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Independence of Anti-Corruption Commission. Presentation to Legislative & Good Governance Committee s, National Assembly of Bhutan 8 January 2013. www.acc.org.bt. Druk Gyalpo. CONTENT. ACA’S MANDATE ACA’S PERFORMANCE ACC’S ULTIMATE GOAL AT THE CORE ROYAL COMMAND CHALLENGES

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slide1

Independence of Anti-Corruption Commission

Presentation to Legislative & Good Governance Committee s, National Assembly of Bhutan

8 January 2013

www.acc.org.bt

DrukGyalpo

slide2

CONTENT

  • 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
slide3

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.
slide4

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).
slide5

ACC’S ULTIMATE GOAL

To be an edifice of incorruptibility, steadfastness & trustworthiness to ultimately become a vestige/redundant.

slide6

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)
slide7

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.
slide8

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.
slide9

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.
slide10

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).
slide11

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.
slide12

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).
slide13

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).
slide14

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.
slide15

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

slide16

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
slide17

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 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.
slide18

WHAT DO OUR …?

  • 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

Human resources management

slide19

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
slide20

WHAT DO OUR …?

  • Constitutional offices to recruit , select, appoint and promote personnel below EX1 and ES1as 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 promotionCSA, section 62
  • Any transfer to and from constitutional office to be made by RCSC in consultation with constitutional offices CSA, section 72
slide21

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.
slide22

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.
slide23

WHAT DO OUR …?

Internal and external checks

  • Commission shall submit an annual report on its policies and performances to the DrukGyalpo, 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

slide24

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.

slide25

Commission

Complaints Mgt, Follow up & Documentation

Surveillance & Intelligence

Director A

Director B

Corporate Service

Procurement

HRM & Dev. Services

Miscellaneous

Social & Political Service

Land & Natural Service

Finance & Business Service

Adm & Finance

Policy & Planning

Legal

Team A

Team A

Team A

Team A

Research & Product Dev.

Team A

Team A

Administration

Team B

Team B

Team B

Team B

Team B

Team B

ICT & Asset Declaration

Finance

Team C

Team C

Team C

Team C

Team C

Team C

HRM & D

slide26

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.
slide27

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.
slide28

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.

slide29

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 !

slide30

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.
slide31

WHERE IS ACC TODAY?

  • Has it grown into an incorruptible, steadfast & trustworthy institution?
  • Is it vulnerable to corruption & external influence?
slide32

ACC’S 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.
slide33

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.
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