc
 To award expenses reasonably incurred by a complainant
 To summon any person and receive evidence and examine witnesses

Weaknesses
 The definition of “human rights’ in the Law is incomplete- it does not include
many of the Rights referred o in various UN Conventions which have been
adopted by Sri Lanka.
 The Commission can only attempt to settle disputes by conciliation. There is no
provision to compel the state or institutions to carry out directions of the
Commission.
 When the Commission fails to give relief to any person who has filed a complaint,
they can appeal to the Supreme Court under Article 126 of the Constitution.
However such applications are expensive and the cost could be considered
prohibitive.

Comments

56
  Under Section 28, police officers must inform the Commission of details of
persons arrested and detained under the Prevention of Terrorism Act
 Every offence of contempt committed against, or disrespect of the authority of the
Commission shall be punishable by the Supreme Court
 Such an institution should be proactive and dynamic it is to be effective

The 17th Amendment to the Constitution

Purpose Under the 17 th Amendment to the Constitution the Constitutional
Council was established. The Council comprises of the following members:
 The Prime Minister
 The Speaker
 The Leader of the Opposition in Parliament
 One person appointed by the President
 Five persons appointed by the President, on the nomination of both the PM and
the Leader of the Opposition
 One person nominated upon agreement by the majority of the Members of
Parliament belonging to political parties or independent groups other than the
respective political parties or independent groups to which the Prime Minister
and the Leader of the Opposition belongs. He will be appointed thereafter by the
President.

Functions of the Constitutional Council The main function is to recommend to

the President for appointment of members of the Commissions referred to below.
No person shall be appointed by the President to any of the Commissions
specified below except on a recommendation of the Constitutional Council.
 The Election Commission
 The Public Service Commission
 The National Police Commission
 The Human Rights Commission of Sri Lanka
 The Permanent Commission to Investigate Allegations of Bribery and Corruption
 The Finance Commission
 The Delimitation Commission

Comments
The Purpose of the 17th Amendment is to
 De-politicize certain vital departments and institutions which are under the
control of the government in power.
 Ensure the appointment of competent professionals and others with integrity to
various Commissions on the principle of merit.
 Ensure to all citizens the Right to equality and non-discrimination in
appointments and to public officers the same right in transfers, promotions,
transfers and disciplinary control. (d) To ensure that the Commissions established

57
 by the Law would function independently without fear or favor and without
political interference.

In most countries, appointments to Commissions are made after a process of

advertisement. Applicants must justify their eligibility and suitability for the jobs
applied for. Appointment is based on merit, not political appointment
The Elections Commission
Article 103 provides for an Elections Commission consisting of five members
appointed by the President on the recommendation of the Constitutional Council.
Purpose The purpose of the Commission shall be to conduct free and fair elections
and referenda.
Powers, functions and duties of the Commission
 Appointment of the Commissioner General of elections
 Enforce all laws relating to the holding of any election.
 The commission shall be responsible and answerable to Parliament
 The Commission is empowered during the period of an election to prohibit the
use of any movable or immovable property belonging to the State or any Public
Corporation.
 Issue guidelines relating to broadcasting or publishing of news to ensure a free
and fair election.
 Inform the IGP of the facilities and the number of officers required by the
Commission for the holding of an election. Such officers will act under the
direction of the Commission.
 The Commission may recommend to the President regarding the deployment of
Armed Forces for the prevention of any incidents which may prejudice the
conduct of free and fair election.

Judicial Service Commission

The JSC consists of the Chief Justice and two other Supreme Court Judges
appointed by the President and approved by the Constitutional Council. The two
Supreme court Judges are appointed to hold office for three years but are eligible
for reappointment.
Powers of the Judicial Service Commission
 To transfer judges of the High Court
 Appoint, promote, transfer, exercise disciplinary control and dismiss judicial
officers and scheduled public officers.
 The Commission may make rules for training of judges of the High Court and
other judicial officers and schemes for recruitment and training.
 The Chairman or any Judge of the Supreme Court and the Court of Appeal can be
authorized by the Commission to inspect any Court of First instance and examine
any records or documents and hold any inquiry.

58
  The Commission may delegate to Secretary JSC the power to make transfers of
scheduled public officers.

Comments
 The independence of the Judiciary should comply with International Standards
spelt out in the UN Instruments. There should be a Code of Ethics based on the
Bangalore Principle as a guide for Judges.
 The Commission should consist of at least five members. At present there are
three, all of whom are Supreme Court Judges. In South Africa there are 18
members, including the leader of the opposition, lawyers, academics and other
persons of integrity.
 There should be a code of Ethics based on the Bangalore Principles as a guide for
Judges

Public Service Commission

Powers and Functions
 The appointment, promotion, transfer, disciplinary control and dismissal of public
officers other than Heads of Departments shall be vested in the Public Service
Commission. The appointment of Heads of Departments is under the Cabinet,
after seeking advice from the Commission.
 The Commission shall be responsible and answerable to Parliament and shall
forward a report of its activities each year.
 Any public officer aggrieved by an order made by a Committee or public officer
may be appealed to the Commission. The Commission can alter, vary o rescind
such an order.

National Police Commission

Article 155A established the NPC consisting of seven members appointed by the
President on the recommendation of the Constitutional Council. The purpose of
the Commission was to de-politicize the Police Service.
Powers of the NPC
 Appointment, transfer, disciplinary actions and dismissal of police officers other
than the IGP
 Provide schemes for recruitment and training of police officers
 The Right of Appeal from the NPC
 A police officer aggrieved by an order made by the IGP may appeal to the
Commission. The Commission shall have the power to vary or rescind such
orders.

Other Appointments by the President

 The Head of the Army Navy and Air Force
 The Attorney General and the IGP subject to Article 41C.

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At present the NPC is not functioning.
Prevention of Money Laundering Act No 5of 2006
Purpose Money laundering is the practice of engaging in specific financial
transactions in order to hide the identity, source, and/or destination of money
generated from unlawful activity as defined in Section 28 of the Act. The Act
prohibits money laundering in Sri Lanka, provides the necessary measures to
combat and prevent money laundering and provides for matters connected with
or incidental to it.
Punishment The punishment on conviction after trial before the High Court is a
minimum fie, not less than the value of the property and the maximum fine not
more than three times the value. The punishment for attempting or conspiring to
commit the crime or aiding and abetting the crime is the same as for the
commission of the crime.
Duty to Disclose Any person who has knowledge or information pertaining to
the commission of an offense or a planned offense is required to report it to the
Financial Intelligence Unit.
Freezing of Property and Forfeiture of Assets in Relation to Money Laundering A
Freezing order for 7 days can be issued by a high ranking police officer to prohibit
any transaction relating to any account, property or investment which may be
used or is intended to be used in connection with money laundering. The freezing
order must be confirmed by the High Court within 7 days. The court can extend
the validity of the order for up to one year.
Upon conviction the Court can order that any movable or immovable property of
the person so convicted will be forfeited to the State.
Financial Intelligence Unit The Financial Intelligence Unit was established under
the Financial Transactions Reporting Act No. 6 of 2006. The Unit refers reports
that it deems to warrant investigation or prosecution under the Act to the
appropriate law enforcement agency.
Amendment of the Extradition Law No 8 of 1977 When a foreign national is
arrested for an offence of money laundering, the government should inform that
State about the measures being taken against him to prosecute or extradite him.
Should a foreign national be arrested, he will be entitled to communicate without
delay with a Representative of his State.
Assistance from other States The provisions of the Mutual Assistance in Criminal
Matters Act No 25 of 2002 can be invoked to obtain assistance for investigation
and prosecution of an offense from any other Commonwealth State or any other
State if it has entered into an agreement under this Act.
Financial Transactions Reporting Act of No.6 of 2006
Purpose This law applies primarily to financial institutions. It is based on the
premise that financial institutions can detect and help to eliminate money
laundering by ‘knowing their customers’. This means that by having a good
knowledge of their customers they will be in a position to help to detect

60
suspicious behaviors such as unusual transactions and other behaviors that may
indicate laundering is occurring.
Obligation to Check Identity of Customer Under the Act institutions must verify
the identities of customers who are opening accounts.
Records Every institution under the Act is required to maintain records of
transactions and correspondence relating to them and any records of reports
made to the Financial Intelligence Unit for a period of six years.
Due Diligence The institution should conduct due to diligence on any business
relationship. The institution must report to the Financial Intelligence Unit:
 Any transaction in cash or its equivalent in foreign currency which is above the
prescribed limit
 Any electronic funds transfer requested by the customer which is above the
prescribed limit
 Every Institution is required to inform the Financial Intelligence Unit of such
suspicious transactions as it forms a suspicion or receives such information and
thinks it is relevant for the investigation or prevention of money laundering or
terrorist financing act.
 Every institution is required to appoint a compliance officer who will be
responsible for ensuring the institution complies with the requirements of the Act.
He or she is required to screen all persons before hiring them and train officers,
employees and agents to recognize suspicious transactions.

Electronic Transactions Act No 19 of 2007

Purpose This Act aims to encourage the use of the reliable forms of electronic
commerce. It aims to bring legal validity and certainty to electronic transactions.
Strengths
 A requirement that the information is presented or retained in its original form
can be satisfied by a data message, electronic document, electronic record or other
communication if there is reliable assurance as to the integrity of the information
 Offer and acceptance in a contract may be expressed in electronic form
 Any information contained in an electronic document or record or communication
is admissible in evidence

Restrictions The Act will not apply to Wills, Bills of Exchange, a Power of
Attorney, a Trust, contract for sale or conveyance of immovable property or any
other transaction specified by the Minister.

Draft Laws: Their Purpose, Strengths and Weaknesses

Draft Freedom of Information Law

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Purpose The Law Commission prepared a draft Freedom of Information Bill in
2003 and submitted it to the Ministry of Justice. It confers a right to access official
information in the custody of public authorities.
Comments
 Under 5(1) (k) access is denied where the ‘disclosure of such information would
be in contempt of court of or infringe the privileges of Parliament. The law of
contempt of court depends on the Judges of the Court of Appeal and the Supreme
Court. In the past the decisions have not been consistent and depended on the
interpretations of the Judges. Because interpretation is not rigid, Information
Officers are open to take restrictive attitudes and refuse to give information that
has been requested
 It is suggested that a Clause be included relating to the Privileges of Parliament
that information may be withheld that establishes particular criteria for
withholding information. This would prevent varying interpretations and
allowing access on tangible and non-negotiable criteria
 Clause 5(4) introduces a new offence for the disclosure of prohibited information.
This many intimidate Information Officers, who may refuse to disclose
information rather than committing a possible offence
 Information Officers should be responsible for ensuring records are properly
maintained to enable easy access
 At present, the Information Officer should provide information ‘as soon as
practicable’. A time limit must be set on this. It is suggested that in general this
should be twenty working days, however if the request is in order to safeguard
the life and liberty of a person it should be within 48 hours
 It is necessary to ensure the independence of the Freedom of Information
Commission. A new sub-section should be added under Section 14 to state that
the Commission shall enjoy operational and administrative autonomy, except as
specifically provided for by the law.
 The Decisions and Orders of the Commission should be binding
 No one should be subject to any legal, administrative of employment related
sanctions for releasing information on wrong doing, provided that they acted in
good faith

Whistle-blowing to be made a legal duty on the part of all public officers and
members of Parliament
Purpose There is no law or constitutional requirement that casts any duty on
citizens to blow the whistle where they become aware of corrupt conduct. It is
therefore only a moral obligation. It is necessary to impose a legal duty by passing
a law conferring such a right and a duty to blow the whistle where any citizen
becomes aware of corrupt conduct.

62
The Bribery Commission has drafted amendments to the present law to give
protection for whistle-blowers to disclose information to it. This includes
immunity from disciplinary proceeding of persons making public interest
disclosures, protection of Identity and protection from all forms of reprisal.
A Law to Promote Public Interest Litigation
Purpose A specific law pertaining to group rights should be introduced. In India
Courts act on a letter or petition by a member of the Public and order the
complaint to be investigated. In South Africa PIL and the Right to Information
Law is spelled out as a Fundamental Right.
Advantages
 It provides access to justice to a group or class of persons
 PIL restrains the state and state agencies from acting in an unconstitutional or
illegal manner

Establishment of a People’s Police Service

Prakash Singh vs. the Union of India In a landmark public interest case Prakash, a
retired Police Officer was successful in obtaining an order from the Indian
Supreme court which established a Peoples Police Service preventing transfers of
Police Officers at the whim of politicians. The following orders were made
 Investigating police should be separated from Law and Order Police
 There shall be a Police Establishment Board to decide on transfers, promotions
and disciplinary control of officers
 Each state to have a Police Complaints Authority at district and state levels
 The central government shall constitute a National Security Commission at
Central Government level for selection and placement of officers to Central Police
Organizations.

