For an effective ACC sans arbitrariness
Thursday, 6 May 2010
Enayet Rasul Bhuiyan
THE proposed amendments to the Anti-Corruption Commission (ACC) Act, as were reported to have been approved by the Cabinet last week, have raised some concern over the course of activities by the anti-graft watchdog. The amendments were adopted in principle in proposal form and are far from being final. Theoretically speaking, all gates have not closed and the scope is there for fine-tuning these amendments.
But the tradition in this country for the government has been not to reconsider a decision once taken. This is where the concern lies because the government may consider that responding to honest criticisms of its amendments to the ACC Act would be tantamount to a victory of groups opposed to it. It may then steer the amendments in their present form through utilising its overwhelming majority in parliament. But it would be a mistake if the government considers the clamour for improving the amendments to the ACC Act as organised by only political elements opposed to it.
There is some support for reconsideration of the amendments among civil society, think-tanks and truly enlightened and conscious sections of people. For example, the Transparency International, Bangladesh (TIB) which has been doing work in measuring the depth of corruption in Bangladesh and is otherwise respected for doing its work devoid of the influence of any interest groups, organised a seminar last Sunday where the participants, by and large, stated 'no' to some of the proposed amendments to the ACC Act 2004. They called for remaking them appropriately for retaining, what the TIB considered, the effectiveness of the ACC.
All concerned would at this stage hope that the government would receive these suggestions and criticisms positively. Otherwise, it is likely to give a bad signal. The ruling Awami League in its election manifesto committed itself prominently to go on fighting corruption resolutely in line with the aspirations of the people. Therefore, it should re-think seriously about whether the proposed amendments, after taking effect in their present form, would lead to any weakening of the ACC, making it a rather ineffective organisation.
Having noted this, it should also be pointed out here that people in general did not approve of the manner in which the ACC functioned under the caretakers -- sometimes acting oppressively against corruption suspects and in others not succeeding in establishing the guilt charged against the suspected ones. And in a number of cases, the ACC acted quite arbitrarily at the dictates of the powers-that-be to serve some ulterior motives. And the systemic problems that breed corruption were not then taken into account by the ACC. Its former chief declared a "jihad" against corruption without understanding the dynamics of the society. Thus, ACC earned a bad name for both gross inefficiency as well as for unduly harassing individuals or institutions. But these sad aspects should not mean that people want the ACC's zest for fighting corruption turned off now. The people would rather like to see ACC doing its work properly under the elected government that would seem not arbitrary and would lead to successful prosecution.
The people would welcome any actions that would help strengthen the ACC to discharge its functional role, responsibly. Any move that would weaken the ACC will erode esteem for the government among the people. The government needs to keep this in view while acting finally on the amendment proposals.
As it is, the amendments appear, to some quarters, as being purported not to strengthening the ACC. ACC officials to suffer five year jail terms for starting cases they would not win, is, thus, considered too harsh a prescription for their failures. ACC investigators may become reluctant to even start cases with the five-year jail threat hanging always over them. In that case, ACC would not be able to be an active organisation.
Why should this provision of five years in jail ACC officials for starting false cases be introduced while there are already laws prevailing in the country for taking penal actions in varying degrees and in proportion to guilt against starters of falser cases?
As for another amendment relating to the ACC remaining accountable to the President, there are conflicting views. The critics of the proposed amendments feel that such an amendment could again mean this body losing its independence because under the present system of government in the country, the President is obliged to take the advice of the Prime Minister and act in accordance with them in all cases, except for a very few. Thus, ACC's accountability to the President who is otherwise elected to the office from among the senior-most leaders of the ruling party, could then mean its subservience to the government or in a roundabout manner to the office of the Prime Minister. Hence the proposed amendments, as the critics have noted, would pave the way for the inroads of the influence of the government and the ruling party in the ACC.
However, there is also a different view here. The ACC, or for that matter any other similar body, should not consider it as the "overload", being subject to no limits as to its powers and responsibilities. It is not another sovereign body above the Constitution of the Republic.
Meaning, yet another critical part the amendment proposals is the one that would require ACC to take permission from the government to start cases against government's officials. This proposal is considered by many as discriminatory, running, what they say, counter to the spirit of the claimed rule of law and equality before the law by every person in the country regardless of rank or authority. Thus, it is debatable as to how far such a proposed provision can be allowed to operate in a situation where civil servants are to be specially and leniently treated in legal matters with no such facility extended to others in the entire population. Will this proposed amendment conform to the rule of law that treats equally every citizen, no matter what his or her position is? It should be noteworthy that under the former Bureau of Anti-Corruption (BAC), the predecessor body of the ACC, when permission was required to start cases against civil servants of the government at that time, allowed only 10 per cent of the cases to be filed. Those filed cases took over ten years to be settled. Thus, this permission factor proved then to be a great impediment for the BAC to doing properly its work.
Civil servants and their political "cohorts" in the government at different levels are otherwise widely perceived to be spawning the most corruption in the country. When in all fairness they should be allowed to be targeted for corruption with relative ease but properly and effectively, allowing them to become "untouchables", with the requirement of getting permission first to move against them, would not be a practical way of fighting corruption.
Another proposed amendment has recommended that the ACC's secretary should be appointed by the government. This also can be interpreted as a way of extending government's influence into an organisation that should be allowed to do its works minus all kinds of external influence to be able do them without feeling any undue restraint.
Hence, the proposed amendments to the ACC Act merit a critical review before their adoption. Otherwise, the fear will largely persist over ACC reverting to its old form in which it existed under the erstwhile BAC. If such fear becomes a reality, that would be a sad and regressive development. The country must not be back-pedalling in the face of corruption which continues to be a formidable challenge to its socio-economic advancement.
