The role of the National Audit Office in the State Institutional Framework: Constitutional Aspect. Egidijus Kūris, Professor of the Vilnius University

Transcription

1 The role of the National Audit Office in the State Institutional Framework: Constitutional Aspect Egidijus Kūris, Professor of the Vilnius University Presentation at the conference Public Audit: Helping to Manage State Property Wisely on the 90th anniversary of the National Audit Office of the Republic of Lithuania (Vilnius, 29 January 2009) Dear guests, First of all I would like to thank organisers of this conference for invitation to deliver a brief presentation. My interests as a scientist (lawyer, researcher of constitutional law) and recently a judge are only indirectly related to the National Audit Office (NAO) and public audit issues. However in practice (when I was heading the Constitutional Court) I had frequently to remember the NAO as this neighbouring institution could send to the Constitutional Court its auditors and you never could know in advance how many sins they may find. It is obvious that to any head of a public institution a thought of the NAO is a kind of memento mori: you must remember the inevitable public audit when concluding a contract, implementing public procurement, writing off assets, paying bonuses, etc. The situation reminds that of hospitals, which was characterised by my friend doctor as follows: Do not think that I am writing a health record to a patient I am writing it to a prosecutor. All in all, my own experience with the NAO is that it audited the institution headed by me not too frequently, and when auditors arrived they did not find too many irregularities. So my reminiscences of your institutions are the best. And now these reminiscences seam to be even better for the following reasons. I was asked to present at this conference a presentation not on the NAO itself, but on the constitutional aspects of the regulating legal framework related to it. From this point of view the NAO is a pleasant exclusion to be compared with many other public institutions and I, as a constitutions researcher,

2 believe that this interest is of a great value. Actually many public institutions even celebrating honourable anniversaries forget to overview the constitutional basis of their activities. It s not because the latter were purposely ignored but because constitutional regulation seems to them unpractical, too distant from their daily routines. At least up to a shock aroused by some constitutional collision. However the Constitution is the basis of all areas of the state life. It constrains legislator, who is not free to treat on his own opinion these or those functions of institutions, this or that relationship with other institutions. So a legislator is not totally free defining by law the structure, functions, mandate, and implementation of the latter by the NAO. In my presentation I am going to focus on the NAO (as an institution) relationship with political powers, especially with legislators (no wonder as we are in Seimas) in order to demonstrate, which model of this legal relationship is allowed or may be not allowed by the Supreme Law of the Land the Constitution. However it is just one of few elements of the constitutional status of the NAO. Constitution of the Republic of Lithuania is a compact act were there is only one XII chapter consisting of two articles (133 and 134) is directly devoted to the NAO. These articles of the Constitution and three other provisions of the Constitution where Auditor General (State Controller) mentioned only as if by chance that is all what is directly concerns NAO. Let me remind these provisions: 1) The State Control shall supervise the lawfulness of the possession and use of State property and the execution of the State Budget. (Art. 134, 1); 2) The State Control shall be headed by the State Controller who shall be appointed for a five-year term by the Seimas upon the submission of the President of the Republic (Art. 133, 2, also Art 67, 11, Art 84, 13.); 3) When taking office, the State Controller shall take an oath. The oath shall be established by law (Art. 133, 3); 4) The State Controller shall submit to the Seimas a conclusion on the report on the annual execution of the budget (Art 134, 2); 5) The State Controller may also participate in the sittings of the Government (Art. 95, 1). 6) The system and powers of the State Control shall be established by law (Art.133, 1); To be compared with the last Constitution of the pre-occupational period (1938), in which the NAO was directly concerned by even 8 articles ( ), the current Constitution from this point of 2

3 view seams quite laconic. It should be underlined that the XII chapter of the Constitution consolidates only the purpose of the NAO but not specific constitutional mandate; this function is left for legislators. However as any other constitutional provisions these, which are directly devoted to the NAO, may be and are developed further within the constitutional doctrine. Here the concept of the constitutional doctrine may be used with 2 meanings. The first meaning: the doctrine is first of all composed from conceptions and theories developed by law researchers. However it must be admitted that by this time Lithuanian legal science (including the constitutional law) concerning the issues of the NAO constitutional status and its relationship with other public institutions is rather passive; you could find just few minor publication addressing these issues. This is a gap to be filled. In addition, positions on the NAO constitutional status even of those few authors differ quite significantly. For example, one of those authors thinks that the NAO as an institution should be covered by the widest concept of the government, which should cover all public institutions; however the author immediately retires saying that such concept would be too much politologic, which means that from the legal point of view it would be unacceptable. Another author treats this institution as the part of state power institutions however does not indicates, which of the powers. And the third considers the NAO a budgetary power although according to the Constitution the budget is drafted by the Government, adopted by the Seimas as a law, and then implemented by the Government. In addition, in Art. 5, 1 of the Constitution expressis verbis it is consolidated that the state power is implemented in Lithuania by the Seimas, the President of the Republic, the Government, Courts, and in the jurisprudence of the Constitutional Court (where this article is explained) the principle of distribution of powers between the legislative, executive, and judicial powers is stipulated. This means that the Constitution does not mention any fourth state power, including the budgetary power. Here comes out the second meaning and significance of the concept constitutional doctrine : this concept means the official constitutional doctrine, which is formulated by the Constitutional Court. This court is the official commentator of the Constitution; any other comments are not included into the constitutional law (and are not the law at all) but just opinions (even if they are much respected). However the Constitutional Court s comments on the Constitution are fragmentary, case by case as they come (which it cannot choose on its own) therefore the development of the official constitutional doctrine cannot be and is not even. 3

