Policy Paper on the Right to Transparent Governance

8/9/2019 Policy Paper on the Right to Transparent Governance

1/82

District Multi-Stakeholders Forum

On

Constitutional Reform and Peaceful Coexistence

Policy Paper

on

The Right to Transparent Governance


2/82

2

Policy Recommendations of the District Multi-Stakeholders Forum on

Constitutional Reform and Peaceful Coexistence

The National Democratic Institute (NDI) is a nonprofit, nonpartisan, nongovernmentalorganization that responds to the worldwide quest for popular civic participation, open andcompetitive political systems, and representative and accountable government. NDI and its localpartners work to establish and strengthen democratic institutions and practices by buildingpolitical and civic organizations, safeguarding elections, and promoting citizen participation,openness and accountability in government. With staff members and volunteer politicalpractitioners from more than 100 nations, NDI brings together individuals and groups to shareideas, knowledge, experiences and expertise. Partners receive broad exposure to best practices ininternational democratic development that can be adapted to the needs of their own countries.NDIs multinational approach reinforces the message that while there is no single democraticmodel, certain core principles are shared by all democracies.

In late 2008, NDI commenced a program to promote multi-sector dialogue to build capacity andconsensus on constitutional reform and peaceful coexistence. District Multi-Stakeholders Forums(DMSFs) were created in eight districts of the South, Central and Eastern Provinces with theparticipation of political party leaders, representatives of professional associations and civilsociety organizations.

During the initial meetings in early 2009, participants identified specific constitutional andgovernance issues that they believed should be addressed through policy, legislative andinstitutional reforms to promote, consolidate and sustain democracy and good governance.Comprehensive dialogues were promoted on the following issues:

1.The right to Representation and Participation2.The right to Rule of Law3.The Right to Transparent Governance4.The right to Effective, Efficient, Responsive and Accountable Governance5.The right of Women to Equality, Representation and Participation

The recommendations formulated by the DMSF are intended to initiate dialogues throughconstructive engagement with policy-level stakeholders, political and civil leaders and othersresponsible in promoting democratic governance in the country. The recommendations for policyreform on the Right to Transparent Governance are presented herewith with the kind requestof the members of the DMSF to H.E. President Mahinda Rajapaksa, Cabinet Ministers, Leader ofthe Opposition, leaders of all political parties, Parliamentarians, Members of the ProvincialCouncils, Heads of relevant state institutions and the general public to kindly come forward withcommitment, enthusiasm and solidarity to promote informed dialogue based on these

recommendations in order to reach multi-party consensus in the search for a shared future inwhich everyone will be accepted and respected as equals in an environment of good governancewith development and peace and free of discriminations, fear, intimidation and violence.

The Members of the District Multi-Stakeholders Forum on

Constitutional Reform and Peaceful CoexistenceAugust 2010


3/82

3

District Multi-Stakeholders Forum on Constitutional Reform and Peaceful

Coexistence

POLICY PAPER ON THE RIGHT TO TRANSPARENT GOVERNANCE

Introduction

Transparent governance deals with government decisions about which the public has aright to know. Public decisions and decision making processes should be in the publicdomain and be easily accessible to the public. The public have a right to know aboutnational, regional and local budgets; development strategies and national action plans;agreements with multilateral institutions; plans for infrastructure development; theexpenditure of government Ministers, departments and other institutions; and about otherdecisions that impact on the public.

Lack of transparent processes creates an environment that not only breeds corruption but

destroys public trust. When the legitimacy of the state as the guardian of the publicinterest is in question, this creates conditions ripe for corruption. According to thePhilippine anti-corruption body, TAG:

Corruption is also rampant wherethe rule of law is weakly embedded. Laws andrules apply to some, while others are exempt. A common manifestation ofuneven application of the rule of law is when law enforcers become the first tobreak laws or once the judiciary ceases to be independent.

Institutions of accountability are ineffective in countries where corruption ishigh. In places where corruption is low, monitoring mechanisms were found tobe strong.

The commitment of national leaders to combating corruption is weak. Insocieties where public sector corruption is endemic, it is safe to assume it isentrenched in the upper layers. In which case, higher public officials are lesslikely to initiate anti-corruption programs. (www.tag.org.ph)

Human rights are indivisible and interdependent, and the consequences of corruptgovernance are multiple and touch on all human rights. Corruption leads to violation ofthe governments obligation to take steps to the maximum of its available resources,with a view to achieving progressively the full realization of the rights recognized in the[International] Covenant [on Economic, Social and Cultural Rights].

The corrupt management of public resources compromises the governments ability todeliver an array of services, including health, educational and welfare services, which areessential for the realization of economic, social and cultural rights. Also, the prevalenceof corruption creates discrimination in access to public services in favor of those able toinfluence the authorities to act in their personal interest, including by offering bribes. Theeconomically and politically disadvantaged suffer disproportionately from theconsequences of corruption, because they are particularly dependent on public goods.


4/82

4

Corruption may also affect the enjoyment of civil and political rights. Corruption mayweaken democratic institutions both in new and in long-established democracies. Whencorruption is prevalent, those in public positions fail to take decisions with the interests ofsociety in mind. As a result, corruption damages the legitimacy of a democratic regime inthe eyes of the public and leads to a loss of public support for democratic institutions.

People become discouraged from exercising their civil and political rights and fromdemanding that these rights be respected. Electoral fraud and corruption in the funding ofpolitical parties are other, more direct corrupt practices related to the enjoyment of civiland political rights.

In countries where corruption is pervasive in the rule-of-law system, both theimplementation of existing legal frameworks and efforts to reform them are impeded bycorrupt judges, lawyers, prosecutors, police officers, investigators and auditors. Suchpractices compromise the right to equality before the law and the right to a fair trial, andespecially undermine the access of the disadvantaged groups to justice, as they cannotafford to offer bribes. Importantly, corruption in the rule-of-law system weakens the very

accountability structures which are responsible for protecting human rights andcontributes to a culture of impunity, since illegal actions are not punished and laws arenot consistently upheld.

National Democratic Institute (NDI) conducted a series of multi-stakeholder forums ineight districts of the country to discuss good governance. While recognizing thecommitment demonstrated by successive governments in Sri Lanka to strengthen goodgovernance, stakeholders pointed out that transparency, as a cornerstone to goodgovernance, is a central issue that the government needs to address through the legislatureto ensure compliance with international norms and standards. The recommendations ofthe forum are presented in this paper.

International Law and Sri Lankas Obligations

There have been 3 phases in the global movement against corruption.

1st

Phase. In the 1980s there was growing intolerance to corruption in a number ofcountries such as the Philippines, Bangladesh, China, Brazil, Venezuela among others.

2nd

Phase. Convention making and standard setting

Inter-American Convention Against Corruption (1996) OECD Convention Against the Bribery of Foreign Public Officials in

International Business Transactions (1997 Council of Europes Criminal and Civil Conventions (1999) UN Convention Against Corruption in Mexico in December 2003


5/82

5

3rd

Phase. The current phase is implementation and enforcement. This has proved themost challenging phase, with countries facing unique challenges. While the laws andinstitutions may be in place, the challenge is in ensuring they are respected and adheredto. (Jeremy Pope, Dimensions of Transparent Governance, annex 1)

Sri Lanka is a signatory to the United Nations Convention against Corruption (annex 2),which seeks to define the obligations of States to prevent corruption and promote aculture of transparency and accountability with regard to the management of publicaffairs and property. There are a number of laws and institutions in the country whichshould prevent corruption, however they are not serving their purpose effectively atpresent.

The Supreme Court has developed jurisprudence that set standards of conduct with regardto the exercise of public power by public officials. According to the Supreme Court,public power is vested in public officials to be used in trust only for the purposes forwhich it is conferred. Any other use would be construed as an abuse or misuse of public

power.

Policy Recommendation 1: Constitutional and Legislative Reforms:

All office bearers and institutions that exercise public power should act in accordancewith the Constitution and the law and as a trustee of that power. In exercising thesepowers, they must demonstrate their commitment to upholding the best interests of thecitizens. This includes being open and transparent with regards to their actions anddecisions. Office bearers and institutions must be accountable within a legal andconstitutional framework that commands transparency at all levels and which must beadhered to by all.