There is a need to have a specific law to provide public interest litigation in Sri
Lanka.
Contempt of Court
Contempt of Court gives the Supreme Court and the Court of Appeal the power
to punish for contempt any person who defies a court order, criticizes the Judge
or interferes with judicial proceedings. Criminal contempt would occur where
someone yells at the judge in court or by publishing matter which may prejudice a
fair trial which undermines the public’s confidence in the judge or judicial
proceedings. Civil contempt occurs when a person disobeys a court order.
Contempt can be punished with a fine or imprisonment or both.
These powers can become a serious threat to freedom of expression and inhibit
the exposure of corruption in the Judiciary. In a democracy the public must have
the right to scrutinize governance including governance in the Judiciary.
It is necessary for an enactment to be passed by Parliament to regulate the offence
of contempt of court. It may be an ordinary Act of Parliament or a Constitutional

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Amendment. Both India and the UK have passed such laws. Such an enactment in
Sri Lanka should:
 Define what Constitutes Contempt of Court
 Define what could be legitimately prohibited
 Clarify the ruling regarding disclosure of sources
 Enact protection for journalists regarding non-disclosure of their sources of
information as in international standards
 Stipulate a fair procedure to be followed in a trial for contempt ensuring the rights
of the accused are not violated in any way

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 Bribery and Corruption in Sri Lanka:
Strengthening the Institutional Framework
Background
Corruption can be defined as ‘Abuse of power for private gain’. The
Parliamentary Committee on Public Accounts recently estimated corruption in
the public sector in Sri Lanka is costing approximately Rs100 billion a year.
Despite being widely acknowledged, little has been done to reduce its practice.
This is demonstrated by the fact that over the years only a few low level officials
have ever been prosecuted.
Sri Lanka is a signatory to the United Nations Convention against Corruption,
which seeks to define the obligations of States to prevent corruption and promote
a culture of transparency and accountability with regard to the management of
public affairs and property. There are a number of laws and institutions in the
country which should prevent corruption, yet clearly they are not serving their
purpose effectively.
The Current Institutional Framework
Commission to Investigate Allegations of Bribery and Corruption
CIABOC was set up in 1994. The objective was to create a powerful, independent
institution capable of investigating and prosecuting all forms of bribery and
corruption. Despite high expectations, the Commission has failed to make a
significant impact. The main reasons for its failures have been in its lack of
financial and operational independence. Political, human and financial constraints
have made the Commission ineffectual.
Structure: The Commission is led by three Commissioners who are appointed by
the President based on recommendations of the Constitutional Council. Two of
the three members should be retired Supreme Court Judges. Commissioners’
tenure is for 5 years and they can only be removed on the grounds of incapacity
or misconduct through an order of Parliament, supported by a majority of
members. The Commission can not currently function in the absence of one or
more of the Commissioners. This has severely hampered the functioning of the
Commission in the past, in some cases suspending work for over a year.
The Director General reports directly to the Commissioners. CIABOC’s
investigative staff consists of around 100 members, drawn mostly from the police
force. These officers receive an additional 33% of their police salaries as a ‘risk
allowance’. The composition of the investigators has hampered the work of the
Commission, because they lack adequate training and capacity to understand and
investigate complex forms of corruption.
The Commission is hampered by financial constraints. Currently financial
resources are decided on by the treasury, and funds have been inadequate to meet
the need.
Functions: The main function of CIABOC is to investigate allegations of bribery
and corruption received from the public and then to initiate prosecution.

65
Allegations must be deemed genuine and disclose material which can be
investigated. This is done by the Commissioners. Once this has been decided,
cases are handed over to the Director General for Investigation.
If an investigation shows that an offence was committed under the Bribery Act,
the Declaration of Assets and Liabilities Law (No 1 of 1975) or under any other
law, the Commission may proceed to prosecute the offender. A suit may be
launched either in the Magistrate’s Court or the High Court. Suits are initiated in
the Magistrate’s Court where the amount involved is less than Rs 2,000. Suits are
conducted by the Commission’s legal staff.
Independence: The extent to which the Commission can operate with autonomy is
reflected by the effectiveness of its work. Unless it is fully independent, the
Commission cannot effectively investigate all forms of bribery and corruption at
all levels of government. There is little evidence that the Commission has had any
significant impact. This is primarily due to three significant constraints that have
limited its independence and capacity to carry out its functions. These constraints
are:
 Political
 Human
 Financial

The Commission is limited to reacting to complaints and does not initiate

investigations on its own.
Auditor General’s Department: The Auditor General is an office set up under the
Constitution to audit the accounts of public institutions. Many similar institutions
overseas are not limited to financial auditing and undertake a range of audits
including environmental, investigative and ‘value for money’ audits. In Sri
Lanka, the role is limited only to financial auditing.
The Office does not currently have the ability to recruit and retain trained
personnel . The ability to produce high quality audit reports is central to such a
body. In order to generate high quality reports, the institution needs to be
strengthened. In 2005 a Draft Audit Act and Constitutional amendments were
prepared to provide greater autonomy and to make the office more effective.
Although Cabinet approval was obtained, the proposals have not been passed by
the Parliament.
The Draft Audit Act: The draft audit act was prepared by various civil society
organizations in partnership with the Auditor General. The objective of the draft
act was to strengthen the role and efficacy of the Auditor General’s office and to
create a strong audit culture in Sri Lanka. This would include efficiency and
environmental audits in addition to financial auditing of all public institutions.
The draft act calls for the creation of an independent Auditor General, a National
Audit Office under the Auditor General and a National Audit Service
Commission, which would play an advisory and supervisory role. These three

66
institutions would be established to ensure the Auditor General would have the
required independence and ability to audit accounts of public bodies.
Parliamentary Oversight Bodies: The Committee on Public Enterprises (COPE)
and the Committee on Public Accounts (COPA) are the two principal methods of
parliamentary oversight. COPE draws its members from different political parties
in government. The Committee scrutinizes the accounts of public corporations
and other public undertakings and comments on how public institutions are
being run.
The Bribery Act
Background
The Bribery Act was passed in 1954. In the 1994 amendment, the offence of
‘corruption’ was introduced for the first time.
Categories of Offenders: According to the Bribery Act a public servant is deemed
guilty of bribery where such person solicits or accepts any gratification:
 As an inducement or reward for interfering with the administration of
justice
 To protect from detection or punishment the perpetrator of an offence
 For abusing official powers to the inquiry or detriment of a person
 For giving assistance or using influence to obtain a contract with the
government
 For performance of any official work or for expediting such

Under the Bribery Act, soliciting or accepting a gratification is defined as a bribe.

Gratification is defined as money, gifts, property or any office or employment.
The ‘bribe-giver’ is liable to the same punishment as the bribe taker.
Illegal Accumulation of Assets: An amendment of 1974 stated that property
obtained in the form of bribery will be an offence. The bribe-taker has committed
an offence under the law even if the property in question is in the name of another
e.g. a spouse or child.
Corruption: Any public servant with the intent of knowledge that a wrongful
benefit or loss will be caused to the government or a wrongful or illegal benefit,
favor or advantage will be cause to any person by performing any of the actions
below is considered guilty of corruption:
 Does or refrains from any action that he is authorized to do
 Induces another public servant to perform or refrain from performing any
act he or she is authorized to do
 Uses any information coming to his knowledge by virtue of his or her
office as a public servant
 Induces any other person, by the use, whether direct or indirect, of his or
her office to perform or refrain from performing any act.

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  A person charged with corruption can be convicted by a magistrate to
imprisonment for a term of not exceeding 10 years or a fine not exceeding
Rs100,000 or both.

Proposed modifications
Definition: It has been proposed that the definition of bribery by expanded. Any
person who accepts, solicits or agrees to accept ant gratification either for himself
or another should be considered guilty of bribery.
Trial: At present a conviction for corruption is by a magistrate through summary
trial. It has been recommended that corruption be made an offence to be tried by
the High Court by way of an indictment. This would highlight the gravity of the
offence and reduce the possibility of corruption in yjr prosecution process.
Time limit: At present the Act deals only with bribes given/taken while a person
is dealing with the public official or bribes given/taken within one year or having
dealings with that particular official. It has been proposed that this one year time
limit be removed.
Scope: At present a public servant who solicits or accepts a bribe outside Sri
Lanka can be tried in Sri Lanka. It has been proposed that this should apply to
other officers including judicial officers.
National Procurement Guidelines on Goods and Works 2006
Background
The National Procurement guidelines where approved by the Cabinet in 2006.
Along with the guidelines, a National Procurement Agency was established to
overlook the procurement process. The guidelines detail the procedures to be
followed by any procuring entity in carrying out any procurement financed in
whole or part by the Government of Sri Lanka or a Foreign Funding Agency. The
guidelines aim to:
 Maximize economy, timeliness and quality in procurement resulting in
lowest cost/highest quality
 Adhere to prescribed standards, specifications, regulations and good
governance
 Provide fair, equal and maximum opportunity for eligible interest parties
to participate in procurement
 Expeditiously execute works and delivery of goods and services
 Comply with local laws and regulations and international obligations
 Ensure transparency and consistency in the evaluation and selection
procedure
 Retain confidentiality or information by bidders

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The guidelines apply to:
 Ministries
 Government departments
 State corporations and statutory bodies
 Fully government-owned companies
 Local authorities

The guidelines also identify ethical standards for procurement. These include
confidentiality, prohibition on corruption, the duty to avoid a conflict of interests
and prohibition of the acceptance of any gift or inducement.
The Procurement Process: For each process of procurement a Procurement
Committee (PC) and Technical Evaluation Committee (TEC) should be
appointed. The PC is responsible for the steering of the procurement process. The
TEC is responsible for the technical evaluation of the relevant project.
Appointment to the PCs are made by either the Secretary of the Ministry or the
Head of the Department. There may also be a Standing Cabinet- appointed
Procurement Committee that will be responsible for procurement in special
circumstances.
The NPA The NPA plays a supervisory role. According to the guidelines, the
NPA’ shall monitor the performance of the PCs and TECs, conduct random
procurement reviews and examine ongoing procurement processes. The NPA also
provides guidelines for the bidding process.
Enforceable Standards: Though the Procurement Guidelines provide detailed
measures that public institutions and officials should observe with regard to
procurement of goods, services or works and the NPA was created, the guidelines
are not clearly enforceable. It is not clear whether violation of the guidelines
attracts ant sanction or penalty. It is also possible for the Cabinet to override the
guidelines in exceptional circumstances, such as when an expeditious
procurement is necessary or where security considerations warrant.
Declaration of Assets and Liabilities Law
The Declaration of Assets and Liabilities Act was passed in 1975.
Persons Covered Under Assets and Liabilities Law and Entities that Ought to
Receive such Declarations:
Persons as set out in Section 2 of the The person to whom the Declaration
law ought to be made under Section 4 of
the Law
Speaker of the Parliament President of Sri Lanka
Cabinet of Minister and other Ministers Same
Judges and Public officers appointed by Same
the President
All other members of Parliament Speaker of the Parliament
All other judicial officers Judicial services Commission

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Presidential, Parliamentary Election Commissioner of Election
Candidates
Candidates of accepted political parties Same
Those appointed by the Cabinet of Secretaries of such Ministries
Ministers
Heads of departments Same
Chairmen of the Directors of Public Same
Corporations
Staff officers of the Ministries Same
Staff officers of corporations Chairmen of such corporations
Mayors and Heads of local government Secretary of Ministry in charge of the
authorities subject

Who has the Power to Request that Such Declarations be Made? Section 5 (1)
states that:”Any person , body or authority responsible for the appointment,
promotion, transfer or secondment of a state officer or employee of a public
corporation or local authority shall, for such purpose, have the right to call for and
refer to any declaration of assets and liabilities of such state officer or employee.
The Attorney General, the Commission to Investigate Allegations of Bribery and
Corruption and the Commissioner General of Inland Revenue and the Head of
Department of Exchange and Control also have the right to call for any
declarations of assets and liabilities.
The President: Section 4, as amended in 1998, makes it mandatory for presidential
candidates to declare assets and liabilities to the Commissioner of Elections prior
to the Election. However, where a presidential candidate is elected and later
found not to have made a declaration, there are no steps to bring the candidate
before a court of law. At the time the President assumes office, he should make a
declaration to the Chief Justice or the Commissioner of Elections.
CIABOC and the Law Relating to Assets and Liabilities
Under Section 5 CIABOC has the power to call and refer to any declaration.
Under Section 6, it can also call for additional information from any person who
has made a declaration.
CIABOC is a ‘competent authority’ for prosecuting false public statements.
However, the power of the institution is limited because no prosecution for any
offence under the law can be instituted without the prior sanction of the Attorney
General.
Procedure for Written Communications: Any person can draw the attention of the
authority to any recent acquisition of wealth or property which seems to be of
dubious origin through a communication in writing addressed to the appropriate
authority.
Offences and Sentences
 Failure to disclose such as assets and liabilities

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  False declarations
 Intentionally excluding an asset or liability
 Failure to disclose any additional information requested by CIABOC

Many of the sentences relating to this law are inadequate.

