The United Nations Convention Against Corruption [2004] promotes and strengthens measures to effectively combat corruption. It supports international co-operation and technical assistance to fight corruption and helps in asset recovery. The convention also promotes integrity, accountability and proper management of public affairs and public property.
Money from corruption finances organised crime, international terrorism and drug trafficking. Corruption money is first laundered, then moved across international borders with ease to tax havens where it is difficult to reach. While in the country of its origin it is concealed income on which no tax is paid. It soon returns to the country to fuel the economy, leading to more corruption. It is an ever ending spiral.
Very few public men have been tried for possessing disproportionate assets. We have been obsessed with bribery corruption which is very local in nature. Only recently have we been taking an interest in investigating real high-end corruption of the CWG and 2G variety which has a global dimension. The previous brush with this kind of global corruption – the Bofors case – did not even go to trial because the investigation was scuttled.
We must carefully think our way through the issues of corruption and the new Jan Lokpal Bill. We need an exacting, and a precise law with a fresh set of rules and standards to judge the behaviour of public men. We need quick investigation, trial and confiscation of property. The recovery of assets must be central to the new law. The recovery of stolen assets has been singled out as a fundamental principle of the UNCAC. The World Bank has found that corruption is the single greatest obstacle against economic and social development. The UNCAC is a document of unprecedented scope and application and we must draw heavily from it in drafting the Jan Lokpal Bill. India has ratified the UNCAC after a long unexplained delay of six years.
All misconduct by public men is not corruption but all corrupt actions have an element of misconduct. Unfortunately the system neither detects nor punishes deviant behaviour. Alarm bells should sound when deviation from well-defined and publicised ethical and moral standards occurs. All public servants are expected to know and observe a high level of integrity. However, when they deviate from these standards, they escape detection. And graduate to the next level of misconduct.
Typical misconduct by public servants can be categorised in three ways: Criminal misconduct or misconduct with criminal intent, administrative misconduct and administrative lapse. Each must have a different remedy but the public servant who misconducts himself, criminally or administratively in the discharge of his official duty, must never go unpunished. Therefore, the way forward is: Prosecute criminal misconduct, departmentally award major penalty for administrative misconduct and minor penalty for administrative lapse.
Some basic principles should be clearly understood before designing the legislation to deal with corruption. A Lokpal (akin to Ombudsman) is the recipient of complaints. His work must remain confidential, never open to public. Inquiries he conducts should be confidential, names of public officials complained against, witnesses and documents examined should not be put in public domain until the Lokpal has taken a final decision. The Lokpal may find the complained act to be short of a criminal offence because it lacks criminal intent but it may all the same be administrative misconduct or lapse.
Protection for whistleblowers is essential. It will encourage people to come forward and provide information about corruption. But occasionally a public official who himself is in the dock may masquerade as a whistleblower and get protected. Care should be taken to separate pseudo whistleblowers from the real ones
On receiving the complaint and after examining and verifying its contents, the Lok Pal will have to decide the course of action, whether or not to act on the complaint. If he decides to proceed, he may send the complaint for a detailed criminal investigation which may lead to prosecution. Or the complaint may be sent to the Head of Department for departmental proceedings against the public official. If the case relates to complicated financial matters then the complaint could be sent to the CAG to carry out a special audit for detecting irregularities. For minor complaints of administrative lapses a mechanism for examining the ethical angle of the administrative action should be in place through a scheme of Ethics Commissioners.
The Lokpal too must observe a code of conduct. There is a well-recognised international Code of Ethics for Ombudsmen. The Ombudsman shall be truthful and act with integrity, shall foster respect for all members of the organisation he or she serves, and shall promote procedural fairness in the content and administration of those organisations’ practices, processes, and policies. The Ombudsman is independent in structure, function and appearance to the highest degree possible within the organisation.
While selecting the Lokpal due regard should be given to geographical distribution, gender balance and a fair representation to OBCs, SCs and STs. Do not design the Lokpal as a super cop-cum-prosecutor, or a super judge. The various clauses of the draft Lokpal Bill, 2010, empowers the Lokpal to cancel licences and leases, blacklist contractors, pass interim orders staying the implementation of decisions, transfer public servants, recommend interim relief and declare vacant post occupied by the public servant. It will have to be seen whether such orders can be passed by the Lokpal without hearing the affected party and without a provision for appeals.
The Lokpal drafting panel must ensure that the constitutional provisions of Articles 14, 21, 311 are not violated. The doctrines of judicial review, separation of powers and basic structure are respected. To pass such orders without hearing the individuals concerned would be a great travesty of justice. If the Lokpal steps into the arena of investigation and prosecution, he would be doing something that due processes of law frown upon. There could well be a constitutional clash between the Lokpal’s brief to tackle corruption and the fundamental rights of citizens. Such a legal battle would defeat the very purpose of the new Act. We need the Lokpal who function as a true ombudsman — independent, neutral, impartial, fair, just and discreet – and not as a quixotic knight in shining armour.