4 It is said that constitutional law grows as a corral layer by layer. In some areas there is a lot of official doctrine, e.g. property, taxes, and social rights; in other areas it is lacking, e.g. recruitment to the army or, alas, concerning such institutions as the Bank of Lithuania or the NAO, which are directly consolidated in the Constitution. Sometimes the constitutional jurisprudence makes a jump in some area and certain institute, which was little developed in the official doctrine, or some one-off statement of the Constitution may by covered by a large massive of comments. E.g. this happened in 2002 with constitutional provisions concerning the State Budget, when in two decisions the Constitutional Court provided a very wide State Budget doctrine (by the way, one of these cases was initiated by the European Commissioner who is present at this conference and who was at that time the Minister of Finance). Considering the NAO place within the system of public institutions and its relationship with other institutions, especially those of political power, the official constitutional doctrine becomes very important. INTOSAI Mexico Independence Declaration (2007) stipulates that relationship between supreme audit institutions (in Lithuania it is the NAO) and parliaments should be established at the constitutional level. This is an international standard, which should be respected if we want to be respected. As we have already seen the basic constitutional document text concerning issues of the relationship between the NAO and the parliament is not too voluminous it needs official comments within the jurisprudence of the Constitutional Court. But let me return back to the principle of the distribution of powers. It is one of the most developed constitutional principles, which first was mentioned on January 19, 1994 (that was only the 11 th concluding act of the recently established Constitutional Court and if to count only decisions, it was only the 6 th ). I have no opportunity to discuss all aspects of this principle but I must repeat that according to this document there are only 3 state powers: legislative, executive, and judicial, and there is no forth power (if mass media representatives are present, I address them). However the concept of distribution of powers is different in different state constitutional systems and not necessarily correspond the simplified idea that powers cannot interlace. E.g. the American model of distribution of powers utterly disallow opportunity for a congressman or senator to be a member of the executive power (Administration) although the Lithuanian one allows a member of the Seimas to be a minister. The same concerns various state institutions including supreme audit institutions, functions of which essentially differ from those of legislative, executive 4

5 and judicial powers. E.g. official Latvian doctrine smartly tuck such institutions under one of 3 powers cap. There are such constitutional systems, which acknowledge more than 3 branches of power; e.g. in Taiwan functions a very elegant model of five youans (powers) created by Sun Yatsen, where alongside with 3 above mentioned powers there are autonomous control and examination powers. However constitution systems of many states (e.g. the USA) include institutions, which do not belong to any of 3 traditional powers. When I was talking about the place of the NAO assigned by various scientists within the system of public institutions I did not mention one important detail namely that all these conceptions were formulated before the issue was considered by the Constitutional Court. To say more, the constitutional status of the NAO was commented not on the basis of the Constitution itself or individual doctrinal provisions concerning the NAO, which are disseminated among various decisions of the Constitutional court, but by legal acts, which were amended, as we know, due to the evolution of NAO functions from the interrogating institution to the standard Western style audit institution. It may look a paradox but the NAO in various aspects was mentioned in various Constitution Court acts almost from the very beginning of its work however its place in the public institutions system according to the official doctrine was defined (and also just in certain aspects) comparatively late in the decision of December 13, 2004, i.e. after more than 11 years since the start of the Constitutional Court. This decision states that the public institution system includes very different public institutions, the variety, status, and mandates of which depend on various factors. Some of them as I have mentioned above are enlisted in the Art. 5,1 and are treated as implementing state management functions; that is the Seimas, the President of Republic, the Government, Courts; their interrelations are based on the distribution of powers principle. Other institutions, which are not included into the Art. 5,1 of the Constitution although indicated in other articles, are institutions, which do not belong neither to the legislative, executive, nor judicial power; these include Ombudsmen s Office, Office of the Prosecutor General and regional offices, the Bank of Lithuania, State Security Service (the law calls it the State Security Department), Chief of Defence Staff, the Central Electoral Commission, and the NAO. Such acknowledgement is not just a construction of a theoretical model. It supposes much more. Having no time for more detailed analysis I would like to pay your attention to few important issues directly related to the constitutional status of the NAO. First of all non-attachment of the NAO neither to the legislative, nor to executive power means 5