Draft Freedom of Information Law
Access to information with regard to decisions, actions and policy of public
authorities is vital on ensuring transparency. Civil society and media
organizations have lobbied for several years for the enactment of a Freedom of
Information Act. In 2001 the Law Commission put forward a proposal. In 2003 the
Cabinet approved a draft law, however it was never passed by Parliament.
Another draft was forwarded to the government in 2006.
 According to the draft law, every citizen is entitled to the right of access to
official information.
 There are certain instances where access may be denied, such as on the
grounds of national security, the life and safety of individuals.
 Every Minister must publish a report every two years which includes
official information related to his or her portfolio. The Ministers must
inform the public about any projects that are to be undertaken by the
Ministry
 There would be a system wherein every Ministry would have an
Information Officer to whom requests for information can be made
 The Freedom of Information Commission is envisaged as a supervisory
body to ensure the effective implementation of the law

While enabling access to information is an important step, the public also needs to
be aware of how to access information, why they should take an interest in it and
how they can play a part in ensuring transparency and accountability.
Protecting the Whistleblower
At present there is no legislation to protect the whistleblower. Lack of protection
from reprisal can be a significant deterrent. An ideal law would provide physical
security, identity protection and employment security.
Supreme Court’s Jurisprudence on the Use of Public Power
The Supreme Court has developed jurisprudence that set standards of conduct
with regard to the exercise of public power by public officials. According to the
Supreme Court, public power is vested in public officials to be used in trust only
for the purposes for which it is conferred. Any other use would be construed as
an abuse or misuse of public power.
Conclusions and Recommendations
Developing an Effective Institutional Framework

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The biggest challenge Sri Lanka faces in fighting corruption is the lack of political
will to implement the existing legal structure. An ideal institutional and legal
framework should encompass the following:
An Independent anti-corruption body: This could be an entirely new institution
such as an Ethics and Integrity Commission or a revamped Commission to
Investigate Allegations of Bribery or Corruption. The Commission should be able
to:
 Investigate and prosecute all forms of bribery and corruption
 Monitor systems and procedures in the public sector and suggest changes
to minimize opportunities for bribery and corruption
 Engage in public education
 Develop capacities within civil society

An independent and effective Auditor General’s Office

Such an institution should be able to:
 Audit all public sector institutions, both for financial accountability and
efficiency and effectiveness. Should have the capacity to conduct a variety
of audits such as environmental, performance, investigative and ‘value for
money’.
 Monitor systems and procedures in the public sector and suggest changes
to minimize opportunities for corruption
 A Freedom of information Law and a Freedom of Information
Commission. As well as curtailing bribery and corruption the law will
serve to enable citizens to access information that should be in the public
domain
 A law to protect whistle-blowers
 A National Procurement Agency (NPA) to ensure all public procurements
are according to common, fair, transparent and efficient standards. The
NPA should have the power to sanction officials where such standards are
breached’
 An Elections Commission to ensure that all elections are fair and free of
corruption and illegal practices. This Commission should ensure that
funding of all registered political parties is a transparent process

Strengthening CIABOC
Two options for CIABOC are to either reform an entirely new entity such as an
Ethics and Integrity Commission that will have stronger impact or to strengthen
the existing Commission through legislative and other changes.
In either case the following are essential:
 Operational Autonomy and Independence

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  Change the Composition and restrictions

Functions should include:

1. Investigating and prosecuting bribery and corruption at all levels
2. Monitoring systems and procedures in the public sector and suggesting
changes that will minimize opportunities for bribery and corruption
3. Educating the public and mobilizing them in the fight against corruption
4. Enhancing the capacities of civil society and social movements to improve
their capacity to monitor, report and combat corruption

Increase investigative capacities and recruit a multi-disciplinary team with a

broad range of skills: The Commission should also have the power to call upon
specific expertise as required from within the country or from outside. Staff
capacity needs to be maintained and enhanced, particularly in the fields of IT,
public education, public relations and management, through a comprehensive
and ongoing training program.
Independent Prosecution: In Hong Kong, the ICAC used a multi-pronged
strategy for combating corruption through public education, deterrence and
prosecution. Of these, prosecution was regarded as the most important, with 70%
of resources vested in operations with a view to prosecution. Prosecution must be
fully independent and without political interference. Such independence could
prevent prosecutions from turning into ‘witch hunts’ against political opponents.
Public Complaints: The Commission should have an effective system for
receiving and responding to public complaints. ICAC in Hong Kong has a 24 hour
hotline which is highly publicized. A system should be in place to ensure that
complaints can be responded to quickly. In Hong Kong, successful prosecutions
are given prominent publicity. This exposure is also an effective deterrent.
Financial Autonomy: The Commission should be financially autonomous. At
present, funds of the Commission are controlled by the Treasury. A better option
would be for funds allocations to be decided on by a Standing Committee in
Parliament, based on estimated budgets provided by the Commission.
Public Education: Creating an environment free of bribery and corruption entails
increasing public understanding and intolerance for all forms of corruption. This
also includes understanding how they can play a role in preventing it. The
Commission should be able to recruit and train a team of educators to design and
carry out a public education program in three languages. The training should
focus on particular sectors such as youth, the judiciary, bureaucrats et al.
Media and Public Relations: Commissions of this nature are often in the public
spotlight. For this reason, the Commission should have an effective media unit to
manage its public image. The media unit would manage public perceptions of its

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work through information dissemination, and also work to address criticism that
may come from political actors and the state.
An Ethics and Integrity Commission: An Independent Ethics and Integrity
Commission would not only look at issues of bribery and corruption but also
work towards ensuring public and political office is exercised fairly and
reasonably and power not abused. A Commission would frame and supervise
standards to ensure that public office is not used for personal gain or to pursue
partisan political interests. This includes ensuring that public property is not used
for personal use and ensuring public funds are used efficiently and effectively.
While an Anti-Corruption Commission focuses only on corruption, an Ethics and
Integrity Commission would address the broader notion of abuse of power that
accompanies the exercise of public office.
Freedom of Information Law: Parliament should set up a freedom of information
law on the lines proposed by the Law Commission of Sri Lanka. Such a law could
establish citizens’ right to access information that is in the public domain. An
independent Freedom of Information Commission to supervise the
implementation of the law should be set up.
Protection of ‘Whistleblowers’: Those who expose corruption should be
protected. This should be via a separate legislation that should provide physical
security, identity protection and employment security.
Audit Act: The Audit Act should be enacted by Parliament. This Act will provide
greater operational and functional independence of the Auditor General’s Office
and enable the Auditor General to conduct a variety of audits beyond basic
financial auditing.

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 The UN Convention against Corruption (UNCAC)
Executive Summary
2007 UNCAC had been ratified by 92 nations, of which the majority are developing
countries. The Convention is now the global instrument for combating corruption. It
complements the anti-corruption conventions of the Organization of American States
(OAS) states, the African Union and the Council of Europe, the SADC Protocol against
Corruption and the OECD Convention on combating bribery of foreign public officials in
international business transactions. The Convention is divided into eight chapters. The
most important provisions relate to preventive measures, criminalization and law
enforcement, international cooperation, asset recovery and technical assistance.

Ratification and implementation

Industrialized countries normally implement the Convention upon ratification, thereby
meeting, at least implicitly, the requirements of a monitoring mechanism that the
Conference of the States Parties has yet to put in place. In the developing and transition
countries this is not the case. The Global anti-corruption instrument, the United Nations
Convention against Corruption (UNCAC) was signed on 9 December 2003 in Merida,
Mexico, and entered into force on 14 December 2005. By the end of April, many African,
Latin American, Asian and East European countries have ratified the Convention without
creating the conditions for active implementation. As we understand it, though,
ratification entails adapting national legislation and enacting effective implementing
regulations (full compliance). Technical assistance can facilitate the process of
implementation, accompanying or complementing ratification in partner countries.
Technical cooperation projects in the area of good governance are particularly well
placed to do this.

Core issues
Prevention
The preventive measures of UNCAC (Chapter II) cover both the public and private
sectors. They include measures such as the setting up of anti-corruption bodies,
provisions governing finance, procurement and appointments in public administration,
public reporting and participation of civil society and business. Emphasis is laid on the
strengthening of transparency in financial matters and public procurement and in the
funding of election campaigns and political parties. States undertake to introduce
effective appointment and promotion systems that are based on transparency, efficiency
and performance. Public officials should be bound by codes of con-duct; effective
sanctions should be imposed if particular provisions are infringed. Since the combating of
corruption depends on cooperation between state and society, UNCAC places particular
emphasis on the involvement of civil society and on the general reporting process
through which the public administration reports to the people. The requirements made of
the public sector also apply to the private sector – it too is expected to adopt transparent
procedures and codes of conduct.

Criminalization
Chapter III of UNCAC regulates the punishing of corrupt behaviour, such as active and
passive bribery in the public and private sectors. All the states parties are obliged to

75
extend the concept of the public official to members of parliament. According to UNCAC,
offences of corruption also apply to international public officials. Particularly important is
the introduction of the liability of legal persons. Provisions are also proposed that would
simplify the provision of evidence of corrupt behaviour; this is especially important as
corrupt behaviour is very difficult to prove before a court. In the area of law enforcement
the Convention calls for better cooperation between national and international bodies and
with civil society. There is provision for the protection of wit-nesses, victims, expert
witnesses and whistleblowers, in order to ensure that law enforcement is truly effective.

International cooperation
Chapter IV places particular emphasis on mutual legal assistance and extradition.
Countries should enter into bilateral agreements or be able to refer directly to UNCAC in
making requests for legal assistance or ex-tradition. International cooperation between
the states parties is simplified by a looser form of “double incrimination”. In order for a
request for legal assistance or extradition to be implemented, it is not necessary for the
alleged behaviour to be described in both countries as exactly the same offence.

In this context UNCAC makes detailed provision for handling the formalities of requests
for legal assistance or extradition, which are often very difficult to comply with.

UNCAC recommends that the states parties assist each other in capacity building in
order to ensure that international cooperation is underpinned by training and
development measures.

Asset recovery
Asset recovery is one of the core issues dealt with in the convention (Chapter V). It is a
vitally important matter for countries in which state funds or the proceeds of natural
resource extraction have been misappropriated by cleptocrats and corrupt elites and
transferred into foreign accounts. To assist the process of recovery, provisions regulate
the national financial sector as well as international claims that the states parties may
have to goods embezzled within their country. All the states parties are encouraged to set
up mechanisms for the direct recovery of assets. Here, too, countries that have no legal
assistance agreements with third countries can make direct recourse to the relevant
provisions of UNCAC.

Technical assistance
Technical assistance is fundamental to the support offered to developing and transition
countries in implementing the convention. The relevant provisions are detailed in
Chapter VI; they cover the development of national capacity to implement legal
compliances and preventive measures, and legal assistance in connection with
investigations or asset recovery. The setting up of a trust fund that could be used to fund
technical assistance initiatives is suggested.

