Kezang Jamtsho
Presented at “12th Regional Seminar” of the ADB/OECD Anti-Corruption Initiative for the Asia and the Pacific Dili, Timor-Leste 25 July 2013 www.acc.org.bt
- 5th Druk Gyalpo Source of material – an acknowledgement
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!
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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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Mandates of ACAs
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.
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International Best Practice
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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International Best Practice
Principle of Independence
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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International Best Practice
Principle of Independence
“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).
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International Best Practices
Principle of Independence
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,).
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International Best Practices
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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International Best Practice
Principle of Independence
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.
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The Bhutanese Experience – Legal Provisions
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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The Bhutanese Experience – Legal Provisions
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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The Bhutanese Experience – Legal Provisions
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 Article 7 (1) – ACAB 2011 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 2011 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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The Bhutanese Experience – Legal Provisions
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 Article 8 (2) – ACAB 2011 The appointment, terms and conditions of service of staff of the Commission shall be in accordance with the Civil Service Act Article 28 (1) – ACAB 2011
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The Bhutanese Experience – Legal Provisions
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
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The Bhutanese Experience - in implementation
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
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The Bhutanese Experience – in Implementation
Status Quo and Gap Analyses 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)
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The Bhutanese Experience – in Implementation
Status Quo and Gap Analyses 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
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The Bhutanese Experience – in implementation
Status Quo and Gap Analyses 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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The Bhutanese Experience – in implementation
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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The Bhutanese Experience – in implementation
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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The Bhutanese Experience – in implementation
Autonomy in decision making in operational matters International best practice 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
Status Quo and Gap Analyses
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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The Bhutanese Experience – in implementation
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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The Bhutanese Experience – in implementation
Financial resources management International best practice 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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The Bhutanese Experience – in implementation
Financial resources management Status Quo and 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
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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The Bhutanese Experience – in implementation Financial resources management 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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The Bhutanese Experience – in implementation
Human resources management International best practice
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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The Bhutanese Experience – in implementation Human resources management Status Quo and Gap Analyses 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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The Bhutanese Experience – in implementation
Human resources management 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
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The Bhutanese Experience
Human resources management 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
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The Bhutanese Experience – Conclusion
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
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The Bhutanese Experience - Conclusion
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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