Sri Lanka had a monarchical history before the invasion of Portuguese in 1505 A.D. Kings ruled the country according to a well established comprehensive legal system with un-codified laws. Hierarchy of officials involved in adjudicating justice and administration of the country were not specifically remunerated for their services. Hence, it was a common custom for the citizens to show gratitude by offering a present as a token of respect to the officials for their services. That was not considered “bribery”.

Portuguese, the first European invaders of the country, did not touch the country’s legal system, except for their legal concepts crept into the system through usage. Prevailed system of adjudication and administration through local officers was maintained as it was during their time. They were not able to capture the Kandyan Kingdom preserving the King’s authority over the Kingdom. Hence, applicable laws were implemented without change throughout the country.

Dutch who had invaded the country (1656A.D.) following Portuguese introduced the Roman-Dutch legal system, with codified laws. This legal system was narrowed only to the areas governed by them and had no application over the other areas of the country as they also were not able to defeat the Kandyan King. A major change in the nature of the official services and practices were not visible during this period.

• After the arrival of the British in 1796 A.D. the country became a ceded colony of the British ruling in 1815 A.D. Transition of King’s ruling to the concept of government based on a democratic set-up on orders of the British Crown gave birth to a regularized government service. European and local officials were employed both for adjudication of justice and for the administration of the country. They were remunerated correspond to their services. The nature of official services relating to the government functions underwent a transformation. Early tradition of show of gratitude upon official services could no longer be justified as the officers were paid by the government laying the foundation to making acceptance of a graft in addition to legal payments by a government servant an offence as it was seen by the Europeans at that time. The British introduced a unitary legal system applicable to the whole country. However, in accordance with the British policy on ceded colonies to retain the law of the country as it was until modified, the civil law conserved its status under Roman-Dutch legal system except for the changes made by the British. As opposed to this Criminal law passed through a revolution for the progressive infiltration of the English criminal law and the English legal procedures through Proclamations, Royal Charters of Justice and through judicial usage. A comprehensive written law on criminal law was found in the Criminal Procedure Code Ordinance, No. 3 of 1883 on procedure and the Penal Code Ordinance, No. 2 of 1883 on substantive law. This was the formation of the today’s criminal law of the country. The system of adjudication naturally was the common law adversarial system inherited through the English legal system.
  
  
• Accordingly, the statutory offence of “bribery” was conceived in the Penal Code Ordinance of Sri Lanka as far back as the year 1883 based identically on the Indian Penal Code, Chapters IX and XI. (sections 158,159,160,161, 210,211,212)
  
  
• In the aftermath of World War II the government had to introduce new establishments and policies such as price control for fair management of living resources lacking to the general public. This created an environment for the elected members and the public servants to act upon grafts. Law existed as it was, was not adequate to cope with the developing methods and rising incidents of corruption.

Since the members of the State Council were not considered public servants under the Penal Code their corrupt activities were unknown to the law leading to a public outcry against them. The only response lied with the Commissions of Inquiry. Three Commissions, L.M.D. de Silva Commission, Keuneman Commission and M.W.H. De Silva Commission, were appointed time to time pertaining to the State Councilors, the government departments and the Colombo Municipal Councilors respectively. New law on “bribery” was a social need.

• Bribery Act, No 11 of 1954 brought in a special law on “bribery” fulfilling the existed legal vacuum. This change came up as a response to the judicial frustration over the inadequacy of laws on bribery and in recognition of the recommendations of the Commissions of Inquiry. This Act did not repeal the Penal Code provisions. The Act contains all the bribery offences covered in the Penal Code. However, the emphasis is placed on the new Act. The Act underwent a series of amendments according to the timely requirements. The Act was amended nine times, No. 17 of 1956, 40 of 1958, 2 of 1965, 18 of 1965, 8 of 1973, 38 of 1974, 11 of 1976, 9 of 1980 and 20 of 1994, bringing in several changes. Special powers and procedures to investigate and adjudicate “bribery” as a special offence were introduced.
  
  
• 1958 amendment brought in a major change by introducing the office of the Bribery Commissioner and the Bribery Commissioners Department, a separate government department, to investigate offences under the Bribery Act. This department was mandated with wider powers to conduct investigations earlier subjected to the supervision of the Attorney General.
  
  
  • Change in the government policies based on open economy and the consequential creation of new government entities paved way for public officers and peoples’ representatives to find new avenues to abuse power for personal gains. Rapid escalation of reported bribery and corruption incidents required a corresponding strong law enforcement mechanism for vigorous implementation of the law. Independent institution devoid of any influence was the need of the day.

• The year 1994 marked a milestone in the legislative history relating to the offence of bribery. Consequent to an election pledge, the Commission to Investigate Allegations of Bribery or Corruption Act established an independent Commission, the successor of the Bribery Commissioner’s Department, a creature of law, to investigate and direct institution of actions into allegations of bribery or corruption. 

• This Act gave wider powers to the Commission consisting of two retired appellate court judges and a person experienced in investigations and law enforcement. This includes investigative powers and the power to authorize prosecutions subjected to its supervision. 

