ADB/OECD Anti-Corruption Initiative for Asia and the Pacific

Transcription

1 Regional Seminar on Political Economy of Corruption 9-10 September 2009, ADB Headquarters, Manila, Philippines Capacity Development and Governance Division Asian Development Bank Anti-Corruption Division Organisation for Economic Co-operation and Development The Role of Parliament in Supporting Integrity Institution Kamarudin Jaffar Member of Parliament, Malaysia Member, GOPAC Task Force The fight against corruption and the promotion of integrity have for several years now been a major concern of international organisations such as the UN and the international aid agencies. International parliamentary organisations such as the Inter-Parliamentary Union (IPU) and the Global Organisation of Parliamentarians Against Corruption (GOPAC) have also played an active role in expressing opinions and proposing actions on this issue. This paper attempts to present the views of these parliamentarians. 1. Parliaments are elected to represent the people and have constitutional responsibilities to legislate and oversee the Government. Therefore they have a pre-eminent role to play in the global drive to curb corruption. 2. Corruption is a serious threat to the rule of law, the stability and security of societies. It jeopardizes the fair distribution of resources since it undermines fundamental democratic values and institutions and impedes social, economic and political development and the enjoyment of human rights. Links between corruption and other forms of crime, particularly organised crime, terrorism, drug trafficking, money laundering and other economic crime at both national and international level are very disturbing. Integrity, accountability and transparency of the political system and the civil service are a fundamental requirement for trust, credibility and authority of government in a modern and democratic society. Parliaments can and should adopt appropriate legislation, take an active role in the ratification of relevant international instruments, and incorporate their provisions in national legislation. They should also make maximum use of the constitutional, parliamentary and other legal mechanisms available to ensure full accountability and transparency in Government. For parliaments to fulfill this function efficiently, they themselves should promote and foster integrity, confidence and legitimacy. This requires that the processes whereby parliaments are elected should be transparent and fair, and should ensure equitable representation of society. Furthermore, parliamentarians should design and implement for themselves such integrity instruments as codes of ethics/conduct, including, among other provisions, declaration of assets, conflict of interest legislation, etc. International co-operation is also required among parliamentarians in order to foster the exchange of best practices and coordinate parliamentary contribution to the fight against corruption. I. Parliamentary Action at National Level i) Law-making ii) Oversight iii) Representation i) Law-making: Most parliaments are empowered to establish the legal framework for the organisation and management of public affairs and society. In general, they should promote the inclusion in their national constitution of the major principles of the probity of political figures, institutions and public servants and transparency in public administration. They can play a particularly important role as follows: Vote appropriate anti-corruption legislation that criminalises corruption and provides for appropriate punishment and other deterrent measures. In particular, incorporate provisions into the criminal code, administrative law and all other areas of law to reduce the scope of corruption and related offences, and introduce penalties that deter potential offenders.

2 Vote integrity legislation for members of parliaments and other public officials, including members of government and other government officials and see to it that this legislation is enforced. This legislation would include, inter alia codes of ethics/conduct, declaration of interest, conflict of interest, etc. Ensure that appropriate oversight legislation is adopted to ensure transparency and accountability in government and public affairs. Lobby the government to sign and/or ratify relevant international instruments and see to it that the provisions of these instruments are written into national legislation and enforced as such. Promote the passage of freedom of information legislation that allows for the disclosure by government of information considered necessary for the conduct of parliamentary business, especial in investigating cases of corruption. Promote party-funding and electoral campaign legislation that fosters transparency in the electoral process and thus increases the legitimacy of the elected parliament. Such legislation should, among other things oblige political parties and groups to declare the sources of their funding and should institute heavy penalties for those who infringe it. Promote legislation that addresses areas which have a potential for corruption, through: adequate social security for every citizen; introducing public service pay structures which are not conducive to corruption; establishing speedy and transparent bureaucratic procedures; guaranteeing that all participate equitably in the decision-making process. Streamline and ensure the equity of laws and regulations on government procurement procedures, taxation, the administration of justice, etc. ii) Oversight: Parliaments need to make maximum use of constitutional and other legal mechanisms for ensuring oversight of government and thereby promoting transparency and accountability in government. In so doing, they should adopt and/or strengthen processes in the following ways: Institute and/or reinforce mechanisms within Parliament for bringing government to account, including through questions to the government and optimum use of committees to scrutinise government business. In this regard, Parliaments may consider establishing and/or strengthening special committees that deal with public accounts. Ensure that the process for preparing and executing the national budget is transparent and provides for safeguards against government misuse of public funds and resources. In this regard, strengthen the powers of and resources available to such parliamentary committees as public accounts committees, etc. Promote the creation of watchdog agencies such as the Auditor/Controller General, Ombudsman, etc. and ensure that these agencies are provided with adequate resources and that their reports receive due attention by the parliament and the government. Ensure that the Opposition is adequately represented in the parliamentary structures and processes and that it has sufficient resources and is afforded equitable opportunities to voice their views on the management of public affairs, including denouncing corruption and probing or initiating investigations into alleged cases of corruption. Institute transparent and stringent mechanisms for the approval of senior government and public officials so as to ensure that only the most competent and morally upright are appointed to public office; institute appropriate mechanisms for sanctioning those public officials who are found guilty of wrong-doing in the performance of their duties. Establish conflict of interest standards for public employees and effective measures against illicit enrichment, including appropriate sanctions for those who use their public position to benefit private interest. iii) Representation: Parliament and parliamentarians represent the people and have a duty to ensure that they have a say in the management of public affairs. In this connection, they should: Encourage the public to denounce and condemn corruption; provide legal and other protection from duress 2

