Mar 29

The DECLARATION OF ASSETS AND LIABILITIES LAW was passed in August 1975.  It was amended subsequently by the DECLARATION OF ASSETS AND LIABILITIES (AMENDMENT) ACT No. 74 OF 1988.  The scope of this Law is such that it applies to (a) Members of Parliament; (b) judges and public officers appointed by the President, public officers appointed by the Cabinet of Ministers, judicial officers and scheduled public officers appointed by the Judicial Services Commission and staff officers in Ministries and Government Departments; (c) Chairmen, Directors, members of the Boards and staff officers of public corporations; (d) elected members and staff officers of local authorities; (da) office-bearers of recognised political parties for the purposes of elections under the Presidential Elections Act No.15 of 1981, Parliamentary Elections Act No.1 of 1981 or the Provincial Councils Elections Act No.2 of 1988 or the Development Councils (Elections) Act No.20 of 1981 or the Trade Unions Ordinance; (db) the executive of trade unions registered under the Trades Unions Ordinance; (dc) candidates nominated for election at elections to be held under the Presidential Elections Act No.15 of 1981, the Parliamentary Elections Act No.1 of 1981, the Provincial Councils Elections Act No.2 of 1988, the Development Councils (Elections) Act No 20 of 1981 or the Local Authorities Elections Ordinance; (dd) proprietors, editors and members of the editorial staff of newspapers in respect of which declarations have been made under section 2 of the Newspapers Ordinance; (de) Chairmen, Directors and staff officers of companies registered under the Companies Act No.17 of 1982, in which the majority of shares are held by the State or by a public corporation; and (e) such categories of other officers as may be specified by regulations.

Despite its impressive scope, this Law has proved to be of virtually no use at all in helping identify those who are both powerful and corrupt.  So far, it has only led to some Asprats and, perhaps, a few Asardines being caught by the Permanent Commission to Investigate Allegations of Bribery or Corruption (PCIABC) – but the Asharks continue with their feeding frenzy.

There are so many aspects of this Law which are not conducive to effective implementation that CIMOGG considers that the approach to the formulation of this Law should be changed significantly. The most critical aspects of the changes needed are analysed briefly below.

In this connection, CIMOGG recalls that it wrote to the Secretary-General of Parliament (SGP), the Speaker and the Commissioner of Elections (CE) over a period of time to ascertain how many Members of Parliament had failed to declare their assets and liabilities, either at the time of nomination or later.  There was no danger of a breach of secrecy because we did not ask to look at the declarations themselves but only wished to have the names of those who had failed to conform to this statutory requirement.  The SGP avoided giving us a useful answer by asking us to write to the Speaker, who, however, has not favoured us with a reply to date. The Commissioner of Elections, on the contrary, promptly gave us the names of the MPs who had furnished their declarations at the time they submitted their nomination papers.  There were only seven in his list!

Now, Section 3 states that A… a person to whom this Law applies referred to in paragraph (dc) of sub-section (1) of Section 2 shall be deemed to have complied with the provisions of this sub-section if he makes a declaration of his assets and liabilities as at the date of his nomination as a candidate for election under any of the Acts referred to in that paragraph on the date of such nomination or before he functions, or sits or votes, as President, a Member of Parliament ….  Notwithstanding the clear intention of the words which have been italicised in this excerpt, CIMOGG believes that there is a high probability that there are at least a few MPs who would have functioned, sat or voted before they submitted their declarations, if they did indeed eventually comply with this Law.  Thus all their functioning, sitting and voting until such time as they finally submitted their declarations would have been illegal acts.  These MPs may still be in breach of the Law but, in the light of the current Speaker=s silence, we may have to wait awhile to learn the truth.

The two weakest features of this Law are that (a) there is no requirement to carry out routine checks on the veracity of the submissions made by those to whom this Law applies, and (b) the requirement that declarations have to be updated typically only once in five years.  As far as we are aware, there has not been a single instance since 1975 where routine checking, if done, has revealed an act of bribery or corruption.  As things stand at present, the Aappropriate authority or the PCIABC will do no more than just wait passively until an intrepid citizen forwards what it considers to be a Agenuine communication to it, to Adraw the attention of such authority to any recent acquisitions of wealth or property or to any recent financial or business dealings or to any recent expenditures by any person to whom this Law applies, which to the knowledge of the person making such complaint is not commensurate with the known sources of wealth and income of such person to whom this Law applies.  It is suspected, from the way in which these provisions are formulated, that this Law was passed under public pressure so as impress voters that our lawmakers are ever willing to subject themselves, too, to scrutiny, whilst, at the same time, making sure that its implementation in respect of catching the Asharks would be stymied from the outset.

As an example, one may consider Section 4 of the Law, which gives a long and unwieldy list of the persons to whom the respective classes of persons to this Law applies should submit their declarations.  This provision ensures that no suitably qualified and resourced institution will have routine access to the declarations for the purpose of assessing their truthfulness or for monitoring the changes of assets and liabilities, and incommensurate expenditures, sufficiently rapidly to close the stable door before all the horses bolt.

Another striking negative feature of this Law is that it threatens the very people who might well uncover cases of bribery or corruption among the powerful.  In particular, the inclusion of the class of persons given under (db) in the first paragraph above would tend to discourage what is known as Awhistle-blowing, for which trade unions are often responsible.  Those in class (dd) are media personnel who could be expected to publish unwelcome exposés of facts which could result in investigations being initiated under this Law against powerful persons.  These two classes of persons should be removed from the list of those to whom this Law is applicable.

Considering the critical weaknesses highlighted above, CIMOGG is persuaded that, instead of different classes of persons making declarations to a vast number of different individuals, a person to whom the Law applies shall, within 3 months of becoming liable to do so, submit to a newly set up branch of the Department of Inland Revenue (DIR) a declaration of his income, expenditure and wealth for the current year on the standard Income Tax Return form, together with a statement covering the cost of all foreign travel, the countries visited and the persons, if any, who have paid for or subsidised the cost of such foreign travel.  These returns should be updated every year.

The changes proposed will not result in any loss of confidentiality, as compared to the present requirements, as the DIR is even ordinarily sworn to secrecy.  However, instead of relying on Section 5(2), where the PCIABC has the right to call for and refer to any declaration of assets and liabilities, it is the DIR who would be obliged to inform the PCIABC of any discrepancies or unusual features in the returns submitted.  The PCIABC would then be able to call upon the person concerned to forward his explanations.

In order to help prevent the PCIABC being forced to spend too much time investigating the minor transgressions of Asprats, the amended Law could include a provision for the DIR to refer a case to the PCIABC only if the discrepancies exceed, say, Rs.1,000,000 over any one year period.

Adoption of the recommendations made here would greatly simplify the Law and result in proactive monitoring of the assets and liabilities of the more powerful persons to whom this Law applies.

Needless to say, the Law, amended as proposed above, would be ineffective unless corruption in the DIR itself is suppressed.  As there are well-established systems in more advanced countries to control corruption, one may obtain the necessary assistance from them to introduce and maintain the appropriate systems to keep the DIR functioning in a reasonably honest and efficient manner.


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