Under the current Constitutional arrangements, the President enjoys broad powers withfull immunity while in office and, in the presence of a deeply politicized and weaklegislature and judiciary, can exercise almost absolute authority without censure. Withina transparent framework, the decisions made by the executive must be open to scrutiny-therefore the process of decision making needs to be open to enable discussion anddebate in the public interest. The system of the Executive Presidency in Sri Lanka is suchthat the legislature is of limited relevance in the countrys scheme of constitutionalgovernment. The system of government is so heavily weighted in favor of the Presidentthat today Parliament plays only a marginal role both in a de facto and de jure sense.

The ability for the three instruments of the state to work cohesively and autonomously toprovide checks and balances that will ensure rule of law is upheld is paramount in ademocratic society. A clear separation of powers for the executive, legislature and judiciary that allows each arm to operate without interference and which has in-builtmechanisms to ensure accountability- through enforceable internal controls and throughan independent external watchdog that reports to parliament is essential.


6/82

6

Parliamentary Oversight Bodies and Parliament Question Time are integral means bywhich the Parliament strengthen transparency. The Committee on Public Enterprises(COPE) and the Committee on Public Accounts (COPA) are the two principal methods ofparliamentary oversight in Sri Lanka related to managing public resources. COPE drawsits members from different political parties in government. The Committee scrutinizes the

accounts of public corporations and other public undertakings and comments on howpublic institutions are being run.

The judiciary, as one of the three main organs of state power, ensures that the executiveand legislature act within their designated realms and do not usurp or abuse their powers.An independent and accountable judiciary and legal profession are essential requirementsfor any system of government based on the Rule of Law to flourish. Independent andimpartial institutions lie at the centre of any effective system for the administration of justice. Justice can be effectively delivered only in an environment in which theinstitutions administering justice are protected from harassment and intimidation from theother institutions of the state.

The protection afforded to the judiciary is reflected in the constitution which makes it anoffence for any person to interfere in the exercise or performance of judicial powers orattempts to influence the decisions of the Judicial Service Commission.

The legislature, judiciary and police, who in theory should work integrally within thedemocratic framework to uphold human rights and rule of law have been weakened bypoor governance and have a stigma of corruption. The public service, which at one timewas independent, has now been infused with a large number of political appointees andhas lost independence and credibility. At the moment there is no single institution thatcommands widespread credibility. Appointments to public institutions have been taintedby political bias. The unreliability of key institutions coupled with uneven powersexercised by the executive have dyer implications for transparency, accountability and,ultimately, human rights.

The 17th Amendment to the Constitution was introduced in an attempt to depoliticize thepublic service including the appointment of judges and oversight mechanisms, such asthe Bribery Commission. The Amendment creates a Constitutional Council (CC), whichshould be an inclusive body with the power to make recommendations for appointmentsor in some cases approve appointments to key public offices. Under the 17 th Amendment,the responsibility for appointment still remains with the President, however he or shecannot make any appointments without the recommendation of the CC. However, the CChas ceased to function and there appears to be little political will to re-activate it.Transparent processes for the appointment of officials ensures not only that public trust ismaintained, but that the most suitable person is selected for the post, based on a pre-defined criteria and that the post is less likely to succumb to partisan manipulation.


7/82

7

Freedom of Information

Sri Lankas decision making processes are generally shrouded in secrecy. Decisions thatimpact on the lives of the countrys citizens are made in private and without open,accessible dialogue. Information that should be in the public domain is not released and

the public sector does not readily disclose information to the public about its functioning.

Transparent governance deals with government decisions about which the public has aright to know. Public decisions and decision making processes should be in the publicdomain and be easily accessible. Citizens have a right to know about national, regionaland local budgets; development strategies and national action plans; agreements withmultilateral institutions; plans for infrastructure development; the expenditure ofgovernment Ministers, departments and other institutions; and about other decisions thatimpact on the public. This is because these decisions directly impact on their basic rights,on their lives and futures.

A Right to Information law and a legal regime that will enable people to accessinformation speedily, easily and in a comprehensible form would enable the public toclaim their right to full participation- knowing what decisions their leaders are makingcan help them better decide whether or not they approve of their representatives plansand actions and can help them to make more informed decisions at election time. Havinginformation available empowers citizens to play an active role in the governance of thecountry and bolsters their confidence in the countrys democratic framework.

Access to information with regard to the decisions, actions and policy of publicauthorities is vital in ensuring the transparency and accountability of these authorities. Itenables the public and civil society to challenge the relevance of proposed projects andplans. Transparency and openness in public decision making also minimizes theopportunities for bribery and corruption.

The Law Commission of Sri Lanka presented a draft law on the freedom of informationto the government in 2001 that was approved by the Cabinet in 2003. Due to theunexpected dissolution of Parliament in 2004, the law could be passed. The LawCommission subsequently took up the issue and presented a revised draft, however, noaction has been taken since then to present and debate the draft law in Parliament.

The draft law submitted by the Law Commission in 2006 established a right of the publicto access official information. It also established a right to receive reasons for decisionsthat affect any person. According to the Law Commission draft every citizen, andincorporated and unincorporated bodies have a right to access official information in thepossession, custody or control of a public authority. A public authority was defined toinclude Ministries of Government, departments, public corporations, higher educationalinstitutions, local authorities, companies in which the Government had a majority shareholding, any department or other authority established by a Provincial Council and anybody or office established under the Constitution other than the Parliament and the


8/82

8

Cabinet of Ministers. In terms of the draft law the provisions of the freedom ofinformation law were to prevail over any other law.

The draft law envisages a Freedom of Information Commission consisting of threemembers appointed by the President on the recommendation of the Constitutional

Council. Every public authority is required to appoint at least one Information Officer todeal with requests for information.

The enactment of a Freedom of Information law is one potential method to enhance thelevels of accountability and transparency within the public sector.

Some countries have a separate right to information as a part of the Bill of Rights. Forexample Section 32 of the South African Constitution states:

(1) Everyone has the right of access to

(a)

any information held by the state; and

(b) any information that is held by another person and that is required forthe exercise or protection of any rights.

(2) National legislation must be enacted to give effect to this right, and mayprovide for reasonable measures to alleviate the administrative andfinancial burden on the state.

Further information on freedom of information please refer the document in annex 3

Public Interest Litigation

In more recent times, in many parts of the world, civil society groups have begun to playan important role in advancing the Rule of Law. Consumer groups, environmental groups,human rights groups and womens groups have begun to bring cases on behalf of victimsbefore the courts in several countries. Public interest litigation has emerged as animportant branch of litigation not just in South Asia, but in other parts of the world too.In Sri Lanka several public interest petitioners have brought cases before the SupremeCourt and Court of Appeal. One of the advantages of public interest litigation is that thepetitioner is able to provide legal arguments and material that victims may not be able topresent to court. They thus enhance the range of materials available to the court andconsequently enhance the courts capacity to address and resolve complex aspects ofeconomic and social policy.

Emerging in the sixties in the United States and in the seventies in India, Public InterestLitigation (PIL) is a legal concept that seeks to enhance access to justice and to increasetransparency in government. Over the years PIL has made a significant contribution toSouth Asian legal thought, jurisprudence and social action and changed the way lawyers,


9/82

9

judges and activists view the law and proved to be a useful tool to control the abuse ofpublic power and to ensure that the law is observed by all entities, state and non-state.

In India in the 1970s it became possible for any person, even if he or she was not personallyaffected, to initiate this litigation by merely addressing a letter to a judge of that court. In

this manner a large number of public interest issues affecting large groups such as prisoners,workers, children and other disadvantaged groups were brought to the notice of the courts.Most often these issues related to the infringement of constitutionally guaranteedfundamental rights or the non performance of legal duties.

Six features came to characterize this litigation:

1. An expansion in the doctrine of standing (locus standi) which permitted any bonafide petitioner to bring matters of public interest before the court. The petitioner wasnot required to show that he or she was personally affected.