3 to all persons involved actively in combating corruption. Promote or participate in the promotion of high standards of probity and moral integrity through public awareness campaigns; introduction of civic education in school curricula, etc. 2. Parliament Action at International Level. i) Parliaments are increasingly required to play a prominent role in international affairs. In particular, they have a moral duty to ensure that international affairs are conducted according to the highest standards of integrity. This international dimension of parliaments' work calls for more effective international co-operation in dealing with corruption. In particular, parliaments should adopt the following measures: Promote international co-operation among parliaments and parliamentarians for the fight against corruption through exchange of experience and best practice, etc. In this connection, encourage the participation of parliamentarians in regional and inter-regional seminars that foster the exchange of information on anticorruption techniques, laws and research, and the examination and promotion of improvements in institutional arrangements and procedures. Adapt their legislation so that persons residing on their territory who corrupt foreign public servants or authorities are punished or at least extradited to the country concerned, and make it an offence to launder the proceeds from corruption, including in a third State. Ensuring that Parliaments play an effective role in combating corruption. (Capacity-building for fighting corruption) 1. While the role of parliaments in combating corruption is recognised world-wide, many parliaments, especially in the developing world and emerging democracies often lack the capacity to fulfill this role efficiently. They therefore require assistance from the international donor community to develop processes and structures that foster efficiency on a sustainable basis. In particular, these parliaments require donor support in: Creating awareness among parliamentarians of their role in the drive against corruption (seminars, conferences, advisory services, etc). Devising and enforcing adequate mechanisms for ensuring oversight, transparency and accountability in government (establishment of appropriate structures and processes such as committees, Ombudsman and ensuring their proper functioning through streamlined procedures and sufficient human and material resources. Ensuring an effective role for the opposition in bringing government to account and thereby promoting integrity, transparency, accountability and good governance. Establishing efficient information and documentation services including the optimum use of new technologies that facilitate access by parliamentarians to information relevant to their work especially in ensuring government accountability. About GOPAC and UNCAC The Global Organization of Parliamentarians Against Corruption (GOPAC) of which I am a member is promoting the engagement of parliamentarians in the implementation, review and oversight of the UNCAC We are working closely with UNODC which is the Secretariat to the Convention and the UNDP development programme via a Global Task Force of parliamentarians from different regions in the world that are focussing on the UNCAC 3

