ACC to have no power to sue public servants
The government on Sunday tabled the Anti-Corruption Commission (Amendment) Bill 2011 in parliament proposing provisions for stripping the anti-graft watchdog of the authority to sue public servants on graft charges.
Agriculture minister Matia Chowdhury, also in charge of the cabinet division for
parliamentary affairs, piloted the bill that proposes 13 amendments to the
Anti-Corruption Commission Act 2004.The bill was sent to the parliamentary standing committee on the law ministry for further scrutiny.
If enacted, the bill would take away the commission's powers to appoint its
secretary and to sue public servants on graft charges.The bill proposes substitution of a new Section 32 for the existing Section 32.
The proposed section says no court will take cognisance of any offence under the act without sanction of the commission.
A copy of the sanction of the commission and, in an appropriate case, a copy of
the sanction of the government and the commission must be submitted while filing a graft case, the proposed section says.The existing section says that the sanction by the commission is a must for filing of a graft case and a copy of the sanction needs to be submitted while filing the case.
the sanction of the government and the commission must be submitted while filing a graft case, the proposed section says.The existing section says that the sanction by the commission is a must for filing of a graft case and a copy of the sanction needs to be submitted while filing the case.
The bill proposes insertion of a new Section 32A that says the provisions
stipulated in Section 197 of the Code of Criminal Procedure must be followed in
filing a graft case against a judge, magistrate or public servant, subject to
Section 32 of the act.
The Section 197 of the CrPC says, 'When a person who is a judge within the
meaning of section 19 of the Penal Code, or when a magistrate, or when any
public servant who is not removable from his office save by or with the sanction
of the government, is accused of an offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official duty, no
court shall take cognisance of such offence except with the previous sanction of
the government.'
The act, however, does not have any definition of 'public servant'.
Article 152 of the constitution defines 'public officer' as 'a person
holding or acting in any office of emolument in the service of the republic'.
The Bengali version of the article makes the same definition for 'public
servant' (sarkari karmachari).
The term 'public servant' is, however, defined in the Penal Code. The long
list of persons falling in the definition of public servant, as defined in the
Penal Code, includes commissioned officers in the armed forces, judges, court
officials, arbitrators, assessors, income tax officers, persons empowered to
place or keep any person in confinement, government officials entrusted with the
duty to prevent offence in the society and to protect public health, safety or
convenience, officers assigned to take, receive, keep or expend any property on
behalf of the government and to make survey or assessment or to levy tax for
common purpose of any village, town or district, Election Commission officers,
municipal commissioners and persons in the service or pay of the government or
remunerated by the government by fees or commissions and in the service or pay
of a local authority or of a corporation, body or authority established by or
under any law.
The bill proposes empowerment of the government to appoint a secretary to the
commission.
If the bill is enacted, the commission will have no power to summon witnesses or
to record their depositions on oath.
According to the bill, the commission will be able to assign its officials or
police or any other institution to investigate an offence of corruption. The
existing act does not allow investigation of any graft offence by any person or
institution other than the officials of the commission.
The commissioners will be stripped of their power to investigate any graft case.
The bill proposes a 120-working-day timeframe for investigation of a graft case.
The commission, will, however, have the power to extend the deadline by 60
working days.
If the investigation officer fails to meet the extended deadline, another
investigation officer will be assigned to investigate the case and the failed
investigation officer will face departmental action, says the bill.
The bill proposes empowerment of the commission to seek any report or
information from the government or any government institutions or organisations
and to seek assistance from one or more officials who have expertise on the
matter.
The bill says the commission can notify any individual asking for his/her wealth
report, if it finds that the individual possesses assets disproportionate to his
legal income, after conducting an inquiry, instead of investigation, into the
allegation.
The bill proposes insertion of a provision that says the offences under the act
will be cognisable, non-compoundable and non-bailable.
It proposes stipulation for non-disclosure of the identity of a person who makes
an allegation of corruption or provides the commission with information of
graft. It also says that no court will allow any person to examine any part of
any book or document that contains any information about the identity of such
person.
The court, however, can disclose the identity of such persons, if it thinks that
the persons have made a false allegation or if such disclosure is necessary to
ensure justice, the bill says.
The bill says any person will be sentenced to rigorous imprisonment for two to
five years for making a false allegation of corruption or providing the
commission with false information about graft.
If such person is a public servant, he or she will also face departmental
proceedings.
On Sun, Feb 27, 2011 at 10:19 AM, Isha Khan <bdmailer@gmail.com> wrote:
Only people's graft to be under watchChanges to anti-corruption law kept under wraps; from president to UP members to be beyond ACC's jurisdictionMaintaining utmost secrecy the government is set to amend the Anti-Corruption Commission laws clipping the anti-graft watchdog's authority to file cases against any public servant beginning from the head of state to the members of union parishads.
Besides, the cabinet chaired by Prime Minister Sheikh Hasina recently finalised nine more amendments keeping the ACC completely ignorant about it. Since then repeated attempts by the commission to get a written copy of the finalised amendments turned futile.
According to information gleaned by The Daily Star, the most damaging amendment would be the provision to require prior permission before filing cases against officers and employees of the republic.
Earlier in the draft proposal sent to the ACC, it was mentioned that permission would be required for filing cases against "government officials and employees". Based on that confusing wording, different sections of the media reported that lawmakers would remain out of cover.
Asked for a written copy of the finalised amendments to see what the proposal actually means, Cabinet Secretary Abdul Aziz refused to give it.
"It might confuse people if we make it public now, as the parliament might bring more changes to the proposed amendments," Abdul Aziz said.
