Sri Lanka Adopts an Anti-Corruption Act

Anti-Corruption Act. No. 9 of 2023 adopted following the requirements of the International Monetary Fund as a prerequisite for disbursing financial aid to the country envisages, in particular, the measures as described below.

1. Anti-corruption body

Under the Act, Sri Lanka establishes a dedicated anti-corruption agency, i.e. the Commission to Investigate Allegations of Bribery or Corruption (hereinafter, the Commission).

The Commission will fulfill the following functions:

conduct investigations, including preliminary ones, into facts of corruption offences, and initiate prosecution and cases in the magistrates’ courts following the investigations;
in the quality of the Central Authority on Declarations of Assets and Liabilities - collect, store and process declarations of assets of public officials;
collect, store and process tips of whistleblowers;
implement provisions of the United Nations Convention against Corruption and control the fulfillment of other international obligations related to the fight against corruption that the country has assumed;
raise public awareness about the prevention of and the fight against corruption, promote the participation of society, including civil society organisations and other non-governmental organisations, in the fight against corruption;
monitor and coordinate the implementation of effective public anti-corruption policy, monitor the activities of public bodies with the aim to detect corruption offences and the factors favouring their commission;
provide advice and other assistance to public bodies, public and private sector organisations on anti-corruption issues, and to public bodies and public sector organisations also on the matters of integrity in public administration;
submit bills aimed at countering corruption, and comments on bills promoted by other authorities to the attention of the legislative bodies;
interact with public bodies with a view to promoting the principles of the rule of law, good governance, integrity, transparency and accountability;
provide binding recommendations to the heads of public bodies on how to mitigate corruption risks and control their subsequent implementation;
develop and implement codes of conduct for the servants (employees) of the entities of the public and private sectors;
adopt corruption prevention measures upon the entrance of private sector organisations into contractual relationship with the state;
prepare quarterly report on the activities of the Commission for the President and Parliament etc.

In their investigations the servants of the Commission are entitled to:

enter any premises, inspect vehicles, in particular, ships and aircrafts, conducts searches if there are reasonable grounds to believe that there may be evidence of a crime and confiscate the evidence;
arrest suspects without a warrant if 1) a corruption crime is committed in the presence of a servant of the Commission; 2) there are reasonable grounds to believe that the suspect is involved in committing a corruption offence, in particular, based on the information disclosed by whistleblowers at the disposal of servants of the Commission; 3) the suspect obstructs the fulfillment of duties of a servant of the Commission, escapes or makes an attempt to escape from custody; 4) the suspect is caught in concealing the traces of the crime;
interrogate detainees, take fingerprints, make photofixation and other investigative actions;
freeze assets of suspects also by prohibiting to conduct any operations with property outside Sri Lanka;
ask telecom operators to provide information, intercept and decrypt messages;
interact with public authorities of foreign countries and international organisations;
conclude pre-trial agreements etc.

The Commission will act autonomously being functionally independent from the national Government.

The Commission will be headed by the Director-General appointed for a five-year non-renewable term by the President following the recommendation of the Constitutional Council and after consulting the members of the Commission. The members of the Commission will be appointed under the same procedure for a three-year non-renewable term.

Conflict of interest

The Director-General and all servants of the Commission are obliged to prevent and manage conflict of interest as per the Act.

The Director-General and the servants of the Commission should submit, prior to the assumption of their office, a declaration of interest as of the date of their appointment to the Constitutional Council; if they are in a conflict-of-interest situation, they must inform the authorised person of the Commission accordingly before considering any issue and must be suspended from decision-making if there is any direct or indirect interest.

Standards of conduct

Under the Act, the Commission should develop and adopt a Code of Conduct covering all servants of the body.

The servants of the Commission should also undergo relevant training.

Additionally, the servants of the Commission must report, under the procedure established by the Commission, all cases of any direct or indirect inducement to illegal, inappropriate or unethical actions leading to negligent performance of their duties or otherwise contrary to the Code of Conduct.

