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![]() From better governance to Din Bodol -- Rehman Sobhan National consensus and unity for change -- Dr. Kamal Hossain The state, culture and society -- Serajul Islam Chowdhury Extra-mile the ruling party has to go -- Dr. Syed Anwar Husain Political culture and its impact on governance -- Enam A Chaudhury Political party finance--Muzaffer Ahmad Women of Bangladesh: where are they? -- Nasim Firdaus Women's role in politics- Quantity and quality -- Sultana Kamal To combat violence against women-- Mahmuda Husain The case of local government-- Tofail Ahmed Withdrawal of Cases Where is the end--Dr.Sarkar Ali Akkas A challenge for political management -- Rounaq Jahan Right to information: Status of implementation -- Shaheen Anam Reforms for democratic consolidation -- Dr. Badiul Alam Majumdar Provenance of administrative reforms -- Dr. Saadat Husain Parliamentary committees Moving from form to substance -- Farid Hossain Politicial spell on bureaucracy -- Sadrul Hasan Mazumder Carrying forward the RTI -- Sanjida Sobhan Governance in the new millennium -- Mahbub Husain Khan Boycott culture crippling parliament --Shakhawat Liton Can we expect an effective ACC? -- Iftekharuzzaman Sycophancy is a two-way road -- Mohammad Badrul Ahsan Three years since 1/11: Expectation vs. reality -- Syed Munir Khasru Police and politics -- ASM Shahjahan Leaky drainage infrastructure of the capital city -- Ershad Kamol Reducing the horrendous traffic congestion -- Dr. Charisma Choudhury Implementation of Dhaka city Master Plan -- Salma A. Shafi
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Can we expect an effective ACC? Iftekharuzzaman
ANSWER to the above question is yes and no. Yes, if the government of the day wants it to be, no, if it does not. The effectiveness of the Anti-corruption Commission has been at the centre of public discourse on the issue of corruption in Bangladesh for the past several years. It has become more important in the wake of the national election held in December 2008 during which among many commitments made by Bangladesh Awami League was the pledge to make the ACC independent and effective. It has since been repeated many times at the highest level of the government. However, the question remains wide open whether and to what extent it is realistic in Bangladesh to expect an effective ACC. Even when the Anti-Corruption Commission (ACC) was set up in November 2004, as much as it was regarded as a good opportunity, most observers including this author had no illusion that an effective ACC will be soon in place. It did not take long for disillusionment to set in. For over two years since it came into being, the Commission failed to demonstrate the kind of strategic vision, a seriousness of purpose and sense of direction expected of an organisation that was mandated with the highly challenging task of fighting corruption. The then ACC indeed invited for itself a credibility gap and got bogged down over differences of opinion among the Commissioners on matters like division of powers, and a bitter interpersonal relationship. The Commission also allowed itself to take on the baggage of the infamous Bureau of Anti-corruption (BAC) when it sweepingly absorbed without due scrutiny the staff of the former BAC, and therefore embraced the inefficiency and lack of integrity. The then government's lack of commitment to let the Commission function independently was quite evident. It imposed an organogram upon the Commission. A powerful Minister of the 4-party Government declared that the ACC was a part of the executive wing and therefore it should work within the framework of the government. The reconstitution of the Commission by the post 1/11 Caretaker Government provided it some degree of dynamism and vibrancy. A large number of high-profile individuals suspected of involvement in corruption were arrested. Special tribunals were set up for speedy trial. On the other hand, a high-powered and controversial anti-corruption task force worked parallel with the ACC. While the fate of most of the corruption cases remain open, the drive by the then ACC remains the strongest signal yet in Bangladesh's history against corruption in a manner that the Prime Minister Sheikh Hasina acknowledged in her statement on February 4, 2009 to the Parliament as a necessary shake-up. The role the ACC played during the Caretaker Government has been widely debated in and outside the Parliament, especially with regard to the question of political use of the Commission, due process in the cases and the commission's accountability. The fact remains that there were more than one power centre that shaped the policies and actions during the period of Caretaker Government, more so for the anti-corruption drive. Questions may be raised whether the ACC had the full operational independence, and whether all that happened in the name of the then anti-corruption drive can be attributed to the ACC. The way the high-profile individuals were taken to custody and denied bails, and then subsequently awarded the same in record-speed did not leave positive commentary about a government that took the most important step towards separation of the Judiciary. As a result, the anti-corruption drive was widely perceived to have been used as a tool for what came to be known as de-politicisation and more specifically the so-called minus-two formula. The failure to ensure the due judicial process did tarnish the image of the then Government's commitment to the rule of law, and more importantly, it turned out to be counter-productive to the cause of anti-corruption in general and came as a challenge to the image of the ACC in particular. Subsequent upon the resignation of the former Chairman and appointment of his successor, the debate over the Commission's effectiveness intensified further. The Government did not ratify the Ordinances of 18 April and 22 November, 2007 that brought amendments to the Anti-corruption Act 2004. Instead, in view of a set of proposals for legal reform proposed by the Committee formed to review the Anti-corruption Act with the stated objective of making it accountable, the prospect of the Commission's independent and effective functioning has come under threat.