• Investigations under the Bribery Act, Declaration of Assets and Liabilities Law and under the Commission’s Act are carried out by the authorized officers attached to the Commission. The prosecutions are conducted by the law officers attached to the Commission. When authorized by the Commission the officers of the Attorney General’s Department also conduct prosecutions under these laws. 

• Presently the Commission is exercising its powers giving due regard to the international guide lines laid down in the United Nations Convention against Corruption and other related international treaties.

• The offence as spelt out in the Penal Code was, a public servant accepting or obtaining a gratification  as a motive or reward in connection with a matter in respect of an official act. (Chapter IX, Sections 158) Sections 159,160 covers go-betweens and section 161 abettors.
  Solicitation though was not an offence per se was punished as an attempt to commit the offence of bribery.
  
  
• A giver of a gratification was considered an abettor and accordingly was punished for abetting for the offence.
  
  
• Gratifications solicited, accepted or given by or to public servants in connection with public justice, to screen an offence or an offender, are dealt with by Chapter XI, sections 210,211 and 212.
  
  
• Any person who accepts or obtains a gratification to influence a public servant also was punishable.
  
  
• This law did not prohibit a public servant from taking a bribe when the connected act was not within his official power to perform. (Zoyza v Subaweera (1941) 42 NLR 357)
  
  
• In the same way when the public servant who did accept the bribe had no duty to perform the connected act, the giver also was not liable for abetting despite of any favourable position enjoyed by him. (Thennakoon v Dissanayake (1948) 50 NLR 403)
  
  
• The definition of “public servant embraced virtually all public officers including the judicial officers”. Neither the head of the country nor the Members of the Legislature, people’s representatives were made liable for bribery under the Penal Code.
  
  
• Offences were investigated by the police and were prosecuted by the Attorney General like any other offence.
  
  
• The offences were non-cognizable, bailable and non-compoundable under Criminal Procedure Code, No. 15 of 1898 and under Administration of Justice Law, No. 44 of 1973.
  
  
• Attorney General’s sanction was required to initiate proceedings into the above offences. (section 135(1)(b), Code of Criminal Procedure Act No. 15 of 1979)
  
  
• Need of a separate law on the subject was spelt out by courts in time to time. (Thennakoon v Dissanayake (1948) 50 NLR 403)
  
  
• Similar concern was expressed by the Commissions warranted by the executive to probe into selected corrupt activities involving politicians and public servants.
  
  
• Receiving of gifts by public servants if not amounted to a bribe was not an offence under the Penal Code. However, receipt of a gift by a public servant other than a gift from a personal
  friend is prohibited under the Establishments Code, Chap. XLVII, s. 2:1.

• In addition to substantive laws, several fact finding Commissions were appointed under the Commissions of Inquiry Ordinance, No. 23 of 1933, to inquire into specific incidents of bribery.

   

• Upon a resolution moved by Mr. Francis de Zoysa, L.M.D. de Silva Commission (1941) headed by Mr. L.M.D. de Silva, K.C. was appointed to probe bribery by State Councilors. The Commission report led to the resignation of some offenders and the enactment of the State Council (Expulsion of Members) Ordinance to remove the others who did not give resignation.

   

• Followed by this, Keuneman Commission (1948) headed by Mr. A.E.Keuneman, K.C. was appointed to inquire into bribery and corruption in Government Departments. This Commission recommended an amendment to the law to exclude the requisite of proving the motive or reward of the public servant and also recommended to include any act referable to an official act in order to cover every incident of bribery disregard of the actual performance of an official act. Further offence was recommended to penalize illegal accumulation of assets through bribery. An important recommendation was to establish a separate government department to probe bribery. The offenders as found by the Commission were dealt with by the Public Service Commission.

   

• In 1949, M.W.H. de Silva Commission was appointed to inquire into bribery of the Colombo Municipal Councilors. Findings of the Commission led to the amendment of the Public Bodies (Prevention of Corruption), No. 49 of 1943 Ordinance providing for loss of civic rights of a person found guilty under the Ordinance.

   

• These Commissions had no power to penalize the offenders and hence, the offenders were subjected to the general laws and disciplinary procedures prevalent during the time. Recommendations of these Commissions were taken cognizance of in enacting the subsequent legislations relating to bribery and corruption.

   

• As the members of local authorities were not covered by the Penal Code the Public Bodies (Prevention of Corruption) Ordinance, No. 49 of 1943 was enacted to bring them within the realm of the law.
  
  

• New offences which were not offences under the Penal Code were introduced.

• Prohibited the solicitation and acceptance of a gratification by a public servant or by a judicial officer in connection with official acts. (sections 14, 16,17,19, 21, 22) Solicitation and offer of a gratification per se were made offences.

• Bribery by non-public servants was covered. (section 18, 20)

• New offence of bribery by the Members of legislature was introduced. (section 15) Nevertheless, the consent of the Speaker or the Judicial Service Commission was required in respect of investigations against parliamentarians or judicial officers respectively.

• Offer of a gratification was made an offence.

