As the Ombudsman of Australia, Allan Asher is very interested in the anti-corruption movement growing in India today. He tells Nikhila Gill at the second CUTS-CIRC conference on economic regulation that whatever version of the Lokpal finally emerges, it must resist getting bogged down in minutiae, focusing instead on complaints that illustrate a systemic problem. The concerned law must also be similarly focused. Complexity can be the enemy of success, says Asher.
What do you think about the Jan Lokpal Bill that India is trying to enact?
First, I think it is important to be clear about the goals that the system is pursuing via the enactment of this policy. In my view, the government recognises that the system is not self-regulating and, therefore, needs a gatekeeper. The Bill is an attempt to put forth a system of open, transparent and just decision making. You can have the world’s best policy and intentions, but if it isn’t implemented in a transparent manner then it opens the door to corruption, special deals or just failure because the legislators don’t understand. Because government departments are so large, their secretaries have no idea what is happening in the deep recesses of the department, and such a law would help gain some clarity.
What mechanisms would you recommend be used to achieve this transparency?
There are three basic procedures that can help increase transparency. When filings are made, it will help if the information is made public by posting it on the official Website. Not only will this increase openness, it will also invite public analysis to create a holistic perspective. Regulatory decisions are sometimes speciously argued and public discourse will help enrich the decisions. For appeals, the body should make use of public forums like conferences, workshops, etc, increasing the public’s accessibility to the regulator. Lastly, when the regulator gets a complaint, it should ask companies to explain what procedures are followed to ensure fairness and, thereby, derive whether misconduct has taken place.
You mentioned the potential worry about departments being too large. In essence, this might end up being the case with the Jan Lokpal as well. Is it worrying that there may be too much responsibility placed on a single anti-corruption body?
There is no doubt that being given too much responsibility can be a risk because of the possibility of misuse of power. But even if that is discounted, there is the fear that the creation of an agency that receives complaints from all sections of the populace might result in it being bogged down. It is, thus, important that the body have discretionary powers and refrain from getting involved in minutiae. The mandate must be to look for complaints that illustrate a systemic problem, i.e., look at a range of complaints that focus on one problem, instead of focusing on individual issues. It would be useful to focus on macro issues that affect lots of people; alternatively, focus on micro issues that affect fewer people but in a serious way, like being denied access to healthcare, threat to personal safety and such.
However, it is an understanding in Commonwealth countries that there’s always been a gap in supervision, given the separation of powers between the legislature, executive and judiciary. What this system fails to appreciate, however, is that executive powers also need supervision. Theorists say that in addition to the legislative, executive and judicial arms of government, there is the need for a fourth arm, the integrity arm, which might include the Ombudsman, the national border office and anti-corruption bodies. What it will ensure is that the government functions the way it was intended to.
But isn’t it possible that vesting power in one body may result in the creation of a super-legislature?
Precisely. As the old Latin saying goes, quis custodiet ipsos custodes? (who watches the watcher?). This is a very powerful point. Placing ultimate power in a single pair of hands increases the risk of failure. There needs to be a separation of powers i.e., the same person cannot act as investigator, legislator and judge. If the agency finds acts of corruption, it should be referred to normal prosecution bodies. But it is important to ensure they don’t suppress the case under pressure from the government. So, there is a need for a certain degree of public openness.
Does the jurisdiction of the office of the Ombudsman in Australia include elected officials?
No, the Ombudsman does not deal with elected officials. But there are special anti-corruption bodies in individual states that do. There is an ongoing debate about having such a body on the national level, a similar conversation to the one taking place in India currently, although nothing has come of it so far. I think Parliament should have a supervising body that is responsible to itself, not to the government of the day. But the problem with bringing such legislation is that elected officials are not going to want a body to keep watch over them and cause it to fail. To eliminate the conflict of interest issue, it may be more useful to start the process with overseeing government officials (bureaucrats), to nip corruption in the bud. To this end, it would be beneficial to have a leadership code, modelled on Taiwan’s code, wherein if a politician is accused of misconduct, s/he is investigated by Parliament. If the committee finds that rules have been broken, then the member is suspended. This takes them away from where they’re causing most damage.
Do you think the joint exercise between civic and government representatives in framing the Lokpal Bill will be effective?
It’s all very complicated, much like the country. However, the obvious must be stated. Simplicity must be jealously sought when framing laws because complexity is the enemy of success. The more complex it is, the easier it will be for people to play games with it. That said, the panel that is responsible for developing the law must be diverse so as to incorporate as many viewpoints as possible, resulting in an inclusive Bill.
The people appointed to the anti-corruption agency as a result of the enactment of the Bill must be respected leaders in society who operate in a transparent environment. The more they have to operate in a transparent environment, the less likely they are to fail. Most importantly, people must have access to the decision making, not to say that every investigation be carried out publicly because often people aren’t guilty. India has a sound legal system and democracy but these get corrupted at the margins or where people can use escape clauses.
What is the modus operandi of the office of the Ombudsman in Australia?
We have three main operations. First, we encourage people to come to us with their complaints whenever an administrative decision isn’t fair. While we cannot override the decisions of the agencies, nor issue directions to their staff, we resolve disputes through consultation and negotiation, and, if necessary, by making formal recommendations to the most senior levels of government.
Second, we create ‘own motion’ reports, i.e., if we think individuals/institutions have been treated unfairly by an Australian government department or agency, we set up investigative committees at the end of which we generate reports available to the population. For example, how asylum seekers were kept on Christmas island, welfare benefits, police brutality and so on.
Third, we have a statutory inspection role. For instance, we make sure agencies that collect public information, like phone records, have the prescribed judicial authority, are storing data safely and destroying records that are no longer required. In addition to these duties, one of our new roles includes being Ombudsman to international students. Since Australia has a large international student population, which includes 80,000 Indian students, this is a much required measure.