In December 2017, a civil society organization that aligns itself with Philippine President Rodrigo Duterte made good on its threat to submit an impeachment complaint against Conchita Carpio Morales, head of the Philippines’ independent anticorruption agency (ACA), known as the Office of the Ombudsman. This came after President Duterte himself called for the impeachment of Ombudsman Morales, publicly accusing her of engaging in “selective justice” and of being part of a “conspiracy” to oust him. Notably, President Duterte leveled these accusations at a time when the Office of the Ombudsman had opened an investigation into the Duterte family’s alleged hidden wealth, and into a multi-billion peso illegal drug trafficking case that implicates President Duterte’s son. This is hardly a unique case. In Nigeria, Nepal and Ukraine, among other places, conflicts between politicians and ACA heads have resulted in the latter’s actual or threatened removal.
Unfortunately, most countries place the decision whether to remove an ACA head in the hands of their politicians (see here and here). The Chief Executive often plays a key role in removals—sometimes on his or her sole authority (as in Afghanistan, Brazil, Botswana, South Korea, Mexico, Singapore, and Tanzania), or in conjunction with the legislature (as in Uganda and Lithuania) or a judicial body (as in Ghana and Kenya). In most other cases, the power of removal is exercised by parliament or any of its members or ministers, often through an “impeachment” process of some kind. Only Barbados, Bangladesh, and Yemen have removal procedures for ACA heads that are strictly and purely judicial in nature.
While there are, at present, no universally-accepted standards against which ACAs are measured, the non-binding 2012 Jakarta Statement on Principles for Anti-Corruption Agencies lays out principles for states to follow in establishing or maintaining effective ACAs. The Jakarta Statement’s position on appropriate procedures for removing an ACA head may be influential in shaping how at least some countries address this issue. And because the Jakarta Statement is currently being revisited (see here and here), now is an opportune time to consider revising its provision regarding the removal of ACA heads.
On this issue, the Jakarta Statement encourages states to ensure the independence of their ACAs by guaranteeing that their heads can only be removed, prior to the expiration of their prescribed terms in office, “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).” As others have noted, this is among the most concrete and specific recommendations in the Jakarta Statement. Yet this admonition still falls short. As recent experiences show, the Jakarta Statement’s recommendation on removal procedures, as currently worded, can still fail to insulate ACA heads from politics or the possible machinations of politicians.
Consider the Philippines, Nepal, and Bhutan. In these countries, ACA heads, like Chief Justices, are removable by impeachment. This is precisely what the Jakarta Statement recommends. Yet it is common knowledge that impeachment processes are political by nature and design, conducted by the political branches of government, may be based on political (not strictly legal) grounds, and may be affected by political considerations. Hence, ACA heads in these countries can be ousted from office simply because politicians in the legislature “have the numbers” to convict; they can be threatened with removal if they investigate or prosecute a popular politician with a sufficiently strong constituency among the citizenry and in the legislature; they can be impeached the moment their anticorruption work threatens a critical mass of politicians. Clearly, in the Philippines, Nepal, and Bhutan, the process of removing ACA heads is still heavily imbued with politics, potentially compromising their independence, notwithstanding these jurisdictions’ adherence to the Jakarta Statement’s recommendations on the removal standard.
Arguably, the Jakarta Statement’s prescriptions are not particularly helpful in ensuring that ACA heads are beyond the reach of politicians interested in retaliation, intimidation, or harassment. Now that we have the opportunity to revisit the Jakarta Statement, its recommendation regarding the removal of ACA heads should be strengthened by adding safeguards that can help truly insulate the removal process from politics. While the Jakarta Statement’s core assumption that every ACA head should be accorded the stature of a key independent authority that enjoys special legal protection ought to be maintained, it should not be necessary to equate the removal process of ACA heads to that of a top official like a Chief Justice. While the comparison is a useful heuristic, we should bear in mind that ACA heads still occupy a unique position. ACA heads are not part of any of the three branches of government; their anticorruption mandates place them outside the major governmental departments because only in that position can they effectively and independently monitor executive, legislative, and judicial officers. Hence, a removal process like impeachment, which is specifically designed to be a check by the legislative branch on the executive and judicial branches, may be an appropriate mechanism for removing a Chief Justice, but not an ACA head.
An appropriately revised version of the Jakarta Statement should add the following three conditions for removing an ACA head:
- First, the removal of an ACA head must be based on clearly-defined legal grounds, no less than the grounds required for removing a civil servant of the same rank, rather than on vaguely-articulated political grounds.
- Second, the removal of an ACA head should not be at the sole discretion of a single authority like the President. Preferably, a decision to remove an ACA head should involve multiple persons or bodies, one of whom should be apolitical, for example a judge or an independently-appointed commissioner.
- Third, to avert conflicts of interest, politicians with pending court cases filed by the ACA should be absolutely disqualified from participating in any removal procedure. Note that the standard should be pending court cases–signifying that the allegations have already been found to have some substantive merit–not mere pending investigations before the ACA. This would preclude the possibility of an abusive ACA head opening frivolous investigations against politicians for the sole purpose of preventing the latter from participating in a removal procedure.
This enumeration is by no means exhaustive, but the intention, I hope, is clear. If the Jakarta Statement will continue to provide the most widely-accepted blueprint for creating and maintaining independent ACAs, it should recommend a procedure for removing ACA heads that truly and effectively insulates them from politics. In the same way that the Jakarta Statement seeks to prevent undue interference with ACAs’ investigations and prosecutions, it should also ensure that such interference cannot be done indirectly–by harassing or intimidating ACA heads. In a regime where ACA heads can only be removed through processes that are free of machinations by self-interested or retaliating politicians, their anticorruption work can proceed more fearlessly and vigorously.
Thanks for this post, Ryan. Very timely insights into something relevant for a multitude of jurisdictions, including Romania. The Romanian chief prosecutor of the National Anti-Corruption Directorate (DNA) has been fighting a constant battle against the ruling socialist party which has been trying to remove her from office for years now. DNA prosecuted and jailed several high-level officials, including a socialist former prime-minister. The chief prosecutor – Ms Kovesi – also strongly opposed recent government decrees that would have decriminalized some corruption offences and would have seen dozens of officials freed. Currently, legislative proposals to halt DNA prosecutors’ independence and subordinate their activity to the minister of justice are underway to be voted shortly in the socialist-majority Romanian Parliament. In other words, a higher, politically appointed body will be given the right to proceed against unfavourable decisions by prosecutors. Furthermore, it will be possible to close down an investigation if politically appointed senior public prosecutors deem it unfounded or illegal. Needless to further comment: this is a major political push against an anti-corruption agency that is considered a model for the region. (https://www.politico.eu/article/the-dna-of-romanias-anti-corruption-success-eu-transparency-international/)
Right now, it’s all in the hands of the biased Parliament. It’s sad and worrying. Last hopes rest with the European Union, which can continue the rhetoric against the judicial reform (entirely useless so far), or trigger a process that could see the country stripped of voting rights in Brussels under Article 7 of the EU Treaty, for advancing policies that threaten democratic institutions. Maybe I should mention that this already happened recently in the case of Poland, for controversial judicial reforms.