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 United Nations Convention against Corruption
(Summarized Version)
Concerned with the impact of all forms of corruption on democratic values and
institutions, the UN Convention against corruption outlines measures and
recommendations for states to combat corruption in the state and private sectors.
These measures include domestic legislative measures as well as regional and
international cooperation.
The Convention specifically aims to address Misuse of Assets and State resources
which may result in political instability and negatively impact on sustainable
development and equality. It further commits States to adopt measures to
mitigate the impact of illicit acquisition of personal wealth on democratic
institutions, national economies and rule of law.
Chapter I: General Provisions
The Convention takes an approach to corruption as a transnational phenomenon
and aims to take a comprehensive, multi-disciplinary approach to eradicating it
through strengthening State’s capacity to address it at all levels. Article 1 states
the Purpose of the Convention:
(a) To promote and strengthen measures to prevent and combat corruption
more efficiently and effectively;

(b) To promote, facilitate and support international cooperation and

technical assistance in the prevention of and fight against corruption,
including in asset recovery;

(c) To promote integrity, accountability and proper management of public

affairs and public property.

Chapter II: Preventative Measures

Preventative Anti-Corruption Policies and Practices (Article 5): States will
endeavor to develop and implement anti-corruption policies that promote the
genuine participation of society in accordance with principles of the rule of law,
proper management of public affairs and public property, integrity, transparency
and accountability. Further to the development and implementation of these
policies, States should regularly monitor, evaluate and report on these measures
and their effectiveness.
Under Article 6, relevant bodies or institutions should be established with the
function of implementing anti-corruption policies and creating awareness about
anti-corruption laws and means of recourse. Such bodies should be independent,
adequately resourced and enabled and to carry out their functions effectively and
unimpeded.
Public Sector (Article 7): States agree to ensure the strengthening of systems for
recruitment, hiring, retention, promotion, equitable remuneration and retirement

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of civil servants, based on principles of efficiency, transparency, merit, equity and
aptitude. Within the public service, training and awareness raising about anti-
corruption laws and prevention should also be provided.
Article 7 (2): recommends States prescribe selection criteria concerning candidates
for election to public office. Further, it recommends legislative and other
measures to enhance transparency in the funding of candidates for public office
and the funding of political parties.
Codes of Conduct for Public Officials (Article 8): State Parties commit to the
establishment of systems and measures within their legal and institutional
frameworks to ensure standards of conduct for the correct, honorable and proper
performance of public functions. Paragraph 4 calls for the establishment of
systems through which abuses of prescribed codes of conduct and acts of
corruption can be reported. States should impose systems by which public
officials must declare all relevant outside employment, investments and assets, in
the interest of transparency. Each State Party shall consider taking, in accordance
with the fundamental principles of its domestic law, disciplinary or other
measures against public officials who violate the codes or standards established in
accordance with this article.
Public Procurement and Management of Public Finances (Article 9): States agree
to establish transparent, competitive and objective criteria and processes for the
procurement and management of public finances. These principles should include
transparency in disclosure to the public of information regarding the procurement
processes, use and distribution of public finances. Effective measures for internal
controls will be established and systems put in place for transparent accounting
and auditing. Where appropriate, measures to regulate matters regarding
personnel responsible for procurement, such as declaration of interest in
particular public procurements, screening procedures and training requirements.

Public Reporting (Article 10): States will adopt measures to increase transparency
within the public administration. Such measures include making available to the
public information on the organization, functioning and decision making
processes of its public administration, as well as information on decisions and
legal acts that concern members of the public. States should also take steps to
simplify procedures to enable easy access by the public to competent authorities.
Periodic reports on risks of corruption in public administration should also be
published.

Judiciary and Prosecution Services (Article 11): States will adopt measures to
ensure the integrity of the judiciary and prevent opportunities for corruption. This
may include rules for conduct of members of the judiciary.

Private Sector (Article 12): States agree to introduce legislative and other
measures for the prevention of corruption in the private sector. Such measures

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include the provision effective, proportionate and dissuasive civil, administrative
or criminal penalties for failure to comply with such measures.

Participation of Society (Article 13): States will take appropriate measures to

enable the inclusion of civil society, non-governmental organizations, community
based organizations et al in developing, evaluating and promoting awareness of
anti-corruption measures. Such cooperation includes carrying out public
education campaigns as well as mainstreaming into school and university
curricula material that will highlight corruption, its forms and negative impact.

State parties should make known to the public the relevant bodies and institutions
that function to combat corruption, as well as how to contact them with
anonymity and freedom from fear of retribution.

Measures to Prevent Money Laundering (Article 14): States must institute

domestic regulatory systems for bank and non-bank financial institutions to
detect and prevent money laundering. Regulatory mechanisms should be
modeled on and linked to relevant regional instruments for the detection and
prevention of money laundering.

Chapter III: Criminalization and Law Enforcement

Bribery of National Public Officials (Article 15): State Parties shall adopt
legislative and other measures to establish the following as criminal offences:

a) Promise, offering or giving to a public official directly or indirectly of any

undue advantage in order for him/her to refrain from his or her official
duties.

b) Solicitation or acceptance by a public official of the above

Bribery of Foreign Public Officials and Officials of International Public

Organizations (Article 16): State parties shall adopt legislative and other
measures to establish as a criminal offence the offering or giving any foreign
official any form of undue advantage to any foreign public official to refrain from
his/her duties in order to obtain or retain business or receive any other undue
advantage. Article 16 (2) further prohibits the solicitation and acceptance of any
such offers.

Embezzlement, Misappropriation and other Diversion of Property by a Public

Official (Article 17): States will establish as a criminal offence under domestic law
the embezzlement, misappropriation and other diversion of public property,

79
public or private funds or property of any kind that has been entrusted to the
official by virtue of his or her position.

Trading in Influence (Article 18): States will adopt legislative or other measures
to establish as a criminal offence the promise of undue advantage for any official
to use the influence of their position to create undue advantage for the instigator.
States shall criminalize the solicitation or acceptance of the same by public
officials.

Abuse of Functions (Article 19): States agree to consider the introduction of

legislation and other measures to criminalize abuse of functions by Public
Officials for their own advantage or that of another person or entity.

Illicit Enrichment (Article 20): State Parties shall consider adopting such
legislative and other measures as may be necessary to establish as a criminal
offence, when committed intentionally, illicit enrichment, that is, a significant
increase in the assets of a public official that he or she cannot reasonably explain
in relation to his or her lawful income.

Bribery in the Private Sector (Article 21): States shall consider introducing
legislation and other measures to criminalize bribery of private sector employees
in order to obtain undue advantage and further for the criminalization of the
solicitation or acceptance of the same.

Embezzlement in the Private Sector (Article 22): States will take measures for the
criminalization of embezzlement by a person who directs or works, in any
capacity, in a private sector entity of any property, private funds or securities or
any other thing of value entrusted to him or her by virtue of his or her position.
States agree to consider introducing legislative and other measures for its
prevention.

Laundering of Proceeds of Crime (Article 23):

State Parties commit to criminalize the following:

(a) (i) The conversion or transfer of property, knowing that such property is
the proceeds of crime, for the purpose of concealing or disguising the illicit
origin of the property or of helping any person who is involved in the
commission of the predicate offence to evade the legal consequences of his
or her action;

(ii) The concealment or disguise of the true nature, source, location,

disposition, movement or ownership of or rights with respect to property,
knowing that such property is the proceeds of crime;

80
 (b) Subject to the basic concepts of its legal system:

(i) The acquisition, possession or use of property, knowing, at the time of

receipt, that such property is the proceeds of crime;

(ii) Participation in, association with or conspiracy to commit, attempts to

commit and aiding, abetting, facilitating and counseling the commission of
any of the offences established in accordance with this article.

Under Paragraph 2, each State Party shall furnish copies of its laws that give effect
to this Article and of any subsequent changes to such laws or a description thereof
to the Secretary-General of the United Nations

Concealment (Article 24): States agree to consider the adoption of legislation to

criminalize the concealment of any of the acts outlined in the Convention as well
as for the retention of any property that has come about as a result of any of the
offences outlined.

Obstruction of Justice (Article 25): States will criminalize the use of physical
force, threats and intimidation or the promise/giving of undue advantage in order
to induce false testimony or the production of evidence in regards to an offence
under the Convention. States will also criminalize the use of physical force,
threats, intimidation etc used to prevent the exercise of official duties of a justice
or law enforcement official.

Liability (Article 26): States agree to adopt measures to establish liability for legal
persons who engage in any of the activities outlined in the Convention. Such
liability includes the imposition of proportionate legal or non-legal sanctions,
including monetary sanctions.

Participation and Attempt (Article 27): States will criminalize participation of any
kind in any of the offences outlined in the Convention. Paragraphs 2-3 criminalize
participation in attempts and or plans to carry out such offences.

Knowledge, intent and purpose as elements of an offence (Article 28):

Knowledge, intent or purpose required as an element of an offence established in
accordance with the Convention may be inferred from objective factual
circumstances.

Statute of Limitations (Article 29): A reasonably long Statute of Limitations shall

be adopted by States under domestic law for the prosecution of the offices under

81
the Convention. This should be extended or suspended in cases where the
accused has evaded justice

Prosecution, Adjudication and Sanctions (Article 30): States will ensure that the
commission of offences will be liable to sanctions in proportion to the gravity of
the offences. Discretionary legal powers within domestic law of State Parties
relating to prosecution of offences under the Convention should be exercised to
the maximum extent as a deterrent. States may consider measures by which an
official being accused of an offence under the Convention may be suspended or
removed from their position, bearing in mind the presumption of innocence.

Freezing, Seizure and Confiscation (Article 31): States shall take all possible
measures to confiscate proceeds of crime derived from offences committed under
the Convention, including property to the value of the proceeds where necessary.
States also commit to measures to enable the legal confiscation of property or
equipment that has been or may be used in to commit an offence under the
Convention. Appropriate regulatory measures for the administration of
confiscated seized or frozen assets will be introduced.

Protection of Witnesses, Experts and Victims (Article 32): States must take all
possible measures to protect witnesses and victims from potential retaliation or
intimidation for providing testimony in the investigation or prosecution of an
offence under the Convention. Such measures may include relocation and non-
disclosure of identity and whereabouts of witnesses under protection as well as
measures to provide enable witnesses to provide evidence in a safe manner – eg
via video.
Protection of Reporting Persons (Article 33): Each State Party shall consider
incorporating into its domestic legal system appropriate measures to provide
protection against any unjustified treatment for any person who reports in good
faith and on reasonable grounds to the competent authorities any facts concerning
offences established in accordance with this Convention.

Consequences of Acts of Corruption (Article 34): States agree to consider

corruption as a basis for legal proceedings to annul or rescind contracts.

Compensation for Damages (Article 35): States will take measures to ensure that
entities or persons are able to initiate legal proceedings to obtain compensation as
a result of loss or damages due to an act of corruption.

Specialized Authorities (Article 36): Each State shall ensure the existence of a
body specialized in combating corruption through law enforcement. This body
will be empowered to function independently and without undue influence.

82
Cooperation with law Enforcement Authorities (Article 37): States agree to take
appropriate measures to encourage persons who have participated in committing
an offence to supply information to investigators. Such measures may include
measures such as immunity from prosecution.

Cooperation between National Authorities (Article 38): States will take measures
to engender cooperation between public authorities and officials and authorities
responsible for prosecuting crimes committed under the Convention.

Cooperation between National Authorities and the Private Sector (Article 39):
States should engender cooperation between national investigating/prosecuting
authorities and the private sector and in particular financial institutions.

Bank Secrecy (Article 40): States shall establish appropriate mechanisms within
their respective legal systems to overcome obstacles arising from bank secrecy
laws.

Criminal Record (Article 41): States will adopt legislative and other measures to
enable consideration of previous conviction for an offence under the Convention
in another State.

Jurisdiction (Article 42): States may establish jurisdiction for offences committed
within the State, on a ship or vessel flying the flag of the State Party. States may
consider jurisdiction of an offence is committed against a national or a stateless
person who is residing in the country. States may also establish jurisdiction for
offences committed outside the country if the offence is committed against the
State.