4 Our view is that political leadership and engagement is essential to ensure that there is ongoing political will and support for the UNCAC in a country and this view is also relevant to how States Parties deal with anti corruption body or bodies. Article 6 message, there is no one model for anti-corruption agencies and U4 has raised issues in a recent report Article 6 of the UNCAC requires States Parties to ensure the existence of a body or bodies to prevent corruption and to grant this body or bodies the necessary independence to perform functions and resources. The functions of these agencies are implementing, coordinating and supervising of anti-corruption policies, as well as increasing and disseminating knowledge about corruption prevention A recent paper by U4 suggests that o the functions of these agencies should be assigned to a variety of institutions rather than a single body so that the most appropriate institution is used for any given function that s because there are many different provisions in the UNCAC on the prevention of corruption o the multiple body approach is also based on the fact that the area of corruption prevention is very broad and that any anti corruption body or bodies will impact on many different institutions in a country and that coordination will be required o and that countries should distinguish between organizational, functional and financial independence for example, these agencies should have independence from day to day political interference Most important of all in my opinion as a parliamentarian is that this report says that oversight is perhaps the weakest aspect of existing anti-corruption efforts around the world If you are interested in this report I can provide this to the organizers. Role of parliamentarians and anti-corruption agencies GOPAC believes that parliamentary engagement in the UNCAC can contribute to its implementation and effectiveness and this includes parliamentary oversight Parliamentarians could strengthen the independence of anti-corruption agencies by giving then both operational independence and political independence through legislation on appropriate measures such as the appointment of staff and the allocation of a budget or budgets. Parliamentary oversight could also strengthen the effectiveness of the body in a number of different ways: o by providing feedback on intended outcomes and outputs as well as identifying areas for priority remedial action, including where new or adapted legislation is needed for specific UNCAC provisions o by reviewing the performance of the agency or agencies in the implementation of national anticorruption strategies, plans or policies which are the subject of article 6 of the UNCAC including participation in the Review Mechanism for UNCAC which is being developed by States Parties for the UNCAC o and by requiring the agency or agencies to submit reports to Parliament or a parliamentary committee where parliamentarians could review these reports, hold hearings and issue recommendations after all if these agencies are receiving public funds they should not be treated differently than any other ministry or department from an accountability perspective. So the most important point that I want to make today is that the independence and credibility of these agencies requires the right governance and accountability arrangements and this includes a clear role for parliaments. Of course, parliamentary oversight needs to be tailored for anti-corruption agencies, similar to the considerations that may go into the arrangements for supreme audit organizations and financial intelligence units for anti-money laundering Also the oversight provision should ensure that there is no political interference in the day to day operations of the anti-corruption agency Parliamentary oversight can help bridge the gap between these agencies and citizen, the involvement of Parliament and ensuring that the agency or agencies are accountable to Parliament makes them ultimately accountable to the people. Accountability can strengthen public support for these organizations accountability is a two way street it prevents corruption and increases the public credibility of institutions. 4

5 The role of Parliament in supporting integrity institutions the case of Malaysia Malaysia inherits the forms of Westminster-styled parliamentary system, but lacking sorely in actual substance. While many countries in Asia and beyond saw the transition to democracy since 1980s, Malaysia s experience is that of a transition from democracy. Such a backdrop makes Parliament ineffective in supporting integrity institutions. The institutional framework of the state was more or less determined during Malaysia s war on communists, dubbed the emergency, between 1948 and Unlike other ASEAN states where the military usually overshadows other institutions, Malaysia has a powerful centralised police force which enforces almost all laws including traffic, drugs, counter-terrorism, crime etc with very little checks-and-balances. While the Emergency ended in 1960, the state structure was intact and continues to grow ever since in authoritarian power, which hinders any effort to promote integrity. Chief among the powers vested in the police and the security apparatus is a draconian act, the Internal Security Act, which allows detention without trial. The police can detain anyone under this law for 60 days and the Home Minister can detain the person for up to two years, renewable upon completion of every two years period. The ISA has been used against legitimate political dissenters frequently. Malaysia and Singapore are the only Asian countries that have yet to see a change of government for the last five decades. The media in Malaysia is by law controlled while, by most accounts, the integrity of the judiciary is questionable. Parliament Unlike many functioning legislatures elsewhere, the Malaysian parliament does not, though there are provisions for it, practice a committee system to examine the government s proposed legislation or to deal with policy matters. The only exception is the Public Accounts Committee which occasionally is in the limelight for questioning irregularities. The Malaysian parliament receives a small budget as compared to the other branches of the government. Parliament s budget is a merely one percent that of the Prime Minister s department. Further, the staff servicing parliament is from the national civil service, after its own parliamentary service has been dissolved. Malaysian Anti-Corruption Commission The Malaysian Anti-Corruption Commission Act was passed in Parliament during the final days of sitting in 2008 amidst controversies as well as some expectations of improvement in the integrity of the public life in Malaysia. 5

6 The Act provides for the formation of five advisory panels. One of which comprises seven Members of Parliament and Senators but it is not a Parliamentary Committee hence without the powers vested in the parliamentary institution. Barely half a year in operation MACC has practically lost all its credibility as a result of biased prosecution of the political opposition. An assistant to a state minister in the Selangor state government controlled by the national opposition alliance Pakatan Rakyat was found dead on 15 th July 2009 while under MACC s custody. The case is now heard by a Coroner s inquest but the public has mostly formed their opinion about the body. It is as such that the case of Malaysia is still in limbo and not the ideal state of parliamentary oversight on the integrity of the government. 6