THE proposed amendments to the Anti-Corruption Commission (ACC) Act, as were reported to have been approved by the Cabinet last week, have raised some concern over the course of activities by the anti-graft watchdog. The amendments were adopted in principle in proposal form and are far from being final. Theoretically speaking, all gates have not closed and the scope is there for fine-tuning these amendments.
But the tradition in this country for the government has been not to reconsider a decision once taken. This is where the concern lies because the government may consider that responding to honest criticisms of its amendments to the ACC Act would be tantamount to a victory of groups opposed to it. It may then steer the amendments in their present form through utilising its overwhelming majority in parliament. But it would be a mistake if the government considers the clamour for improving the amendments to the ACC Act as organised by only political elements opposed to it.
There is some support for reconsideration of the amendments among civil society, think-tanks and truly enlightened and conscious sections of people. For example, the Transparency International, Bangladesh (TIB) which has been doing work in measuring the depth of corruption in Bangladesh and is otherwise respected for doing its work devoid of the influence of any interest groups, organised a seminar last Sunday where the participants, by and large, stated 'no' to some of the proposed amendments to the ACC Act 2004. They called for remaking them appropriately for retaining, what the TIB considered, the effectiveness of the ACC.
All concerned would at this stage hope that the government would receive these suggestions and criticisms positively. Otherwise, it is likely to give a bad signal. The ruling Awami League in its election manifesto committed itself prominently to go on fighting corruption resolutely in line with the aspirations of the people. Therefore, it should re-think seriously about whether the proposed amendments, after taking effect in their present form, would lead to any weakening of the ACC, making it a rather ineffective organisation.
Having noted this, it should also be pointed out here that people in general did not approve of the manner in which the ACC functioned under the caretakers -- sometimes acting oppressively against corruption suspects and in others not succeeding in establishing the guilt charged against the suspected ones. And in a number of cases, the ACC acted quite arbitrarily at the dictates of the powers-that-be to serve some ulterior motives. And the systemic problems that breed corruption were not then taken into account by the ACC. Its former chief declared a "jihad" against corruption without understanding the dynamics of the society. Thus, ACC earned a bad name for both gross inefficiency as well as for unduly harassing individuals or institutions. But these sad aspects should not mean that people want the ACC's zest for fighting corruption turned off now. The people would rather like to see ACC doing its work properly under the elected government that would seem not arbitrary and would lead to successful prosecution.
The people would welcome any actions that would help strengthen the ACC to discharge its functional role, responsibly. Any move that would weaken the ACC will erode esteem for the government among the people. The government needs to keep this in view while acting finally on the amendment proposals.
As it is, the amendments appear, to some quarters, as being purported not to strengthening the ACC. ACC officials to suffer five year jail terms for starting cases they would not win, is, thus, considered too harsh a prescription for their failures. ACC investigators may become reluctant to even start cases with the five-year jail threat hanging always over them. In that case, ACC would not be able to be an active organisation.
Why should this provision of five years in jail ACC officials for starting false cases be introduced while there are already laws prevailing in the country for taking penal actions in varying degrees and in proportion to guilt against starters of falser cases?
As for another amendment relating to the ACC remaining accountable to the President, there are conflicting views. The critics of the proposed amendments feel that such an amendment could again mean this body losing its independence because under the present system of government in the country, the President is obliged to take the advice of the Prime Minister and act in accordance with them in all cases, except for a very few. Thus, ACC's accountability to the President who is otherwise elected to the office from among the senior-most leaders of the ruling party, could then mean its subservience to the government or in a roundabout manner to the office of the Prime Minister. Hence the proposed amendments, as the critics have noted, would pave the way for the inroads of the influence of the government and the ruling party in the ACC.
However, there is also a different view here. The ACC, or for that matter any other similar body, should not consider it as the "overload", being subject to no limits as to its powers and responsibilities. It is not another sovereign body above the Constitution of the Republic.
Meaning, yet another critical part the amendment proposals is the one that would require ACC to take permission from the government to start cases against government's officials. This proposal is considered by many as discriminatory, running, what they say, counter to the spirit of the claimed rule of law and equality before the law by every person in the country regardless of rank or authority. Thus, it is debatable as to how far such a proposed provision can be allowed to operate in a situation where civil servants are to be specially and leniently treated in legal matters with no such facility extended to others in the entire population. Will this proposed amendment conform to the rule of law that treats equally every citizen, no matter what his or her position is? It should be noteworthy that under the former Bureau of Anti-Corruption (BAC), the predecessor body of the ACC, when permission was required to start cases against civil servants of the government at that time, allowed only 10 per cent of the cases to be filed. Those filed cases took over ten years to be settled. Thus, this permission factor proved then to be a great impediment for the BAC to doing properly its work.
Civil servants and their political "cohorts" in the government at different levels are otherwise widely perceived to be spawning the most corruption in the country. When in all fairness they should be allowed to be targeted for corruption with relative ease but properly and effectively, allowing them to become "untouchables", with the requirement of getting permission first to move against them, would not be a practical way of fighting corruption.
Another proposed amendment has recommended that the ACC's secretary should be appointed by the government. This also can be interpreted as a way of extending government's influence into an organisation that should be allowed to do its works minus all kinds of external influence to be able do them without feeling any undue restraint.
Hence, the proposed amendments to the ACC Act merit a critical review before their adoption. Otherwise, the fear will largely persist over ACC reverting to its old form in which it existed under the erstwhile BAC. If such fear becomes a reality, that would be a sad and regressive development. The country must not be back-pedalling in the face of corruption which continues to be a formidable challenge to its socio-economic advancement.