6 nothing else than the fact that the Constitution does not attach this institution to political powers. It is worth to note that attempts of some law researchers to attach the NAO to one of 3 powers or to be more exact to one of 2 powers as judicial power must be rejected at once is not just strange as the purpose and functions of this public institution are essentially different from legislative work or managing state affairs, but, I dear to say, is dangerous as presume the dependence of the NAO and its merging with one of political powers. From this point of view we can see a parallel with the constitutional doctrinal characteristics of courts the power, which is formed not on a political but on a professional basis. The NAO institutional system is also formed not on a political but on a professional basis. I say de lege ferenda (more exactly it should be de iurisprudentio ferenda, as such jurisprudence still does not exist) however I have no doubts that various constitutional doctrine provisions disseminated in individual decisions of the Constitutional Court allows us to suppose such parallel. It may be also based on provisions of international legal acts as e.g. Art. 14 of the INTOSAI Lima Declaration of Guidelines on Auditing Precepts (1977), which consolidates inter alia higher than average competence and professional experience requirements for auditors. Second, the above mentioned decision of the Constitutional Court of December 13, 2004 stresses that state functions are interrelated, forming one system, and cannot be confronted therefore public institutions implementing these functions shall not be confronted also. That means that the NAO should not confront neither with legislative, nor with executive powers. But it does not mean the tangling of their functions, possibility for the executive power to intervene into activities of the NAO or even more to control it. In this context it is worth noting that in the very first decision of the Constitutional Court directly addressing the NAO issues (December 6, 1995) it was acknowledged as anticonstitutional a legal regulation set by the Government that the Government approves bonuses and their amount for the Auditor General. The Court stated that the Government by the decision at stake stipulating such right to itself made precondition to influence the Auditor General what contradicts to his/her autonomy. Third, the constitutional imperative of not confronting public institutions does not prevent legislators from such legal regulation that the NAO should be accountable to the Seimas representation of the Nation. However this accountability does not mean subordination, dependence, and even more the possibility of this political power to intervene into NAO activities. Up to now there were no cases of constitutional justice appealing against the legal regulation, which in any way too much subordinated the NAO or its officers to the legislative power. On the other hand, when regulating respective relationship it is necessary to follow official constitutional 6

7 doctrine, which was laid down in the mentioned decision of the Constitutional Court of December 6, 1995; e.g. such provisions that the NAO may carry out all assigned functions only being independent and protected from any external influence. If there arouse a question what was meant by the term external influence, the Constitutional Court then gave a clear answer that, first of all, this concept defines political powers (also courts) and underlined that NAO officers shall control inter alia activities of the Office of the Seimas, units accountable to the Seimas or its servicing units. Accountability to the Seimas shall not become an external administration as this would mean subordination and dependence and would contradict the constitutional purpose of the NAO. This would also contradict international standards, which were adopted and developed in the mentioned INTOSAI Lima and Mexico declarations. Fourth, when talking about the NAO relationship with the Seimas (accountability to the Seimas) I have in mind the whole Seimas, not only its Audit Committee (or any other its committee). In this context it is necessary to underline that the Law on the State Control contains not only provisions consolidating NAO obligation to submit to the Seimas certain conclusions and its own Performance Report on the annual basis but also consolidating its obligations to the Audit Committee. By the way, these obligations are defined rather abstractly. E.g. according to the Art 59 1, 4 of the Seimas Statute this committee carries out the parliamentary control of the efficiency of the implementation of NAO functions; what specific mandate this means we can see from other articles of the Seimas Statute (e.g. 56). The Law on the State Control does not contain such provision. Of course it is always tempting to control controllers. In addition, the parliamentary control of all institutions (except courts and prosecutors office) is one of the most important functions of the Seimas; this is underlined in various acts of the Constitutional Court. The parliamentary control of the Seimas over the NAO was directly indicated in one of the early Court s acts however later the jurisprudence did not mention the NAO as subject to the parliamentary control the parliamentary control is first of all linked to the control of the executive power. Some researchers conclude from this that the official constitutional doctrine was reviewed and that the NAO is not at all subject to the parliamentary control. Such position may be based on comparative method: in some countries e.g. Austria, Sweden the control carried out by supreme audit institutions is considered to be a kind of parliamentary control that is why it cannot be subject to the parliamentary control. Well, in Sweden it cannot be, alas, in Lithuania it can; what international standards have to do with us. And this control is carried out not by the Seimas (to which NAO is accountable) but by a single its committee. 7