• Civic incapacities were imposed upon a conviction. (section 29)

• Consent of the Speaker or the Judicial Service Commission was required in respect of investigations against parliamentarians and judicial officers respectively.

• Jurisdiction to try these offences was vested with the Supreme Court or District Court or with the Boards of Inquiry.

• Prosecutions were conducted by the Attorney General.

• Bribery offences were made cognizable and non bailabel.

• Board of Inquiry had the power to order a penalty as opposed to the courts having powers to impose a punishment of imprisonment or penalty.

• Provisions were also available for Commissions of Inquiry appointed for specific incidents devoid of penalizing powers.

• Separate powers and procedures were introduced for investigations.

• Investigations were carried out by a special bribery unit consisted of authorized officers under the Attorney General.
  
  

1. With the enactment of the Code of Criminal Procedure Act, No.15 of 1979 the Bribery Commissioner was entitled to make complaints to the Magistrate Courts and to prosecute in the Magistrate Courts. 

2. Further, the Declaration of Assets and Liabilities Law, No. 1 of 1975 empowered the Bribery Commissioner to institute actions under that Law.

• Accumulation of illegal assets was made a distinct offence. (section 23A)
  
  
• A new section was included to avoid public servants deviating from official procedures upon personal temptations through abuse of office. Section 19(c) made solicitation and acceptance of a gratification not authorized by law by public servants per se an offence, dispensing with the sine qua non requirement of proving the “official act”. Vested the burden of proving the gratification not authorized by law with the prosecution. (Podi Singho v The Queen 68 NLR 524, Perera v Queen (1967) 67 NLR 431, Queen v A.M.A.Hameed 70 NLR 19, Mohamad Auf v The Queen (1967) 69 NLR 337)
  
  
• Provided for exclusive jurisdiction of the Bribery Tribunal to try matters and impose punishments under the Act. This provision withheld the Courts’ jurisdiction pertaining to bribery offences. Constitutionality of the Tribunal as a separate adjudication method was challenged before courts stating. (Senadhira v Bribery Commissioner (1961) 63 NLR 313, Bribery Commissioner v Ranasinghe (1964) 66 NLR 73)
  
  
• The Bribery Commissioner was empowered to appoint prosecutors excluding the necessity of Attorney general conducting prosecutions.

• In response to the public outcry against members of the Government for corruption Thalgodapitiya Commission (1959) headed by Mr. Walter Thalgodapitiya was appointed to inquire into bribery by elected members. Findings of the Commission led to the enactment of Civil Disabilities (Special Provisions) Act, No. 14 of 1965 imposing statutory disqualifications on the persons found guilty.

• Chitty Commission, 1961 headed by Mr. G.E.Chitty, Q.C. was appointed to inquire into bribery and corruption within the Colombo Municipal Council ended up with no finding of guilt.

• Bribery Commissioner was empowered to do investigations ex mero motu.

• Repealed the provisions on Bribery Tribunal.

• Trials before District Court upon an indictment by the Attorney General were made mandatory dispensing with the alternative forums.

• Prosecutions were conducted by the Attorney General.

• Attorney General was vested with the power to conduct prosecutions.

• Abolished the Boards of Inquiry and resorted to the exclusive District Court jurisdiction.

• In the aftermath of the series of judgments to the contrary burden of proving the gratification not authorized by law was shifted to the defence (Sec. 19 (c) proviso).

• Any District Court was empowered to try the offences under section 23A.

• Bribery Commissioner was empowered to institute actions under the Law.

• Bribery Commissioner was empowered to institute and prosecute actions in the Magistrate’s Court.

• Introduced abuse of power, “corruption” as a separate offence. (Section 70) This was intended to frame public servants who abuse power for personal gains even in the absence of a patent gratification.

• Interpretation to “public servant” covered every person paid by the government except for the Executive President who enjoys the presidential immunity. (section 90)

• Forfeiture of property in lieu of penalty or fine after conviction on bribery was introduced. (Section 28A)

• Established a permanent Commission to Investigate Allegations of Bribery or Corruption.

• Provided for investigation and direction to institute actions into allegations of Bribery or Corruption.

• Given power to act upon a communication received by the Commission. (section 4)

• Withheld acting ex mero motu.

• Laid down a procedure for investigation.

• The Commission was mandated with certain powers which were earlier only within the scope of the magistrate (eg. searching places).

• Withheld the requisite of prior consent of the Speaker or the Judicial Service Commission in respect of investigations against parliamentarians and judicial officers respectively.

• Prosecutors attached to the Commission were empowered to conduct prosecutions.

• Earlier requisite of consent of the Speaker or the consent of the Judicial Service Commission in respect of members of parliament or the judicial officers respectively was dispensed with by the Act.

• In addition to the investigations all prosecutions under the Bribery Act were brought within the purview of the Commission and the Commission was empowered to authorize Attorneys-at-Law to conduct prosecutions.

• The Director General of the Commission was given the power to sign indictments, the only exception to file indictments in the High Court except for the Attorney General.

• Empowered the Commission to act ex mero motu. (Article 156A(2))