The ACC needs to get its act together

The government reacted by reiterating its determination to root out corruption(BAC). It accepted the fact that the existing arrangement had flaws and needed to be corrected. Subsequently, it dissolved the Bureau of Anti-Corruption. In its place, on 21 November, more than three months ago, they constituted the Anti-Corruption Commission (ACC) by the Anti Corruption Act, 2004. Everyone in the Administration pointed out that this measure was a reflection of the right sort of political will. It was anticipated that the donors would be satisfied and some of their criticism deflected.

Unfortunately, controversy with regard to the Anti-Corruption Commission just refuses to go away. It is more like a flubber ball that bounces back instead of settling down.

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Disagreement about the ACC has kept front pages of the daily newspapers and the electronic media pre-occupied.

Constitutional experts, including former Chief Election Commissioners have gone on record and suggested that the very appointment of a former Chief Election Commissioner as the present Chairman is in violation of the Constitution. They have pointed out in this context, that Justice Sultan Hossain Khan, the present Chairman, was the Chief Election Commissioner from February 17 to December 24, 1990. They have also referred to Article 118 (3) (a) of the Constitution which states that 'a person who has held office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic.' They have also clarified that the constitution indicates that service of the Republic means -- 'any service, post or office, whether in a civil or military capacity, with regard to the Government of Bangladesh, and any other service declared by law to be a service of the Republic.' Attention has also been drawn to a judgment of the Supreme Court of December 2, 1999 which said that -- 'in broad concept, the service of the Republic means all services of Bangladesh.' It has also been held that 'it is a generic term' and includes a 'person who is getting emolument because of his service in the Republic as a public officer.'

This constitutional debate has not been resolved and some have even mentioned that a ruling of the High Court needs to be sought on the constitutional aspect of this matter. Any step taken in this direction will make the matter further complicated.

The next factor has been the sad squabbling among the ACC Commissioners about their jurisdiction and their respective responsibilities. The media has watched with glee as they have washed their dirty linen in public. Instead of reaching any consensus on important issues, they have blemished the image of the newly constituted body.

Trouble has kept pace with work in the ACC. Professor Miah has disagreed with decisions made by the Chairman. He has claimed that these were not quite in conformity with existing rules. The issue as to whether officials and employees of the defunct Bureau of Anti Corruption can be part of the ACC, has been one of the major irritants in the relations between the three top officials of the Commission.

On 17 February, 2005, it was reported that the ACC had taken the decision to temporarily take in all regular staff of the defunct BAC. This has made the scenario more complex. Many have pointed out that such a decision not only violates the ACC Act and ignores an earlier government order, but also sets aside the principle of screening. The Chairman has said that the ACC 'has decided to utilise all former BAC staff, now unemployed, by attaching them temporarily to the Commission to make it an effective institution.' So far, so good. However, the question then rises as to whether the Cabinet Division and the Ministry of Law and Parliamentary Affairs will fully agree with such a step.

Does this mean that the views and threats expressed by the Cabinet Division in their letter of January 29, 2005 are no longer valid? Strong words were used in that communication and service discipline was also underlined.

The Commissioners of the ACC and the cabinet Division both appear to have certain merits in their arguments. The ACC needs experienced people to make it a suitable instrument for proper fiscal governance. At the same time, it is also true, that the ACC cannot, and should not, be a mere copy, a re-incarnation of the past institution. It is this factor that necessitates careful scrutiny of the personnel. We understand that a screening Committee has been constituted for this purpose. One hopes that members of this Committee will direct their attention towards financial discipline and not be persuaded towards decision-making on the basis of political partisanship. This is very important and relevant for restoring credibility within and outside the ACC.

I am stressing on the principles of impartiality and honest. I am also outlining the need for non-interference by the government. It would have been useful if this screening Committee could have been vetted by a parliamentary Committee, participated by representatives of the Opposition. This might have averted further controversy.

I recall here some of the salient points of a report published in the local press late last year. Major General (Retd) MA Matin, who had served as the BAC Director-General for more than two years pointed out that the defunct Bureau had failed to play an active role in combatting corruption due to persistent government interference. In this regard, he also suggested that 'it was impossible to for us to work beyond influence since we were dependent on the government.'

This is indeed sad. In fact, this assertion only confirmed general opinion that charges of corruption are regularly used as an instrument to harass members of the opposition in general. This has been the unfortunate practice for many years. Charges are framed, thousands of man-hours spent on inquiry and investigation and then everything set aside, if the accused in question, happens to be part of a political party which has formed the Government.

Another connotation has been the factor of dependency. This obviously refers to lack of financial autonomy. Such an arrangement creates diffidence in taking unpopular steps. This is an obvious area that needs to be addressed suitably to make the ACC an effective mechanism. Despite procedural complexities, an inherent autonomy needs to be guaranteed for the ACC.

According to reports there are more than 2000 cases that have been inherited by the ACC from the BAC. We cannot overlook the fact that corruption, economic development and foreign investment are all inter-related.

Time has come for politics of influence to be set aside. This has to be done in a bi-partisan manner.

It is also for this reason that I propose that a Special Committee should be set up to assist the Chairman of the ACC in formulating a pro-active organogram and distribution of responsibility chart. The vertical chain, as well as the horizontal overlays, need to be made more responsive, in terms of real time. This will improve accountability, which in turn will also promote transparency.

The ACC has to be seen to function. It cannot waste any further time. It must also avoid being an instrument for unnecessary harassment. In this context, it also needs to remember that a person is innocent unless proven guilty. It should also encourage the culture among the investigating officials that they should avoid framing charges that will not stand up in court.

The ACC is a good idea. It must receive full cooperation from all other agencies of the government. Some of our donor friends may also consider arranging necessary training for the personnel of the ACC so that it can be more efficient as an organisation.

Muhammad Zamir is a former Secretary and Ambassador --any response to mzamir@dhaka.net