8 Here constitutional lawyer notices three issues, which should be underlined: 1) how the parliamentary control of the NAO is understood; 2) where the respective mandate is instituted; 3) who has mandate to control the NAO and what mandate this controller of the NAO has. 1) Let me underline the wording, which was chosen by authors of the Seimas Statute Art. 59 1, 4 namely: the Committee implements the parliamentary control of the efficiency of the implementation of functions of the NAO. Let us be honest: there are preconditions to command and if necessary to look for scapegoats. I do not say that it happens in practice at least concluding from the public discourse; or if this is done it is done not with the NAO. Nonetheless it is worth to ask: why Seimas Statute includes such legal regulation, which hardly meets provisions of INTOSAI Mexico Declaration stating that supreme audit institutions shall be free from instructions and intervention into selection of audit issues (audit planning, designing and implementing programmes, etc.)?! Especially, as I have mentioned, that auditors have to meet rather high professional (competence) requirements differently from politicians members of the Seimas. But one thing is international standards and another is our law and our legal culture, in which Seimas is, alas, not only treated as a Convent but this point of view is aggressively promoted. 2) It should be also emphasised that the discussed legal regulation is stipulated in the Seimas Statute. I have already mentioned that there is no such provision in the Law on the State Control. Seimas Statute is a specific legal act. Its constitutional purpose is to settle the Seimas structure and terms of reference (Art. 76). Constitutional Court has explained that no other state administration institution may interfere into this constitutional mandate of the Seimas. Seimas Statute has the power of law however it is not a proper law. The difference from a law is in one essential aspect: it is signed not by the President of the Republic but by the Chairman of the Seimas. This means that the President of the Republic cannot set a veto on it. Such particularity of the Seimas Statute was designed not without a purpose: the aim was to ensure that the President could not block National Representation mandate to settle its own structure and terms of reference. However this means that the Seimas Statute although having the power of a law is a legal act taht is one-sided and beyond the control. 3) At last it should be emphasised that controlling controllers function is set forth not for the whole Seimas but only for the Audit Committee. Why such legal regulation was set? I hope that it could be explained not by somebody s bad will but by the hurry. This committee was established on the basis of the former subcommittee, which had much less authority. It happened on December 2, 8

9 2004, when Seimas of the new composition urgently but, alas, without a proper going into the matter of the constitutional status of the NAO as independent public institution, which is not attached to any state power, amended its Statute. But are we now ready to correct our mistakes? The most important thing is that the Constitution does not allow any controller especially that of the NAO (and some other institutions) to control too much. Although the Seimas Statute seemingly allows. There is a wide official constitutional doctrine designed for Seimas provisional investigation commissions one of forms of the parliamentary control. According to the Art. 56, 1 of the Seimas Statute the Audit Committee as any other committee conducting an investigation on Seimas assignment (this is one of parliamentary control forms) acts according to the rules set in appropriate articles of the Seimas Statute for Seimas control or provisional investigation commissions and has the same mandate. However according to the Art. 4, 1, 5 of the Law on Seimas Provisional Investigation Commissions (the real law, not as the Seimas Statute) a committee is entitled to familiarise with material disposed by the NAO only with the agreement of the NAO. It means that the NAO may not provide the Committee with certain information. However criteria, by which the NAO might refuse to provide information to the Seimas Audit Committee (acting by regulations applied to Seimas provisional investigation commissions) or to impose any limits on its work with information received are not set. Such legal gap the Constitutional Court stated almost 5 years ago. It should be closed but actually it is not (although during this time the Seimas composition has changed). In this context the Constitutional Court was as a prophet: after two and a half year after that statement the analogical issue has emerged once more; it concerned the authority of the State Security Department to provide or not to provide certain information to a Seimas committee. The problem will not be solved until the Seimas will not do the work, which it avoids to do during the last five years. And this concerns very important public institutions including the NAO. Where else if not at Seimas this should be reminded? If this legal gap will not be closed there are preconditions to the Seimas (or even to one of its committees) to intervene into activities of the NAO and other institutions more than it is allowed by the Constitution. I must repeat: I do not say that it happens in practice. But I would like to address Mexico Declaration once more: according to it the first principle of the public sector audit is the existence of the appropriate and effective constitutional and legal framework. Constitutional framework is in place however the legal one is not yet appropriate. 9

10 However I do not want to continue the criticism. Shortcomings have been and are in any area and when legal regulation is not clear enough or even faulty there remains one more weapon that is a goodwill approach. I wish that neither the NAO, which audits all state management institutions, nor the Seimas and its Audit Committee, which has formally excessive mandate towards the NAO will not get short of good will. Using the opportunity I heartily congratulate all officers and employees of the NAO on occasion of the 90 th anniversary of the establishment of the Office. 10