16 July 2010

Fail (EN)

The Constitutional Court took the opportunity and decided, this April, to crash the National Integrity Agency, criticizing that ANI's activity duplicates that of the Prosecution. Several opinions clashed on TV screens, the safeguard clause menaced Romania's EU membership, the legislative process took over, and the net result is ... surprise: ANI's dead in the water!

You know my theory on fighting corruption with criminal sanctions, administrative controls and preventive measures. Surprise: it's not just my theory, but the core policy design that Romania bought from the World Bank, and then negotiated with the European Union. The chronology of this policy design goes from running the Corruption Diagnostic Survey, adoption of Romania's first anti-corruption law and first anti-corruption strategy, to the Common Position Document with the 11 yellow and red flags that concluded Romania's accession negotiations with the EU, to the current monitoring tool, so nicely dubbed Cooperation and Verification Mechanism. The Anti-corruption Prosecution takes care of criminal sanctions since 2002, the Ministry of Control was specifically established in 2003, but then dismantled in 2005, while ANI was supposed to work primarily on prevention, but finally took over administrative controls upon being established in 2007-08.

ANI is, for all intents and purposes, the second benchmark of the CVM, where Romania agreed to two very specific thingies--mandatory decisions and dissuasive sanctions. Evidently, the policy design derailed somewhere, along the way :( In my activity on the Integrity Council, I've warned all stakeholders who cared to listen that ditching the policy design will amount to disastrous effects, not only for the CVM, but mostly for Romania's good governance. Never had I, never could I ever have, foreseen that the Constitutional Court would become the "agent of change" on this particular issue!?! And that's because such a Court is neither equipped, nor expected, to act in such a direction--but the Court did amend ANI's law, creating the opportunity for the policy design to be reinstated. Alas, none of the other actors involved (Ministry of Justice, Cabinet of Ministers, two Chambers of Parliament or even the Presidency) were able to see the merits of the Courts decision, or the opportunity--hell, neither have I! On the contrary :( What we gonna do?!?


So we all failed :( Now, the new law regulating ANI's activity is, once again, in front of the Constitutional Court. The initial Bill from the Ministry of Justice lost sight of the two thingies in the MCV, didn't quite manage to address the Court's initial criticism, and forgot entirely about the policy design :( The Cabinet was too concerned with EU-related myths, and cared too little to consult any "experts" on the matter, while the Chambers rushed the law through, giving no consideration whatsoever to policy design. Of course, the law came out like a lame duck, even worse than the original :( Wise or opportunistic, the President returned the Bill to Parliament, and the pissed-off or purposefully absent-minded MPs managed to castrate ANI's law even further--unanimously, mind you! Desperate, the President now asks the Court to rule whether a castrated law may be promulgated as constitutional, ha-ha :( The alternative would be for the Bill to run through Parliament a third time--why, to get chopped now?!? My suggestion is that the Court delays judgment on this Bill, and allows enough time for the other actors to put together not just one law, but a package of legislation that goes back to the policy design!

In either case, regardless of what the Court, the Ministry, the Cabinet, the Parliament, the President, the "experts" or even ANI will do in the next few months, we should all learn a lesson: Leaving the policy design aside, forgetting what the problem, objective and method are and require, playing by ear, especially in matters of good governance and/or anti-corruption--all of these are bad, bad, bad! And if this were a mere case-study, all of my students, myself included, would've flunked the course with failing colors!

2 comments:

Post a Comment