YEARS: an outdated point of view
June 18, 2006 00:00
Retrieved from Liberalism.ro
ANI: an outdated point of view
I watched with great interest the public debate on the National Integrity Agency (ANI), both as an associate of one of the divergent parties and as a simple researcher of anti-corruption policies. I am aware that the point of view I will formulate is unpopular and minority these days, but we must agree that unpopular minorities have their purpose in a free society.
First of all, a finding: ANI will have to be set up, given that it has come to be included among the conditions that Romania must meet by the decisive report of the European Commission in September 2006. I will not insist now on the significance of this nor on the process by which the European Commission came to adopt it. (see note at the end)
Following the disputes of the last days, it is obvious that there are serious divergences on how ANI should look. I believe that these divergences are absolutely normal, given the difficulty of the subject, so that the divergences reflect attempts to provide in good faith solutions to a difficult problem. So far, the answers provided have taken the form of two bills, one drafted in 2004 by Transparency International Romania (TI), with minimal changes by the Ministry of Justice (MoJ) since then, adopted by the Chamber of Deputies in September 2004 and blocked. later in the Senate Legal Committee and the second, initiated by the current MoJ following a recommendation from the Freedom House audit report, assumed by the new National Anticorruption Strategy (2005-2007) and passed through three successive variants to the form we have today.
In my opinion, although both projects are, as I said, honest attempts to provide a solution to the problem of wealth control and conflicts of interest, both are deficient. An indication in this sense is provided by the fact that both projects were, at the time of their public launch, the object of criticism and controversy. In the summer of 2004, the IT-initiated project was criticized by several non-governmental organizations in a roundtable discussion. hosted by the Institute for Public Policy (IPP). In turn, the project or, rather, the projects initiated by the current MoJ were criticized by non-governmental organizations: the Center for Legal Resources (CRJ) in August 2005, APADOR-Helsinki and IT Committee in March 2006 and CRJ, the Foundation for an Open Society (FSD) and IT in June 2006.
At the risk of sounding too solomonic, I would say that almost all of these criticisms can be considered justified. Each had, in his time, his own justice, but the problem is that these rights end up annulling each other. This is because out of two honest attempts at institutional engineering, only two failed attempts to solve a kind of squaring of the legal circle remain, through the unfortunate insistence of bringing together in a single institution very different competencies, jurisdictions and regulatory areas.
I will try to further explain why I believe that ANI was not necessary as an institution, if what concerns us is the control of wealth and conflicts of interest. First, the two dimensions (wealth control and conflict of interest control) are very different, both in their purpose and in the type of expertise and means needed to address each; or so far we have not come across any convincing arguments to explain why these two dimensions should be placed in a single institution.
Secondly, I believe that we should be more reluctant to set up new institutions, as long as we already have a developed institutional framework that can take over, with minimal legislative adjustments, the desired powers and competences. In our case, making the connection with the previous point, it seems to me that the “natural place” of the wealth control activity (but only of it) would have been a direction within the fiscal authority (ANAF). It should be noted that the MoJ project from February 2006 had half the correct intuition, because it placed the agency within ANAF, but it persisted in dealing “as a package” with the control of assets and conflicts of interest; obviously, tax inspectors would not be best placed to control conflicts of interest.
Instead, I believe that it is almost impossible to find, for the control of conflicts of interest, such a unique “natural place” in which to place the control activity for all dignities and public positions, from parliamentarians to mayors, from ministers to magistrates. and from civil servants to contract staff. In short, unlike wealth control, that of conflicts of interest is extremely difficult to centralize in a single institution. (Of course, anything can be decided by law, but here we try to weigh the merits and disadvantages of one solution or another).
So the question is how could the activity of controlling conflicts of interest have been better organized? In my opinion, a “middle ground” should have been found between centralization in a single institution (such as ANI) and extreme fragmentation that would leave control exclusively to each public institution. Such a middle ground could be relatively easy to find if we temper the temptation of institutional innovation and try to capitalize on our institutional framework, which is sophisticated enough to meet (and) this policy goal. publish.