Chapter IV: International Cooperation

International cooperation (Article 43): States Parties shall cooperate in criminal

matters in accordance with articles 44 to 50 of this Convention. Where appropriate
and consistent with their domestic legal system, States Parties shall consider
assisting each other in Investigations.

Extradition (Article 44): States will develop arrangements for extradition of

perpetrators of offences committed under the Convention. This may include
building upon existing extradition treaties. If States do not have existing Treaties,
they may consider the Convention grounds for considering requests for
extradition for related crimes.

83
Transfer of Sentenced Persons (Article 45): States will consider entering into
multi or bi-lateral agreements for the transfer of persons sentenced for offences
under the Convention

Mutual Legal Assistance (Article 46): States agree to afford the widest measure of
legal assistance to investigations, prosecutions and judicial proceedings included
under the Convention carried out by other State Parties.

Transfer of Criminal Proceedings (Article 47): Legal proceedings may be

transferred to another State if it is deemed to be in the best interests of justice.

Law Enforcement Cooperation (Article 48): States agree to cooperate in a manner

consistent with their respective legal and administrative systems for effective law
enforcement cooperation. This may include enhanced cooperation through
cooperation and communication between competent authorities, cooperation in
conducting enquiries, locating suspects and tracing the movement of proceeds of
crime or property derived from or used for offences. Cooperation may also
include measures such as coordination of resources, expertise and information.
States may also consider entering into multi or bi lateral arrangements with
regards to cooperation.

Joint Investigations (Article 49): States may consider entering into multi or bi-
lateral agreements to establish joint investigative bodies. In the absence of such
agreements joint investigations may be considered on a case-by-case basis.

Special Investigative Techniques (Article 50): To the extent permitted by basic

principles of domestic legal systems, States may take measures as necessary to
allow for appropriate use by competent authorities of special investigative
techniques such as electronic or other forms of surveillance and undercover
operations in order to allow for the admissibility of evidence derived from
investigations in courts. Use of such techniques may also be subject of multi or bi
lateral arrangements.

Chapter V: Asset Recovery

General Provision (Article 51): The return of assets pursuant to this chapter is a
fundamental principle and States Parties shall afford one another the widest
measure of cooperation and assistance in this regard.

Prevention and Detection of Transfers of Proceeds of Crime (Article 52): States

are required to instruct financial institutions to verify the identity of customers
and beneficial owners of funds deposited into high value accounts. Financial
Institutions must also be required to conduct enhanced scrutiny of accounts

84
linked to individuals who are or have been entrusted with prominent public
functions. Enhanced scrutiny measures should be designed in a way that will
detect suspicious transactions. States will implement these measures by issuing
directives to bank and non bank financial institutions that include the types of
accounts, persons and transactions that require scrutiny. Where appropriate,
names of individuals whose accounts should be scrutinized should also be
advised. Measures should be taken to ensure banks maintain adequate records
which will be kept for a reasonable period of time. States should consider laying
out effective financial disclosure systems for appropriate public officials along
with appropriate sanctions for non-compliance. This may also include requiring
appropriate public officials to disclose details of foreign accounts to which they
are a signatory.

Measures for Direct Recovery of Property (Article 53): Each State will take
measures to permit other States to initiate civil action to establish ownership of
property acquired through the commission of an offence under the Convention.
Under these measures, courts will be permitted to order compensation or
damages.

Mechanisms for Recovery of Property through Cooperation for Confiscation

(Article 54):
State Parties must permit competent authorities to give effect to orders of
confiscation issued by a court of another State Party .Under Article 55,
cooperation may be refused on the grounds of insufficient evidence.

Special Cooperation (Article 56): States may forward any information derived
through their own investigations to other State Parties unrequested if this
information will aid in detecting or preventing crimes under the Convention.

Return and Disposal of Assets (Article 57): Measures should be taken to return
any confiscated assets to the legitimate owner. All appropriate measures should
be adopted by States to enable competent authorities to return confiscated
property upon request of another State.

Financial Intelligence Unit (Article 58): States will cooperate for the purpose of
preventing and combating transfer of proceeds of offences and recovery of
proceeds. Cooperation will include sending and receiving information of
suspicious transactions.

States will consider entering into bi-lateral or multi-lateral agreements or

arrangements for the purposes of implementing Chapter 5 (Article 59)

Chapter VI: Technical Assistance and Information Exchange

85
Training and Technical Assistance (Article 60): States will develop training
programs for relevant personnel to prevent and combat corruption. These training
programs will facilitate improved measures to prevent, detect, investigate, punish
and control corruption and strengthen capacities to develop anti-corruption
policy. States will take measures to evaluate and strengthen capacities to prevent
corruption within the public and private sectors. States will consider cooperation
for the purposes of technical assistance and knowledge sharing and research.

Collection, Exchange and Analysis of Information (Article 61): States will

consider taking steps towards analyzing and sharing trends in corruption,
collecting and sharing statistical and other data and best practices. States will
further consider monitoring their actual policies and measures and assessing their
effectiveness.

Optimal Implementation through Cooperation: States will consider all efforts at

coordination and cooperation for enhanced capacities for implementation.

Chapter VII: Conference of the State Parties of the Convention

The first Convention will be convened by the Secretary General of the United
Nations and thereafter meet regularly in accordance with the regulations adopted
at the Conference. States will provide information regarding plans, progress
reports as well as legislative and administrative measures as set out. (Article 63)
Secretariat (Article 64): The Secretary General of the United Nations will provide
secretariat services to enable Conference of State Parties in carrying out its
functions, assist State Parties in providing information required under Article 63
where requested and ensure coordination between the Secretariats of relevant
organizations and institutions.

Chapter VIII: Final Provisions

State Parties agree to carry out all measures defined under the Convention. Where
applicable, States may adopt stricter measures or laws to combat corruption than
prescribed under the Convention.

Settlement of Disputes (Article 65)

Disagreements between State Parties should be resolved through negotiation.
Stated may request for arbitration. If disputes cannot be resolved via arbitration,
they may be referred to the International Court of Justice

Signature, Ratification, Acceptance, Approval and Accession

86
The Convention will be open for signature to all States from 9-11 December 2003
in Merida, Mexico and thereafter until 9/12/2005 at the United Nations
Headquarters. The Convention is open to regional economic integration
organizations provided that at least one member State is a signatory to the
Convention.

Amendment (Article 69)

After five years States may propose an Amendment via the office of the Secretary
General of the United Nations, who will convey the proposal to parties of the
Convention. The proposal will be considered by the Conference of the
Convention. Once adopted, amendments are subject to ratification.

Denunciation (Article 70)

States may denounce the Convention through written notification to the Secretary
General of the United Nations. Denunciation will come into effect one year after
receipt.

87
 THE RIGHTS AND ACCESS TO INFORMATION
AN INSTRUMENTAL RIGHT FOR EMPOWERMENT

Introduction:
Since April 2005 the Association for Civil Rights (Buenos Aires- Argentina),
jointly with ARTICLE 19, has been developing a two-year project that aims to
promote the right of access to information. One of the goals of the project, called
“Information for Transparency”, is to provide a set of tools to assist in the
practical realization of this right. Towards this end, this article ‘Access to
Information: An Instrumental Right” presents both concepts about the
relationship between access to information and social rights, as well as strategies
that can be used to realize social rights through the assertion of the right of access
to information.

1. What is the right to access public information?

“Freedom of information is a fundamental human right and […] the touchstone of
all freedoms to which the United Nations is consecrated11.” The right to access
public information is the right of every person to know: to have access to the
information he or she needs to make free choices and to live an autonomous life.

The right to access information held by the State is regulated in several

International Human Rights Treaties establishing the right of every person to
freedom of opinion and expression, including the right to seek, receive and impart
information and ideas12.2 Its practical application underpins two distinctive
principles of a democratic republican system of government: the publicity of acts
and the transparency of public administration.13 In this context, information is a
tool of democratic control over State institutions, intimately linked to the concept
of participatory democracy and respect for fundamental rights. The Inter-
American Court of Human Rights has recognized the right of access to
information as a fundamental right which States are obliged to guarantee. The
Court has also emphasized the importance of this right in enabling citizens to be
informed and to exercise their public opinion.14

The right to information does not exist in isolation. On the one hand, the right to
information can be understood as a member of a larger group of civil and political


Prepared from the publication published by the “ARTICLE 19, a UK based organization campaigning for
the Right to free expression
11
UN General Assembly, (1946) Resolution 59 (1), 65th Plenary Meeting, December 14.
12
On a regional level, there exist several documents or declarations that establish standards to delineate the
concrete application of this right. For example, The Lima Principles or the Chaputelpec Declaration.
13
Victor Abramovich y Christian Courtis, “El Acceso a la Información como Derecho”, en Anuario de Derecho a la
Comunicación; Año 1 Vol.1 (2000); Editorial Siglo XXI, Buenos Aires, p. 227.
14
Corte IDH La Colegiación Obligatoria de Periodistas Opinión Consultiva OC-5/85 Serie A, No 5 , del 13 de
noviembre de 1985 para. 70.

88
rights – a component part of the fundamental right to freedom of expression,
which requires governments to refrain from interfering with the free flow of
information and ideas.15 On the other hand, the right to information is also
intricately related to and necessary for the protection of all other human rights. In
recent years the right to information has received growing attention and
treatment in international and regional declarations that have elaborated both its
specific content and the positive – instead of merely the negative – obligations it
imposes on States. The understanding of the right has developed to encompass a
concrete and immediate obligation on the part of governments to provide access
to information, as well as to refrain from interfering with communication of
information necessary to a citizen’s ability to make autonomous choices.

In practice, the right to access public information, as purely a negative right, is

easily challenged because governments take affirmative actions every day that
affect these rights: examples include preventing concentration of ownership in the
media; establishing public broadcasting facilities; and supporting a system of
intellectual property law that encourages expression by making it profitable.16

This enhanced understanding of the right to access public information is

illustrated by the growth in government openness in recent years. More than 40
countries now have access to information laws17, 26 of which were passed since
the fall of the Berlin Wall.18 Between 2000 and 2002, over 30 governments either
introduced access to or freedom of information acts or actively considered
introducing them19.

Supporting and encouraging this more robust view of access to information,

NGOs have worked to define the scope of the right more concretely. ARTICLE 19,
the human rights organization with a specific mandate and focus on the defense
and promotion of freedom of expression and freedom of information worldwide,
has drafted the following principles that should underpin any legislation on
Freedom of Information20 :

15
This view is reflected in the jurisprudence of the European Court of Human Rights, which has ruled that the
right to receive information “basically prohibits a government from restricting a person from receiving
information that others may wish or may be willing to impart to him.” Leander v. Sweden, Judgment of 26
March 1987, Series A. no. 116, para. 74.
16
Roberts, Alasdair. “Structural Pluralism and the Right to Information” in The Riht to Know, The Right to Live: Access
to Information and Socio-Economic Justice, Calland, Richard and Allison Tilley, ed. Open
Democracy Advice Centre, 2002, pp. 36-37.
17
Banisar David, (2002). Freedom of Information and Access to Government Records Around the World 2
Privacy International: London/www.freedominfo.org.
18
Blanton Tom (2002) “The world’s right to know” Foreign Policy July/August 50.
19
Calland, Richard. “The Right to Know is the Right to Live” in The Right to Know, The Right to Live: Access to
Information and Socio-Economic Justice, Calland, Richard and Allison Tilley, ed. Open Democracy Advice Centre,
2002, p.xvi.
20
ARTICLE 19, The Public’s Right to Know: Principles on Freedom of Information Legislation, June 1999, available
at: www.article19.org/work/regions/latin-america/FOI/english/elements/index.html. These principles were endorsed,
inter alia, by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of

89
 Principle 1 – Maximum disclosure: Freedom of information legislation should
be guided by the principle of maximum disclosure.

 Principle 2 – Obligation to publish: Public bodies should be under an

obligation to publish key information

 Principle 3 – Promotion of open government: Public bodies must actively

promote open government.

 Principle 4 – Limited scope of exceptions: Exceptions should be clearly and

narrowly drawn and subject to strict “harm” and “public interest” tests.

 Principle 5 – Processes to facilitate access: Requests for information should be

processed rapidly and fairly and an independent review of any refusals
should be available.

 Principle 6 – Costs: Individuals should not be deterred from making requests

for information by excessive costs.