2. Formal court procedures were dispensed with. Thus actions could be initiated bywriting a letter to the court which would then be converted into a formal petition andnotice issued on the respondent.

3. The use of novel methods to gather facts. Often the court appointed a socio legalcommission of inquiry to investigate the disputed facts and submit a report to thecourt.

4. A creative interpretation of some of the fundamental rights provisions of theIndian constitution. For example, the right to life clause in the constitution wasbroadly interpreted to include a right to livelihood, a right to speedy access to justiceand the right to a clean and healthy environment.

5. The use of international standards as an aid to interpretation.1

6. Many of the cases pertained to socially disadvantaged and vulnerable groups.

This litigation has been referred to as public interest litigation or social action litigation. Indeveloping this litigation the Supreme Court of India has argued that court procedures mustbe de-formalized to enable all segments of society to have access to the courts. Mostdisadvantaged and economically underprivileged groups lacked the capacity to the approachthe courts on their own. Thus the court should permit non governmental organizations(NGOs) and other public interest groups to litigate on their behalf.

Rationale for PIL

The matter will never get litigated otherwise. It is better to deal with an allegedinjustice than to allow it to go unchecked because there is no petitioner.


10/82

10

One of the goals of public law litigation is to control public power and to ensuregovernmental accountability.

It does not matter who invokes the jurisdiction of the court. Some victims may nothave the capacity to approach the courts and thus a third party should be allowed

to petition on their behalf.

The victim is not the best placed to argue the matter in every case. A publicinterest petitioner can bring new material and enhance the quality of the judgment.Third parties may have better expertise and resources to present to the court allthe relevant material and facilitate a better judgment.

If the victim is not always the most competent person to argue the case, then thereis a strong case to allow a third party to intervene or for the court to appoint anamicus curiae to assist the court, in appropriate cases.

PIL is a powerful tool for the citizens to control the exercise of public power and toensure that public officials act in the best interests of the public. It is a powerful tool forensuring greater transparency in government and for creating a culture of openness.

Recommendations

1.1. Suitable provisions in the Constitution should be incorporated to declare andensure that transparency, not secrecy, shall be the general rule and norm whichwill govern the actions of the government, Executive (President, Ministers, otherMinisters), the Public Service, including public sector institutions and those ofother institutions in which the government has some interest, the Legislatures, andthe Judiciary.

1.2. Effective Checks and Balances procedures should be introduced throughConstitutional Provisions among the three branches of the State- Legislature,Executive and Judiciary in order to prevent the abuse or misuse of powers vestedwith these institutions.

1.3. Executive immunity provided in the Constitution should be removed and all theholders if government offices including the Chief Executive should be madeaccountable to the rule of law through a Constitutional provision.

1.4. The proposed Freedom of Information Act should provide for the public officersto provide information when requested by any members of the public as well asmandate these offices to proactively display and publish critical information oftheir work, expenditure, etc on a regular basis, viz., once in six months or once ayear. There should be effective sanction provided for failure to do so or willfulneglect of these duties.


11/82

11

1.5. The Constitution and relevant laws should be amended to encourage PublicInterest Litigation in matters of governance, whether relating to alleged abuse ofpower, corruption and/or bribery. Any purported action which undermines orcompromises the Rule of Law in the country should be a proper concern of everycitizen in the country and any citizen should be free and should have the right to

bring such matters before the courts of law without any hindrance.

1.6. All provisions of the existing laws, regulations, rules, codes, practices etc whichmilitate against transparency and which foster secrecy or which are inconsistentwith the letter and spirit the right to transparent governance be repealed once theConstitutional and legislative measures as enumerated above come into operation.

1.7. A Freedom of Information Act should be enacted to enable public officers toprovide information when requested by any members of the public as well asmandate these offices to proactively display and publish critical information oftheir work, expenditure, etc on a regular basis, viz., once in six months or once a

year. There should be effective sanction provided for failure to do so or willfulneglect of these duties. This act should incorporate the salient recommendationsof the Commonwealth Parliamentary Association and World Bank Institute StudyGroup on Access to Information.

Policy Recommendation 2: Institutions to Safeguard Transparent

Governance:

Commission to Investigate Allegations of Bribery and Corruption (CIABOC)

CIABOC was set up in 1994. The objective was to create a powerful, independentinstitution capable of investigating and prosecuting all forms of bribery and corruption.The main function of CIABOC is to investigate allegations of bribery and corruptionreceived from the public and then to initiate prosecution. Allegations must be deemedgenuine and disclose material which can be investigated. This is done by theCommissioners. Once this has been decided, cases are handed over to the DirectorGeneral for Investigation.

If an investigation shows that an offence was committed under the Bribery Act, theDeclaration of Assets and Liabilities Law (No 1 of 1975) or under any other law, theCommission may proceed to prosecute the offender. A suit may be launched either in theMagistrates Court or the High Court. Suits are initiated in the Magistrates Court wherethe amount involved is less than Rs 2,000. Suits are conducted by the Commissions legalstaff.

The extent to which the Commission can operate with autonomy is reflected by theeffectiveness of its work. Unless it is fully independent, the Commission cannoteffectively investigate all forms of bribery and corruption at all levels of government.There is little evidence that the Commission has had any significant impact. This is


12/82

12

primarily due to three significant constraints that have limited its independence andcapacity to carry out its functions. These constraints are:

Political Human Financial

The Commission is limited to reacting to complaints and does not initiate investigationson its own.

A strengthened Commission that has broad powers for investigation should haveadequate human resources and financial resources to carry out its functions effectively.At present, funds of the Commission are controlled by the Treasury. A better optionwould be for funds allocations to be decided on by a Standing Committee in Parliament,based on estimated budgets provided by the Commission.

In Hong Kong, the Independent Commission Against Corruption (ICAC) used a multi-pronged strategy for combating corruption through public education, deterrence andprosecution. Of these, prosecution was regarded as the most important, with 70% ofresources vested in operations with a view to prosecution. Prosecution must be fullyindependent and without political interference. Such independence could preventprosecutions from turning into witch hunts against political opponents.

A strong and vibrant Commission should have an effective system for receiving andresponding to public complaints. ICAC in Hong Kong has a 24 hour hotline which ishighly publicized. A system should be in place to ensure that complaints can beresponded to quickly. In Hong Kong, successful prosecutions are given prominent

publicity. This exposure is also an effective deterrent.

A key component of ICACs internationally is the role that they play in public educationand outreach. This recognizes that the public are key stakeholders in detecting briberyand corruption and empowers them to take action against it- by first understanding itsimpact, that they have a role to play in combating it and understanding the ways andmeans to do so. Public campaigns through the media and workplace training are themajor outreach activities of strong Commissions, such as Hong Kong and Australia.

An Ethics and Integrity Commission

While an Anti-Corruption Commission focuses on the narrow concept of corruption, anEthics and Integrity Commission addresses the broader notion of abuse of power thataccompanies the exercise of public office.

An independent Ethics and Integrity Commission would seek to ensure that public life isinfused with standards of probity. Such a Commission will look not only at issues ofbribery and corruption but will also ensure that public and political office is not used forextraneous purposes and that public power is exercised fairly and reasonably. Such


13/82

13

Commissions are concerned with the holders of public and political office and seek to setstandards of conduct for these officials of state and the exercise of their power.According to the Draft Constitution of Kenya the Ethics and Integrity Commission,among other things, will:

Put in place measures aimed at the prevention of corruption and abuse of office,including preparing guidelines and codes of practice for elected or appointed stateofficers Issue guidance, warnings and comments with respect to behavior that itconsiders may violate a code of practice or the principles of probity in public life.

Such Commissions frame and supervise standards to ensure that public office is not usedfor personal gain or to pursue partisan political interests. This includes ensuring thatpublic property is not used for personal use and ensuring that public funds are used in anefficient and effective way. They would also seek to preclude holders of public officefrom engaging in specific post-retirement activities to prevent the perception that theofficer holders conduct was influenced by the prospect of a post-retirement benefit.

One of the functions that an Ethics and Integrity Commission could have would be tocreate wider public awareness and respect for transparency in the public service and inthe private sector. It would also actively engage in awareness raising and training withinthe state framework.

