Sunday, July 24, 2011

Govt Vs Anna Lokpal Drafts

Following is a list of weak provisions in the government’s lokpal draft released on June 21st.

1 Not covering lower bureaucracy (below Group A officers) under the scope of Lokpal's investigations

2 By law, instituting 2 year minimum prison term for frivolous complainant, rather than allowing the judge to decide minimum punishment

3 Having to hear the accused and provide evidence prior to initiating investigation and prosecution.

4 Not having expedite mechanism to make appeals/trials faster.

5 Not covering PM’s Office

6 Not allowing citizens to directly petition the Supreme Court for dismissal of corrupt Lokpal members

7 Not instituting powerful Lokayukthas in States

8 Not having the power to impose penalty to civil servants violating Citizen’s charter.

9 Not merging CBI’s anticorruption wing with Lokpal

10 Having to consult Finance ministry in deciding the budget for lokpal.

11 Not having the direct power to wiretap phone conversations (need permission from Home
Ministry).

12 Not covering MPs actions within the parliament

13 Having only 4 of the 10 members in the Selection Committee being independent of the government.

14 Not merging CVC with Lokpal

15 Not covering whistleblower protection law

16 Not having the direct power to dismiss civil servants found to be corrupt

17 Not covering Judges


I feel strongly that the government should reverse its position for point 1 through 6. Point 7 and 8 are also excellent suggestions from the civil society that the government is ignoring.

Thursday, April 28, 2011

Expanded Suggestions for Jan Lokpal Draft

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.

Sunday, April 17, 2011

Drafting LokPal

Institutionally, India’s law enforcement system has been suffering for decades due to the lack of an executive and independent Prosecutor. Lokpal bill appears to be intended to address this gap with respect to corruption by appointing Lokpal as the independent prosecutor for corruption cases.

For effective functioning of the Lokpal institution, drafters of the law need to prioritize their attention on the following 3 critical elements.

Appointment
Appointment of Lokpal members should be in a way that provides legitimacy to the institution and at the same time ensure appointment of independent and qualified persons who would not be influenced by political considerations of people who appointed them. This would be a difficult balancing act especially since in order to provide legitimacy, the appointment process need to be primarily influenced by the political/parliamentary leadership. I would presume appointment models for the Chief Election Commission or the US Supreme Court justices may provide acceptable starting point for negotiations on this matter in additions to the proposal already included in the jan draft.

Power to take up cases, investigate and prosecute on its own will
Needless to say, operational effectiveness of Lokpal institution will be primarily dependent on this power. I hope civil society will resist any attempt to dilute the concerned provisions in the jan lokpal draft.

Tools/resources to ensure speedy investigation and prosecution of cases by Lokpal
In order to ensure successful prosecution of cases, Lokpal needs to interface with other institutions such as government investigative agencies and courts. For investigation purposes, in addition to the proposed oversight over CBI anti-corruption wing and CVC, Lokpal should be able to deputize any other central investigative agencies for investigations even though such agencies may not directly report to Lokpal. Furthermore, a fast tracked trial process should be introduced by law within judicial courts and central administrative tribunals for cases prosecuted by Lokpal. As such, processes need to be streamlined to reduce delay in investigation and trial.

This is a historic moment for India. If an effective Lokpal commission is instituted in the center and Lokayukthas in states, it will make huge difference in deterring corruption and modernizing government institutions to address aspirations of a billion + Indians! I hope there is enough political will and pressure to see this through.

Wednesday, February 10, 2010

Evolving Role of the Home Ministry and P.C - Interview

I just watched an interview with P. Chidambaram (Minister of Home Affairs)aired on CNBC TV 18 recently. This is probably the only media interview that I've seen where an Indian minister intelligently discussing the institutional reforms for the country.

In this interview,he was making the case for his ministry to exert greater "political oversight" on all security agencies of the central government, even the Research Analysis and Wing (RAW)! Further, he wants to limit executive roles of National Security Advisor (NSA) by leaving such work to "professionals" (i.e MHA subordinates).
I fully agree with him on these reforms..Afterall, if something bad happens, he will be the one getting fired. So he should be rightly given all powers necessary to do his job right (trying to keep 1+ billion citizens safe is no easy task!)

What made me jump out of the couch while listening to this interview is what he said when talking about setting up the new National Counter-terrorism Center(NCTC). He said: "NCTC will be an institutional mechanism rather than individual headed mechanism and the response will be an institutional response rather than an individual driven response".
It may be a dull boring quote but what it tells me is that he gets the point: What India needs for its chronic governing inefficiency is an institutional response not individual response.

P.C is great! I am sure he will be able to do to Home Ministry what T.N Sheshan did to the Election Commission. After taking care of Finance and Home, I just hope that he will also get an opportunity to "excert" his skills on the Law Ministry before becoming the PM! India will be a better place if he can..

See the interview below
Part 1


Part 2


Part3


Part 4

Friday, May 29, 2009

The Best Indian Government Ever!

The new council of ministers Manmohan Singh inducted into his government is definitely the best team I have seen in my life time on the helm of Indian politics. He has picked the best men and women for the job given the choices he has to make.

The Duo of SM Krishna and Shashi Tharoor in Foreign Ministry signals a drastic positive change in India's relationship with our immediate neighbor ( Pakistan and resolution of Kashmir Issue) and even better relationship with larger powers is coming soon. They are indeed the cream of the crop and no reason to expect anything less from them.

Chidambaram back in Home Ministry is very reassuring. The most able minister in the cabinet has given the most difficult task! He is smart, visionary, good communicator, mature, tactical and an executioner. A man like him is the need of the hour to contain and eradicate the naxal , terrorist, communal and northeast issues hurting India for a while. His priorities should be on strengthening the internal security institutions and enforcement of law.

AK Antony as Defense minister is telling me that Congress has no plans to go to war with any country for the next 5 years! His personality is not what one would expect from a Defense Minister aka Offense Minister. At least he will live up to the name of his ministry! A truly defense minister! He is not the minister to project the military strength of India but rest assured he will do his best to prevent corruption in Defense spend. This is indeed great for our defense forces long term.

Pranab as Finance minister seemed like a mediocre pick to me given his baggage from old license raj era. But given allocation of other important ministries to other able persons (Chidambaram and Kamal Nath), I think the best position to accommodate a senior congress man like him was indeed Finance. Especially, since MMS can strongly influence this ministry, if warranted. I was hoping Sonia will create a deputy PM post for him and keep him out of finance but it is little unrealistic to expect a deputy PM post in Congress for him while Rahul is supposedly being groomed for the PM post.

Snatching up the infrastructure ministry from DMK and handing it over to Kamal Nath tells me MMS has big plans for modernizing India’s infrastructure. Really glad to see Kamal Nath in this post. A China style infrastructure face up is on Indian horizon!

Kabil Sibal as Human Resource Development minister and Ghulam Nabi Azad as Health minister show UPA is very much committed to to social sector development. Both had a combination of vision and execution to do great things in these ministries.

I am also very optimistic about having Veerappa Moily as Law minister. His previous experience as the chairman of Administrative Reform Commission will make him a unique law minister. If he was serious about the recommendation that he made under ARC and other institutional strengthen initiative that he proposed, law ministry gives him a platform to implement those proposal.

Finally, I am glad to see young people like junior Scinda , Sagma and Pilot (all sounded extremely smart and sharp on TV and also well educated despite their family background that could have spoiled them) was inducted to the government. I would like to see them as Cabinet ministers or as PMs one day!

-Jai Ho MMS