 Principle 7 – Open meetings: Meetings of public bodies should be open to the

public.

 Principle 8 – Disclosure takes precedence: Laws which are inconsistent with

the principle of maximum disclosure should be amended or repealed.

 Principle 9 – Protection for whistleblowers: Individuals who release

information on wrongdoing –whistleblowers – must be protected.

More recently, while working on the formation of a comprehensive access to

information law in Chile, the Open Society Justice Initiative also set forth ten
principles which should underpin an access to information regime, presented
verbatim below21:

1. Maximum Openness. All information held by governments is in principle

public, and may only be withheld if there exist legitimate reasons for not
disclosing it. The information to which this principle refers includes that
generated by public authorities and/or received by them, without being
limited to the administrative decisions.

the United Nations Commission on Human Rights, and referred to by the Commission in its 2000 Resolution
on Freedom of Expression.
21
Open Society Justice Initiative, Principles on the Right of Access to Information in Chile, December 2004,
available at http://www.justiceinitiative.org/db/resource2?res_id=102436, accessed July 21, 2005.

90
2. All Public Bodies should be subject to the Access to Information Law. The
right of public access to information should extend to all institutions receiving
funding coming from the public funds (taxes) or performing public functions.
3. Access to Information is a Right for Everyone. To exercise the right of access
to information, it is neither necessary to justify any legal interest, nor to
explain the reasons for requesting the information from government. All
requests should be treated without discrimination as to the nature or
profession of the requestor.
4. Free Access to Information. Costs for exercise of the right to information
should be kept to an absolute minimum for the requestor, who may be
charged only for the reproduction of documents that contain the requested
information.
5. Simple and Speedy Processes. The process for requesting information should
be the least complicated and most efficient possible, and the provision of
information should be quick and complete. Delivery of requested information
should be either immediately or within the timeframes established by law,
which, in any case, should not exceed ten (10) working days.
6. Exemptions Provisions Should Be Clearly Defined. The grounds for
withholding information should be clearly and specifically established by law
with the goal of protecting legitimate interests. The law should establish a
harm test and a public interest test which should be applied to all information
before its disclosure is denied. The principle of partial access should be
applied to all documents containing information that can legitimately be
exempted from release.
7. Independent Regulatory Body. Decisions to withhold information should be
subject to review by an independent body empowered to order compliance
with the law and release of information.
8. Duty to Assist. Public officials charged with information provision should
assist requestors in the formulation of their questions in order to guarantee the
exercise and enjoyment of the right of access to information. When the
information being sought is held by a different body, these officials should
refer requestors to the correct institution.
9. Proactive Publication of Information. Every public body should make readily
available all information related to its functions and responsibilities without
the need for a formal information request. This information should be in clear,
plain language, and should be up to date.
10. Harmonization of Right of Access to Information with other Law. All laws that limit
the right of access to information should be amended or revoked in order to
guarantee the principle of maximum openness.

2. Why is the right to access public information relevant to our

every day lives?

91
Amartya Sen has said that there has never been a famine in a country with a free
press and open government.22 The relationship between information and power is
profound. Without information, the people have no power to make choices about
their government – no ability to meaningfully participate in the decision-making
process, to hold their governments accountable, to thwart corruption, to reduce
poverty, or, ultimately, to live in a genuine democracy.

Democracy and Participation:

At the core of a democracy is the ability of the people to participate, i.e. to influence
the government through openly expressed public opinion. Without access to
information, there can be no discussion of a range of available options, no voting
in accordance with one’s best interests and beliefs, no meaningful public policy
discussions, and no informed political debate.23

Accountability:
Without access to information, citizens are unable to hold their government
accountable. Access to information such as annual reports or policy and
legislative reviews allows for the monitoring of government performance. As the
government demonstrates its accountability, trust in the government grows,
creating a healthy relationship between the government and its citizens.

Anti-Corruption and Economic Effects:

Without access to information, the government lacks transparency, and the people
live in a secret society that breeds rumor, conspiracy and corruption. Corruption,
in turn, damages economic activity by discouraging both foreign and local
investment and deterring foreign aid.24 Corruption “bites into the moral fiber of
society,” and it “takes its greatest toll on the poor.”25 Corruption, according to the
World Bank, clearly hinders the ability of the poor to help themselves out of
poverty.26

Development:
The right to access information is a powerful tool that allows the most
disadvantages groups of society to become involved in the development of
initiatives that affect them. Lack of information prevents the participation of these
groups in their own development by limiting their rights and freedoms and
placing them in a position of vulnerability, thereby preventing them from
exercising any control over those public policies. Without access to information, a
22
Sen, Amartya. Development as Freedom, New York Knoft 1999, p. 178.
23
Calland, Richard and Allison Tilley, ed., The right to Know, The Right to Live: Access to Information and Socio-
Economic Justice. Open Democracy Advice Centre, 2002.p.xi
24
Ibidem.
25
Camerer, Lala. “Information and the Quest for Global Accountability” in The Right to Know, The Right to Live:
Access to Information and Socio-Economic Justice, Calland, Richard and Allison Tilley, ed. Open
Democracy Advice Centre, 2002. pp. 139-140.
26
Ibidem, p.31.

92
country cannot sufficiently develop. For example, the health of a society depends
on information related to clean water and sanitation, vaccines, statistics etc.

3. What are common exceptions to the right to access public

information?
International and national laws defining the right to access public information
generally provide for some exceptions to the right. They are, most commonly:
 for the respect of the rights or reputations of others;
 for the protection of national security or of public order;
 for the protection of public health or morals.
All of the exceptions above are provided for in the International Covenant on
Civil and Political Rights, the American Convention on Human Rights, and the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. In addition, the European Convention provides exceptions for
preventing the disclosure of information received in confidence and for
maintaining the authority and impartiality of the judiciary.27 The United States
Freedom of Information Act also provides exceptions for internal agency
personnel rules and practices, invasion of personal privacy, compromising
commercial secrets, executive privilege, information explicitly protected by other
statutes, information that would compromise criminal investigations and
prosecutions, information on the condition of financial institutions, and geological
and geophysical information.28

International law prescribes that these exceptions should not be balanced against
the right, but should be applied as narrow exceptions to the general rule in favor
of the right.29

In addition to these common exceptions, there is another challenge related to the

realization of the right to access public information – a request for information
may require an administration to produce information that it does not actually
hold.30 In such cases, it is necessary to distinguish between processed data and
gross data. Sometimes, a government may only have gross data on a specific
issue, and it will be necessary to request that it is processed, as required for
example by the Inter-American Convention on Violence Against Women.31
Notwithstanding, in many instances the gross data itself is especially important

27
European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10) Available in:
www.hri.org.
28
United States Freedom of Information Act.
29
As stated by the European Court, the decision-maker “is faced not with a choice between two conflicting
principles but with a principle of freedom of expression that is subject to a number of exceptions which must be
narrowly interpreted.” The Sunday Times v. The United Kingdom, Judgment of 26 Apr. 1979, Series A no. 30,
para. 64.
30
Centro de Estudios Legales y Sociales. La información como herramienta para la protección de los derechos humanos,
2004. p. 43.
31
Ibidem.

93
because it is always possible that a government will process gross data in ways
that manipulate its results to reflect its policies or actions more favorably.32 For
example, gross data is useful in domestic violence cases, because it provides
information such as the date and place of occurrence, surrounding circumstances,
names and ranks of agents, and judicial intervention. Access to this gross data
allows analysis of patterns in occurrence and response by the State.33

4. Is the right to access public information protected internally?

As discussed above, the right to access public information is established in three
major international documents: the American Convention on Human Rights
(American Convention) (Article 13)34, the International Covenant on Civil and
Political Rights (ICCPR) (Article 19)35 and the American Declaration on the Rights
and Duties of Man (American Declaration) (Article 4)36. The first two are treaties,
binding on any government who has ratified them, and the third is widely
accepted customary law. The treaties have supervisory bodies that require
periodic reporting by all states parties.

 American Convention, Article 13 – Freedom of Thought and Expression:

1. Everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing, in print, in the form or
art, or through any other medium of one’s choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be
subject to prior censorship but shall be subject to subsequent imposition of
liability, which shall be expressly established by law to the extent necessary to
ensure:
(a) respect for the rights and reputations of others; or
(b) the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means,

such as the abuse of government or private controls over newsprint, radio
broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication and
circulation of ideas and opinions . . .

 ICCPR, Article 19:

32
Ibidem.
33
Ibidem.
34
Article 13 of the American Convention on Human Rights.
35
Article 19 of the International Covenant on Civil and Political Rights UNGA Res. 2.200 A (XXI), 1966.
36
Article 4 of the American Declaration on the Rights and Duties of Man

94
1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideals of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any another media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health
or morals.

 American Declaration, Article 4:

Every person has the right to freedom of investigation, of opinion, and of the
expression and dissemination of ideas, by any medium whatsoever.

International law can be used to protect access to information in a number of

ways. First, individual citizens of states parties can seek remedies through their
domestic courts. In some countries, domestic courts can enforce international law
directly; in others, international law has been incorporated into national law and
is thus enforced indirectly through domestic law. Second, mass popular support
from citizens and NGOs can pressure governments to change laws, polices and
practices to comply with international law. Third, individuals can seek remedies
directly from the relevant international bodies.37

In addition to the above, international law provides for the right to access public
information as it relates to the realization of social, economic and cultural rights.
The American Convention (Article 42)38, the San Salvador Protocol (Article 19)39
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) (Article 16)40 provide for the right to access periodic governmental
information on progress related to economic, social and cultural rights in order to
facilitate public examination of policies and stimulate participation among diverse
sectors of society. The Inter-American Commission for Human Rights has
confirmed that “The dissemination of information about government activities

37
Coliver, Sandra. The Right to Know: Human rights and access to reproductive health information. Edited for
ARTICLE 19, International Centre Against Censorship, 1995, p. 4
38
Article 42 of the American Convention of Human Rights.
39
San Salvador Protocol. O.A.S. Treaty Series No. 69 (1988), entered into force November 16, 1999.
40
International Covenant on Economic, Social and Cultural Rights adopted 16 Dec. 1966, entered into force 3 Jan. 1976,
G.A. Res.2.200 A (XXI), UN Doc. A/6316 (1966), 993 UNTS 3, reprinted in 6 ILM 360 (1967).

95
should be as transparent as possible and available to all sections of society.”41 In
addition, Limburg Principal 76 mentions that the mandatory reporting for the
ICESCR should be publicized for public debate and participation every five
years.42

5. What are economic, social and cultural rights?

Economic, social and cultural rights (ESCR) are considered positive rights because
they generally require some positive action on the part of the government. The
primary international treaty governing ESCR is the International Covenant on
Economic Social and Cultural Rights. The following are recognized as ESCR: the
right to work, the right to social security, the right to adequate food, the right to
adequate housing, the right to health, the right to a healthy environment, and the
right to education.

The enforcement of ESCR and consequently their justiciability have been

questioned not only internationally but also domestically. Despite the
interrelationship between ESCR and civil and political rights (hereafter CPR)
there is still scepticism regarding the status of the former as real rights. Some
scholars and even governments have argued that ESCR are not human rights, and
others that they are human rights but are non-justiciable. The differences between
CPR and ESCR have been used to support such arguments since CPR grant
negative rights and thus, impose negative obligations, while ESCR guarantee
positive rights and impose positive obligations on states parties. The imposition of
positive obligations upon States implies the adoption by governments of
programs to address social policy questions: unlike negative obligations, which
are cost-free, positive ones require government expenditure.

It has been also said that ESCR involve policy choices and should not, therefore,
be taken care of by judges, who lack expertise and political accountability to deal
with them. The idea is that the judiciary should not make decisions that involve
positive State obligations, which, at the end, will have important resource
implications. However, counter- arguments to this idea point to the fact that
judges are actually expected to take into account public policies when deciding a
case and that involvement in matters which have important resource implications
is already part of their work. Further, when courts adjudicate on CPR they
become involved in political issues as well, and if this step beyond purely legal

41
CIDH, Informe No. 20/99, Cas 11.317, Rodolfo Robles Espinoza e Hijos (Perú), en CIDH INFORME ANNUAL
1998.
42
The Limburg Principles on the implementation of the International Covenant on Economic, Social and
Cultural Rights, UN ESCOR, Commission on Human Rights, Forty-third Session., Agenda Item 8 UN Doc.
E/CN. 4/1987/17, Annex (1987).

