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«the Pacific THE CRIMINALISATION OF BRIBERY IN ASIA AND THE PACIFIC Frameworks and Practices in 28 Asian and Pacific jurisdictions Thematic Review – ...»

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Limited special investigative techniques are available in bribery investigations in Sri Lanka. Undercover operations and secret surveillance have been used in criminal investigations. The CIABC may issue warrants to search and seize for evidence (CIABC Act Section 7). A court has similar powers under the Penal Code Sections 68-70. There are no statutory provisions on wiretapping, listening and bugging devices, secret surveillance, video recording,

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email interception, undercover police operations (e.g. ―sting‖ operations), or controlled deliveries.

International assistance is available in bribery cases. Bribery is an extradition offence under the Extradition Act, while all crimes qualify for mutual legal assistance (MLA) under the Mutual Assistance in Criminal Matters Act. A wide range of MLA is available. However, both Acts only allows extradition/MLA to be sought from designated Commonwealth countries and countries with which Sri Lanka has treaty relations.

An offender may receive immunity from prosecution if he/she co-operates with the authorities. Under the Bribery Act Section 81, a judge may pardon a cooperating offender on the condition that he/she makes ―full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor.‖ The Judge may grant the pardon at any time before the offender‘s trial concludes.

Two points should be noted. First, the provision requires the offender to make full disclosure of the offence, but falls short of requiring the offender to testify in court against another accused. Second, this is an ―all-or-nothing‖ provision. It does not contemplate plea bargaining that would allow an offender to assist the authorities in return for a reduced sentence, for example.

ENFORCEMENT OF BRIBERY OFFENCES

The CIABC conducts criminal bribery investigations in Sri Lanka, while the Director-General is responsible for criminal bribery prosecutions (the Commission to Investigate Allegations of Bribery or Corruption Act, Sections 4 and 11). Recent reports, however, indicate that the CIABC would cease to function after 29 March 2010.

Statistics on investigations, prosecutions, convictions, and sanctions for passive and active domestic bribery in Sri Lanka are not available. The Web site of the CIABC Corruption only mentions convictions of several notable officials. A recent article suggests that the CIABC is severely under-resourced.

Furthermore, investigators are not hired by the CIABC but seconded from – and continued to answer to – the police department. This reduces the CIABC‘s ability to direct its investigators and to maintain the independence of its investigations.

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RECOMMENDATIONS FOR A WAY FORWARD

Elements of the Active and Passive Domestic Bribery Offences Sri Lanka‘s general active and passive domestic bribery offences in the Penal Code and Bribery Act already meet several aspects of international standards, e.g. coverage of third party beneficiaries, and both monetary and non-monetary bribes. Sri Lanka could strengthen these offences by addressing

the following issues:

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Bribery of Foreign Public Officials To bring its criminal bribery offences in line with international standards, Sri Lanka should criminalise the bribery of officials of foreign governments and public international organisations in the conduct of international business.

Liability of Legal Persons for Bribery International standards require that legal persons be held liable for bribery. Sri Lanka‘s Penal Code broadly defines ―persons‖ to include ―any company or association or body of persons, whether incorporated or not‖.

However, it is unclear whether legal persons have been held criminally liable for bribery in Sri Lanka. To improve the effectiveness of this regime, Sri Lanka could consider whether its system for imposing corporate liability takes one of

two approaches:

(a) The level of authority of the person whose conduct triggers the liability of the legal person is flexible and reflects the wide variety of decision-making systems in legal persons.

(b) Alternatively, liability is triggered when a person with the highest level managerial authority (i) offers, promises or gives a bribe to an official; (ii) directs or authorises a lower level person to offer, promise or give a bribe to an official; or (iii) fails to prevent a lower level person from bribing an official, including through a failure to supervise him/her through a failure to implement adequate internal controls, ethics and compliance programmes or measures.

Sri Lanka could also consider addressing the following issues:

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(b) The lack of prosecutions of legal persons in practice.

Jurisdiction for Prosecuting Bribery Sri Lanka only has territorial jurisdiction to prosecute bribery. To ensure its overall jurisdictional basis for prosecuting bribery is sufficiently broad, Sri

Lanka could address the follow matters:

(a) Nationality jurisdiction to prosecute natural and legal persons for bribery that occurs outside of Sri Lanka; and

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Sanctions for Bribery The maximum available punishment against natural persons for bribery offences in Sri Lanka is largely in line with international standards. To ensure an

effective regime in practice, Sri Lanka could consider addressing:

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Tools for Investigating Bribery Sri Lanka has some useful investigative tools for bribery cases, such as the power to obtain documents and information from financial institutions

through a summons process. Sri Lanka could consider some additional matters:

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(d) Special investigative techniques in bribery investigations, such as wiretapping, email interception, video recording, listening and

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Enforcement of Bribery Offences To properly measure the effectiveness of its criminalisation of bribery, Sri Lanka should maintain statistics on investigations, prosecutions, convictions, and sanctions for active and passive domestic bribery.

