Www.acc.org.bt Presentation to Legislative & Good Governance Committee s, National Assembly of...
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Independence of Anti-Corruption Commission www.acc.org.bt Presentation to Legislative & Good Governance Committee s, National Assembly of Bhutan 8 January 2013 Druk Gyalpo
Www.acc.org.bt Presentation to Legislative & Good Governance Committee s, National Assembly of Bhutan 8 January 2013 Druk Gyalpo
www.acc.org.bt Presentation to Legislative & Good
Governance Committee s, National Assembly of Bhutan 8 January 2013
Druk Gyalpo
Slide 2
CONTENT ACAS MANDATE ACAS PERFORMANCE ACCS ULTIMATE GOAL AT THE
CORE ROYAL COMMAND CHALLENGES INTERNATIONAL BEST PRACTICES WHAT DO
OUR LAWS SAY? BEING WITH CIVIL SERVICE STAFF STRENGTH GOVERNMENTS
STAND? QUESTIONS TO BE ASKED? LITMUS TEST WHERE IS ACC TODAY? ACCS
VIEWS
Slide 3
ACA MANDATE Prevent and combat (investigate, prosecute)
corruption. Vital role in improving quality of a countrys
governance system. Effective ACAs strengthen rule of law and foster
public trust. ACAs contribute to economic and social
development.
Slide 4
ACAS PERFORMANCE Developed countries - anti-corruption measures
mainstreamed. Dedicated ACAs in developing countries. Growing
number of countries (in particular in Africa and Asia) have over
the past decade introduced ACAs of various types (about 155)
However, only a handful are effective; others highly politicized,
cronies or mediocre people appointed, lack of funds, lack
functional independence... ACAs worst enemy is it own success (e.g.
KPK, EFCC).
Slide 5
ACCS ULTIMATE GOAL To be an edifice of incorruptibility,
steadfastness & trustworthiness to ultimately become a
vestige/redundant.
Slide 6
AT THE CORE ACCs ability to attract people with highest level
of integrity, professionalism, motivation, selflessness &
loyalty and retain them. ACCs ability to extend to its cadre
security, confidence and dignity. Leaders conscious effort towards
fostering spirit of collective responsibility & making
integrity and anti-corruption measures integral to larger
governance system. Every citizen to be an institution of ACC (more
so in a democracy)
Slide 7
AT THE CORE Legal independence Administrative independence
(determination of organizational structure, service conditions,
staff strength, personnel management, etc.) Financial independence
(constant flow of funds) Functional independence (contingent upon
legal & administrative independence) (freedom from political
influence & from fear). Effective checks and balance.
Slide 8
Royal Command of 13 September 2007 to Strengthen
&Revitalize ACC Bhutan small; cannot afford corruption. Neither
be corrupt nor tolerate corruption in others. ACC must be
strengthened to be an effective institution & be able to
fulfill its mandate. ACC must build a system (including incentives)
to ensure that ACC staff always maintain the highest motivation,
integrity and confidence.
Slide 9
CHALLENGES Pervasive distrust and fear. High tolerance for
corruption (societal & system). Thick social & power safety
nets. General sense of resignation; general reluctance to take hard
decisions. General notion that fighting corruption is ACCs
responsibility. Lack of political will towards consciously
institutionalizing systems of integrity in the larger governance
system. Entrenched territorialism.
Slide 10
INTERNATIONAL BEST PRACTICE Principles of Independence
Independence of ACAs is a quintessential and non-negotiable
prerequisite for their effective functioning. State parties shall
grant the body or bodies [] the necessary independence, [], to
enable the body or bodies to carry out its or their functions
effectively and free from any undue influence (Articles 6 and 36,
UNCAC). States to protect the body or bodies from undue actions of
any third party and a duty of the states to abstain from undue
interference with the body or bodies (Hussmann et al. 2009).
Slide 11
INTERNATIONAL Structural and operational autonomy, together
with a clear legal basis and mandate as additional guarantees
against undue political influence is crucial (OECD 2008).
Protection of organisation and its staff from civil litigation for
actions performed within their mandate if carried out under the
authority of the organisation and in good faith is essential (UNCAC
Technical Guide). This is to safeguard the agency from undue
influence (UNODC 2009). Safeguard against undue influence
identified by the Technical Guide relates to the appointment,
tenure and dismissal of the heads and senior personnel of
ACAs.
Slide 12
INTERNATIONAL Internationally recognised safeguard of the
institutions independence is availability of and independent use of
adequate resources, both financial and human. State parties to
ensure that ACAs have appropriate training and resources to carry
out their tasks (UNCAC Article 36). ACAs to have an appropriate
budget at their disposal as well as suitable financial resources to
remunerate staff (UNODC Technical Guide). ACAs should be operating
under suitable recruitment, appointment evaluation and promotion
procedures (UNODC 2009).
