The very fact that a ‘debate’ is running of who is ‘presumed to be above board’’ and is therefore excluded from the purview of an anti-corruption agency is erroneous. Here is why:
Based on a search of public domain (on line) information on the world wide practices of Anti Corruption Agencies (ACAs).
Finding:
1. The later the enactment, the fewer the constraints (if any) are placed on any independent agency to combat corruption.
2. Jurisdiction was more about geographical areas and country boundaries rather than who is to be excluded from its purview.
3. The UN Toolkit as well as other country’s acts specify jurisdiction by the definition of “Public Official”. In Australia, the act specifically includes private parties & companies who may be performing subcontracted work for governmental agencies.
4. The Judiciary is often specifically included in the definition of ‘Public Official’.
5. EU countries are now debating the need for ACAs that transcend boundaries in view of the global nature of corrupt practices and flows of funds that must be seized.
Some Excerpts of note:
1. The practices in Eastern Europe and CIS are reviewed in a paper: click here. The following excerpt of note is below:
“The model of ACA introduced in Latvia and Lithuania is recognized as one of the most effective among the countries that joined the EU in 2004. Their good results are of course to be analyzed and understood in relation not only with the prerogatives and structures and rules regulating their work, but also with regard to coordination with other agencies and the broader administrative environment in the framework of far reaching anti-corruption strategies. Nevertheless these agencies are not immune to problems and criticism.
In Latvia the establishment of the KNAB faced several difficulties, political parties were reluctant to accept the control of the office; there were also rivalries among the KNAB, the police and the Prosecutor General Office, while there were had high expectations for the work of the KNAB and the public expected quick results.
In November 2007 Mr. Aleksejs Loskutovs, the head of the KNAB was suspended by the government of the Prime Minister Aigars Kalvitis, who suspended him alleging fiscal improprieties. Critics accused the Prime Minister of overstepping his powers and said the move was politically motivated as Mr. Loskutovs had been investigating possible campaign violations by Mr. Kalvitis’ People’s Party.
The KNAB under the supervision of Mr. Loskutovs had built an impressive record: hundreds of officials, businesspeople and politicians had been arrested and convicted for corruption thanks to the work of the agency. The prime minister was accused of actively destroying the reputation of the institution, thousands of people protested in the streets against his controversial moves against KNAB; the prime minister was forced to re-instate Mr. Loskutovs and decided to resign in December 2007.”
The links for KNAB:
http://www.icac.org.hk/newsl/issue15eng/button5.htm
http://www.knab.gov.lv/en/knab/
The admitted weakness is that the KNAB (like the CBI) is UNDER the Cabinet. YET it does NOT have any restriction in investigating anyone as the above excerpt shows.
2. The Australian “Independent Commission Against Corruption Act 1988 No 35” (ICAC) was created UNDER the Prime Minister, but is NOT restricted from investigating anyone. For the Act, click here where “Public Authority” is defined. It includes bodies under The Crown (i.e. The UK connection/s), Judiciary, etc., and is not limited to government servants but any person performing a public service function or act with public funds.
a. The NSW implementation summarises jurisdiction here and excerpt is below:
“The jurisdiction of the ICAC extends to all NSW public sector agencies (except the NSW Police Force) and employees, including government departments, local councils, members of Parliament, ministers, the judiciary and the governor. The ICAC’s jurisdiction also extends to those performing public official functions.”
3. The Swedish “Parliamentary Ombudsman – JO” is more of the nature of Indian PAC and reports to Parliament.
“The Institution has no jurisdiction, however, over the actions of members of the Swedish Riksdag (Parliament), the government or individual members of the cabinet, the Chancellor of Justice or members of county or municipal councils. Nor do newspapers, radio and television broadcasts, trade unions, banks, insurance companies, doctors in private practice, lawyers etc. come within the ambit of the Ombudsmen. Other supervisory agencies exist for these areas, such as the Press Council (Pressens opinionsnämnd), the Financial Supervisory Authority (Finansinspektionen), the National Board of Health and Welfare (Socialstyrelsen) and the Swedish Bar Association (Svenska advokatsamfundet)”
BBC: “Meanwhile the Swedish National Anti-Corruption Unit (NACU) is understaffed and has to rely on police from other departments to help investigations.” Click here. Sweden continues to have one of the weakest ACUs as per WW opinion. Click here and here. There is no website that shows up on Google for the NACU.
4. The UN Toolkit is perhaps the most comprehensive document in the public domain. It can be found here. A search of this document for “jurisdiction” throws up many references.
One reference of note is reproduced below:
“In jurisdictions where criminal bribery necessarily involves a public official, the offence is often defined broadly to extend to private individuals offered bribes to influence their conduct in a public function, such as exercising electoral functions or carrying out jury duty.
Public sector bribery can target any individual who has the power to make a decision or take an action affecting others and is willing to resort to bribery to influence the outcome. Politicians, regulators, law enforcement officials, judges, prosecutors and inspectors are all potential targets for public sector bribery.”
Specific types of bribery are also defined in this document.
By making the jurisdiction of the Lokpal to even investigate an issue, and renegading on its own GOM proposal, the Government has revealed its true intention. The United Nations ‘model’ has no such restrictions recommended. Only if there is prima facie evidence will the Lokpal even investigate the matter, let alone take it up for sanction.
You decide what should be done!
@jsvasan