Auditor Generals Department

The Auditor General is an office set up under the Constitution to audit the accounts ofpublic institutions. Many similar institutions overseas are not limited to financial auditingand undertake a range of audits including environmental, investigative and value formoney audits. In Sri Lanka, the role is limited only to financial auditing. The Officedoes not currently have the ability to recruit and retain trained personnel. The ability toproduce high quality audit reports is central to such a body. In order to generate highquality reports, the institution needs to be strengthened. In 2005 a Draft Audit Act andConstitutional amendments were prepared to provide greater autonomy and to make theoffice more effective. Although Cabinet approval was obtained, the proposals have notbeen passed by the Parliament. The objective of the draft act was to strengthen the roleand efficacy of the Auditor Generals office and to create a strong audit culture in SriLanka. This would include efficiency and environmental audits in addition to financialauditing of all public institutions.

The draft act calls for the creation of an independent Auditor General, a National AuditOffice under the Auditor General and a National Audit Service Commission, whichwould play an advisory and supervisory role. These three institutions would beestablished to ensure the Auditor General would have the required independence andability to audit accounts of public bodies.


14/82

14

National Procurement Agency

Corruption in Public Contracting is one of the most pervasive forms of corruption. Apossible approach to addressing it is Transparency Internationals so-called IntegrityPact under which all the parties to a tender agree in advance that there will be no bribery,

and civil society provides oversight to assure the integrity of the process. It is designed(a) to enable companies to abstain from bribing by providing assurances to them that theircompetitors will also refrain from bribing; (b) for government agencies to undertake toprevent corruption, including extortion, by their officials and to follow transparentprocedures; and (c) to enable governments to reduce the high cost of corruption on publicprocurement, privatization, and licensing.

The National Procurement guidelines where approved by the Cabinet in 2006. Alongwith the guidelines, a National Procurement Agency (NPA) was established to overlookthe procurement process. The guidelines detail the procedures to be followed by anyprocuring entity in carrying out any procurement financed in whole or part by the

Government of Sri Lanka or a Foreign Funding Agency. The guidelines aim to maximizeeconomy, timeliness and quality in procurement resulting in lowest cost/highest quality,adhere to prescribed standards, specifications, regulations and good governance, providefair, equal and maximum opportunity for eligible interest parties to participate inprocurement. They provide a framework to expeditiously execute works and delivery ofgoods and services, comply with local laws and regulations and international obligations,ensure transparency and consistency in the evaluation and selection procedure and retainconfidentiality or information by bidders

The guidelines apply to:

Ministries Government departments State corporations and statutory bodies Fully government-owned companies Local authorities

Though the Procurement Guidelines provide detailed measures that public institutionsand officials should observe with regard to procurement of goods, services or works andthe NPA was created, the guidelines are not clearly enforceable. It is not clear whetherviolation of the guidelines attracts ant sanction or penalty. It is also possible for theCabinet to override the guidelines in exceptional circumstances, such as when anexpeditious procurement is necessary or where security considerations warrant.

Elections CommissionTransparency in the process of selection and election of the officials who will administerthe public funds and make critical decisions that will affect the country is a keyingredient in democratic governance. Monitoring the electoral process is an importantintegrity safeguard. Article 103 of the Constitution provides for an Elections Commissionconsisting of five members appointed by the President, on the recommendation of the


15/82


16/82

16

Members of the public should be, as of rights, given access to the proceedings ofthese Committees as well as their reports and recommendations must be madeavailable to the public without any delay. These reports should be deemed aspublic documents which need no approval from anybody for being published.

2.4.

The 17

th

Amendment should be implemented forthwith. And all the independentbodies envisaged in the Amendment should be established without any furtherdelay.

2.5. The Election Commission be established and election laws to be revised to ensurecorruption is eliminated in the process of elections. The laws must be amended toensure transparency of election process, in particular the polling and countingprocesses, subject to ensuring the confidentiality of voting.

2.6. National Procurement Agency to ensure obtaining of services and goods for thePublic Service should be done through transparent and efficient manner.

Policy Recommendation 3: Enforcement of laws:

One of the greatest problems for anti-corruption commissions and other criminal lawenforcement agencies is presented by the immunities possessed by high officials. Thiscan render them effectively above and beyond the reach of the law. Immunity fromprosecution is meant:

To ensure that the elected representatives of the people can speak in the legislaturewithout fear of criminal or civil sanctions and a host of claims for defamation; To protect elected representatives from being arbitrarily detained and so prevented fromattending the legislature; and To act as a shield against malicious and politically-motivated prosecutions beingbrought against them.

Immunity for politicians is designed to protect the democratic process not to establish aclass of individuals who are above and beyond the reach of the law. In Belgium, thepolice can investigate the activities of parliamentarians without political interference including searches, seizures, and questioning.

The Declaration of Assets and Liabilities Law (Acts No. 1 of 1975 , 29 of 1985 andAmending Act No 74 of 1988) was designed to monitor the acquisition of wealth bypublic officials with a view to contain bribery and corruption. It requires MPs, membersof local authorities, chairmen and directors of state corporations, office bearers ofpolitical parties, trade unions and several other categories to declare their assets andliabilities as at 31st March each year.

Section 5 (1) states that:Any person , body or authority responsible for the appointment,promotion, transfer or secondment of a state officer or employee of a public corporation


17/82

17

or local authority shall, for such purpose, have the right to call for and refer to anydeclaration of assets and liabilities of such state officer or employee.The Attorney General, the Commission to Investigate Allegations of Bribery andCorruption and the Commissioner General of Inland Revenue and the Head ofDepartment of Exchange and Control also have the right to call for any declarations of

assets and liabilities.

Section 4, as amended in 1998, makes it mandatory for presidential candidates to declareassets and liabilities to the Commissioner of Elections prior to the Election. However,where a presidential candidate is elected and later found not to have made a declaration,there are no steps to bring the candidate before a court of law. Under Section 5 CIABOChas the power to call and refer to any declaration. Under Section 6, it can also call foradditional information from any person who has made a declaration.

CIABOC is a competent authority for prosecuting false public statements. However, thepower of the institution is limited because no prosecution for any offence under the law

can be instituted without the prior sanction of the Attorney General.

Any person can draw the attention of the authority to any recent acquisition of wealth orproperty which seems to be of dubious origin through a communication in writingaddressed to the appropriate authority.

Offences and Sentences:

Failure to disclose such as assets and liabilities False declarations Intentionally excluding an asset or liability Failure to disclose any additional information requested by CIABOC

Laws that would keep public officials accountable in Sri Lanka are largely ignored,largely because they are not adequately monitored and enforced by an empoweredinstitution. For example, violations of The Declaration of Assets and Liabilities Law arepunishable by fine and or imprisonment. Act No 19 of 1994 empowered the BriberyCommission to prosecute offenders who have failed to comply. However, up to 2005,only 7 MPs had made declarations.

Protection of the Whistleblower

Nobody will be willing to report a case of bribery or corruption if it means they will besubject to reprisal. People who blow the whistle on corruption must be affordedprotection by the law to ensure that making a report is not detrimental to them. Only byintroducing laws to safeguard people who act in the public interest can an environment becreated wherein corruption can be thoroughly stamped out.

At the moment Sri Lanka does not have legislation that protects the whistleblower.Lack of protection from reprisal can be a significant deterrent. An ideal law would


18/82

18

provide physical security, identity protection and employment security.Legal protection,by way of separate legislation, for those who expose acts of corruption will help increating a culture of transparency and accountability. People who take the risk ofexposing acts of corruption must not suffer any reprisals or sanctions as a result.

An ideal whistleblower should also instruct people in a clear and concise way how acts ofcorruption may be exposed without subjecting themselves to any reprisals or sanctions.People reporting suspected corrupt conduct have rights and are entitled to legalprotection.

