A toothless tiger in the making?

Moin Ghani

Bangladesh has, in recent years, been categorised as the most corrupt nation in the world by reports of various donor agencies. While we may disagree with the validity of the assessments and question the methods used for reaching such a conclusion, there is no denying that corruption is a serious problem that needs to be addressed. It is also beyond dispute that corruption is one of the main reasons for which Bangladesh has been unable to achieve its expected level of development. It is of prime importance that the issue of corruption is addressed soon in order to attain a faster rate of economic development.

In the run up to the last parliamentary elections all the major political parties had identified corruption as a social problem and pledged their commitment to combat corruption. The two major political parties had included the creation of an independent anti-corruption institution in their election manifestos. In light of the ineffectiveness of the Bureau of Anti-Corruption it had been the popular demand of the general public to set up an independent institution to combat corruption. With a view to implement its election manifesto the Government has drafted the Anti-Corruption Commission Act, 2003 which aims to set up an independent Anti-Corruption Commission to combat corruption. However, the absence of the main Opposition Party from the Parliament means that there is a greater burden on the press and the civil society to come up with meaningful and constructive criticisms of the Act setting up the independent Anti-Corruption Commission.

Formation of the commission
One of the biggest concerns surrounding the formation of the Anti-Corruption Commission has been the procedural aspects of its formation, particularly the composition of the Selection Committee which is meant to nominate the Chairman and the Commissioners to be appointed by the President. According to the draft Act a three-member Commission, consisting of a Chairman and two Members, will be appointed by President on the recommendation of a six-member Selection Committee. What is worrying is that the Selection Committee will consist of :

(1) the Minister for Finance,
(2) the Minister for Law, Justice and Parliamentary Affairs,
(3) a Judge of the Appellate Division nominated by the Chief Justice,
(4) a Judge of the High Court Division nominated by the Chief Justice,
(5) the Comptroller and Auditor-General, and
(6) the Chairman of Public Service Commission.

Transparency International Bangladesh (TIB) has been one of the strongest advocates of an independent Anti-Corruption Commission. They have put forward two options for the appointment procedure of the Chairman and the Commissioners. Option one suggested a five member Selection Committee consisting of the Chief Justice, two persons nominated by the Prime Minister and the Leader of the Opposition, and two other persons nominated by the nominees of the Prime Minister and the Leader of the Opposition. The President would appoint the nominees of the Selection Committees.

Option Two had suggested the formation of a two-member Selection Committee consisting of the Chief Justice and the Secretary of the Cabinet Division. The Selection Committee would send its recommendations to the Parliament and the MPs would select the Commissioners in a secret ballot. Option One would have accommodated the Opposition's views but would also have alongside required co-operation from the Opposition. Option Two would have required an amendment to Article 70 of the Constitution. It is perhaps because of these problems that the Government did not consider the TIB proposals appropriate. However, the TIB proposals would have given more credibility to the neutrality and independence of the Commission.

An effective and politically neutral mechanism to investigate and prosecute corruption is a prerequisite to any successful anti-corruption strategy. The danger with the present draft Act is that the composition of the Selection Committee and the procedure for the appointment of the Commissioners will cast doubt on the independence and neutrality of the Commission. It would perhaps be better to keep the two Ministers out of the Selection Committee so as to ensure the independence of the Commission.

Independent prosecution
The draft Act, while giving the Commission the power to carry out prosecution, has unfortunately not outlined the institutional framework with which the Commission will function. The Act merely states that the institutional framework will be determined by the Government. The Act does not set up or even outline the details of any prosecution section of the Commission. In the absence of such a prosecuting section the Commission, after carrying out the investigation will have to rely on the Public Prosecutor to carry out the prosecution. The present Bureau of Anti-Corruption, which the new Commission is meant to replace, had to go to the Public Prosecutor in order to prosecute anyone after completion of the investigation. The record of the Bureau in carrying out prosecutions speaks for itself. Without the powers and institutional framework to independently prosecute government officials, the Commission will be as ineffective as its predecessor, the soon to be defunct Anti-Corruption Bureau.

Recruitment of employees
The draft Bill states that the Government will frame rules for the appointment of the employees of the Commission. The remuneration and other benefits of the Chairman and the Commissioners will be determined by the Government. According to Section 33 of the draft Act the Bureau of Anti-Corruption will cease to exist once the Commission is established and the employees of the Bureau will become employees of the Commission. The Commission will appoint those employees it is satisfied with and request the Government to withdraw the rest of the employees from the Commission.

Transparency International Bangladesh had suggested that it would be better to give the Commission a fresh start by appointing staff through a transparent and competitive process. Experts in the fields of investigation, law, banking, finance, procurement etc. could also be employed, on a contract basis, if required.
The danger with recruiting officials from the former Bureau of Anti-Corruption is that the new Anti-Corruption Commission will be seen as merely a successor of the old and ineffective Bureau. If there are any lessons to be learnt from the failure of the Anti-Corruption Bureau it is that an institution which has the function of investigating official malfeasance cannot function effectively with staff employed by the Government.

Concluding remarks
Corruption is a social cancer that must be challenged in order to build a better future for Bangladesh. The non-transparency of the decision making process and the arbitrary use of power is what has lead to our society being inflicted by the cancer of corruption. What is required is to bring about a change in the basic approach to governance. The people with power need to be enlightened enough to realise that it is in their own best interest to have checks and balances to their exercise of power. The Government needs to realise that it is not just in the interest of the country but actually in the interest of the Government itself to have a truly effective and independent Anti-Corruption Commission.

Unfortunately, doubts remain as to how effective and independent the Commission set up by the draft Act will be. The draft Act itself does not go the whole mile. The concerns regarding the draft Act are not just about what is in the draft Act (e.g. the composition of the Selection Committee) but more importantly about things that have been left out, particularly the institutional framework for an independent prosecution agency.

Moin Ghani is an Associate of a law firm.