In response to one of my early posts (from over a year ago) on the problem of politicized anticorruption enforcement, Samuel De Jaegere of UN Office of Drugs & Crime (UNODC) helpful drew my attention to the Jakarta Statement on Principles for Anti-Corruption Agencies, a non-binding resolution promulgated by representatives of anticorruption agencies (ACAs) from around the world. The Statement was endorsed by the International Association of Anti-Corruption Authorities at its Panama meeting last year, and noted (though not explicitly endorsed) also by the United Nations Convention Against Corruption (UNCAC) States Parties in its most recent resolution on the prevention of corruption.
I’ll admit that although I’d heard references to the Jakarta Statement before, I’d never actually read it. Now I have. I’m not quite sure what to make of it. On the one hand, I recognize that this is a political document, rather than an analytical document, and perhaps as a political document it will achieve its intended purpose, and do some good in the world in the process. After all, an international manifesto that affirms the importance of preserving the independence and authority of anticorruption enforcement is likely valuable, and perhaps the Jakarta Statement will prove useful — or perhaps has already proved useful — for beleaguered anticorruption agencies and their supporters to defend against attacks and to build up legitimacy.
On the other hand, as an operational document and guide to institutional design, I have to say I found the Jakarta Statement to be mostly unhelpful and/or simplistic. I want to be cautious in how I phrase this, because I am sympathetic to and respectful of the motivation behind the Jakarta Statement, and I don’t have enough of a sense of the nuances of international politics and norm diffusion to be able to evaluate its actual impact on the world. But taking it on its own terms as a set of institutional principles and guidelines, I was disappointed. I think the international community can and should do better when outlining the basic principles and objectives for ACAs. In the spirit of playing Devil’s Advocate, in the hopes of stimulating some critical debate on this critical issue, let me lay out my critique of the Jakarta Statement as it currently stands:
The Jakarta Statement contains 16 recommendations “to ensure the independence and effectiveness of ACAs.” Most of these recommendations are not recommendations for specific laws or policies, but rather recommendations for results – that is, recommendations that countries adopt (unspecified) laws or policies that will successfully achieve certain (clearly and uncontroversially desirable) outcomes. In those cases, the Statement’s recommendations are largely empty – language that everyone can agree on precisely because it doesn’t mean anything. In other cases, however, the Jakarta Statement does call for certain specific types of measures. Here, the Statement can and should be credited with taking a clear stand – generally in favor of stronger independence for ACAs. But that stand is worth considering on the merits. And when one does so, it seems to me there are problems with the Jakarta Statement’s approach, which we should discuss and debate.
At the risk of making this post overly long, let me pay the Jakarta Statement appropriate respect by addressing each of its 16 recommendations one by one, though in a different order from how the recommendations appear in the Statement itself. I’ll start with the recommendations that strike me as vacuous, then touch on the ones that seem meaningful but of limited import, and then turn to the recommendations that strike me as potentially significant and controversial, and therefore most worthy of serious attention and debate:
“MANDATE: ACAs shall have clear mandates to tackle corruption through prevention, education, awareness raising, investigation and prosecution, either through one agency or multiple coordinated agencies;”
This seems to me an example of (mostly) empty rhetoric; it says merely that ACAs should be able to address corruption through a variety of means. And on the crucial question of whether a single agency or multiple agencies is more appropriate, the Statement takes no position.
“COLLABORATION: ACAs shall not operate in isolation. They shall foster good working relations with state agencies, civil society, the private sector and other stakeholders, including international cooperation;”
On its face, this seems to me a fairly obvious, perhaps banal statement — except to the extent that for an ACA to pursue its anticorruption mission effectively, it may sometimes have to antagonize, or sometimes circumvent, other state agencies. Presumably the Jakarta Statement’s drafters would agree with that qualification, so this recommendation amounts to “work cooperatively with other parties, except when you shouldn’t.”
“APPOINTMENT: ACA heads shall be appointed through a process that ensures his or her apolitical stance, impartiality, neutrality, integrity and competence;”
There are all sorts of controversies about how to appoint ACA members, but this recommendation avoids them, saying, essentially, that the appointment process should ensure the appointment of good ACA heads. Who could argue with that? And it might also be worth noting that although all the qualities listed are desirable ones, they may sometimes trade off with one another. For example, the most competent possible appointee might not be the most apolitical, and vice versa.
“ETHICAL CONDUCT: ACAs shall adopt codes of conduct requiring the highest standards of ethical conduct from their staff and a strong compliance regime;”
“INTERNAL ACCOUNTABILITY: ACAs shall develop and establish clear rules and standard operating procedures, including monitoring and disciplinary mechanisms, to minimize any misconduct and abuse of power by ACAs;”
These two recommendations are mostly uncontroversial (especially because the details of what makes for a “strong compliance regime” are left unspecified) – unless one reads “minimize” literally, which I don’t think the Statement’s drafters could possibly intend. (The only way to minimize misconduct by ACAs would be to prevent them from doing anything, since any action entails some risk of misconduct.)
“REMUNERATION: ACA employees shall be remunerated at a level that would allow for the employment of sufficient number of qualified staff;”
“ADEQUATE AND RELIABLE RESOURCES: ACAs shall have sufficient financial resources to carry out their tasks, taking into account the country’s budgetary resources, population size and land area. ACAs shall be entitled to timely, planned, reliable and adequate resources for the gradual capacity development and improvement of the ACA’s operations and fulfillment of the ACA’s mandate;”
Pay and resources are no doubt important, but these two recommendations say essentially nothing, because the crucial terms — like “sufficient”, “qualified”, “adequate”, and “gradual” — are so open-ended. All these recommendations really say is that salary and budgets should be set so that the ACA can operate effectively. Hard to argue with that. But it’s not very helpful.