In Australia, reports to the New South Wales ICAC about suspected corrupt conduct arekept confidential. Additional protections are afforded to NSW public officials who makedisclosures under the provisions of the Protected Disclosures Act 1994. TheDefamation Act 2005 protects people who give the ICAC information about suspected corruptconduct in the NSW public sector. It is a defence to the publication of defamatory matterif the defendant proves that it was published on an occasion of absolute privilege such aspublication to the ICAC. Complainants also have legal protection under the IndependentCommission Against Corruption Act 1988. Sections 93 and 94 of the ICAC Act make it acriminal offence to:

threaten or use, cause, inflict or procure violence, punishment, damage, loss ordisadvantage to anyone who has given the Commission information or assisted usin other ways

dismiss or disadvantage anyone in their employment because they have assistedthe ICAC.

Transparency Index

The level of transparency in an institution can be gauged based on a number ofindicators. Internationally, such indexes have been developed for public institutions andgovernments. The Corruption Perceptions Index (CPI) conducted by TransparencyInternational measures the perceived level of public-sector corruption in 180 countriesand territories around the world. The CPI is a "survey of surveys", based on 13 differentexpert and business surveys. The transparency index is a report card of the level ofaccountability and transparency being demonstrated by an institution or departmentthroughout the year. The index, released annually is an important tool to measureprogress and to increase public trust.

Recommendations

3.1. Laws to ensure transparency, against corruption and abuse of powers should beenforced efficiently and effectively.

3.2. Those who are found guilty of engaging in corruption and bribery in governancebe dealt with severely in that they should not only be sent to prison but also be


19/82

19

debarred from entering public service, whether as an employee or as a Member ofParliament, Provincial Councils, Local Authority or as a Minister or President fora period of at least seven years.

3.3. Protection of whistle blowers and witnesses should be ensured to sustain anenvironment in which those come forward to reveal cases of corruption andbribery be protected from any form of reprisals.

3.4. Annual Declaration of the assets of executive officers and representatives ofpublic bodies should be made compulsory. The National Integrity Commissionshould be empowered to examine these asset declarations and to take actions forfalse declarations.

3.5. A Transparency Index to be released by every Ministry and department.Conclusion

While Sri Lanka has established laws and institutions that would ensure transparency,they must be implemented they must be given priority. Making transparency the normcan only be done through a consistent a thorough commitment that includes an over-arching legislative framework and a strong and independent oversight system that cancoordinate, monitor and actively engage at all levels to increase transparency andeliminate corrupt practices.


20/82

20


21/82

21

Annex 1

DIMENSIONS OF TRANSPARENCY IN GOVERNANCE

By Jeremy Pope

INTRODUCTION

There have been 3 phases in the global movement against corruption.1

stPhase. In the 1980s there was growing intolerance to corruption in a number of

countries such as the Philippines, Bangladesh, China, Brazil, Venezuela among others.

2nd

Phase. Convention making and standard setting

Inter-American Convention Against Corruption (1996) OECD Convention Against the Bribery of Foreign Public Officials in

International

Business Transactions (1997 Council of Europes Criminal and Civil Conventions (1999) UN Convention Against Corruption in Mexico in December 2003

3rd

Phase. The current phase is implementation and enforcement. This has proved themost challenging phase, with countries facing unique challenges. While the laws andinstitutions may be in place, the challenge is in ensuring they are respected and adheredto.

I. ETHICS ADVANCES, CORE PUBLIC SERVICE VALUES, AND STANDARDS

IN PUBLIC SERVICEIn 1994 the United Kingdom developed the 7 Principles of Public Life

Selflessness Holders of public office should take decisions solely in terms of thepublic interest. They should not do so in order to gain financial or other materialbenefits for themselves, their family, or their friends.

Integrity Holders of public office should not place themselves under anyfinancialor other obligation to outside individuals or organisations that might influencethemin the performance of their official duties.

Objectivity In carrying out public business, including making publicappointments,awarding contracts, or recommending individuals for rewards and benefits,holders ofpublic office should make choices on merits.

Accountability Holders of public office are accountable for their decisions andactions to the public and must submit themselves to whatever scrutiny isappropriate to their office.


22/82

22

Openness Holders of public office should be as open as possible about all thedecisions and actions that they take. They should give reasons for their decisions

and restrict information only when the wider public interest clearly demands.

Honesty Holders of public office have a duty to declare any private interestsrelating to their public duties and to take steps to resolve any conflicts arising in a

way that protects the public interests. Leadership Holders of public office should promote and support these principles

by leadership and example.

In 1996, the United Nations promulgated an International Code of Conduct for PublicOfficials (Resolution 51/59: Action Against Corruption adopted by the GeneralAssembly on 12 December 1996), which was recommended to Member States as a toolfor guiding their efforts against corruption. Similar to the United Nations Code is theCouncil of Europes Model Code of Conduct for Public Officials (2000).The Codecontains some mandatory items, but the document itself is a Recommendation and isintended to set a precedent for countries drafting their own mandatory codes of conduct.

Codes of Conduct for Ministers and Public Officials. Codes of conduct for ministers,legislators, civil and foreign service officers, the judiciary, and local government canassist countries in putting principles to work. Guatemala is among the countries that haveinstituted codes of conduct for ministers and permanent secretaries. In the UnitedKingdom, the Standards Board for England is active in setting and enforcing standards ofconduct, transparency, and accountability across local government structures. The Boardis responsible for promoting high ethical standards and investigating allegations thatmembers behaviour may have fallen short of the required standards.

Citizens Charters. These are intended to improve public sector accountability as well as

service delivery. In India, Citizens Charters are being used to tackle low-level corruptionby providing citizens with access to information about services where bribes are oftenlevied. The Charters describe the services that the government will provide, the timeframe for each service, the government officer who should be contacted and a remedyshould the service not be provided. In the typical Charter, a government department oragency sets out its commitments to the public it serves. Copies of the Charter are thendisplayed prominently wherever the department or agency is doing business with thepublic.

Ethics officers. To be effective, over-all responsibility for public ethics development andtraining must be vested in a particular agency of government. Frequently, this is within

the ministry for government administration.

Conflicts of Interest. Most countries consider the question of conflicts of interest soimportant and so fundamental to good administration, that they enact a specific conflictof interest law. This can provide, for example, that a State officer or employee shall notact in his official capacity in any matter wherein he has a direct or indirect personalfinancial interest that might be expected to impair his objectivity or independence ofjudgment.


23/82

23

Monitoring and Surveys. Monitoring the progress of state agencies in combatingcorruption is central to effectively eradicating it. The National Integrity System (NIS)concept offers a systematic approach not only to what is being measured and how, butalso can encourage countries to use it as the basis for national plans and to identify areasfor further reform. The NIS Country Reports outline a formal framework which provides

for anti-corruption measures, in the following areas of public affairs: conflict of interest,declaration of assets, lifestyle monitoring, access to information, freedom of the press,freedom of speech, postemployment restrictions, whistle-blowing, codes of conduct,blacklisting, and complaints mechanisms. This is followed by an assessment of whatactually takes place in practice. The assessment highlights deficiencies, both in the formalframework itself and in its implementation.

The Public Integrity Index is the centerpiece of the Global Integrity Report, produced bythe Center for Public Integrity. This provides a quantitative scorecard of governancepractices in a range of countries. It brings together data on 292 corruption relatedgovernance variables for 25 countries and assesses the institutions and practices that

citizens can use to hold their governments accountable to the public interest. The PublicIntegrity Index does not measure corruption itself, but rather the opposite of corruption:the extent of citizens' ability to ensure their government is open and accountable.

II. TOOLS TO ENHANCE INTEGRITY IN GOVERNANCE INCLUDING

CODES OF CONDUCT AND CONFLICT OF INTEREST POLICIES

Open Public Procurement. Corruption in Public Contracting is one of the mostpervasive forms of corruption. A possible approach is Transparency Internationals so-called Integrity Pact under which all the parties to a tender agree in advance that therewill be no bribery, and civil society provides oversight to assure the integrity of theprocess. It is designed (a) to enable companies to abstain from bribing by providingassurances to them that their competitors will also refrain from bribing; (b) forgovernment agencies to undertake to prevent corruption, including extortion, by theirofficials and to follow transparent procedures; and (c) to enable governments to reducethe high cost of corruption on public procurement, privatisation, and licensing.

