Presented at “12th Regional Seminar” of the ADB/OECD Anti ... · Kezang Jamtsho Presented at...

Kezang Jamtsho

www.acc.org.bt

Presented at “12th Regional Seminar” of the ADB/OECD Anti-Corruption Initiative for the Asia and the Pacific

Dili, Timor-Leste 25 July 2013

- 5th Druk Gyalpo

Source of material – an acknowledgement

Presented by: Com KJ Anti-Corruption Commission of Bhutan

www.acc.org.bt

The presentation is based on the report -

Study on Measures to Safeguard the Constitutional Role of the Anti-Corruption Commission of Bhutan

Basel Institute of Governance

Commissioned by the Anti-Corruption Commission of Bhutan

In preparation to insulate the Commission from political influence – Delinking from the Royal Civil Service Commission

In grateful acknowledgement to BIG for using the material!

Definition of independence

Definition of INDEPENDENCE - the quality or state of being independent

Examples of INDEPENDENCE

She asserted her independence from her parents by getting her own apartment.

Synonyms - self–sufficiency, self-dependence, self-reliance, self-subsistence, self-support

Antonyms - helplessness, impotence, impotency, inadequacy,weakness


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http://www.merriam-webster.com/dictionary/independent

http://www.merriam-webster.com/dictionary/self-sufficiency



http://www.merriam-webster.com/dictionary/self-dependence



http://www.merriam-webster.com/dictionary/self-reliance



http://www.merriam-webster.com/dictionary/self-subsistence



http://www.merriam-webster.com/dictionary/self-support



http://www.merriam-webster.com/dictionary/helplessness

http://www.merriam-webster.com/dictionary/impotence

http://www.merriam-webster.com/dictionary/impotency

http://www.merriam-webster.com/dictionary/inadequacy

http://www.merriam-webster.com/dictionary/weakness

Mandates of ACAs


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Purpose and function of ACAs

ACAs’ mandate is to prevent and combat corruption;

ACAs play a vital role in improving the quality of a country’s governance system;

Effective ACAs strengthen rule of law and foster public trust;

ACAs contribute to economic and social development; and

A growing number of countries (in particular in Africa and Asia) have over the past decade introduced ACAs of various types.

International Best Practice


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Principle 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).



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The apolitical nature of the institution is the first essential prerequisite to ensure its

independence;

The independence of ACAs should be enshrined in law rather than executive

decrees and ideally constitutional guarantees of independence should be given to

protect the agency from “undue” (political or other) influence (Technical Guide

UNCAC, 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



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“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).

International Best Practices


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Internationally recognised safeguard of the institution’s independence is the

availability of and independent use of adequate resources, both financial and

human;

State parties to ensure that the ACAs have appropriate training and

resources to carry out their tasks (UNCAC in 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 Best Practices


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Principle of Check and Balance

International Best Practice is clear that independence cannot mean total

autonomy;

“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)

ACAs with investigative and prosecutorial powers, working on politically

sensitive cases have to be subjected to a degree of checks and balances;

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).



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In summary, International Best Practice identifies three key components of

independence essential for ACAs’ effective functioning. These include:

1. Measures to safeguard ACAs from undue political influence;

2. Adequate financial and human resources and related procedures; and

3. Internal and external checks and balances.

The Bhutanese Experience – Legal Provisions


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Measures to safeguard ACAs from undue political influence

ACC of Bhutan – Constitutionally conferred independence

ACCB is a Constitutional Body with independent authority conferred by

Article 27(1) of the Constitution of the Kingdom of Bhutan (CKB) and

Article 5(1) the Anti-Corruption Act of Bhutan 2011 (ACAB 2011),

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 2011

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 2011



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Measures to safeguard ACAs from undue political influence

ACC of Bhutan – Constitutionally conferred independence

ACC of Bhutan is composed of a Chairperson, two Commissioners (Article 27(1)

of Constitution and Article 11(1) ACAB 2011) and a Secretariat (Article 26

ACAB 2011)

The Chairperson and Commissioners are not civil servants – Article 5(b) of the

Civil Service Act of Bhutan 2010 (CSA 2010)

ACC of Bhutan follows the so-called “single-agency” approach as per the

mandate prescribed in the ACAB 2011, which includes preventive and

educational functions in line with Article 6 UNCAC and investigative and

prosecutorial powers in line with Article 36.