Money from corruption finances organised crime, international terrorism and drug trafficking. Corruption money is first laundered, then moved across international borders with ease to tax havens where it is difficult to reach. While in the country of its origin it is concealed income on which no tax is paid. It soon returns to the country to fuel the economy, leading to more corruption. It is an ever ending spiral.
Very few public men have been tried for possessing disproportionate assets. We have been obsessed with bribery corruption which is very local in nature. Only recently have we been taking an interest in investigating real high-end corruption of the CWG and 2G variety which has a global dimension. The previous brush with this kind of global corruption – the Bofors case – did not even go to trial because the investigation was scuttled.
We must carefully think our way through the issues of corruption and the new Jan Lokpal Bill. We need an exacting, and a precise law with a fresh set of rules and standards to judge the behaviour of public men. We need quick investigation, trial and confiscation of property. The recovery of assets must be central to the new law. The recovery of stolen assets has been singled out as a fundamental principle of the UNCAC. The World Bank has found that corruption is the single greatest obstacle against economic and social development. The UNCAC is a document of unprecedented scope and application and we must draw heavily from it in drafting the Jan Lokpal Bill. India has ratified the UNCAC after a long unexplained delay of six years.
All misconduct by public men is not corruption but all corrupt actions have an element of misconduct. Unfortunately the system neither detects nor punishes deviant behaviour. Alarm bells should sound when deviation from well-defined and publicised ethical and moral standards occurs. All public servants are expected to know and observe a high level of integrity. However, when they deviate from these standards, they escape detection. And graduate to the next level of misconduct.
Typical misconduct by public servants can be categorised in three ways: Criminal misconduct or misconduct with criminal intent, administrative misconduct and administrative lapse. Each must have a different remedy but the public servant who misconducts himself, criminally or administratively in the discharge of his official duty, must never go unpunished. Therefore, the way forward is: Prosecute criminal misconduct, departmentally award major penalty for administrative misconduct and minor penalty for administrative lapse.
Some basic principles should be clearly understood before designing the legislation to deal with corruption. A Lokpal (akin to Ombudsman) is the recipient of complaints. His work must remain confidential, never open to public. Inquiries he conducts should be confidential, names of public officials complained against, witnesses and documents examined should not be put in public domain until the Lokpal has taken a final decision. The Lokpal may find the complained act to be short of a criminal offence because it lacks criminal intent but it may all the same be administrative misconduct or lapse.
Protection for whistleblowers is essential. It will encourage people to come forward and provide information about corruption. But occasionally a public official who himself is in the dock may masquerade as a whistleblower and get protected. Care should be taken to separate pseudo whistleblowers from the real ones
On receiving the complaint and after examining and verifying its contents, the Lok Pal will have to decide the course of action, whether or not to act on the complaint. If he decides to proceed, he may send the complaint for a detailed criminal investigation which may lead to prosecution. Or the complaint may be sent to the Head of Department for departmental proceedings against the public official. If the case relates to complicated financial matters then the complaint could be sent to the CAG to carry out a special audit for detecting irregularities. For minor complaints of administrative lapses a mechanism for examining the ethical angle of the administrative action should be in place through a scheme of Ethics Commissioners.
The Lokpal too must observe a code of conduct. There is a well-recognised international Code of Ethics for Ombudsmen. The Ombudsman shall be truthful and act with integrity, shall foster respect for all members of the organisation he or she serves, and shall promote procedural fairness in the content and administration of those organisations’ practices, processes, and policies. The Ombudsman is independent in structure, function and appearance to the highest degree possible within the organisation.
While selecting the Lokpal due regard should be given to geographical distribution, gender balance and a fair representation to OBCs, SCs and STs. Do not design the Lokpal as a super cop-cum-prosecutor, or a super judge. The various clauses of the draft Lokpal Bill, 2010, empowers the Lokpal to cancel licences and leases, blacklist contractors, pass interim orders staying the implementation of decisions, transfer public servants, recommend interim relief and declare vacant post occupied by the public servant. It will have to be seen whether such orders can be passed by the Lokpal without hearing the affected party and without a provision for appeals.
The Lokpal drafting panel must ensure that the constitutional provisions of Articles 14, 21, 311 are not violated. The doctrines of judicial review, separation of powers and basic structure are respected. To pass such orders without hearing the individuals concerned would be a great travesty of justice. If the Lokpal steps into the arena of investigation and prosecution, he would be doing something that due processes of law frown upon. There could well be a constitutional clash between the Lokpal’s brief to tackle corruption and the fundamental rights of citizens. Such a legal battle would defeat the very purpose of the new Act. We need the Lokpal who function as a true ombudsman — independent, neutral, impartial, fair, just and discreet – and not as a quixotic knight in shining armour.
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