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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
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
Mandates of ACAs
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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).
International Best Practice
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
International Best Practice
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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).
International Best Practices
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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,).
International Best Practices
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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).
International Best Practice
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – Legal Provisions
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – Legal Provisions
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – Legal Provisions
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – Legal Provisions
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – Legal Provisions
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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)
The Bhutanese Experience – in Implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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.
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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).
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – in implementation
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
The Bhutanese Experience – Conclusion
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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
Presented by: Com KJ Anti-Corruption Commission of Bhutan
www.acc.org.bt
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