Specifically, for each major category of public sector employees we already have a regulatory and / or control institution, which could have taken over, if it did not already have it, the activity of controlling conflicts of interest. Thus, for magistrates we have the Superior Council of Magistracy (SCM) and for civil servants we have the National Agency of Civil Servants (ANFP). The discussion becomes a little more complicated in relation to other categories of public dignity. For members of the Government, we could have a parliamentary ethics committee (as an example of using parliamentary control over the executive) or, if a “depoliticized” solution is preferred, why not, the People’s Advocate (AvP). The case of parliamentarians involves a similar discussion, there may be constitutional arguments to keep control of conflicts of interest within Parliament, within ethics committees. However, again, if “politicization” is considered an unacceptable risk, the People’s Advocate could be a plausible solution (although somewhat more debatable than in the case of executive dignities). In the case of the President of Romania, any solution to control conflicts of interest placed outside the Parliament seems to me constitutionally unacceptable.
Drawing the line, we would be left with a rather flexible and adequate conflict of interest control system, formed, in the most extended version, from already existing institutions, but which, at present, we use insufficiently: SCM, ANFP, AvP and the system of parliamentary committees. Obviously, in such a scenario, the legislative effort would no longer have focused on the creation of a new institution, of mega-control, with innumerable jurisdictional problems, but on the fine regulation of the competences and procedures of some already existing institutions. Furthermore, nothing would prevent us from encouraging or even forcing all public institutions to adopt and apply locally internal rules for reporting and controlling conflicts of interest, adapted to their own specificity, through their own mechanisms, such as for example, disciplinary commissions.
The major advantages of such a less centralized approach would be, in addition to capitalizing on the potential existing in the current institutional framework, which we mentioned earlier, a welcome move of the center of gravity of the conflict of interest control activity to a closer level and more appropriate to each type of public institution, which could result in additional accountability.
I would like to mention another rather neglected, but essential, aspect of the regulation of conflicts of interest. If we go through the literature dedicated to this subject, as well as its practical approaches in advanced democracies, we notice the special attention paid to the preventive side. We are in a hurry to criminalize the conflict of interest (an initiative at least debatable in a country with an organizational culture in which awareness of conflicts of interest is just beginning), but we continue to ignore the complexity of the practices we place under comfortable umbrella of the term “conflict of interest”.
There is, of course, the conflict of interest consumed or materialized in a decision. This decision can be political, administrative, judicial, etc. and it is treated relatively simply, with sanctions of various kinds, corresponding to the status of the person in that situation, at the appropriate level of jurisdiction. At the same time, there is a conflict of interest as an ethically or deontologically problematic situation, when a person, before making a decision, may wonder if, by making that decision, he will place himself in a conflict of interest. interests or will create the appearance of a conflict of interest. To manage such situations, the spectrum of mega-control and possible criminal conviction is neither sufficient nor adequate. Although it is assumed that most “incidents”
Unfortunately, the subject of conflicts of interest has been reduced almost entirely to the issue of “incompatibilities” (which, incidentally, are nothing more than a particular solution of explicit prohibition of conflict of interest for several categories of public office and dignity) and, In any case, it was completely eclipsed by the very important theme of wealth control.
In conclusion, today we are in a situation of contradictory discussion, the Ministry of Justice and parts of the civil society, regarding the inadequate solutions for two different problems, about which I thought I was the only one. Given the agenda of Romania’s accession to the European Union, there is no room for discussion that the National Integrity Agency should be created, preferably, in a form that will not be invalidated immediately or later by the Constitutional Court. However, it remains a regret that both the control of wealth and the control of conflicts of interest could have been better organized. The fact that it has arrived here is, of course, unfortunate, but perhaps everyone involved will be able to draw some useful conclusions from all this history. The most important of these is that we should build our institutional solutions based on a serious documentation and analysis of real problems and needs. Maybe next time.