Legal Concerns on the Accountability of Political Class and Public Servants

Siyasi Sınıfın ve Kamu Görevlilerinin Sorumluluğuna İlişkin Hukuki Kaygılar

Haluk Ferden GÜRSEL

Private citizens, eager for accountability, are asking for a transparency in the changes in income and assets/fortunes of politicians and high-level civil servants, accumulated while they are at the service of community. In almost each society in the world this suspicion prevails. To satiate the appetite for accountability, in recent years a targeted verification system is redefined. The essentials of this ‘new’ system are not new at all. On the basis, the secret word is ‘accountability’. It requires highly skilled account and finance experts to implement it appropriately. As all other similar instruments, it provides the expected results if the implementation is proper.

Accountability, Asset/Income Disclosure, Conflict of Interest, Illicit Enrichment, Transparency.

Hesap verebilirlik konusunda istekli olan özel kişiler, siyasetçilerin ve üst düzey kamu görevlilerinin toplumun hizmetindeyken biriktirdikleri gelir ve mal varlıklarındaki değişikliklerin şeffaf bir şekilde açıklanmasını talep etmektedir. Dünyadaki hemen her toplumda bu şüphe hakimdir. Hesap verebilirlik arzusunu tatmin etmek için son yıllarda hedefe yönelik bir doğrulama sistemi yeniden tanımlanmıştır. Bu ‘yeni’ sistemin temelleri hiç de yeni değildir. Temelde gizli kelime ‘hesap verebilirlik’tir. Gereği gibi uygulanabilmesi için çok yetenekli hesap ve finans uzmanlarına ihtiyaç duyulmaktadır. Diğer tüm benzer araçlar gibi, doğru uygulandığı takdirde beklenen sonuçları vermektedir.

Hesap Verebilirlik, Varlık/Gelir Açıklaması, Çıkar Çatışması, Haksız Zenginleştirme, Saydamlık.

INTRODUCTION

Private citizens, eager for accountability, are asking for a transparency in the changes in income and assets/fortunes of politicians and high-level civil servants, accumulated while they are at the service of community. In almost each society in the world this suspicion prevails.

Public opinion does not tolerate the illicit enrichment and conflict of interest, while on duty. A strong proof is required to satisfy such potential displeasures of the people. Thus, to obtain assurances of lack of fraud and corruption by politically exposed persons (PEP) is on the rise everywhere. A PEP is defined as someone who, through their prominent position or influence, is more susceptible to being involved in bribery or corruption. In addition, any close business associate or family member of such a person will also be deemed as being a risk, and therefore could also be added to the PEP list. The view is that a favoritism which may be extended along these lines should be reviewed.

To satiate the appetite for accountability, in recent years a targeted verification system is redefined. The essentials of this ‘new’ system are not new at all. On the basis, the secret word is ‘accountability’. It requires highly skilled account and finance experts to implement it appropriately. As all other similar instruments, it provides the expected results if the implementation is proper.

The practice created is called income-asset disclosure management scheme (IAD). This arrangement combats fraud and corruption, and entails more than monitoring of the declarations collected from the persons subject to statutory declarations. The term ‘management’ here covers all aspects of the procedure.

IAD systems can be a powerful tool to deter, prevent or detect fraud and corruption in public sector as well as private entities. Surely there might be some modification when it is applied to other than public sector. For example, such entities may not have the access to sensible, confidential information such as police records.

The expectation is that through this process, public confidence in the accountability of public servants is increased, perception of good governance improved. Along with the utilities to be derived from such schemes recently, multinationals or large-sized firms opted to approve the review plans with the same objectives.

CHALLENGES

The basics of the implementation of the program necessitates the choice of right weight and a selection for example, between conflict of interest (COI) vs illicit enrichment, or set standards vs empirical rules, another choice need to be made on public availability of information vs confidentiality/privacy of the citizens, or comprehensive vs targeted coverage of the persons subject to such declarations and so on.

Important aspect is that when such a system is established it should be a credible one that is accepted by the public it addresses. Otherwise, the competing systems will appear to fill the vacuum. For example, the news reporting, non-governmental organizations (NGO’s), social media groups and others will task the same purposes of measuring the accountability of the public servants subject to such declarations, possibly with smaller and insufficient resources and likely arriving to the incorrect conclusions and measures.

In terms of establishing credibility another point to make is the fact that the expectations of what can be achieved with an IAD system may be met with mistrust and disbelief by the public opinion. Exaggerated statements about the ability of new programs to ‘wipe out corruption’ or ‘zero corruption’ can extinguish the good will prevailing with anti-corruption campaigns when such announces first made. Those who have lived through prior, unsustainable attempts claiming to reduce corrupt practices considerably, or to ‘zero’ level are likely now to doubt the efficacy of this new effort, and exaggerated expectations can crush any forward momentum to ongoing anti-corruption campaigns and may cause the failure of such efforts.

Leadership of the program is an integral part for the success of an IAD system. Politicians themselves and legislators can provide visionary leadership to drive the introduction and development of a viable and sustainable IAD system. In this respect as a minimum, we may cite three principles, accountability, consistency and transparency should be respected.

Accountability is the responsibilities related the effective functioning of systems. Officials must be asked to demonstrate themselves their accountability to the public by participating in the IAD system without requesting any special treatment. Violations of procedures must be appropriately, swiftly penalized to send a message to the public that contravention of IAD standards will not be tolerated.

Consistency is in terms of the legal framework applicable to the program involves harmonization of laws and rules, then, there are no contradictions within the legislation.

Transparency property serves to demonstrate the accountability ofgovernments, agencies, and officials. Laws and guidelines in the system should be made publicly available, clear and simple manner for scrutiny by civil society and for the ongoing education of declarants.

An additional challenge encountered for a successful implementation of the scheme is to consider the communication for combating resistance the program implementation and building buy-in the objectives and required procedures. Evidence from several countries shows that most officials’ initial reaction to the idea is negative. They often view the process as ‘cumbersome’ and ‘unnecessary’. Communication about the purpose and benefits of IAD systems is, then, vital and unfortunately awareness raising for the necessity of such a program usually takes time. The purpose and functioning of the system must be effectively communicated to declarants and citizens to make them accept the purpose and related goals.