March 13, 2002
By approving on their first reading two bills of importance to fighting corruption - on avoiding conflict of interest and the Bureau to Eliminate and Combat Corruption (KNAB) - and in addition by deciding to debate them as a matter of urgency, the Saeima [parliament] has demonstrated a political gesture that an energetic fight against corruption is regarded as an important and urgent task.
On one hand, the germ of the principle of legal presumption in the bill on the conflict of interest and the support in principle for the creation of a specialized institution against corruption with the right to investigate and carry out operations is a big achievement in itself, if you consider the opposition this idea has had to break through. On the other hand, for the KNAB to be able to free the highest levels of government from corrupt officials without hindrance, it is time to take the next step, for which the Cabinet lacks the will - it has to find a compromise between the independence of the bureau and the need to supervise the legality of its workings.
The bill proposes that the KNAB will be under the supervision of the Ministry of Justice, so it will be directly answerable to the officials whose ethical position and possible involvement in corrupt dealings it must monitor. In this respect there are grounds to doubt whether the KNAB will be able to carry out its duties objectively and unhindered. This shortcoming in the bill has been pointed out by US experts and by David Wallace, the former head of the PHARE anti-corruption project.
Diena has written several times that the KNAB, as an institution that monitors the executive power, may be separated from the executive power; that is, it may be exempted from the constitutional requirement that all state administrative institutions must be subject to the Cabinet. Constitutional theory justifies certain exemptions, and they apply to institutions that monitor the government and other executive organs, determine monetary policy and represent the interest of various social groups (public TV, the tariff regulators). Of course, since these exemptions affect the division of power, they have to be set down in the constitution, at the same time as mechanisms are created that do not allow this independence to be used arbitrarily.
If parliamentarians don't want the new anti-corruption policy to remain at the level of a symbolic gesture, special attention has to be paid to the judicial status of the KNAB, and in consultation with experts, more effective, more acceptable ways of ensuring its independence and legal checks have to be established. Lawyer and political commentator Egils Levits, commenting on the problem of the legal status of the KNAB, points out that in order to ensure the independence of KNAB decisions, its legal checks might be conducted not by the justice ministry but by a special independent supervisory commission. It might be within the competence of such a commission to oversee KNAB inquiries, manage the service and determine disciplinary matters. It is important to give the people about whom the bureau adopts a decision a chance to defend themselves - here too it is better if the verdict can be contested at another instance; if not, then by immediate appeal to a court. Levits concedes that the KNAB may remain institutionally (rather than functionally) subject to the justice ministry, which means that the ministry may be responsible for such matters as financial control over the KNAB, budget requirements; but it would not have the right to oversee KNAB decision-making.
Possibly something may be taken over from its supervision which is applicable in Latvia to other independent institutions. For example, the legality of the work of the SAB [Bureau for the Protection of the Constitution] is overseen by the prosecutor general or prosecutors authorized by him, but the SAB director has to report to the responsible Saeima commission. As with the heads of the other independent institutions, the appointment of the director of the KNAB is best left to the Saeima, not the Cabinet.
Except for the State Auditor, the status of other institutions that fall outside the hierarchy of state administration is not set down in the constitution. It is hard to regard as a coincidence the fact that the status of none of these institutions - neither the SAB, the State Human Rights Office, the European Integration Bureau nor the Finance and Capital Market Supervisory Commission - has at any time, even now, raised objections, concerns or an initiative to adapt them to the constitution. Perhaps the KNAB, which has suddenly opened the eyes of politicians, might finally be able to stimulate the legalization of all independent organs of state administration - either handing them over to the institutional supervision of the Cabinet, or writing it into the constitution. If a majority in the Saeima was recently prepared to open up the constitution in order to stick regulations into it that do not comply with deputies' oaths or EU legislation, then what sort of problem is it to subject to the constitution all those institutions whose independence is justified and essential?
Of course the independence of the KNAB is not the only factor that ensures it will have sharp teeth. Also of importance will be the personality of the KNAB director, sufficiency of resources, the powers of the KNAB, and the quality of anti-corruption legislation in general. Some of these steps have to be taken now.
More Information on Corruption
FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.