Primacy of the political commitment The political backing must be strong enough across the partisan divide, to make it effective regardless of political and personal consequences. The reason that political commitment becomes an absolutely necessary precondition is the linkage of power with corruption. Weak political will demonstrated by vested interests in positions of power can overwhelm and even undermine the leadership. Because of political interference the Commission may be subjected to a “don't touch us” syndrome. It would then become increasingly difficult to investigate people in positions of power in the Government of the day. Politics being about investment, political interference in most cases also has to do with an “its our turn” culture, and election is perceived to be a zero-sum-game bringing the winner the opportunity to abuse power for private gain. Proposed legal changes - curtailing independence? On the contrary a Committee of the Cabinet Division formed to review the ACC Act recommended on October 10, 2009, that the provision of “self-governance” cannot be allowed on the ground that the ACC does not have its “own source” of funds. This reflects a mindset that needs to be changed if the ACC has to be truly effective. The budget for the ACC does and will come from the Government. But once it gets the budget, it must be in the discretion of the Commission on how it wants to use it subject to internal financial control and external audit by Comptroller and Auditor General. Like any other institution using public funds, the ACC can also be held accountable to the Public Accounts Committee of the Parliament. If the Government is genuinely committed to fighting corruption and make the ACC effective, since it has the necessary majority in the Parliament for the amendment, it should grant the ACC the status of a constitutional body like the Election Commission. Another important area of reform by the Committee is to introduce an obligatory prior approval for taking up cases of corruption against government officials, which will not only curtail the authority of the ACC, but also practically make the public sector corruption outside the jurisdiction of the ACC. The main logic apparently is a perceived slow-down in the administration for fear of getting implicated in corruption cases, which cannot justify such blanket removal of the deterrence against corruption in the public sector. If anything, the Government should reaffirm that the Commission will have unrestricted jurisdiction over public sector corruption. The Committee has suggested a comparative analysis of the relevant laws in some other countries as a means to strengthen the ACC Act and update the Rules. However, the sub-committee that has been formed is composed of exclusively government officials. Work of the sub-committee could be substantially benefited by inclusion of relevant independent experts. Another recommendation of the Committee is to deprive the commission of the authority to appoint its own Secretary. Section 16 of the ACC Act 2004 provides that the Secretary of the Commission shall be appointed by the Commission whereas the Committee proposes that the Secretary would be appointed by the Government. It also proposes to upgrade the status of the Secretary to the level of Chief Accounts Officer, which in all likelihood will undermine the authority of Chairman, who is the Chief Executive. Such change must not be made, as it can undermine the authority of the commission and render its operational control in the hands of a government official.
Weaknesses in the ACC
Act 2004 a. Section 25 clearly makes room for dependence of the Commission on the Government for its budget and financial power to use the same, when it says that the Government shall make an annual financial allocation to cover expenses of the Commission; and the Commission would not require prior permission of the Government for expenses in approved and identified items. The point is that even within the given budget the Commission's financial authority is restricted to the items “approved and specified” by the Government. The Commission should have the authority to determine allocation and use of the funds at its disposal. b. The administrative authority of the Commission is also restricted. Article 30 clearly states that the Commission's organizational structure and budget will be determined by the Government. This provision can obviously have a crippling effect on the ACC. c. A number of vital areas having high propensity to corruption and linkages with processes and actors in grand corruption in the scheduled areas have been left out of the schedule. Money laundering was one such vital area which was included under the Ordinance of 18 April 2007, and will reportedly be retained when the Government adopts its own amendment. Other related areas of financial crimes like the banking and financial sector, foreign companies, foreign exchange regulations, etc., should also be included. d. The Law under Article 36 gives the Government the authority to provide “guidance of direction” through clarifications or explanation, in cases of vagueness in the provisions of the law regarding the Commission's authority and responsibility. This implies an omnibus authorization of the Government to intervene in the affairs of the Commission. e. Another major flaw in the Act is its opacity in relation to the status of the Chairman and other Members of the Commission. Section 13 of the Act simply provides that the Government shall determine the honorarium, allowances and other benefits of the Chairman and the Commissioners. The only reference regarding their status can be found in section 10(3) which provides that the Commissioners cannot be removed under any circumstances other than those applicable for the removal of a judge of the Supreme Court. The revised law should clearly define the status and entitlements of Chairman and Members of the Commission at the same level as that of the judges of the Supreme Court. Accountability, efficiency, credibility The above-mentioned Committee has recommended that the Commissioners will be accountable to the President. In a context where except in case of the appointment of the Prime Minister and Chief Justice the President will act in accordance with the advice of the Prime Minister, making the ACC accountable to the President is quite likely to make it accountable to the Prime Minister with potentials for executive control with partisan considerations. A watchdog body created