Declarations of Assets. Although forms providing for the disclosure of assets andincome are unlikely to be accurately completed by those who are taking bribes, therequirement that they formally record their financial positions can lay an importantbuilding block for any subsequent prosecution.

Political Party Financing. Political parties need adequate funding for offices, staff, andcommunication with the electorate, but individuals or companies often agree to fund apolitical party with the expectation that they will benefit in some way, if the party iselected to office. There are two models for political financing the public model (forexample, Japan, France, and Spain) and the private model (for example, the United Statesand the United Kingdom). However, few systems are exclusively one or the other.Donations by foreign donors to political parties can often raise greater concerns amongdemocratically-minded citizens. Such donations can easily be represented as an attempt


24/82

24

by foreign powers, companies or individuals to place in power a party most likely to dotheir bidding. Political parties in the US, Britain, Germany, and Australia have all beenasked to explain why foreign individuals and corporations have given them massivedonations. Some countries, such as Poland, avoid the problem completely by simplyprohibiting all foreign contributions to political parties. If the funding process is not

transparent and political parties are not required to disclose the sources of sizeabledonations, then the public is left to draw its own conclusions when it sees those suspectedof secretly funding political parties as openly benefiting from handsome contracts andother government business. The election process can quickly degenerate into an auctionof political power.

III. CITIZENS NEEDS - THE RIGHT TO INFORMATION

In building a successful open society, guaranteed access to information is the mostcritical element. Freedom of speech and freedom of association also play a crucial part.Citizens should be able to discuss the issues of the day, challenge the media andgovernment, and, when they see fit, take to the streets to register their protest in peaceful

demonstrations. In turn, those in positions of public trust and authority should listen tocitizens concerns. Underpinning these processes should be a lively and independentmedia, ready, willing, and able to hold those who hold positions of public trust to thestandards of an open society. The government should accept the medias legitimacy tochallenge its policy and accept the publics support for such critiques.

Access to Information. One can begin with the assumption that all information belongsto the public. For unless there are compelling reasons why it should be withheld,information is held in trust by a government to be used in the public interest.38 This isthe approach adopted in such countries as Brazil and New Zealand, where there is a legalrequirement that all official information be made available to anyone who seeks it, unlessthere is adequate cause to withhold it. In Latvia, the rights of the citizen are specificallyprovided for in the constitution. The 1998 Law on Freedom of Information guaranteespublic access to all information in any technically feasible form not specificallyrestricted by law. Bodies must respond to requests for information within 15 days.Moldova and Bosnia-Herzegovina also require that government institutions respondwithin 15 working days.

Home to some 16 million people in China, Shanghai adopted the countrys firstprovincial level open information legislation in January, 2004. It has worked hard totransform itself into an international financial, trade, and shipping center, with a goal tobecome a "global metropolis." Shanghai was an early proponent of e-Government and thenationwide movement for more "open government affairs," recognizing that making moreinformation available to its citizens would stimulate economic activity, help curbcorruption, and ensure more efficient and effective governance. In May of2004, Shanghailaunched its Transparent Government Programme, and the new legislation came intoforce. There is a presumption of disclosure, making secrecy the exception rather than therule. The law provides citizens, legal persons, and other organizations with the right torequest government information from government agencies, including information about


25/82

25

individuals themselves. It also imposes a legal obligation on government agencies to allinformation not covered by a specified exemption.

The Media. A free, independent and pluralistic media is essential to a free and opensociety and to accountable systems of government. While many journalists have been

killed while reporting on violent conflict, many more have been killed in the course ofreporting on issues of corruption. Governments should embrace a basic set of principlesto inform their policies towards the media. In general, these argue against legislation andrestriction. A good example is the Charter for aFree Press, approved by journalists from34 countries at the Voices of Freedom World Conference on Censorship Problems.

IV. ANTI-CORRUPTION COMMISSIONS AND THEIR EFFECTIVENESS

The Hong Kong model has proved effective because of the quality of its staff, thereadiness of the executive to provide adequate funding and the legal framework whichhas facilitated its work. The concepts of prevention and prosecution have both beenfunctions of the commission. Prevention policies have often been informed by the

revelations of investigators working on the enforcement side. This has enabled thecommission to develop a coherent and coordinated set of strategies. The positioning ofthe office was also a key factor in Hong Kong's highly successful onslaught, where it wasplaced in the office of the governor, but where at the same time, it reported to thelegislature. Its separateness from the public service and its autonomy of operation wereand are reflected in both law and practice. Whether this particular feature is a model forothers to follow depends very largely on the accountability mechanisms that are in place.

The agency has enjoyed independence from political interference, political will has beenin abundance, adequate resources have been provided, and the agency has been able torely on the support of independent courts committed to the Rule of Law. Those who havetried to copy the model have largely failed when they have lacked one or more of theseelements.

Civil Law Remedies. The Council of Europes Civil Law Convention on Corruption(1999) is a unique attempt to provide remedies for victims through the civil process. Itdeals with such questions as compensation for damage and loss sustained by victims;liability (including state liability) for acts of corruption committed by public officials;validity of contracts; protection of employees who report corruption; and the clarity andaccuracy of accounts and audits.

A highly successful initiative in South Africa has been a strategy of civil asset forfeiture.Their Asset Forfeiture Unit is placed within the Office of the National Director of PublicProsecutions. When property is tainted by criminal activity, the Unit can commence courtproceedings for its forfeiture to the state. Under thePrevention of Organised Crime Act1998, such property is liable to be forfeited to the state by way of a civil action. Civilasset forfeiture enables the state to confiscate suspected criminals assets purely through acivil action against the property, without the need to obtain a criminal conviction againstthe owner of the property.


26/82

26

Immunities and Privileges. One of the greatest problems for anti-corruptioncommissions and other criminal law enforcement agencies is presented by the immunitiespossessed by high officials. This can render them effectively above and beyond the reachof the law. Immunity from prosecution is meant:

To ensure that the elected representatives of the people can speak in the legislaturewithout fear of criminal or civil sanctions and a host of claims for defamation; To protect elected representatives from being arbitrarily detained and so prevented fromattending the legislature; and To act as a shield against malicious and politically-motivated prosecutions beingbrought against them.

Immunity for politicians is designed to protect the democratic process not to establish aclass of individuals who are above and beyond the reach of the law.

In Belgium, the police can investigate the activities of parliamentarians without political

interference including searches, seizures, and questioning but authorisation isrequired for a member of parliament to be committed to trial. In addition to legislators, ahead of state is generally immune for the period of his or her office (as confirmed in arecent decision in France). Constitutions usually provide for the impeachment of apresident, and serious criminal acts would provide those grounds. Therefore, there isusually a remedy, but it lies with the legislature, rather than with the judiciary.

Judges. Members of the judiciary present special difficulty. They are generally immunefrom being sued personally for errors they may have made in their judgments (forexample, for exceeding their jurisdiction). To protect them from political pressures, theyare generally also immune from criminal prosecution, unless the immunity is lifted. In thecase of Estonia, the GRECO review recommended that any decision to lift theinviolability of judges should be free from political influence. It should be a decisionbased on a request from the prosecutor, supported by the Supreme Court.

V. CROSS-BORDER CORRUPTION AND THE ROLE OF MULTINATIONAL

ORGANISATIONSThe UN Convention Against Corruption is fortified by several regional conventions.There is also the OECD Convention on Combating Bribery of Foreign Public Officials inInternational Business Transactions. World Bank and national government debarments(discussed elsewhere) can also be expected to add pressure to the bottom lines ofcorporations who flout the new rules.

Steps are also being taken in the fight against corruption to improve information sharingand best practices across the United Nations and other agencies, starting with an inter-agency anticorruption coordination meeting held in Vienna in February 2002.

Corporate Governance. The Global Accountability Project of The One World Trustfocuses on three main types of organisations that operate at the global level transnational corporations, intergovernmental organisations, and international non-


27/82

27

governmental organisations in an effort to ensure that the most powerful globalorganisations are answerable to the people they affect.

