Anti-Corruption Commission: How can it be truly effective?
The zero tolerance pledge
A policy of zero tolerance against corruption announced by the prime minister is at the core of the election manifesto of the Awami League (AL), the party that ensured an unbelievably sweeping victory through an unprecedented election held on December 30, 2018. The manifesto also emphasised the importance of an effective Anti-Corruption Commission (ACC).
Making anti-corruption pledges for elections is nothing new. What can be new is a true delivery of the lofty commitment. Similar anti-corruption pronouncements were made on the eve of previous elections, particularly in 2008 and 2014. When such a pledge comes from the highest level wherein lies absolute power, one is inclined to believe that the ACC has got the mandate to be truly effective. But is it real?
ACC: A government creation for government's accountability
The answer is rather simple: the ACC will be as effective as the government of the day wants it to be. ACC's effectiveness depends no less on the extent to which its leadership is capable of making best use of the legal and institutional capacity to deliver the mandate of the ACC. No government has yet given full freedom to ACC, nor has the ACC been able to operate as effectively as to enjoy public trust. The reality is that, successive governments have treated ACC as part of its executive wing while the ACC has also viewed itself as a government body, both losing sight of the fact that although set up by the government, ACC's job is to hold the government to account.
The track record
When the ACC was set up in November 2004, it raised many expectations. However, it did not take long for the people to be disillusioned. That the then government lacked the commitment to let the Commission function independently and effectively was a commonplace wisdom. Everyone knew that the commissioners were appointed on partisan political consideration.
The Commission failed to demonstrate a seriousness of purpose and sense of direction. The three commissioners engaged in mutual acrimony and mistrust of each other on matters like who among them was more powerful. The Commission also inherited the baggage of the infamous Bureau of Anti-Corruption when it sweepingly absorbed its staff without due scrutiny, and therefore sowed the seeds of ACC's deficit of efficiency and integrity.
Abuse of power to control abuse
The reconstitution of the Commission by the military-backed caretaker government of 2007-8 provided it some degree of dynamism and vibrancy. A number of high-profile individuals suspected of involvement in corruption were arrested. Special tribunal was set up for speedy trial. However, typical of a regime under military influence, the ACC hardly operated independently, as a high-powered and controversial task force worked parallel with it, often dictating terms.
Controversial actions such as collection of arbitrary penalty and ransom for corruption through the so-called Truth and Accountability Commission were aplenty. The ACC was perceived to have lent itself to be used for what came to be infamously known as de-politicisation and so-called minus-two formula. Power was abused in the name of controlling abuse of power as due process was ruthlessly violated.
Political and administrative influence
Expectations about the Commission's effectiveness were raised after the 2008 national elections that brought to power the grand coalition government led by AL which identified corruption control as one of the top five strategic priorities. Among a series of related commitments was a pledge to strengthen the independence and effectiveness of the ACC. However, within a year of assuming power, the government introduced a set of amendments to the Anti-Corruption Act designed to drastically curtail the independence and effectiveness of the Commission.
Facing fierce criticism of stakeholders, the government eventually backed out, though efforts to curtail ACC's effectiveness continued in many guises. The provision for prior approval of the government before arresting public officials alleged of corruption, the latest version of which is contained in the Public Service Act 2018, is not only unconstitutional and discriminatory, but it also directly undermines ACC's effectiveness.
The Commission is widely believed to have been under pressure from a section of the political and administrative authority for which, justifiably or not, any real action by ACC against people in positions of power is considered to be too risky for itself. Beyond the so-called “small fries”, ACC is seen to act only when allegations do not involve individuals directly or indirectly related to ruling authority—politically or otherwise. Due to a perception that ACC predominantly targets the political opponents of the government, the Commission is often believed to be used to promote the political agenda of the ruling party. Deficit of trust and credibility
Equally important is the deficit of the Commission's own skills, capacity and integrity. There are allegations of corruption of a section of the ACC staff. Except for occasional departmental actions taken against some officials for allegation of misconduct, the Commission has not strategically addressed the question of its own accountable governance and integrity of its staff.
The Commission has recently appeared to be relatively more active than before. Public officials of various levels including former and incumbent ministers during the previous term of the government were interrogated in connection with corruption scandals, though no concrete action has been taken in such instances. Some innovations like the introduction of hotline and trap case tactic have shown good results. However, for lack of a proper strategy and consistency, they are still struggling to gain public trust and credibility.
In connection with high-profile cases like the Basic Bank scam where individuals alleged to have links with the ruling authority were party, they acted in a manner that gave an impression that they were hesitant to take action against individuals in positions of power.
