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www.acc.org.bt Presentation to Legislative & Good Governance Committee s, National Assembly of Bhutan 8 January 2013 Druk Gyalpo

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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

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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.

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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).

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

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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)

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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.

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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.

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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.

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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).

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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.

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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).

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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).

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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.

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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

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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

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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.

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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

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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

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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

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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 !

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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.

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WHERE IS ACC TODAY? Has it grown into an incorruptible, steadfast & trustworthy institution? Is it vulnerable to corruption & external influence?

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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.

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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.

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WHO LIKES A STRONG ANTI-CORRUPTION AGENCY?