VI. ROLE OF THE JUDICIARY IN TRUST AND TRANSPARENCY

If judges are not impartial, professional in their work, and independent, the criminal law

cannot be relied upon as a major weapon in the struggle to contain corruption. If they areactually corrupt, the situation is even worse. Judicial independence is assertedinternationally in the Universal Declaration of Human Rights and in the InternationalCovenant on Civil and Political Rights.

In a landmark development, chief justices drawn from a variety of countries drafted andadopted the Bangalore Principles of Judicial Conduct (2002). The principles assert that judges should be accountable for their conduct to appropriate institutions established tomaintain judicial standards, which are themselves independent and impartial.

In the European context, there are a number of major instruments in this field. Among

them are The Judges Charter in Europe, a Recommendation on the Independence,Efficiency, and Role of Judges made by the Council of Europe, and the EuropeanCharter on the Statute for Judges adopted by participants at a multilateral meeting in 1998.

The mechanism for the appointment of judges is often a matter of controversy. Manybelieve that politicians are only interested in appointing judges who will do their bidding.To prevent judicial appointments and case management from becoming a means bywhich judicial independence is compromised, many countries have created, or are in theprocess of creating, judicial councils. These are bodies separate from other governmentbranches, and are entrusted with the selection and promotion of judges, and otherwiseoverseeing the court system, including responsibility for discipline.

In cases where a large number of the judiciary has become corrupt, as has been seen incountries such as Kenya and Ecuador, a mechanism to address this needs to be developed.

VII. SYSTEMS AND PROCESSES OF CHECKS AND BALANCES AMONG THE

EXECUTIVE, LEGISLATIVE, AND JUDICIAL BRANCHESIntegrity Systems and Horizontal Accountability. Such a system integrates instruments(parliament; judiciary; civil service; media; civil society, etc.). to work in totality andeach sustains, serves, is served by, or protects, some or all of the others. If a system iswholly dependent on a single element or pillar (perhaps a benign dictator), or if itpossesses very few pillars, then it is vulnerable to collapse. With a near-universalcollapse of trust in government, and a public deeply suspicious of decision-making takingplace behind closed doors, there is an increasing recognition of the part civil society canplay in strengthening horizontal accountability in support of their own nationalintegrity systems.

Records Management. In Mexico, where a freedom of information law was enacted inApril 2002, a report stated that public records, transcripts, and notes from importantmeetings have been purposefully kept from public view, leaving almost no official record


28/82

28

of how key decisions have been made. In many cases, official records have beendestroyed or taken home by officials when they left office. It is here that the role of theChief Archivist can be very important in ensuring accountability. In the United Kingdom,this position is held by a public servant appointed through a competitive process.

VIII. INNOVATIONS AT SECTORAL AND SYSTEMIC LEVELSDue Process. Beset though Nigeria is with rampant corruption, a highly successfulinitiative there has been the establishment of a due process office to clean up publicprocurement undertaken by the federal government. The Office of Budget Monitoringand Price Intelligence Unit (BMPIU), otherwise known as Due Process.

The objectives of the BMPIU include:

Harmonising existing government policies/practices and updating these on publicprocurement;

Determining whether or not due process has been observed in specificprocurement exercises;

Introducing more honesty, accountability and transparency into the procurementprocess;

establishing and updating pricing standards and benchmarks for all supplies tothe federal government;

Monitoring the implementation of projects during their execution to Provide information on performance, output and compliance with Specifications and targets; and Ensuring that only projects which have been budgeted for are admitted for

execution.

The awarding of contracts is meticulously scrutinised by the BMPIU, with projects beingcleared on the basis of financial prudence and the ability of a tendering company toperform effectively. This has curbed colossal wastage and has prevented public fundsfrom being embezzled through bogus projects.

Licensing. In Bolivia reforms there have included the publication of details on allgovernment procedures and fees. All government offices now have to display postersexplaining the required paperwork and the exact costs of each transaction. This isdesigned to prevent government employees from demanding bribes, and to dispense withthe need for middle men to help citizens through their transactions. Alongside this,positive silence has been introduced. This means that citizens applying for occupational

licenses, car registrations or other government certificates will be considered to have hadtheir applications approved automatically if the applications have not been rejectedwithin 15 days.

Police. INTERPOL (International Criminal Police Organization-Interpol officiallyabbreviated to ICPO-Interpol) actively promotes integrity in policing the world over. Notonly does it make use of a panel of anticorruption experts, but it also has developed a setof standards for fighting corruption in police forces worldwide. Its Global Standards to


29/82

29

Combat Corruption in Police Forces/Services seek to ensure that police forces of memberstates have high levels of probity. Each member state commits to making corruption by apolice officer a serious criminal offence. Other standards include establishing andmaintaining high standards of conduct for the honest, ethical and effective performance;and setting up and maintaining effective mechanisms to oversee and enforce high levels

of conduct in the performance of policing functions. INTERPOL is now developing waysin which to provide practical assistance and training to the forces of member states thatrequire it.

Integrity Testing. Systems are being developed to ensure that police integrity receivescontinuous attention instead of being isolated to investigating selected rotten apples. Inthis, integrity testing has emerged as a particularly useful tool in metropolitan areassuch as New York and London.

The NYPDs Internal Affairs Bureau in New York now creates fictitious scenarios basedon known acts of police corruption, such as the theft of drugs and/or cash from a street

level drugdealer, to test the integrity of their officers. Those who fail the tests are either disciplinedor dismissed from the force.

The concept need not be confined to police activities. In some countries, hiddentelevision cameras have been used in the ordinary process of criminal investigations tomonitor illicit activities conducted in the private offices of judges. These cameras havecaptured corrupt transactions between judges and members of the legal profession. Itwould also seem to have potential use in other areas where the public sector is engaged indirect transactions with members of the public, particularly in customs.

Revenue Collection. In some countries (e.g. Peru and Uganda), corruption related tostate revenues had become so endemic that governments decided to close down existingtax administrations and to replace them with new ones. Corrupt customs officials alsomean porous borders. Through these can flow not only untaxed goods, but also arms andillicit drugs, illegal immigrants etc. The organisational structure of Latvias StateRevenue Service was improved to integrate tax, customs, and social security collections,and to create strong internal control and anticorruption functions. A Vigilance Unit,operating independently from the tax police, was also established. Implicit in this was theneed to ensure that tax assessments were simple to calculate, and that levied rates wererealistic. A code of conduct, based on the WCO model, was developed that includesinstructions on the proper response for staff when offered a bribe. In the Philippines,automation has been used to reduce transactions, from 10 documents in triplicate andabout 91 steps, to one single administrative document for the whole process. This hassimplified work and minimised red tape, corruption, and tax evasion and at the same timehas reduced cargo release times from 6-8 days to as little as four hours.

Independent Revenue Authorities. Three African countries (Ghana, Tanzania andUganda) are among those that have undertaken comprehensive reforms of their taxadministration to increase revenue and curb corruption. In doing so, they have established


30/82

30

special tax collection authorities outside the conventional public service as a way ofincreasing the salaries of staff beyond the levels of their counterparts in public service.Tanzania has also introduced a telephone hotline and a system of rewards for informantsreporting tax evasion

E-Procurement and E-Government. Another powerful instrument against malpracticeis the Internet. Several countries (Mexico, Chile, Colombia and, more recently, Austria)and a number of major municipalities (e.g. Seoul, Korea) have placed their entireprocurement information systems on the web and allowed free access to thedocumentation. This has yet to be fully developed and at present electronic systems havenot proved entirely reliable.

Mobile Phones. Mobile phones showed their usefulness in countering corruption in thelocal elections in Senegal in November 1996. Senegals interior minister was caught outwhen he admitted, in a low voice near an open mobile phone, that there had been fraud.As a result, the president was obliged to annul the election. Then in the presidential

election of 2000, the use of mobile phones forced the two presidential candidates toaccept the results when the results of the counts were announced almost instantaneouslyby private radio stations. The two main stations had sent reporters to cover pollingstations all over the country. Equipped with mobile phones, they were able to announcethe results as soon as the votes had been counted. The organised presence of journalists,and the speed with which the results were announced, facilitated the peaceful handover ofpower from the defeated president to his successor. No fraud was possible, and the much-feared clashes between supporters of the two political leaders were avoided

Debarment. Corruption scandals and criminal prosecutions in Lesotho against majorwestern corporations have led to several companies being debarred (or blacklisted) bythe World Bank. Those found to have bribed, committed price-fixing or bid-rigging, or tohave provided substandard or sub-specification goods or services - whether or not incollusion with any official should be debarred from future contracts with the government.This should either be indefinitely, or for an appropriate period of time. They should alsobe subject to:

Loss or denial of contractual rights; Forfeiture of their performance bond; and Liability for damages, both to the government principal and to competing bidders(for the losses they have incurred through an unsuccessful bid).

