Transcript Anti-Corruption Commission of Bhutan

Presentation to Legislative & Good Governance
Committee s, National Assembly of Bhutan
8 January 2013
www.acc.org.bt
Druk Gyalpo
CONTENT
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ACA’S MANDATE
ACA’S PERFORMANCE
ACC’S 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?
ACC’S VIEWS
ACA MANDATE
 Prevent and combat (investigate, prosecute) corruption.
 Vital role in improving quality of a country’s governance
system.
 Effective ACAs strengthen rule of law and foster public
trust.
 ACAs contribute to economic and social development.
ACA’S 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...
 ACA’s worst enemy is it own success (e.g. KPK, EFCC).
ACC’S ULTIMATE GOAL
To be an edifice of
incorruptibility,
steadfastness
&
trustworthiness
to
ultimately become a
vestige/redundant.
AT THE CORE
 ACC’s ability to attract people with highest level of integrity,
professionalism, motivation, selflessness & loyalty and retain
them.
 ACC’s 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)
AT THE CORE
 Legal independence
 Administrative independence (determination of organizational
structure, service conditions, staff strength,
management, etc.)
personnel
 Financial independence (constant flow of funds)
 Functional
independence (contingent upon legal &
administrative independence) (freedom from political
influence & from fear).
 Effective checks and balance.
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.
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 ACC’s responsibility.
 Lack of political will towards consciously institutionalizing systems
of integrity in the larger governance system.
 Entrenched territorialism.
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).
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.
INTERNATIONAL …
 Internationally recognised safeguard of the institution’s 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).
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).
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.
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
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 year’s 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
WHAT DO OUR …?
Gap Analyses
 ACC’s 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 world’s bestresourced 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.
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
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
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
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.
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.
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
BEING WITH CIVIL SERVICE
Although CSA undermined ACC’s 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.
Commission
Complaints
Mgt,
Follow up
&
Document
ation
Directo
rA
Surveillance &
Intelligence
Director
B
Procure
ment
HRM &
Dev.
Services
Team A
Team A
Team B
Team B
Team C
Team C
Corporate
Service
Social &
Political
Service
Land &
Natural
Service
Finance
&
Business
Service
Team A
Team A
Team A
Team B
Team B
Team C
Miscellan
eous
Team C
Adm &
Finance
Policy &
Planning
Team A
Adminis
tration
Research &
Product
Dev.
Team B
Team B
Finance
ICT & Asset
Declaration
Team C
Team C
HRM & D
Legal
STAFF STRENGTH
 Total required: 120-150; Current : 76
 76 members, 51 (67.1%) are integrity promotion officers
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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.
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.
GOVERNMENT’S STAND
 “We don’t interfere in ACC’s 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.
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 !
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.
WHERE IS ACC TODAY?
Has it grown into an incorruptible,
steadfast & trustworthy institution?
Is it vulnerable to corruption &
external influence?
ACC’S VIEWS
 Constitutionally
guaranteed
independence
operationalized in spirit & form.
has
to
be
 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.
ACC’S 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 ACC’s leadership, organizational ethos,
team work, etc.
WHO LIKES A STRONG ANTI-CORRUPTION
AGENCY?