2. Elements of crimes and liability measures

The Act introduces liability for:

active and passive bribery of judges and other members of the judiciary, members of Parliament, Provincial Councils and local government bodies, police officers, law enforcement officials, other public officials, foreign officials, employees of public sector organisations, officials authorised to conclude public contracts;
extortion or receipt of remuneration for lobbying by members of Parliament, Provincial Councils and local government bodies;
getting illegal access to the e-declaration system;
offering or extorting/receiving a remuneration for not bidding on public tenders;
trading in influence;
commercial bribery;
active and passive bribery in sporting events;
illicit enrichment;
acts (omission) inflicting unlawful damage to the Government or giving undue benefit, favour or advantage to anybody;
criminal collusion with the aim to commit a corruption offence etc.

Complicity and an attempt to commit a crime is punished in the same manner as the commission of a crime, i.e. by imprisonment of up to seven years and a fine of up to 1 million LKR (roughly 3,075 USD) (except for acts (omission) inflicting unlawful damage to the Government or giving undue benefit, favour or advantage to anybody; in this case the term of imprisonment increases to ten years).

The court can also oblige the guilty to pay compensation to the individuals recognised as victims of corruption offences and/or transfer it to the dedicated Fund of the Commission.

The Act also introduces the possibility of non-conviction-based confiscation: the decision on the termination of ownership can be now adopted by the High Court at the request of the Director-General or other authorised person of the Commission within civil proceedings regardless of criminal prosecution if no evidence has been produced to disprove that the property is proceeds of a corruption crime or is used to commit such a crime.

3. Declaration of assets

Under the Act, all public officials must submit asset declarations within three months from their appointment or upon their nomination for elections, annually or in the case of considerable change in their assets by more than ten million LKR (approximately 31,000 USD) in a month when holding positions, within 14 days from the termination and for two years after the termination.

Declarations will be submitted and processed electronically through a system administered by the Commission. In order to verify the declarations, the Commission will have access to the records and databases of any public body.

Officials’ declarations shall also contain information on their spouses, economically dependent children, other dependants, cohabitees and individuals forming the same household with the declarants for at least six months prior to the submission of declarations.

Declarations will be published on the website of the Commission.

The Act also establishes liability measures for failing to comply with certain requirements, in particular:

in case of late submission of the declaration - daily fine of 1/30 of the last received monthly wage of the declarant for the period starting from the date of submission of declaration to 31 July and everyday fine of 1/30 of the last received monthly wage of the declarant for the previous six months for the period from 1 to 31 August;
in case of failure to submit the declaration by 1 September - imprisonment for a period of up to one year and/or a fine of the last received wage of the declarant for the previous 12 months;
in case of failure to submit the declaration - imprisonment for a period of up to one year and/or a fine of 100,000 LKR (roughly 309 USD) or the last received monthly wage;
in case of submission of knowingly false information, concealment of property - imprisonment for a period of up to one year and/or a fine of up to 200,000 LKR (approximately 618 USD);
in case of refusal to submit clarifications to the declaration - imprisonment of up to one year and/or a fine of 100,000 LKR (roughly 309 USD).

4. Protection of whistleblowers

As per the Act, a whistleblower is a natural person reporting information that comes to his/her knowledge about a corruption offence that was committed, is being committed or may be reasonably expected to be committed in a public body, public or private sector organisation, in the activities of a person entitled to undertake their activities without forming a legal entity.

Whistleblowers are entitled to protection. This right is also granted to:

individuals who provided certain assistance to the whistleblower in reporting an offence;
individuals associated with the whistleblower who can also be subject to retaliation such as family members and the whistleblower’s dependants.

Protection of whistleblowers and their associates implies:

exemption from disciplinary, civil or criminal liability if the whistleblower who discloses information in line with the established procedure and has reasonable grounds to believe that this information is truthful and requires investigation commits an offence or a crime by disclosing this information;
exemption from liability for infringing restrictions on information disclosure established by the law or the employment contract and invalidation of any provisions of contracts to the extent that they deprive the whistleblower of the right to protection;
protection of the whistleblower from retaliation such as deterioration in working conditions, coercion, intimidation, infliction of damage, threats etc.

The protection measures are adopted by the Commission.

The Act will enter into force on the day of issuance of the respective Order of the Minister in the Gazette, but not later than within 18 months from the date on which the certificate of the Speaker is endorsed in terms of Article 79 of the Constitution.