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Adequate financial and human resources and related procedures

Financial independence

Financial stability is ensured through Article 7 of ACA B2011

The State shall make adequate financial provisions for the independent

administration of the Commission as a part of annual national budget


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


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 2011



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Adequate financial and human resources and related procedures

Autonomy in human resources management

The staff of the Secretariat come under the Civil Service Act 2010 (CSA 2010) and

the Bhutan Civil Service Rules and Regulations (BCSR 2012)

All civil servants shall function in accordance with this Act and Bhutan Civil

Service Rules framed by the Royal Civil Service Commission

Article 4 – CSA 2010

The 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


The appointment, terms and conditions of service of staff of the Commission shall

be in accordance with the Civil Service Act




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Internal and external checks and balances

The Commission shall submit an Annual Report on its policies and

performances to the Druk Gyalpo, the Prime Minister and Parliament

Article 7 (4) – CKB

The Commission shall function in accordance with the Anti-Corruption Act

Article 7 (6) – CKB

Chairperson to be removed through impeachment

Removal of two members of the Commission contained in Article 20 ACAB

2011

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

The Bhutanese Experience - in implementation


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Status Quo and Gap Analyses

Despite clear provisions in the Constitution, the analyses of subsequent laws indicate that a number of contradictory or unclear provisions (have crept in that )would impede the Commission from enjoying the full scope of the Constitutionally guaranteed independence

The Bhutanese Experience – in Implementation


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Opportunity for undue political influence in appointment and removal of

the Chairperson and Commissioners

International best practice

Two main elements of importance for independence are the appointment process

and the process for the removal from office (OECD 2008)

Appointment procedure should be transparent, enabling the appointment of

persons of integrity on the basis of high-level consensus among different power-

holders (OECD 2008)

Tenure should be protected against unfounded dismissals, with clear and

unambiguous criteria and rules for early dismissal (OECD 2008)

The Bhutanese Experience – in Implementation


www.acc.org.bt


Opportunity for undue political influence in appointment and removal of

the Chairperson and Commissioners

The Druk Gyalpo (King) shall, by warrant under His hand and seal, appoint the

Chairperson and the Members of the Commission from a list of names

recommended jointly by the Prime Minister, the Chief Justice of Bhutan, the

Speaker, the Chairperson of the National Council and the Leader of the

Opposition Party Article 11 – ACAB 2011

No statutory criteria and procedure for the selection of the Chairperson and Members of the Commission

No legislation or regulation determining the procedures for the impeachment process

The Bhutanese Experience – in implementation


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Opportunity for undue political influence in appointment and removal

of the Chairperson and Commissioners

Attorney General is to submit a written report on the articles of impeachment

Attorney General is under the Executive since appointed by the Druk Gyalpo

under recommendation of the Prime Minister

Attorney General is the chief legal officer and the legal advisor of the

Government

Hence the Attorney General may be in a conflict situation to report on the

article of impeachment due to his position as the legal advisor and

representative of the Government.



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Opportunity for undue political influence

Insulating from undue political influence

Recommendations

Bhutan has put in place solid Constitutional guarantees and legislation to ensure the independence ACC

These include rules for the appointment, term in office and early dismissal

Further legislation or procedures to ensure greater transparency would strengthen the apolitical nature of the appointment process.

Therefore, enhance the transparency and clarify procedures applicable to the selection process of the Chairperson and Commissioners of ACC.



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Opportunity for undue political influence

Insulating from undue political influence

Recommendations

Adopt comprehensive written procedures to select individuals for inclusion in the list to be proposed

Adopt procedures for declaring conflicts of interests and voting rights

Adopt a comprehensive impeachment law containing objective rules for the impeachment process of holders of Constitutional Offices

Establish procedures for initiating impeachment process in Parliament.



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Autonomy in decision making in operational matters


Autonomy in decision-making with regard to its organisational structure and the discharge of its operational functions is crucial (OECD 2008).