Complaints Systems. A major obstacle has been the reluctance of individuals to blowthe whistle on corrupt activities. Fear of retribution from employers or colleaguesdissuades many from reporting cases of corruption. The Protected Disclosures Act, inSouth Africa, is one example of legislation that sets out procedures by which both publicand private sector employees who report unlawful or corrupt activities by their employeror colleagues are protected from reprisals.


31/82

31

Visa Refusals. A recent innovation has been the adoption by the United States of a policylimiting entry to the United States for politicians accused of corruption in their owncountries.

Privatisation and Competition Policy. Few would disagree with the proposition that

ambitious privatisation programmes were urgently needed in transition countries to endthe grossly inefficient, state-owned monopolies which dominated the economy. Riddledwith cronyism, bled to provide illicit funding for the party in power, plundered by corruptmanagers and pilfered by staff at all levels, many of these companies were as bankrupt asthey were unproductive. Privatisation can result in a reduction of corrupt practices byshifting the emphasis of an operation to the transparent discipline of the private sectorspursuit of profit. Privatisation can reduce forms of corruption: managers of companiesmake decisions that ultimately have to satisfy owners instead of public officials;government assets for which no one is held accountable cease to exist; and once aparticular privatisation has been completed, the company can conduct its affairs withoutgovernment interference. To be effective, however, policies must go beyond the mere

process of privatisation and address the integrity of the markets in which the privatizedconcerns are to function. Experience in Eastern and Central Europe and elsewhere hasshown how privatisation can create opportunities for politicians to distribute favours totheir friends.

Corruption does not take place only within the public sector. Nor is it restricted to publicprocurement transactions involving both the public and private sectors. It can also takeplace within and between private sector organisations, when corporations abuse marketpower in areas of the economy that should be governed by a countrys competition policy.The development of a sound competition policy is an essential tool for protecting andpromoting economic activity, and for underwriting the integrity of private sectoractivities. It determines appropriate ways in which the private sector should function, thusensuring that its performance serves the best interests of all. A prime purpose indeveloping a sound competition policy is to minimise the scope for rigging markets.

IX. CONCLUSION ARE WE MAKING PROGRESS? THE IMPACT OF

PUBLIC SERVICE ETHICS ON THE MILLENNIUM DEVELOPMENT GOALS

(MDGS)

For over a decade now, the international community has engaged with the issue, givingrise to a web of international conventions, some with monitoring provisions, others, asyet, without. Progress is being made, however tentative, in putting many of these intopractice. In these efforts, the Global Compact, between leading private sector interestsand the United Nations, with its tenth anti-corruption principle launched in June 2004,has the potential to achieve meaningful change. An interesting development is theestablishment by USAID of the $US5 billion Millennium ChallengeAccount, a "new compact for global development which links greater contributionsfrom developed nations to greater responsibility from developing nations

These advances have been boosted by the emergence of a range of networks. Within theUN, the inter-agency anti-corruption coordination meeting (the International Group on


32/82

32

Anti-Corruption) has been established; the Development Assistance Committee (DAC)of the OECD is addressing the issue; a group of donor countries has been formed toshare experience and pool resources; the GRECO Group of States Against Corruptionhas been conducting peer evaluations, as have the signatories to the OECD ConventionAgainst the Bribery of Foreign Public Officials in International Business Transactions

under the auspices of its active Working Group on Bribery in International BusinessTransactions. The same processes are getting underway in sub-Saharan Africa withNEPAD. The OECD has also been providing a lead in promoting best practice in the fieldof public sector ethics, both with its member countries and beyond, with the wider world.

As well as governments, others have come together. These include the Group ofParliamentarians Against Corruption (GOPAC), the chief justices of the Judicial IntegrityGroup ; academics and training institutions under the rubric of the Public IntegrityEducation Network (PIEN); members of the International Chamber of Commerce with itsCommission on Anti-Corruption107; and global banks under the caption of theWolfsburg Principles. In almost every country, there are civil society groups active on the

ground lobbying for institutional change, public awareness raising and working toempower citizens in their day-to-day lives.

At the national level a very steep learning curve continues. New tools and approaches arebeing generated, and many lessons are being learned along the way, among them beingthat:

1. It is not enough for an incoming president to be personally committed to anti-corruption reforms and there must be sufficient support throughout theadministration;

2. When leaders come to power on high-profile anti-corruption platforms, publicexpectations for immediate reductions in corruption levels can be unrealistically high,leading to swift disillusionment;

3. Making a break with the past is difficult, as amnesties and the like run into public andlegislative opposition;

4. Country strategies to combat corruption are frequently no more than wish lists,quite incapable of implementation within existing frameworks and without a realisticroll-out plan

5. It is insufficient to address problems in isolation6. There are no quick fixes or magic bullets, and a single anticorruption agency is

unable by itself to address deep-seated problems;7. Anti-corruption laws are not a complete answer in countries where there is systemic

corruption in the judicial system;8. Transparency does not necessarily bring accountability;9. Building an ethic of public service to serve the public throughout an administration

that has been experiencing serious systemic corruption problems is a hugeundertaking, but without major changes in attitude and behaviour significant progressis unlikely institutional integrity management is key to any public service reformprogramme;


33/82

33

10. Countering corruption in the public sector is the task of every manager in his or herdaily work, and this calls for continuous training in the recognition of red flags andin corruption risk management;

11.The pursuit of absolute integrity is unrealistic and counter-productive managerswill always need areas of discretion or administrations will become rule-bound; and

12.Donors must achieve much higher levels of cooperation if their collective efforts areto bear fruit and accept that imposing conditions often has little impact.

It is generally accepted that crude, single figure country corruption scores have theiruses for awareness-raising purposes, but are not designed to measure progress on theground, or to provide data indicating precisely where attention is needed. Fortunately,three new approaches to meet these needs have evolved. The first, a Public IntegrityIndex, provides a quantitative scorecard of governance practices in a range of countriesto assess the extent of citizens' ability to ensure their government is open and accountable.The second is the Country Assessment in Accountability and Transparency (orCONTACT) model, developed by the UNDP with the main objective being to assist

governments in conducting a self-assessment of their financial management andanticorruption systems. Under a third and complementary approach, the functioning ofNational Integrity Systems are starting to be mapped, and in ways that can providemuch greater insight than hitherto, as to where things are going wrong, and why, andwhere progress is being made. The tracking of the success or otherwise of reformsprovides information that is presently not available.

The most effective way forward would seem to involve two complementary approaches.One, at the macro level, focusing on strengthening national integrity systems in anholistic and informed manner. The second, working with citizens on the ground, activelyinvolving them in the formulation and implementation of policies that affect their dailylives.


34/82

34


35/82

35

Annex 2 (1)

The UN Convention against Corruption (UNCAC) Executive Summary

2007 UNCAC had been ratified by 92 nations, of which the majority are developing

countries. The Convention is now the global instrument for combating corruption. Itcomplements the anti-corruption conventions of the Organization of American States(OAS) states, the African Union and the Council of Europe, the SADC Protocol againstCorruption and the OECD Convention on combating bribery of foreign public officials ininternational business transactions. The Convention is divided into eight chapters. Themost important provisions relate to preventive measures, criminalization and lawenforcement, international cooperation, asset recovery and technical assistance.

Ratification and implementationIndustrialized countries normally implement the Convention upon ratification, therebymeeting, at least implicitly, the requirements of a monitoring mechanism that the

Conference of the States Parties has yet to put in place. In the de

Documents

Policy Paper on the Right to Transparent Governance