by Tricia Yeoh. A version was published in The Sun Daily as “Public duty and private interest” 15 October 2015
A MONTH ago, Otto Perez Molina resigned as president of Guatemala following an investigation that he and his aides received bribes in exchange for lowering taxes for companies importing products into the country. Just hours after his resignation, he was sent to jail.
Two years ago, French Budget Minister Jérôme Cahuzac resigned following investigations into allegations that he had a secret bank account in Switzerland.
In both cases, the perpetrators in question denied any wrongdoing at the outset.
One positive thing that emerged from the case in France, however, was the formation of a new government body tasked to tackle corruption in the public sector.
In my recent trip to Paris, I had the privilege of meeting with the High Authority for Transparency in Public Life (high authority).
Declaring assets publicly
Following the 2013 scandal, the government reacted to public demand for more transparency. Some might argue too little, too late.
But one must admit their present-day mandate is enviable and impressive; under new transparency laws, more than 9,000 leading public officials in France are compelled to declare their assets and any conflict of interest, including ministers, members of Parliament, local elected representatives and non-elected high-ranking officials.
This high authority works closely with the tax authority to verify whether or not the assets declared are accurate, and can seek information directly from public officials if there are incomplete statements.
Their practice is for ministers to declare all assets publicly, while members of Parliament only have their assets disclosed at governors’ offices, which local constituents are able to access.
In an IDEAS policy paper released earlier this year, we recommended a higher standard for assets of all public officials to be publicly disclosed. We made an exception, however, where if information is only made available to the public by request, Malaysia should first enact a Freedom of Information Act.
Conflict of interest
But the more interesting part of the high authority’s work is to compel public officials to also declare any conflict of interest they may have.
The Organisation for Economic Co-operation and Development (OECD) defines conflict of interest as “conflict between the public duty and private interests of a public official, in which the public official has private-capacity interests which could improperly influence the performance of their official duties and responsibilities”.
So public officials are required to fill out a long form that includes any business activity, compensation received, consulting activities, holdings in any private company, and even volunteer work that may conflict with their ability to carry out their functions in a neutral manner.
In France, the high authority has the power to issue injunctions against public officials to end any contentious situation when a conflict of interest has been established.
The laws even propose criminal prosecution for public officials who fail their obligations in matters pertaining to asset declaration or conflict of interest.
The Malaysian Anti-Corruption Act does not make conflict of interest explicitly wrong, and only spells out instances under which human actions are criminalised for corruption, such as Section 23, which makes it an offence for a public official to use his office or position for any gratification.
In fact, IDEAS together with the Malaysian Bar and several other NGOs have argued that this should be even expanded further to include all forms of gratification (not just financial) including abuse of office.
Apart from that, other government regulations, which apply to public officers, state that they should not allow their private interest to come into conflict with their public duty “so as to impair (their) usefulness as public officers”, or use their public position for personal advantage (Public Officers Conduct and Discipline Regulation, 1993).
There is also a code of ethics related to conflict of interest, which applies to those working within the Prime Minister’s Office, which states that all members of staff and officers in the Prime Minister’s Office “should ensure that no conflict of interest exists between the performance of their official duties and their personal matters” (The Code of Ethics of the Prime Minister’s Office”).
Officers and staff have to “obtain written permission from the Head of Department before pursuing an interest in a business or completing any transaction”.
One wonders which officers are subject to this apparently strict code of ethics, and to whom the officer of highest standing needs to obtain written permission before pursuing such business interests.
In France, Jérôme Cahuzac vehemently denied that he had a Swiss account when faced with those allegations. He resigned when legal proceedings for fiscal fraud were launched, eventually admitted he had hidden about €600,000 (RM2.88 million) and is now being investigated for tax fraud.
Obviously US$770,000 in a personal account of a minister is too much for the integrity of the French government.
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Tricia Yeoh is the chief operating officer of IDEAS