Slide 13
INTERNATIONAL Principles of Check and Balance Independence
should not amount to a lack of accountability (OECD 2008).
Independence does not mean free will or absence of reporting or
external control [de Sousa (2010)] Check is essential to ensure
that ACAs operate within the fundamental legal framework and the
principle of rule of law. Check is necessary to nurture and sustain
public trust and confidence. Periodic reporting obligations to
another public body, such as the legislature is essential (UNODC
2009).
Slide 14
INTERNATIONAL In summary, International Best Practice
identifies 3 key components of independence essential for ACAs
effective functioning, viz: Measures to safeguard ACAs from undue
political influence; Adequate financial and human resources and
related procedures; and Internal and external checks and
balances.
Slide 15
WHAT DO OUR LAWS SAY? Constitution guarantees independence to
ACC Safeguard from undue political influence [Articles 27 &
32(1)] There shall be an Anti-Corruption Commission which shall be
an independent authority... shall take necessary steps to prevent
and combat corruption in the Kingdom. Article 27(1) CKB There shall
be an independent authority to be known as the Anti- Corruption
Commission which is established under the Constitution. Article 5
(1) ACAB Subject to the provisions of this Act, the Commission
shall not, in exercising its powers or functions, be subject to the
direction or control of any person or authority. Article 6 (2)
ACAB
Slide 16
WHAT DO OUR ? Financial independence [Article 14 (13) CKB)
Financial stability is ensured through Article 7 of ACA The State
shall make adequate financial provisions for the independent
administration of the Commission as a part of annual national
budget. Article 7 (1) ACAB If the decision of Parliament on the
national budget is delayed, the Ministry of Finance shall provide
the Commission with an interim fund, which shall be, at least,
equivalent to the previous years budget on current expenses.
Article 7 (2) ACAB Notwithstanding subsections (1) and (2) of this
section, the Ministry of Finance shall ensure availability of
funding for ad hoc cases and for complex investigation in
accordance with the budgetary process if there is a deficit in the
approved budget. Article 7 (3) ACAB
Slide 17
WHAT DO OUR ? Gap Analyses ACCs total budget from RGOB and
donor funds for the financial year 2011 corresponded to 0.006% of
the total RGoB budget (donor funding 50%). This is low when
compared to the Independent Commission against Corruption of Hong
Kong (HK ICAC), considered the worlds best- resourced
anti-corruption agency with an allocation of 0.3% of the total
annual national budget. Term adequate in relation to financial
resources exposes ACC to potential political influence. Budgetary
processes for extra funding for complex investigations cases
exposes ACC to undue political influence.
Slide 18
WHAT DO OUR ? Human resources management Staff of Secretariat
come under Civil Service Act 2010 (CSA) and the Bhutan Civil
Service Rules and Regulations (BCSR 2012) Commission shall have
independence and powers to regulate appointments, management and
dismissal of its staff other than a Member in accordance with the
Civil Service Act. Article 8 (2) ACAB Appointment, terms and
conditions of service of staff of the Commission shall be in
accordance with the Civil Service Act. Article 28 (1) ACAB
Slide 19
WHAT DO OUR ? RCSC to determine staffing pattern and strength
of an agency (definition includes constitutional offices) & to
create, abolish or classify positions in consultation with
agencies. CSA, section 28 (f) (i) & (ii) Constitutional offices
to carry out organizational changes in consultation with the RCSC.
CSA, section 29 Only RCSC to recruit university graduates in the
Civil Service. CSA, section 47
Slide 20
WHAT DO OUR ? Constitutional offices to recruit, select,
appoint and promote personnel below EX1 and ES1 as per BCSR CSA,
sections 53 & 64. RCSC shall assess general training and higher
education (diploma and degree) CSA, section 58. RCSC the authority
for all fast-tract and out-of-turn promotion CSA, section 62 Any
transfer to and from constitutional office to be made by RCSC in
consultation with constitutional offices CSA, section 72
Slide 21
WHAT DO OUR ? Staff under CSA 2010 and the BCSR 2012 imposes:
Limited ability to adjust staffing pattern to changing needs;
Limited potential pool of recruits; Deputation arrangements (no
objection certificate from current employer and RCSC approval)
reduce likelihood of attracting highly qualified staff for
deputation; Limitations in defining the performance appraisal
procedures reduce the ability of introducing a modern, strongly
performance-based HR management system.
Slide 22
WHAT DO OUR ? Restrictions on HR actions Recruitment is only
against approved posts, approved by RCSC. ACC can only contract
non-civil servants for positions previously approved by RCSC.