in public interest by public money must be accountable, for which rigorous self-regulatory system as well as an external accountability mechanism must be in place. Among the best-known models of such commissions is one where external oversight and accountability rest with the Courts. In case of Bangladesh too it could be a Judicial Committee of the Supreme Court to which the ACC could be accountable. To complement judicial oversight what has worked well internationally are the Citizens Advisory Committees who monitor the Commission. These outside oversight committees consisting of prominent citizens of high integrity, credibility and acceptability from civil society have been established and sufficiently empowered to work with the Commission in monitoring and evaluation of key aspects of its work, which have added significantly to the public trust and confidence of the Commission. A Citizens Oversight Committee can be set up for the benefit of the Commission's accountability with several subcommittees on such specific areas as policy advice, prevention work, and citizen's outreach. Accountability of the Anti-Corruption Commission is about disclosure too. The Commission must, for instance, publish and regularly update for public information detailed statements on income, assets and liabilities of its employees in print and web version. The Commission cannot be expected to succeed without addressing the question of integrity, transparency and capacity of its staff, most of them with the BAC baggage. This remains a key concern, and apparently a legacy that the ACC has apparently decided to live with, but must be reviewed. It means wastage of resources, and continued credibility risk that the ACC has to confront rather than swallowing the bitter pill. There is also a challenge of capacity the staff, motivation and incentive. It has to be acknowledged that the ACC staff cannot be expected to deliver unless their salaries and benefits are consistent with the cost of living, and also commensurate with the risks involved. The benefits of the ACC staff should include risk and rewards allowances and other positive incentives including protection against various threats of insecurities involved in the discharge of professional duty. Positive incentives must be matched with effective negative incentives to enforce zero tolerance against corruption and inefficiency. The Commission should adopt and strictly enforce a code of ethics for its staff and a manual for internal governance. Focus and priority in six years there has not been much opportunity for the Commission to work strategically on the prioritisation of its jobs at hand. In view of the reality of the deep and wide corruption affecting the daily lives of the common people, prevention is extremely important in Bangladesh, for which the Commission must start work with all stakeholders to develop preventive strategies. Partnerships should be explored with the Government bodies, private corporate sector, media, and NGOs. Above all the ACC must reach out to the people in order to develop public awareness, trust, support and participation. Benefits of such an approach were demonstrated when some aggressive citizens' engagement programmes were undertaken during 2007-8 in partnership with the civil society organizations. The local level committees for prevention of corruption set up during that period were not beyond controversy because of the way these were formed and in some cases for the low level of public trust of some individuals who were mobilized. Nevertheless, these must be revived, reformed and rejuvenated with due training and orientation and sense of direction. These include institutions like the parliamentary committees, the executive, the law enforcement agencies, the judiciary, public service, Comptroller & Auditor General's Office, media and the private sector. The ACC is located quite rightly at the core of the institutional structure, but it can be rendered ineffective not only by its own shortcomings but also by ineffectiveness of the other vital institutions. The adoption of the Right to Information Act (RTI) must be commended. If properly enforced, it can catalyze huge improvements in transparent governance and preventing corruption. The Government must move ahead firmly in strengthening the Information Commission (IC) and creating the capacity and skills to move from a culture of secrecy to that of openness. The ACC and the IC have huge opportunities to work with synergy, especially for prevention of corruption. The most formidable task would be to effectively challenge impunity. Corruption must be punished, and the law must be allowed to take its own course without any political or other forms of influence or intervention. Corruption cases must be handled in due judicial process. Any effort to influence the judicial process by partisan political or other means shall be counterproductive. The lower the level of integrity, professionalism and public trust upon the judiciary, the lower the possibility of success of the ACC. The ACC cannot also succeed without the integrity of institutions that are mandated to ensure rule of law, particularly an honest, credible, impartial, professional and non-partisan public service including the police force and other law-enforcement agencies. If appointments, promotions, rewards and punishments are determined on the basis of anything other than merit, efficiency and performance, integrity in public service shall remain a far cry. The Public Service Conduct Rules must be drastically reformed to introduce code of ethics and integrity that would institutionalize positive and negative incentives against corruption. At the same time there is also an urgent need of enacting a Whistleblowers Protection Act to ensure legal protection of individuals reporting or disclosing information on corruption within and outside the public sector and those involved in other initiatives against corruption A hugely important component in the anti-corruption infrastructure is the awareness, engagement and participation of the people in demanding the political will and strengthening of the institutions of accountability. The main challenge is to create an environment in which corruption would be hated and rejected by everyone, and demands and pressures will become strong enough to generate and sustain the political will and strengthen the effectiveness and independence of the key institutions including the ACC. |
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