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 2011


Staff of Secretariat is subject to the rules and conditions of service of the RCSC (article 28 ACA 2011)

Determination of organizational structure of its Secretariat to be done only “in consultation with the RCSC

Article 8(1) ACAB 2011



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Autonomy in decision making in operational matters

Recommendations

The independence of the ACC is potentially hindered due to the need, as per

article 8(1) ACA 2011, to consult with RCSC on the operational structure of

the Commission.

Revise article 8(1) ACA 2011 to ensure that the ACC can determine its

organisational structure autonomously, without need to consult RCSC or a

similar other institution.



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Financial resources management


ACAs to be provided appropriate budget to carry out their tasks and to

remunerate staff - Articles explicitly link the guarantee of independence and

the provision by state parties of adequate resources with a view to highlight

that the availability of adequate (financial and human) resources are an

essential prerequisite for agencies’ independence

Articles 6 & 36 UNCAC, UNODC 2009

Studies highlight the need for continuity and sustainability of funding of

anti-corruption agencies

In particular OECD (2008) clearly points to the need for legal regulations

aimed at preventing unfettered discretion of the executive over the level of

funding.

.



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ACC’s total budget from RGOB and donor funds for the financial year 2011 corresponded to 0.006% of the total RGoB budget

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



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Recommendations

Increase in budget should be considered in view of the recommendation by leading anti-corruption agency experts that ideally around 0.3% of the total national budget should be allocated to the country’s anti-corruption agency

ACC budget be tied to RGoB budget, with a gradual increase over the coming 10 years to between 0.1 and 0.3% of the total RGoB budget

A qualified prohibition of future reductions of ACC budget below a certain absolute level should be considered

An escrow account or special fund should be considered, ring-fenced by adequate checks and balances.



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Human resources management


Studies on effectiveness have found the following four HR related factors to

be essential in securing their independence and determining the probability

of success or failure of ACAs (U4 2011):

Regulations applicable to appointments, promotions and dismissals;

Integrity of staff;

Expertise and continuous training; and

Adequate salary levels.

The selection of staff should be based on an objective, transparent and

merit-based system, and they should enjoy an appropriate level of job

security in their positions (OECD 2008, 18).



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ACC has identified the following restriction on its independence imposed by its staff being under the RCSC (CSA 2010 and the BCSR 2012)

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;

No authority to determine pay scales or allowances (except indirectly through regular, not performance based promotions);

Limitations in defining the performance appraisal procedures reduce the ability of introducing a modern, strongly performance-based HR management system



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Status Quo and Gap Analyses...contd

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;

Non-civil servants are not eligible for formal training, seriously restricting

the professional development of such recruits

Unequal treatment of the four Constitutional Bodies in Bhutan in relation to

autonomy in human resources management

The Bhutanese Experience


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Recommendations

ACC’s operational autonomy is highly compromised by staff of Secretariat falling under RCSC (CSA 2010 and the BCSR 2012)

Generals cannot win battles when foot soldiers are commanded by others

International experts that have analysed the independence features of ACC (e.g. Crown Services, UNDP and others) have observed control

Revise Articles 8(2) and 28 of ACAB 2011to ensure independence status of ACC guaranteed by the Constitution

The new provisions must ensure in explicit terms, ACC’s independence in relation to the hiring, promotion and dismissal of staff

The Bhutanese Experience – Conclusion


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Constitutional Provisions and Relevant Legislations

The Constitution of the Kingdom of Bhutan guarantees independence to the

Anti-Corruption Commission in unequivocal terms

CKB 2008

The Constitution of the Kingdom of Bhutan was formulated under the direct

command and supervision of the Fourth King

There is perception that legislations enacted by the Parliament after the

adoption of the Constitution of the Kingdom of Bhutan introduced

provisions to bring the Commission under the control of the Government

CSA 2010, ACAB 2011

The Bhutanese Experience - Conclusion


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Perception on intention of the Parliament

Introducing provisions in legislations contrary to the Constitution create

perception that the Government wants to control ACAs

The Secretariat of the Election Commission of Bhutan functions outside the

control of RCSC though it is another independent Constitutional Body

This different treatment of Constitutional Bodies create perception that the

Parliament wants to control ACC, which has the mandates to prevent and

combat corruption

In order to be effective in fulfilling the mandates, ACAs must be

independent and outside the control of the Government

ACC is submitting the proposal to de-link from RCSC

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