External and internal predicaments
In sum, the experience of ACC in the period since it was created shows that its effectiveness has been circumscribed by external as well as internal factors. Externally, ACC has always been subjected to political and administrative influence and control, whereas ACC has itself been far from being fully capable of meeting its mandate of taking action against corruption without being influenced by the identity or status of the individual. They appear to be handicapped by a perception that they have much to lose if they ignore and resist external pressures, and hence the deficit in courage and professional excellence befitting their high-profile position of public interest.
Challenges ahead
The ACC should be prepared for the foreseeable future to confront the fallout of some of the most formidable challenges of the government formed on the basis of unbelievable results of election where the political space has become an institutionally monopolised territory of virtually the ruling party. In the absence of nearly all conventional mechanisms of accountability and checks and balances, it would not be surprising if this overwhelming majority and the resultant total control over political and administrative domain are taken as a mandate to enhance the personal wealth and property of those linked with power. Abuse of power may then easily become the order of the day.
Zero-sum game of politics and corruption
This is important in the backdrop of a qualitative transformation that has taken place over the years in our political space. From below 18 in the first parliament, the ratio of MPs, who have business as primary occupation, has crossed 60 percent in the 11th. No one can object to the right of individuals of any profession to enter politics, but questions do arise when such participations, especially by investing millions, are prompted by pecuniary aspirations.
To be sure, politics in Bangladesh has turned for many into a zero-sum game, where the winner takes all with a monopolistic control of the political space and the spoils that come along. Business and profit-making relationships of public representatives with the government are considered by many as a matter of politically legitimised normality. Given the unprecedented majority, therefore, there are risks of lack of accountability in business, investment, recruitment, public contracting, land grabbing, extortion and the like becoming uncontrollable.
Corrupt practices in planning, design and budgeting of infrastructure projects coupled with conflict of interest-driven contracting bedeviled by low efficiency and delayed implementation, often deliberate, may continue to cost Bangladesh many times more than many countries. With kingpins of loan default and banking fraud well placed in important positions, the challenge for ACC will be even more formidable, especially when accountability mechanisms are ineffective in the banking and financial sector and ethical business practices and self-regulation are rare.
Managing conflict of interest
A dreadful driving force in corruption in Bangladesh is an endemic malaise of mixing up what is public with what is private, much of it related to the interconnection of politics with business. The idea of managing conflict of interest is almost absent among many in important public functionaries, whether elected or appointed. A key challenge ahead will be on how to manage conflict of interest to ensure that public interest is protected and served by obliging power-holders to make decisions on merit only, without regard for personal or group interest. Opportunities for corruption can become the cause of turf-war between various sections within elements of the power structure and their adjuncts to make the ACC busier than any time in the past.
Is an effective ACC nevertheless possible?
Fighting corruption involves a long-term and comprehensive process. Having an ACC is not an end in itself—it just opens an opportunity as part of a comprehensive system. There are many countries in the world where there is no separate institution called ACC, but they have done very well in controlling corruption, thanks to the collective strength of the national integrity system (NIS). Likewise, there are many countries where specialised and well-equipped ACC exists but precious little has been achieved for lack of political will of the government and lack of ACC's own capacity on the one hand and underperformance of other relevant institutions on the other. The ACC cannot be an effective organisation without the supportive contributions of the vital institutions of accountability in the NIS like effective Parliament, executive, law-enforcement agencies, judiciary, public service, and comptroller and auditor general's office.
Although created by the government, the ACC must not be perceived as a part of the government, rather as an institution to hold the government accountable in public interest. ACC must have the courage and strength to bring the corrupt to justice without any bias or favour and unmoved by any form or level of political or other forms of influence or intervention. To make it work, consistent with the pledge of zero tolerance, it will be incumbent upon the government to create the conditions in which ACC can handle corruption cases in the due process without fear or favour.
As difficult as it may seem, an effective ACC is still possible. Four mutually reinforcing drivers are indispensable. The first is the political will at all levels, not only on paper but in practice to let ACC discharge its legal and institutional mandate without political or bureaucratic interference. Second, the ACC must rediscover itself, especially realise that in addition to the legal mandate and institutional capacity, it has on its side the prime minister's pledge for zero tolerance against corruption. It must unrelentingly challenge impunity and bring to justice the corrupt, ensuring equality of all before law irrespective of the identity and status of the person. Third, the institutions of the NIS complementing the ACC must be transparent, efficient, accountable and effective, both individually and collectively. Fourth, conducive environment must be created for people at large, particularly the media, civil society, and NGOs, to raise and strengthen the demand for an effective ACC.
Dr Iftekharuzzaman is Executive Director, Transparency International Bangladesh.