Breaking the cipher

One of the essential requirements of good governance is the absence of corruption, which has become endemic in some of the Third World count...

One of the essential requirements of good governance is the absence of corruption, which has become endemic in some of the Third World countries. The corrupt brazenly flaunt their ill-gotten wealth. Shame or sense of guilt have totally disappeared.

They are emboldened by the impotency of the law. The criminal justice system has not proved equal to the task. No one of any consequence in public office is ever prosecuted. Even in the unlikely event of such prosecution being launched, it hardly ever reaches a conclusion. At every stage, attempts are made to delay the proceedings. Superior courts are repeatedly approached to interdict and quite often they succeed at any rate, in delaying progress. What with excessive emphasis on procedural irregularities and the heavy workload in our criminal courts, many well-known corrupt politicians and bureaucrats are walking free.

Globalisation and the entry of multinationals have enhanced opportunities for corruption. Many MNCs indulge in unethical practices in thirdworld countries. And they find ready and willing partners to collaborate with. When the premises of a particular ex-minister were searched, Rs 35 million in cash was found. He could not offer any explanation and ultimately disowned it, saying it belonged to a particular political party, which also disowned it. The man is still free, though two years have passed. All this ill-gotten money is spirited away to numbered accounts in foreign banks.

The world knows how many billions were stolen by dictators like Mobutu and Marcos from their ill-fed, poor and miserable countrymen and stashed in such accounts. I submit that the international community must denounce and condemn the practice of banks maintaining numbered accounts. They hold only ill-gotten money, proceeds of the drug trade and crime. Maintaining such accounts is immoral. It makes the banks accessories to crime. It is a fraud committed upon the poor of third world countries and a clear case of violation of their basic human rights. It deprives the poorof their basic needs like food, shelter, health and education. Anyone aiding or abetting such robbery is equally guilty of a violation of the human rights of the poor. The countries where these banks are located should enact laws prohibiting their immoral practices.

Let a call go out from from all human rights organisations throughout the world, that no country should allow its banks to follow, or continue to follow, such practices. Governments should ensure transparency in banking, particularly in the matter of deposits made by foreign citizens or by outfits owned or controlled by foreigners. Every concern must be made to disclose the names of the owners. In fact, this is a matter for the United Nations. There ought to be a convention banning the practice of numbered accounts. This would deprive corrupt rulers particularly of third world countries of safe havens. It would certainly help in arresting corruption in the third world and stop this shameful violation of human rights. Any such moneys already indeposit should be held in trust for the concerned countries and be paid over to its government immediately.

A law should also be enacted in every country afflicted with corrupt rulers providing for the confiscation of all properties standing in their name or in those of their kin or associates. In India, there is the Smugglers and Foreign Exchange Viola-tors Forfeiture of Property Act, 1976 SAFPMA. It provides that all properties of persons convicted under the Customs Act or Foreign Exchange Regulation Act or detained under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1976 COFEPOSA shall be attached. If they fail to explain how they came by them, all those properties shall be forfeited to the state. This provision covers not only the properties of persons convicted or detained, but to properties held by their near relatives and associates. The constitutionality of the said Act was challenged before the Supreme Court but it was repelled in 1994 Attorney General of India vs.Amrit Lal Prajivandas AIR 1994 SC 2179.

There should be a similar law applicable to corrupt public servants and it must extend to their near relatives and associates, just as SAFEMA does. A criminal trial or conviction is not necessary for the purpose. The necessity for such a law was emphasised by the Supreme Court in a recent decision:8220;So far as justification of such a provision is concerned, there is enough and more. After all, all these properties are earned and acquired in ways illegal and corrupt at the cost of the people and the state. The state is deprived of its legitimate revenue to that extent. These properties must justly go back where by belong to the state. 8217;What we are saying is nothing new or heretical. Witness the facts of a recent decision of the Privy Council in Attorney General for Hong Kong v. Reid 1993 3 WLR 11438221;.

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After referring to the facts of and the law declared by the Privy Council, the Supreme Court observed: 8220;May we say in parentheses that a law providing forforfeiture of properties acquired by holders of public office including posts in the public sector corporations by indulging in corrupt and illegal acts and deals, is a crying necessity. Once it is proved that the holder of such office has indulged in corrupt acts, all such properties should be attached forthwith. The law should place the burden of proving that the attached properties were not acquired with the aid of monies/properties received in the course of corrupt deals upon the holder of that property. Such a law has become an absolute necessity, if the canker of corruption is not to prove the death-knell of this nation.8221;

It may be mentioned that Pakistan has already enacted such a law. It has become absolutely essential to instil a sense of discipline and respect for the law. A developing country can hardly afford to be a soft state. The eradication of poverty is more important than any slogans. The legal system should be strengthened and made equal to this task. No delays should be tolerated andno quarter should be given to guilty public servants. The establishment of special tribunals to try such offenders is highly desirable. The constitutionality and desirability of such special courts was upheld by the Supreme Court as far back as 1979.

The author is Chairman of the Law Commission