96
matters is not considered problematic, why should their role in upholding ESCR
be questioned?
In this context the enforceability of ESCR has been questioned, suggesting that
judges are not well situated to deal with both the determination of social policies
and the allocation of resources.43 For a long time this argument has undermined
the validity of ESCR, although in more recent times, sound arguments have
demonstrated that ESCR are enforceable and therefore, justiciable.

The UN Committee on Economic, Social and Cultural Rights has affirmed that
many elements of ESCR are susceptible to judicial enforcement. Governments’
obligations related to ESCR are generally evaluated in light of Article 2.1 of the
ICESCR. The article requires that every state party “undertakes to take steps . . . to
the maximum of [its] available resources, with a view to achieving progressively
the full realization of the right recognized in the … Covenant.”44 Therefore, unlike
civil and political rights, which the government generally has an immediate
obligation to ensure, ESCR can be achieved more progressively. Increasingly, this
obligation is being interpreted to require governments to take some immediate,
concrete steps toward implementation, leading over time to a certain degree of
progress.45

6. What must States do to protect the right to access information in

practice?
As discussed above, the right to access information is not only important in order
to be able to participate effectively in an open, public debate about the issues and
interests affecting people’s life, but it is also useful to exercise other rights.
Moreover, among the varied constitutional rights, freedom of information
imposes the most clear-cut obligations on governments.

Article 19 of the ICCPR requires governments to “respect and ensure respect” for
the right to access information. As a negative obligation, the government must
respect the right by not violating it directly through legislation, policies, judicial
decisions or actions of its officials or its agents.46 As a positive obligation, the
government must take direct, affirmative action, possibly to protect the right by
preventing others from violating it or to fulfill the right via legislation, policies or
judicial decisions.47 Therefore, the government must take steps to prevent private

43
C. Fabre, Social Rights Under The Constitution: Government and Decent Life (Oxford-New York-Oxford
University Press, 2000) p. 150.
44
Supra N° 29 at article .2.1.
45
P Alston and G Quinn, “The Nature and Scope of States Parties’ Obligations in the International Covenant on
Economic Social and Cultural Rights”, 9 Human Rights Quarterly (1987), 164-87; R. Robertson, “Measuring State
Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realizing Economic,
Social and Cultural Rights”, 16 Human Rights Quarterly (1994), 693-714.
46
A Eide, “Realization of Social and Economic Rights and the Minimum Threshold Approach”, Human Rights Law
Journal (1989), pp. 35.
47
Supra 35 at 37.

97
groups or individuals from interfering with lawful communication of
information. Increasingly, governments must also fulfill the right by providing
information in circumstances of particular public interest. For example, in relation
to information concerning public health:

(1) The government has information that is relevant to the health or private life of
a particular individual. This obligation requires immediate implementation.
(2) A category of people has need for the information to protect their health or
their private lives and the government either has it or is in a position to collect
it. This obligation allows some discretion regarding what steps to take, but the
government must take some steps immediately, and the obligation to take
further steps increases over time.48

Increasingly, the obligation of governments to take positive steps to ensure that

people are able to exercise their fundamental rights is being asserted.
Governments are obliged to provide not only information that must be given
upon request, but also information that must be made publicly available without
the need for request, including information that would enable the protection and
exercise of political rights. This is especially important where illiteracy is high and
there is little awareness about rights.49

According to Sandra Coliver, there are several government obligations that can be
identified in relation to this right. These duties are arguably part of international
customary law but also arise from treaty law, and therefore have greater force on
States that have ratified the treaties.50

 Not to prohibit or otherwise interfere with communication of (health-related)

information;
 Not to discriminate in providing information;
 To ensure an opportunity for expression of opposing views in public forums
such as publicly supported schools and media;
 To ensure that programs receiving public funds do not withhold information;
 To take steps to prevent private groups or individuals from interfering with
the communication of information;

48
Coliver, Sandra. The Right to Know: Human rights and access to reproductive health information. Edited for Article
19, International Centre Against Censorship, 1995, (p. 46) (2nd: GA Res. 59(I) of 14 De. 1946, “Yearbook of the United
Nations 1946-1947 (New York: 1948), 33.
49
Jagwanth, Saras. “The Right to Information as a Leverage Right” in The Right to Know, The Right to Live:Access to
Information and Socio-Economic Justice, Calland, Richard and Allison Tilley, ed. Open Democracy Advice Centre,
2002, p.7.
50
Coliver, Sandra. The Right to Know: Human rights and access to reproductive health information. Edited for
ARTICLE 19, International Centre Against Censorship, 1995.

98
 To take concrete steps toward providing adequate and accessible information,
education and counseling necessary for protection and promotion of social
rights.51

7. How can the right to access public information be exercised to

promote and protect economic, social and cultural rights?
The right to access information is not only a right in itself, but a tool for exercising
other rights. That is to say, if for example, a citizen wishes to know if the State is
developing policies to counter discrimination in access to education, it is
necessary to have access to certain information related to those policies. In order
to know if the government is developing a campaign that aims to prevent certain
illnesses, it is necessary to know how public health policies are being
implemented. In other words, we need information to monitor the delivery of
political commitments to uphold our fundamental rights.52

The interaction of the right to information and social rights can be highly
instructive of a government’s attitude towards the realization of human rights in
general. States should allow individuals access to information that may have an
impact on their life, which will allow them to exercise other rights. Information is
important for learning about the existence and protection of social rights.
Individuals should know about public policies and measures that the government
has taken in relation to these rights, in order to control the development of such
policies. They should also be aware of the content of said policies, so as to analyze
how measures are considered in the budget and how budgetary commitments are
delivered. On the contrary, the failure to provide information or access to certain
information constitutes a violation of obligations that the State agreed to fulfill.

The UN Committee of Economic, Social and Cultural Rights (CESCR), has stated
for example in its General Comment No. 14 paragraph 11 and in relation to the
right to health, that information should be accessible. This includes the right to
seek, receive and impart information and ideas concerning health issues.53
Moreover, States have the obligation to submit reports on measures that they
have adopted and the progress made in achieving obligations assumed in the
ICESCR. In its General Comment No. 3, the Committee pointed out that States
should take a minimum core of obligations to ensure the satisfaction of at least the
minimum essential levels of each of the ESCR. If the State fails to meet that
minimum core based on a lack of resources, it has to demonstrate that efforts have
been made to use all the resources that were at its disposal.54 General Comment
No 1 paragraph 3 establishes that States should ‘...monitor the actual situation

51
Ibitem, at 328
52
Saba Roberto, “Derechos Sociales, Políticas Públicas y Acceso a la Información” , Serie de Seminarios Salud y
Política Publica, Centro de Estudios de Estado y Sociedad ( CEDES), Seminario VII; 2004.
53
General Comment No. 14 UN E/C.12/2000/4. para. 3 and 11.
54
General Comment No. 3 UN Doc E/1991/23 para 10.

99
with respect to each of the rights on a regular basis and are thus aware of the
extent to which the various rights are, or are not, being enjoyed by all individuals
within its territory.... The fulfillment of this objective cannot be achieved only by
the preparation of aggregate national statistics or estimates, but also requires that
special attention be given to any worse-off regions or areas and to any specific
groups or subgroups which appear to be particularly vulnerable or
disadvantaged’.55 Paragraph 4 adds that one of the objectives of the reporting
process ‘...is to enable the Government to demonstrate that such principled policy-
making has in fact been undertaken’.56 This means that the State should have
available information in relation to ESCR even, when its realization is to be
achieved progressively.

In The Right to Know, The Right to Live, Saras Jagwanth provides a meaningful
summary of how the right to access public information is related to other rights:57

 It is a component part of other rights (e.g. free expression, administrative

justice, and the right to fair trial);
 It gives effect to and protects rights (e.g. clean environment);
 It assists in the enforcement of rights (e.g. right to equality); and
 It prevents further violations by opening up activity to constant scrutiny.
In addition, there is a positive duty under international law to provide
information for both facilitating the exercise of other rights and effectively
monitoring their achievement.58

7.1. Awareness
The right to access public information about one’s economic, social and cultural
rights is not only related to these rights – it is a precondition for their realization.
Without information about the scope and content of their rights to health, housing
or work, citizens are unable to determine whether their rights are being respected.
International law recognizes this connection. For example, the World Health
Organization Constitution provides for policies of promotion, information and
education for health as part of States’ obligations.59 Another example is the
Brundtland Report60, which, in relation to the right to a healthy environment,

55
General Comment No. 1 UN E/1989/22, para. 2.
56
General Comment No. 1 UN E/1989/22, para. 4.
57
Jagwanth, Saras. “The Right to Information as a Leverage Right” in The Right to Know, The Right to Live:Access to
Information and Socio-Economic Justice,p 13.
58
Ibidem.
59
Constitution of the World Health Organization, Basic Documents, Official Document No. 240 (Washington, 1991).
The Constitution of WHO was adopted at the International Health Conference held in 1946 in New York, where it was
signed by the representatives of sixty-one states, p.283.
60
In 1983, the UN General Assembly created the World Commission on Environment and Development
(WCED), chaird by Norwegian Prime Minister Gro Harlem Brundtland. In December 1987, the WCED
published the Brundtland Report p.288.

100
recommends that governments recognize the right of individuals to know and
have access to information about their environment and natural resources.61

Some rights, such as the right to education, require increased popularization

through, for example, community-based education and awareness activities,
especially among women and school-aged children.

Here follow three examples that illustrate the link between access to information
and other rights – the right to a fair trial, to a healthy environment, and the right
to the security of the person.

 Right to a fair trial. In Shabalala v. Attorney-General of the Transvaal,62 the

South African Constitutional Court held that fair trial rights must be read
together with the right to information, and “in the broad context of a legal
culture of accountability and transparency.” It found that a right to a fair
trial includes the right to access public dockets and other information held
by the State.
 Right to a healthy environment, privacy and family life. In Guerra and
Others v. Italy,63 the European Court of Human Rights held that not
providing information that would have allowed residents to assess the
risks of living near a chemical plant was a violation of Article 8 of the
ECHR. Article 8 protects the right to privacy and family life. In McGinley
and Egan v. United Kingdom the same Court held that Article 8’s right to
family life required the government to have an effective and accessible
procedure for providing information regarding government involvement
in nuclear testing.
 Right to security of the person. In Canada, a court found that the police
force was under an obligation to provide information regarding threats to
public safety under the right to security of the person.64

7.2. Moniroting
The right to access public information is also vital to monitoring the achievement
of all ESCR. The reporting requirement every five years under the ICESCR is most
effective when States parties provide meaningful information about the
achievements and measures taken. International guidelines indicate that reporting
should include not only data but also meaningful analysis to evaluate trends and
demonstrate whether the State is fulfilling its obligation under the ICESCR.65

61
Cited in Lloyd Timberlake, “Freedom of Information on the Environment,” Index on Censorship (London: Writers and
Scholars International) 18, nos. 6 and 7 (1983): 7.
62
2000 (12) BCLR 1696 (CC).
63
26 Eur H.R. Rep 357
64
Jane Doe v. Board of Commissioners of Police for the Municipality of Metropolitan Toronto (1998), 49 O.R. (3d)
487 (G.D.).).
65
General Comment 1 Reporting by States Parties UN Doc E/1989/22.

101
Information is vital at the more local level as well. For example, to evaluate the
extent to which the right to education is realized, it is necessary to have access to
literacy rates, enrollment rates, commuting times, dropout rates, and budgets, not
only in the aggregate but disaggregated by gender, social class, geographic
centers (urban, rural), religion and ethnicity.66 These factors should be measured
over time using trend analysis of key indicators and benchmarks.

7.3. Litigation
Information is often critical to the ability to effectively litigate ESCR. For example,
it is difficult to prove the existence of discrimination in equality claims when
discrimination is denied or unconscious, without concrete evidence.

In particular, in cases involving positive obligations, relevant statistics about the

effect of a policy or injuries suffered have been the deciding factors in a case.67
Information is especially crucial in environmental and health cases, when factors
such as air and water quality, emissions and their effects on individuals can be
quantitatively measured.