RELEVANT LAWS AND DOCUMENTATION

The Penal Code, Bribery Act and other Sri Lankan legislation: Commonwealth Legal Information Institute - www.commonlii.org

Commission to Investigate Allegations of Corruption or Bribery:

www.ciaboc.gov.lk APG (2006), Mutual Evaluation Report on Sri Lanka: www.apgml.org NOTES See Illustrations (a) to Penal Code Sections 102 and 109. See also P.

Sivasambu, Inspector of Police v. Nugawela, [1939] LKHC 5, 41 NLR 363.

Tennakoon v. Dissanayaka, [1948] LKHC 56, 50 NLR 403 at 404.

Ibid. at 407-408.

See Illustrations (a) under Penal Code Sections 102 and 109.

See Penal Code Section 109 and Illustration (a) under that Section.

See: UNCAC Article 2(a); OECD Convention Article 1; Inter-American Convention Against Corruption Article 1; and, African Union Convention on Preventing and Combating Corruption Article 1.

See Bribery Act Sections 14-16 and 22.

See OECD Convention, Commentary 19.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 480 Criminalisation of Bribery in Asia and the Pacific That (a) and (b) do not cover bribery for an act which an official does not have power to perform was confirmed in Tennakoon v. Dissanayaka, [1948] LKHC 56, 50 NLR 403.

It is unclear whether this would be covered by a broad interpretation of Penal Code Section 162 (Taking gratification, in order, by corrupt or illegal means, to influence public servant) and Section 163 (Taking gratification, for exercise of personal influence with public servant).

U.K. Law Commission Report, Reforming Bribery (2008) at para. 6.26.

See U.K. Law Commission, Reforming Bribery (2008) at para. 6.27; OECD (2005), Phase 2 Report: United Kingdom at paras.

200; Phase 2 Report:

New Zealand at paras. 182 and 188.

OECD (2009), Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex I.

Fines and forfeiture are also available upon conviction for unjust enrichment (Bribery Act Sections 26A and 28A).

For example, see the Prevention of Money Laundering Act, Section 16.

For instance, the Prevention of Money Laundering Act, Section 7(1) provides for a Freezing Order prohibiting ―any transaction in relation to any account, property or investment‖.

Asia/Pacific Group on Money Laundering (2006), Mutual Evaluation Report on Sri Lanka, para. 183.

An applicable treaty or foreign legislation may impose additional conditions.

Rodrigo, P.C. (2010), ―Sri Lanka‘s Bribery Commission needs more firepower‖, Sunday Times (www.sundaytimes.lk) ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Thailand Criminal Code (Provided by the National Anti-Corruption Commission Thailand) Section 143 Whoever, demanding, accepting or agreeing to accept a property or any other benefit for himself or the other person as a return for inducting or having induced, by dishonest or unlawful means, or by using his influence, any official, member of the State Legislative Assembly, member of the Changvad Assembly or member of the Municipal Assembly to exercise or not to exercise any of his functions, which is advantageous or disadvantageous to any person, shall be punished with imprisonment not exceeding five years or fine not exceeding 10 000 Baht, or both.

Section 144 Whoever, giving, offering or agreeing to give property or any other benefit to an official, member of State Legislative Assembly, member of Provincial Assembly or member of Municipal Assembly so as to induce such person to do or not to do any act, or to delay the doing of any act contrary to one‘s own duty, shall be imprisoned up to five years or fined up to ten thousand Baht, or both.

Section 148 Whoever, being an official, by a wrongful exercise of one‘s functions, coerces or induces any person to deliver or to procure the property or any other benefit, for oneself or another person, shall be imprisoned for five to twenty years or for life, and fined between 2 000 to 40 000 Baht, or death.

Section 149 Whoever, being an official, member of State Legislative Assembly, member of Provincial Assembly or member of Municipal Assembly, wrongfully demands, accepts or agrees to accept for himself or another person a property or any other benefit for exercising or not exercising any of his functions, whether such exercise or non-exercise of his functions is wrongful or not, shall be punished with imprisonment of five to twenty years or imprisonment for life, and fined up to 20 000 to 40 000 Baht, or death.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 482 Criminalisation of Bribery in Asia and the Pacific

INTRODUCTION

The Thai legal system has civil law influences, e.g. it is based on a code system and judicial decisions are not binding. Thailand signed the UNCAC in 2003 but has yet to ratify the Convention. Its criminal bribery offences have not been externally reviewed. Thailand was a founding member of the APG in 1997.

ELEMENTS OF THE ACTIVE AND PASSIVE DOMESTICBRIBERY OFFENCES

Thailand‘s general active and passive domestic bribery offences are mainly in the Criminal Code (CC). CC Sections 144 and 149 deal with active and passive bribery of most public officials. Active and passive bribery of judicial officials (including prosecutors) are covered by CC Sections 167 and 201 respectively. Section 148 contains a separate offence for an official who wrongfully exercises his/her function to coerce or induce a person to deliver or procure property or other benefit. Passive bribery of officials of state-owned enterprises (SOEs) are covered by Sections 3, 5, 6 and 7 of the Act on Offence of State Organisation or State Agency Official B.E. 2502 (OSO Act). Thailand has also criminalised passive bribery of persons who accept an advantage before becoming public officials (CC Sections 150 and 202), which goes beyond the requirements of international standards.



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