Contractual employees are not eligible for formal training,
seriously restricting the professional development of such
recruits. Inconsistency in the system.
Slide 23
WHAT DO OUR ? Internal and external checks Commission shall
submit an annual report on its policies and performances to the
Druk Gyalpo, the Prime Minister and Parliament. Article 7 (4) CKB
Commission shall function in accordance with the Anti-Corruption
Act. Article 7 (6) CKB Chairperson to be removed through
impeachment. Article 31 (1) CKB Removal of two members of the
Commission contained in Article 20 ACA. No legal proceedings or
suit shall lie against any member of the Commission or its staff or
a person acting for the Commission in respect of their official
duties done in good faith or intended to be done in pursuant to the
provisions of this Act. Such immunity shall not cover corrupt
acts... Article 34(1) ACAB 2011
Slide 24
BEING WITH CIVIL SERVICE Although CSA undermined ACCs
independence guaranteed by CKB, ACC operated within civil service
ambit (2.5 years). While RCSC has been supportive: Re-structuring
impeded; Understaffed (aggravated by reluctance & rules); Low
level of motivation (pressure to deliver without concomitant
benefit & professional support); Challenges in up-gradation,
promotion, trainings; Transfers. Consultation may entail in
agencies doing what they want. Case by case and conduct of business
based on personal relations are risky.
Slide 25
Commission Complaints Mgt, Follow up & Document ation
Surveillance & Intelligence Directo r A Director B Corporate
Service Procure ment HRM & Dev. Services Miscellan eous Social
& Political Service Land & Natural Service Finance &
Business Service Adm & Finance Policy & Planning Legal Team
A Team B Team C Team B Team C Team A Finance ICT & Asset
Declaration HRM & D Adminis tration Research & Product
Dev.
Slide 26
STAFF STRENGTH Total required: 120-150; Current : 76 76
members, 51 (67.1%) are integrity promotion officers and associated
professionals. 25 (32.9%) are those in the administrative, accounts
and support services. Of 51 integrity promotion & related
professionals, 66.6% have less than 5 years of experience. 11.8%
have 5-10 years experience 21.7% have >10 years experience.
Slide 27
STAFF STRENGTH Vacuum in mid-level - restriction in promoting
young officers with high leadership potential & reluctance of
in-service civil servants to join ACC. Hence, lack adequate
guidance &mentoring of young members. No succession plan. Poor
response to vacancy announcements e.g. Chief legal officers vacant
since last 2.5 years.
Slide 28
GOVERNMENTS STAND We dont interfere in ACCs affairs; it has
total functional independence. If independence is given to ACC,
other agencies will demand the same. Everyone wants to be delinked
from RCSC. Multiplicity of independent & autonomous bodies in a
small system (uniformity vs efficacy). ACC being small, minimizes
opportunity for employees career mobility. Creating a powerful and
unaccountable agency (it is ok with the present commission but..?)
Staff want to be with civil service. Issue is not If independence
has to be given to ACC; it is constitutionally guaranteed. The
issue is its interpretation & implementation.
Slide 29
QUESTIONS TO BE ASKED? Is corruption a serious challenge now
and future? Are we sincerely serious about fighting corruption? Are
we simply satisfied with the appearance of ACC doing something? Do
we have the will to take hard decisions? Do we want a strong,
effective and fearless ACC? Ultimately, ACC will be as effective or
as ineffective as decision makers and citizens want it to be !
Slide 30
LITMUS TEST Effective investigation & prosecution of
corruption commissioners and employees of RCSC. Effective
investigation, prosecution & adjudication of corrupt offences
perpetrated by people in higher echelons of public service and
society. Investigation, prosecution & adjudication of electoral
and political corruption. Security (financial & otherwise) for
ACC employees.
Slide 31
WHERE IS ACC TODAY? Has it grown into an incorruptible,
steadfast & trustworthy institution? Is it vulnerable to
corruption & external influence?
Slide 32
ACCS VIEWS Constitutionally guaranteed independence has to be
operationalized in spirit & form. Delink from civil service,
determine its service conditions along corporate governance model
(contractual employment, rigorous performance appraisal system
basis for remuneration, contract renewal, incentive package for
loans, housing, etc.) Decision has to be taken now to be fair to
ACC employees. What should matter is not what ACC staff or what
commission want but what is the best for the country.
Slide 33
ACCS VIEWS ACC will relieve people who wish to leave cannot
afford to invest in them. Establish mechanisms to ensure steady
flow of funds. Further strengthen internal and external checks
(RAA, RCSC) Independence does not mean working in isolation &
not being accountable. It is also not about independence alone but
about quality of ACCs leadership, organizational ethos, team work,
etc.