The Centre on Housing Rights and Evictions, an NGO based in The Netherlands,
published a 2003 report entitled Litigating Economic, Social and Cultural Rights:
Achievements, Challenges and Strategies, featuring 21 case studies of ESC rights
litigation. Throughout the case studies, the interdependent relationship between
access to information and the realization of ESC rights is revealed.

In India, in a 2001 case advocating for the right-to-food, a court order

stipulated that the government must publicize to families living below the
poverty line, their right to grain, so as to ensure that all eligible families were
covered by the right.68
 In the Philippines, in the struggle against the privatization of electricity,
Cookie Diokno of the Free Legal Assistance Group noted that what the human
rights groups lack is evidence that the companies, when raising their prices,
are acting as a cartel. She also noted the general need for economists,
accountants, and other technical analysts to verify the information being used,
and cited an example of a water company who presented an inaccurate
discount rate for loan repayment, stating it was 18% when it was actually 5%.69

66
Circle of Rights: Economic, Social & Cultural Rights Activism: A Training Resource.
International Human Rights Internship Program and Asian Forum for Human Rights and
Development, p, 309 (2000).
67
The Centre on Housing Rights and Development. Litigating Economic, Social and Cultural Rights:
Achievements, Challenges and Strategies, (2003), p.25.
68
Ibidem, p. 36.
69
Supra Nº 57 at 53.

102
 In Argentina, Victor Abramovich, former director of the Argentina-based
Center for Legal and Social Studies (CELS), noted that in its case against the
government for the right to a vaccine for haemorrhagic fever, the public
information from the Ministry of Health regarding the vaccine, its
effectiveness, and the political policies was the most relevant data to solve the
case. The information served as the State’s recognition of the fact that a vaccine
was the only way to effectively address the epidemic, and rather than have a
policy debate in court, CELS needed instead to transform an already-made
political decision into a legal obligation.70
 In Canada, in advocating for substantive equality rights for the poor, Bruce
Porter, Director of the Social Rights Advocacy Centre, stressed that
concreteness is critical. Therefore, if welfare benefits are being cut, activists
should bring specific evidence demonstrating families’ financial inflow and
outflow and how many homes will be lost as a result.71
 In Ecuador, one of three approaches used in cases combating water pollution
was the right to information and to participate in the oversight and decisions
related to the oil industry.72 The NGOs also utilized ILO Convention 16973,
which calls for transparency and participation before the undertaking of major
projects that will affect indigenous groups.74
 In Nigeria, in a case against the exploitation of oil reserves by Shell Oil, part of
the court decision stated that the government must provide information on
environmental and health risks to the people in addition to social impact
assessments, in the future.75
 In Portugal, in a case against child labour before the European Committee on
Social Rights, the principal argument was that Portugal was not doing enough
to enforce its anti-child labour legislation, including that the government’s
statistics were flawed and understated the problem.76
 In eviction cases against the Dominican Republic brought before the UN
Committee on ESCR in 1990, the level of detail in the information provided to
the Committee proved extremely effective. The Committee’s Concluding
Observations (in its first ever ruling against a State), included the individual
names of people affected by the evictions based on an NGO’s fact-finding
mission in the slums which provided testimonial and photographic evidence
of the State’s violations.77

70
Supra Nº 57 at 63.
71
Supra N° 57 at 74.
72
Supra N° 57 at 83.
73
Convention No.169 of the International Labour Organisation, the Indigenous and Tribal People’s Convention, 27 June
1989, in force 5 September 1991, (1989), 28 ILM 1382.
74
Supra Nº 57 at 82.
75
Supra N° 57 at 120.
76
Supra N° 57 at 140.
77
Supra N° 57 at 160.

103
8. What strategies can be employed by NGOs to realize economic,
social and cultural rights?
Some countries, such as Argentina or South Africa, have incorporated
international human rights treaties within their constitutions as well as some
judicial tools such as the writ of individual and collective Amparo, which allow not
only individuals but also groups to invoke the constitutional provision to obtain
relief when their social rights are violated. Therefore, the non-compliance of the
State with their international obligations will indicate the violation not only of the
international commitment assumed but also of the constitution.

Taking Van Hoof’s approach,78 if it is possible to identify which international

obligations a state has assumed domestically, then we will be able to see how the
State behaves in relation to those obligations, and whether its actions or inactions
are upholding or violating ESCR. Thereafter, we can make use of existing legal
mechanisms to demand their enforcement and justiciability. As discussed earlier
in relation to ESCR, the UN has developed a three-tier system of obligations in
order to help identify the duties imposed on a State.79 The trilogy recognizes the
obligation to respect; protect; and fulfill. The obligation to respect is the negative
obligation that requires States to refrain from doing something while the
obligations to protect and fulfill are the positive obligations that require States to
take measures to protect the rights of individuals within the State.

 Obligation to respect:
The obligation to respect is the so-called negative obligation since it is related
to what the State should not do. Eide has defined it as the obligation ‘...that
requires the State ... to abstain from doing anything that violates the integrity
of the individual or infringes on his or her freedom...’80 ‘Although this duty of
restraint upon States closely resembles the obligations generally associated
with civil and political rights, it is also intimately a part of [ESCR] as well’.81
‘Respect’ implies also the non-regression in the enjoyment of ESCR that
individuals have been currently enjoying. In this sense, the State should not
adopt any measure that may worsen the enjoyment of [ESCR].82 This
obligation also implies that States should refrain from interfering with social
rights by any practice, policy or legal measure that could violate ESCR.

78
G.J.H van Hoof, ‘The legal Nature of Economic, Social and Cultural Rights: a Rebuttal of Some traditional Views’, in
P. Alston and K. Tomasesvski (ed.), The right to Food (Netherlands,Martins Nijhoff Publishers , 1982), p. 97.
79
See C. Scott and P. Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South
African Constitution’ in (1992) (141-No1) University of Pennsylvania Law Review, pp. 3-147.
80
A. Eide, ‘The New International Economic Order and the Promotion of Human Rights’ , UN Doc.
E/CN.4/Sub.2/1987/23, 7 July 1987.
81
V.Dankwa et al., ‘Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’
in (1998) (20) Human Rights Quarterly, pp. 705-730.
82
The Committee stated in its General Comment No. 3 paragraph 9 that ‘...any deliberately retrogressive
measures in that regard would require the most careful consideration and would need to be fully justified by
reference to the totality of the right provided for the Covenant and in the context of the full use of the maximum
available resources’. UN Doc E/1991/23 para.9.

104
 Obligation to protect:
The obligation to protect is the positive obligation of the State to prevent
human rights’ violations by third parties. The State has a positive duty, which
is to prevent certain rights from being violated by private actors. According to
Van Hoof the obligation to protect requires the State to take measures in order
to prevent individuals or groups from violating human rights. In this context
‘...the State must respect human rights limitations and constraints within its
scope of action, but it is also obliged to be active in its role as protector and
provider’.83 The State should adopt legislative measures and other measures to
fulfill this obligation.

 Obligation to fulfill:
The obligation to fulfill requires the most proactive and programmatic action
on the part of the State. According to Eide this obligation requires the State to
take the appropriate measures in order to provide ‘...for each person within its
jurisdiction opportunities to obtain satisfaction of ... needs, [such as food,
health, housing, education etc], which cannot be secured by personal efforts’.84
Thus, the failure of the State to take those positive interventions could result in
ESCR violations, for example if the State omits to provide measures that tend
to reduce infant mortality, or to provide free compulsory primary education,
or to prevent children from exploitation or if it omits to take the appropriate
measures to guarantee access to medical health services.

Under the obligations imposed by article 2 (1) of the ICESCR, state parties are
required to take steps, to the maximum of their available resources, with a view to
achieving progressively the full realization of the rights recognized in the
Covenant.85 ‘The progressive realization imposes the obligation on States to move
as expeditiously and effectively as possible towards the goal of realizing fully
[ESCR], and as an obligation, exists independently of any increase in available
resources’.86 However, the condition to achieve progressively the positive
obligations assumed by the State, according to Article 2(1) of the ICESCR, does
not impede individuals from using judicial strategies in order to effectively
evaluate if the State has taken the appropriate measures, since the Committee of

83
Supra Nº 68 at 106.
84
A. Eide ‘Realization of Social and Economic Rights The Minimum Threshold Approach’: in (1989) (43)
International Commission of Jurist. p 42.
85
International Covenant on Economic, Social and Cultural Rights adopted 16 Dec. 1966, entered into force 3 Jan. 1976,
G.A. Res.2.200 A (XXI), UN Doc. A/6316 (1966), 993 UNTS 3, reprinted in 6 ILM 360 (1967).
86
S.Leckie, ‘The jusiticiability of Housing Rights’, in SIM Special 18 p. 35-76.

105
Economic, Social and Cultural Rights, has recognized by its General Comment
No.3 that some obligations are of immediate effect.87

On the one hand, States should guarantee that relevant rights will be exercised
without discrimination (article 2.2 ICESCR) and on the other, States should take
steps which are not inherently qualified or limited by other considerations (article
2.1 of the ICESCR). Thus, ‘...while the full realization of the relevant rights may be
achieved progressively, steps towards that goal must be taken within a
reasonably short time’.88 As the General Comment states, such steps should be
deliberate, concrete and targeted as clearly as possible towards meeting the
obligations recognized in the Covenant.89 Additionally, ‘...state parties have an
obligation to begin immediately to take steps towards the full realization of the
rights contained in the Covenant, [in this respect they] shall use all appropriate
means, including legislative, administrative, judicial, economic, social and
educational measures...in order to fulfill their obligations under the Covenant...’.90

8.1. Litigation Strategies

In this context, the failure of the government to take measures or remove
obstacles, or to implement a right required by the Covenant without delay, or to
deliberately retard the progressive realization of a right, can be legally challenged
in order to assess the level of fulfillment of the obligations assumed by the State.
In such cases, information is relevant not only to measure the level of fulfillment
of ESCR, but to challenge the extent to which the State has taken the appropriate
measures towards the progressive achievement of ESCR. If individuals can
identify clearly that the State has failed in taking the appropriate measures or in
fulfilling its ESCR obligations and in so doing violated certain ESCR, the court can
instruct the government in relation to necessary measures to fulfill its legal
obligations.

Whether cases are won or not, the public can benefit from the very nature of legal
proceedings in that they allow for scrutiny of public policies and practices.

Litigation can be intended to achieve limited concrete goals or can be used to

obtain practical advantages, raising public consciousness of the merits of a case
and building up political pressure in support of it. Moreover, litigation has an
added value since it can attempt to reassert constitutional priorities and to
maintain and influence policy formulation when other channels of
communication are being closed.

87
UN Doc E/1991/23 General Comment No. 3.
88
Ibidem, para. 2.
89
Ibidem.
90
The Limburg Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights in UN Doc E/CN.4/1987/17 para, 16 -17.

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Social rights litigation tends to concentrate on large scale violations of rights, since
there is an inherent group component to the enjoyment of these rights. The
judiciary is used to denounce social concerns and to highlight violations created
by the political and social systems, with the idea of creating change in the political
attitude and pressing for a correction of social injustices.91 On the other hand, it
tries to generate a high degree of participation, with unprecedented exposure of
cases to public opinion.

8.2. Non-Litigation Strategies

Non-litigation strategies such as public awareness campaigns, social mobilization,

advocacy, and submission of amicus curiae briefs are important complements to
litigation. They serve to sensitize the judiciary to the claims of advocates by
demonstrating that the litigants have public support. They also add to the
legitimacy of judicial decisions and make it more likely that they will be enforced
and maintained over time.92 At the national level, NGOs should urge compliance
with international obligations by mobilizing mass support to call for reform of
laws, policies or practices to comply with international obligations and by
petitioning courts and administrative agencies to enforce the obligations.93 At the
international level, NGOs should call on international bodies that monitor
compliance to take the necessary steps to do so effectively.94

91
D. Feldman ‘Public Interest litigation and Constitutional Theory’ in (1992) (55) Modern Law Review, p
72.
92
Supra No. 57 at 25.
93
Coliver, Sandra. The Right to Know: Human rights and access to reproductive health information. Edited for
ARTICLE 19, International Centre Against Censorship, 1995, p. 348.
94
Ibidem, 349.

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