Response of Central Vigilance Commission
Dated 16th April, 2009
Please refer to your letter dated 23/03/09 on the subject cited above.
The Commission has written to the Cabinet Secretary, Govt. of India vide letter No. 008/VGL/051 dated 30/6/08 and to the D/o Personnel & Training vide letter No. 008/VGL/051 dated 07/11/08. A copy each of letter dated 30/6/08 & 07/11/08 is enclosed.
CENTRAL VIGILANCE COMMISSION’S LETTER TO THE CABINET SECRETARY DATED JUNE 30, 2008
The UN Convention against corruption was adopted by the General Assembly of the United Nations on 31.10.03. It came into force from 14th December 2005 in accordance with Article 68(1) of the said convention which states that the Convention shall enter into force on ninetieth day after the date of deposit of the thirtieth instrument of ratification acceptance, approval or accession. The Convention is capable of playing an extremely important role in fight against corruption some of the major provisions of the said Conventions are-
The Convention lays great stress on the prevention of corruption in both the public and private sectors. These include model preventive policies, such as the establishment of anticorruption bodies and enhanced transparency in the financing of election campaigns and political parties. States must endeavor to ensure that their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit. Once recruited, public servants should be subject to codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures to be in place as and when warranted. Transparency and accountability in matters of public finance must also be promoted, and specific requirements are to be established for the prevention of corruption, particularly in the critical areas of the public sector, such as the judiciary and public procurement. Article 5 of the Convention enjoins each State Party to establish and promote effective practices aimed at the prevention of corruption.
The Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption. The Convention goes beyond previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence, and the concealment and laundering of the proceeds of corruption. Offences committed in support of corruption, including money-laundering and obstruction justice, are also dealt with. Convention offences also deal with the problematic areas of private-sector corruption.
Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court to extradite offenders. Countries are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption. Considering the globalised nature of modern business, such provisions are essential to fight corruption.
In a major breakthrough, countries agreed on asset-recovery, which is stated explicitly as a fundamental principle of the Convention. This is a particularly important issue for many developing countries where high-level corruption has plundered the national wealth. Several provisions specify how cooperation and assistance will be rendered. In particular, in the case of embezzlement of public funds, the confiscated property would be returned to the state requesting it; in the case of proceeds of any other offence covered by the Convention, the property would be returned providing the proof of ownership or recognition of the damage caused to a requesting state; in all other cases, priority consideration would be given to the return of confiscated property to the requesting state, to the return of such property to the prior legitimate owners or towards compensation of the victims.
Article 51 provides for the return of assets to countries of origin as a fundamental principle of this Convention. Article 43 obliges states parties to extend the widest possible cooperation to each other in the investigation and prosecution of offences defined in the Convention. With regard to asset recovery in particular, the article provides inter-alia that “In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested State Party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting State Party, if the conduct underlying the offence for which assistance is sought is a criminal offence under the laws of both State Parties.
There have been several reports that Indian citizens hold huge amounts of unaccounted money, including the proceeds of corruption in Swiss and other foreign banks. The above provisions will help immensely in recovering such funds, punishing the offenders, and most important in preventing similar crimes in the future.
India was one of the last countries to sign the Convention on 09th December 2005. Presently 140 countries have signed the Convention. Of these, 117 countries have ratified the Convention and thereby become a party to the same. This includes almost all the major nations. An illustrative list is given below along with the date of ratification::
United States of America : 30th October 2006
Russian Federation : 09th May 2006
Brazil : 15th June 2005
China : 13th January 2006
Mexico : 20th July 2004
United Kingdom : 09th February 2006
France : 11th July 2005
It is also send that most of the neighbouring countries have also ratified the Convention:
Sri Lanka : 31st March 2004
Pakistan : 31st August 2007
Bangladesh : 27th February 2007
It may be seen that some of these countries have ratified the Convention quite a few years back. The 23 signatories who have not ratified the Convention mostly include small countries such as Afghanistan, Bahrain, Comoros, Cote d’Ivorie, Liechtenstein and Switzerland (It may also be noted that in the above list both Switzerland and Liechtenstein are know to be tax shelters where secret bank accounts can easily be opened).
Not only has India not ratified the Convention, there has been no public debate or apparent movement towards bringing in the various legal steps that would be required in view of the provisions of the Convention as listed in para 2 above.
In the above circumstances, the commission would like to urge upon you the need to ensure that early steps are taken for:
a. Ratifying the Convention so that receipt of information as well as recovery of assets forming part of the proceeds of corruption, from foreign countries can start in real earnest.
b. The amendments to various Indian statutes required in view of the provisions of the Convention be placed before Parliament at an early date. Central Vigilance Commission’s Letter dated 07/11/2008 addressed to Joint Secretary (Vig),
Department of Personnel & Training
Reference : Request for comments on a draft cabinet Note on ‘Rectification (sic) of UN Convention against corruption - While expressing its general agreement with the draft cabinet note, the Commission has pointed out that the article of the convention, requiring national level action regarding the role of private sector have not been adequately and properly responded. The convention does not suggest any unequal treatment or sequenced responses with regard to corruption in the public and private sectors. The response from the Ministries concerned do not reflect this. The Commission has, therefore, advised the Department of Personnel & Training to ensure that this aspect is adequately discussed in the cabinet note.