"People will know it after it is passed in the parliament by their representatives," the cabinet secretary added.
However, section 7 of the Right to Information Act, 2009 allows keeping any cabinet decision secret only when prior permission is taken from the Information Commission.
Information Commissioner Prof Sadeka Halim confirmed that the cabinet did not take any such permission from them.
Former caretaker government adviser, Dr Akbar Ali Khan, assumed that keeping the decision secret, implies there might be two reasons behind it. Either the government is still examining whether they should bring the amendments, or the government would make the amendments hastily before anybody knows about it.
"But there is no scope for the government to keep the amendments secret, as ultimately it will be placed before the parliament. I cannot say for sure why the government is behaving this way, I can only assume," Akbar Ali Khan added.
Abdul Aziz, however, confirmed that as per the proposed amendments, prior permission would be required before filing a case against public servants defined by section 21 of the Penal Code.
"The section of the Penal Code refers to public servant meaning persons employed in service of the people and paid by the government," said ACC's counsel Anisul Huq. "The head of state, prime minister, ministers and advisers will be on the list of public servants," he added.
This amendment would make the ACC vulnerable to misuse on political purposes, for harassing people, like the time of now-defunct Bureau of Anti-Corruption, Anisul Huq observed.
The main objective of transforming the Bureau of Anti-Corruption into an independent commission in 2004 was to equip it with power of prosecuting corrupt public servants, who, according to Transparency International Bangladesh (TIB) surveys, are largely involved in corruption.
Barrister Rokanuddin Mahmud mentioned that public servants include lawmakers, people working in statutory bodies, and also local government representatives of all tiers.
According to the Penal Code, the long list of public servants also includes commissioned officers in the armed forces, judges, officers of a court of justice, jurymen, assessors, or members of a panchayat assisting a court of justice, income tax officers, Election Commission officers, municipal commissioners and government officials entrusted with the duty to prevent offence in the society.
Article 152 of the constitution defines public officers as persons holding or acting in any office of emolument in the service of the republic.
"Experience shows the government rarely permits filing of cases against its officers. Whenever the permission comes, it is never against any high-profile officer," said Rokanuddin.
In case an ACC official eventually gets the permission, the problem does not end there as an anti-graft official would be jailed for between two and five years if he or she failed to prove the case before a court.
PROPOSED AMENDMENT
The amendment proposes jail term for two to five years with fine if any individual including ACC officials filed a false allegation or influenced the court by giving false information.
Regarding the ACC officials, the provision also proposes taking departmental action in addition to the jail term.
The provision would largely discourage ACC officials and individuals from filing cases or allegations as those can be proved false at any stage of legal proceedings.
"The provision is unnecessary as the anti-graft body does not take any allegation into cognisance without enquiry. Rather the government should protect those who will act as whistle blowers in combating corruption," said TIB Trustee Prof Muzaffer Ahmad.
About 80 to 90 percent of corruption enquiries and investigations currently underway in the ACC are results of individuals' complaints. The commission has a committee to scrutinise the complaints before initiating an enquiry.
If an enquiry finds merit, commission examines it, and gives permission to file a case. Another investigation is conducted following that step.
"Punishment for filing a false case means punishment of the commission as it approves the case. A case may be proved false during a trial for a lot of reasons," said TIB Chairman M Hafizuddin Khan.
The third amendment adds a further twist proposing cancellation of the ACC's authority to summon witnesses for their statements during investigations. Instead, the amendment proposes issuance of notices to witnesses.
If ACC investigators cannot summon witnesses, they might not appear before the commission, hampering investigations greatly.
"It will undermine the credibility of the investigation, besides creating procedural flaws and affecting its effectiveness," said TIB Executive Director Iftekharuzzaman.
The cabinet also finalised appointment of the ACC secretary by the government, prompting experts to comment that the amendment goes directly against the spirit of the ACC's independence.
"This is a direct government intervention in ACC's independence. The secretary might not follow all decisions of the commission, and nurture bureaucracy," said Advocate Khurshid Alam Khan.
There is also the most diplomatic amendment proposing to make ACC cases non-bailable, non-compoundable, and cognisable.
Though people welcomed the provision thinking it is positive, legal experts term it an eyewash through a game of words, as "non-bailable" does not necessarily mean graft suspects would never obtain bail.
"It is nothing new as it already exists regarding different offences like murder and rape. Non-bailable offenes are usually non-compoundable. And people can get bail in those cases through the court," explained Rokanuddin Mahmud.
Allowed time for an investigation is also proposed to be increased to 180 days from the existing 60 days. Experts say this change is insignificant, and in some cases it might even make an investigation unnecessarily lengthy.
The only amendment that is welcomed by all is that no ACC official would be able to be the investigator of corruption allegation against their colleagues. Instead, another government official would do the job.
Another amendment proposed to cancel the ACC's authority to take witnesses' statement under oath. It caused mixed reaction giving rise to a debate over the intention behind this proposal, which indicates creation of impediments to ACC's effectiveness.
Keeping secret the identities of people revealing corruption information is proposed in another amendment.
None of the ACC's own amendment proposals including for increase of its human resources, making its laws supreme over other laws, and making the commission able to seek expertise from other government agencies was accepted by the cabinet.
"The power of the commission would be greatly curtailed and its independence would be greatly compromised. I would request the government to consult various sections of the population before coming to a conclusion," said Anisul Huq.
ACC Chairman Ghulam Rahman only expressed the hope that there would be refinement of the proposals in the parliament. He said he expects opinions of people would be considered in the parliament and international anti-corruption laws would be discussed there.
http://www.thedailystar.net/story.php?nid=175686
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