See below for the list of suggestions I submitted for the drafters of Jan lokpal bill through the consultation website: http://www.lokpalbillconsultation.org/
Foreword
I envision the Lokpal to be an independent prosecutor with direct and indirect investigative powers and having the ability to take up cases suo motu. It should not have any judicial power to render resolution of a case it investigated/prosecuted, even for cases concerning corrupt civil servants’ administrative matters.
A. Composition and appointment of Lokpal commission
1.
At least one member of the Lokpal commission should have established auditing work experience (i.e ideal candidate would be former CAGs or at minimum CAs with substantial government auditing experience). This is because an audit professional’s perspective will be extremely helpful in understanding intricacies within government accounts but also in understanding root causes in the internal control framework that is leading to corruption. Legal (Prosecutor), Investigative and Audit professionals need to combine their professional strength and resources for effective fight against corruption. To this end, all 3 professions should be well represented in the commission.
2. Jan lokpal draft does not seem to explicitly mention if Lokpal would have the authority to maintain its own prosecution staff although this authority can be implied within section 23. Since prosecution power is critical to the effectiveness of this institution, please
explicitly state by law that Lokpal should maintain its own independent prosecution staff and that a Chief Prosecution Officer should be appointed by Lokpal by a method formulated in the this law to ensure quality and fair selection. Appointment process of Chief Prosecutor and other senior officers/agents of lokpal commission is important enough to be mandated by law, at least in principal rather than completely delegating to the commission.
3.
Each nominated Lokpal commission members should undergo x hours of ( say 12 hrs) public questing under oath by a parliamentary sub-committee (ideally Public Accounts Committee (PAC),also by any willing MPs or others) before their nomination is confirmed. This is to ensure opposition members who may be sidelined during private appointment process (if this process effectively one sided) get amble time to make their concerns public and receive direct answers from the nominee. Nominees later found to have less than truthful during the nomination process should be held accountable.***This should be considered as an alternative provision if the government would not accept Janlokpal’s proposed appointment system****
4. It would be great if PAC (traditionally chaired by Opposition) “confirm” nominees similar to the process in USA - Confirmation by the Senate for nominees by the president.***This should be considered as an alternative provision if the government would not accept Janlokpal’s proposed appointment system****
5.
PAC ( as long as it is chaired by Opposition) seems to be the best vehicle to make Lokpal accountable to the Parliament, if needed at all. For general administrative needs such as budgeting, it would be beneficial for Lokpal to report to the Parliament through PAC. This way PAC can be its advocate for resources, instead of the cabinet, and mitigate the criticism that lokpal is not accountable to the parliament. Nevertheless, even PAC should not be allowed to dictate the functioning of Lokpal.
6. Section 5 of the Jan Lokpal mentions a 5 year term per member but not clear if a member can be re-appointed to another 5 year. Please make this clear in the law. I would like to see the option for re-appointment subject to the age limit. Also, to ensure continuity of the Lokpal institution, no more than x (2-3/10) members should be retiring during the same year..
7. Question: Why is there a need for 10 members in Lokpal? Is there any evidence that having more members will make the commission more effective? My concern is that having too many members in an executive commission will lead to too much internal politics between members and more talking/discussion and less action.
8.
Lokpal should have regional offices all around the country to make it more visible for the public.It should not be another institution just sitting at Delhi. If possible, a minimum number of regional office(s) per state should be mandated by law. In an ideal environment for law enforcement effectiveness, there should be a Lokpal/lokayuktha, CAG and independent prosecutor office per district.
9. Lokpal should have the power to direct CAG to conduct audits on those public authorities that it suspect to have high ongoing risk of corruption, provided CAG has enough resources to comply with lokpal’s request. If CAG do not have the resource audits can be done by other qualified agencies.
10. There should be an
“Internal Affairs” department within Lokpal to monitor professionalism of its staff with respect to established code of conduct on an ongoing basis. A performance review of the office on say 3-4 yr cycle may be mandated. In addition, it would be prudent to set up another i “Internal Audit” group (potentially even independent of lokpal) to conduct regular audits.
11.
Measures to further empower PAC and the power of its opposition chairman is also an area that should look into. Please try to add in a few provision to empower PAC to this draft to see if the government is receptive to this idea:)
B. Integration between Audit and Lokpal Functions
This is an area few pay attention but i believe from practical experience on this matter that coordination between auditor and prosecutor is a very effective practical tool in fighting financial crimes.
1.
Seamless working relations between CAGs and LokPals is an effective tool against corruption. Therefore,
a. CAGs should be encouraged by law to refer potential criminal corruption cases that they come across during audits to LokPal/Lokayuktha.
b. Lokpal should be able to recommend/direct to CAG to conduct audits in areas that Lokpal believes high risk of corruption/misappropriation of money. Lokpal should be able to influence the scop of this audits.
c. To improve and ensure working relations with CAG and Lokpal, periodic (ex. bi-annual) meetings between them should be mandated. During this meeting both institutions should share their assessment of
i. areas of high risk (wrt fraud/corruption) based on their recent working experience.
ii. Preventative and detective internal controls that can me implemented in high risk areas. This should be then formally recommended by both institutions to the respective governments bodies.
C. Miscellaneous anti-corruption mechanisms that can be added to Lokpall bill
1.
For every large government expenditure project/programs/departments, xxx basis points of the total annual expenditure should be earmarked for anti-corruption or quality improvement functions for that project. This money should be spend on Internal Audit, CAG audits, Vigilance or Quality Assurance staff concerned with the project.
a. Exact percentage point (or % range) of money to be spend for this purpose should be formulated by risk assessment of fraud/corruption in the respective project/area. General assessed risk level should be determined by the Planning commission in consultation with Lokpal and CAG.
2.
Internal Audit departments (separate from the authority of the Vigilance and CAGs) should be chartered for every large scale government programs and/or ministries. Charter of this department is primarily to ensure preventive and detective internal controls exists and working as designed.
a.
Internal Audit department (embedded within each program/ministry) should report to the Planning Commission or PM directly. This will provide a tool for the PM and Planning Commission to monitor internal controls of departments/ministries where they dont have direct control.
b. Internal Audit should be shielded from other institutions like lokpal, CAG, CVC,etc to maintain confidential nature of Internal Audit. This is necessary because Internal Audit should not be seen as a vindicative organization in order to ensure better cooperation from the department/project staff.
c. A research educational institutions should be established to provide continuous training for government audit professionals and act as ‘brain’s behind the internal audit cells .
d. Where central funds are allocated to state/local government bodies, above a specified threshold, central government should mandate annual audit report by an independent entity (this can be private qualified CA companies) regarding the performance/usage of the governmental programs... Google “Single Audit/ OMB A-133 audit” for similar mechanism employed by US federal government.