“PUBLIC REPORTING: ACAs shall formally report at least annually on their activities to the public.”
“PUBLIC COMMUNICATION AND ENGAGEMENT: ACAs shall communicate and engage with the public regularly in order to ensure public confidence in its independence, fairness and effectiveness.”
This is not entirely vacuous, because some ACAs might not report regularly, but this recommendation doesn’t mean much without more on what has to be reported.
Meaningful but secondary recommendations:
“PERMANENCE: ACAs shall, in accordance with the basic legal principles of their countries, be established by proper and stable legal framework, such as the Constitution or a special law to ensure continuity of the ACA;”
This is one of the Statement’s most concrete recommendations. If I understand it correctly, the idea is that ACAs should be permanent bodies, rather than ad hoc units. Maybe. But there may be some circumstances where special, ad hoc bodies may be more appropriate or more effective. And there may be concerns about entrenching an agency through, say, a constitutional provision, if that makes it hard to revise the institutional design later if it’s not working out.
“CONTINUITY: In the event of suspension, dismissal, resignation, retirement or end of tenure, all powers of the ACA head shall be delegated by law to an appropriate official in the ACA within a reasonable period of time until the appointment of the new ACA head;”
I’m assuming that this was included to address a real problem, but again this doesn’t actually say much, particularly because the “reasonable period of time” is never defined. But I’ll give credit to the Statement on this one – insofar as there are countries that lack any legal provisions for what to do in the event of a vacancy in the ACA, that’s a problem that can and should be fixed.
“FINANCIAL AUTONOMY: ACAs shall receive a budgetary allocation over which ACAs have full management and control without prejudice to the appropriate accounting standards and auditing requirements;”
Here again is what I think is a real, pro-independence proposal. If I read it correctly, following this recommendation would prohibit the legislature (or executive departments with budgetary authority) from attaching conditions or requirements to ACA budget allocations. That’s important, though probably not as important as the overall budget level, addressed (sort of) in the previous plank.
Important Substantive Recommendations:
“REMOVAL: ACA heads shall have security of tenure and shall be removed only through a legally established procedure equivalent to the procedure for the removal of a key independent authority specially protected by law (such as the Chief Justice);”
This is probably the Statement’s most concrete and important proposal, and the point on which most attention should probably focus. There is a constant and perhaps irreconcilable tension between the values of political independence and political accountability – or, equivalently, between the risk of an ACA that is manipulated by politicians and the risk of an out-of-control, overzealous ACA that pursues its own agenda (out of good intentions or otherwise) at the expense of the polity. And the Jakarta Statement comes down decisively on the side of independence – nowhere more clearly than in this recommendation for removal provisions, which makes ACA heads much more like judges than like ordinary prosecutors or other civil servants.
“IMMUNITY: ACA heads and employees shall have immunity from civil and criminal proceedings for acts committed within the performance of their mandate. ACA heads and employees shall be protected from malicious civil and criminal proceedings.”
Here again, the Statement makes a real proposal, one that – like the proposal on removal provisions – falls decisively on the side of guarding against the risks of interference with the ACA’s activities, rather than guarding against the risks of abusive practices by the ACA itself. The type of immunity called for seems to me reasonable, and in accordance with immunities extended to most prosecutors in most countries. So if this is not always done with respect to ACAs, again I think the Jakarta Statement makes a modest but useful contribution.
“AUTHORITY OVER HUMAN RESOURCES: ACAs shall have the power to recruit and dismiss their own staff according to internal clear and transparent procedures;”
This is a real substantive recommendation, and another one elevating ACA independence over other values, because it implies that ACAs should be exempt from civil service rules that might otherwise constrain hiring and firing of government employees. For example, many countries have rules that prevent the dismissal of civil servants without good cause, and entitle dismissed employees to independent review by an outside body, like a court or civil service board. Taken at face value, the Jakarta Statement says that ACAs should be exempt from such rules. Furthermore, on the appointments side, if this recommendation is taken literally, it means that there should be no ACA employees who are selected by outside bodies (like the legislature or some external council) except for the ACA heads. That’s also quite a dramatic departure from standard practice in many countries for other government agencies, where senior deputies may also be appointed through the political process.
“EXTERNAL ACCOUNTABILITY: ACAs shall strictly adhere to the rule of law and be accountable to mechanisms established to prevent any abuse of power;”
This is perhaps the most maddening recommendation, not because it’s wrong, but because the drafters don’t exhibit any awareness that this call for “external accountability mechanisms” that prevent “any abuse of power” is in deep tension with the above recommendations that ACAs be protected by robust protections against removal (comparable to those used for senior judges), have immunity from legal process, and have total authority over their budgets and personnel. What, then, are these mysterious external accountability mechanisms of which the Jakarta Statement speaks? And how is it possible to ensure that these accountability mechanisms aren’t misused to interfere with ACA independence? That’s the conversation we should be having, but the Jakarta Statement – and, more importantly, much of the discussion of the Jakarta Statement – dodges it entirely.
I realize that there is an understandable impulse, now that the Jakarta Statement exists, to promote it as the template or blueprint for ACAs around the world. And maybe, from a political standpoint (and a desire to avoid allowing the perfect to become the enemy of the good) that makes sense. But my instinct is to say that before we start treating the Jakarta Statement as gospel, we should take a step back and think critically about what it says, and what it doesn’t say.