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Blueprint for Reform is a must

The current state of affairs in India affirm the premise that good government is a prerequisite for meaningful progress. The distinguishing factor in so-called developed and developing countries is government. To truly prosper, industry and entrepreneurship require a peaceful, functioning society. While entrepreneurship propels economic growth the environment for such growth is provided by government. Economic growth raises standard of living. Good government provides the quality of life in the form of public safety, clean environment, and infra structure. Above all government is the refree that makes sure the game of economic activity is being played fairly. Without the rule of law nothing happens.

India provides a living, breathing, palpable example of what happens when government lags behind and fails to modernize. Present day India continues to be chaotic. Sure there are islands with beautiful oasis. But the large patches of desert surrounding these islands of prosperity cannot keep them protected from sand storms kicked by restless millions tired of the corruption that oppresses them everyday. Not only bad governance impairs quality of life it impacts the standard of living of majority of citizens. Overseas everyone knows India has been unable to control its population. What is not so well-known is India has been unable to control inflation. These two scourges, population and inflation, have left vast swaths of Indians in the dust of poverty and hopelessness.

The brightest hope, however, is in India’s educated urban “masses.” With brains and hearts second to none, the educated have not given up hope. They are ready to act. Armed with new knowledge and a spirit of determination the educated are now demanding good government.CORRUPTION is nothing but the most overt symptom of bad governance. Never before in post-Independent India has the call for clean government been so strong as today. This clarion call for clean government ought to be welcome by all. Because REFORMATION has started. And this time it is not stopping.

The only question is how this change should take place? And what should be changing?

Reform means change — real change. Changing personalties is not real change. Changing core systems, that run foundational institutions of government, is the change all reformers must demand.

The recent demand to end corruption in India is long overdue. Resolute demand for change is the first step. Systemic problems, however, do not get solved unless the problem is rightly identified. We need to understand why public corruption happens and then come up with real solutions that will endure.

A good place to start is by busting myths — myths about government corruption. To get started please read COMMON MYTHS ABOUT CORRUPTION

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(JAN) LOKPAL BILL: RIGHT STEP IN THE WRONG DIRECTION?

“What’s the use of running if you are not on the right roadA German proverb

The website, IndiaAgainstCorruption.com announces: ” Jan Lokpal Bill – a strong law to ensure swift and certain punishment to the corrupt.”  I support Anna Hazare and his supporters. I agree government corruption is a law enforcement problem.  However, as explained in COMMON MYTHS ABOUT CORRUPTION merely punishing people does not stop corruption. Further, the Jan Lokpal bill is flawed because:

1   It is an attempt to create a fourth branch of government.  Therefore, its constitutionality is questionable.  Democracy functions just fine with the three branches — the legislative, the executive, and the judiciary. There is neither a legal basis or a standing in fundamental democratic prinicples to create a fourth branch. Will this Bill not require a constitutional change before it can be enacted by the Lok Sabha?

2. Without a constitutional change, the proposed Jan Lokpal Bill is an attempt to create an “extra-judicial” authority on a permanent basis. Does not this bill proposes to create a tribunal on a permanent basis? Under certain circumstances it make sense to create a special tribunal (commission or committee) to investigate a particular incident or a series of unusual “crimes.” Under no circumstance, however, such a tribunal is permanent. Nor can it be allowed to be all-in-one, prosecutor, jury, judge, and executioner. Any finding of a crime or wrongdoing still has to be tried in a proper court of law with guarantees of due process and the right of the accused to defend himself in an impartial environment.

In any case, whatever form the Jan Lokpal authority takes, it usurps the Judicial Branch per se. India is not a one-party fascist state like China. Urgency of putting a swift end to corruption not withstanding, basic principles of democracy cannot be flouted.

Be that as it may, the Jan Lokpal proposition reveals an extreme weakness in India’s justice system — a system basically inherited from the British but never expanded or modernized. In fact, while so many ministerial departments were created, no Ministry of Justice, with independent prosecutor authority, was ever designed. The results of this neglect are now before our eyes. India does not have an independent law enforcement officer or authority.


Why reinvent the wheel?  Instead of the Lokpal or Jan Lokpal, what India needs is an Attorney General or someone equivalent. The British call them the Chief Prosecutor. Corruption is a law enforcement problem. It is the function and duty of the Executive Branch to enforce laws. The problem is there is no independent official designated to enforce the laws of the Government of India. Ironically, the Indian Constitution makes special mention of “Foreign Secretary” as being a career official of the Indian Foreign Service — a provision that does not belong in a constitution. India would have been better off if instead of “Foreign Secretary” the constitution had provided for an Chief Law Enforcement Executive, commonly called as the Attorney General in many countries.

By law the qualifications of the Attorney General are that he/she has to have a law degree, is member of the Bar in good standing, has no criminal record, and has substantial legal experience. Most of all the Attorney General/Chief Prosecutor has full independent authority to investigate any crime and prosecute any individual where there is evidence for it.

The demand for a Jan Lokpal in essence is a demand for Attorney General or Chief Prosecutor. Something that India should have done right after independence and never did.

A great model to emulate is Public Persecution Service of Canada (http://www.ppsc-sppc.gc.ca/eng/bas/abt-suj.html). The PPSC is a fully independent public agency in the Ministry of Justice. Its head has the authority and the resources to investigate and prosecute ALL crimes.

There is no reason why India cannot have the same now.

CORRUPTION IS NOTHING BUT A LAW ENFORCEMENT ISSUE


Just because the Executive Branch of the Government of India is broken, and just because it cannot enforce laws, does not mean we ought to be turning things “topsy-turvy” and creating essentially another Branch of Government. Not only it ought to be unconstitutional. It is unnecessary and not needed.

A key question: Even if it is assumed the proposed Jan Lokpal Bill is legally viable a crucial question remains: Who is going to oversee the Lokpal, the Lokyukts, and its staff?

I fully support Anna Hazare and the thousands of people who support him. The solution, however, is NOT in creating another layer of bureaucracy that bypasses the Executive and the Legislative branches. The solution is in mending the Executive Branch and installing systems that work!

If Britain is still to be used as a model for Indian polity, there is good news! Even the British have changed and installed the Office of the Chief Prosecutor! Check it out here (CPS).

Britain’s Chief Prosecutors are nothing but Attorney Generals as found in North America. As was pointed out Canada’s system is the best to emulate because like India, Canada has provinces equivalent to India’s states. Does not matter whether you call it the Chief Prosecutor or Attorney General, the point is, India never reformed to create this Office/service so essential to law enforcement.

Instead of Jan Lokpal, what India needs is a Chief Prosecutor or Attorney General, with independent authority to bring charges and prosecute in a court of law. This OFFICE is all that is needed. Why not call India’s Chief Prosecutor/Attorney General as Jan Lokpal? The Jan Lokpal will be entirely appropriate name for India’s future Chief Prosecutor because in essence that is what the Jan Lokpal proposal is.

In the end corruption is curbed by changing systems not punishing people. It is totally unfair to blame people where the system provides continuous opportunities for corruption and then demands personal honesty.

No denying that corruption has an ethical side. There also is nothing wrong in demanding ethical conduct from public servants. Indeed it is morally incumbent upon all public servants to behave ethically. We, however, know it is an unrealistic expectation. As pointed out in the MYTHS post, only ten percent of people in any given culture are naturally honest. It is, therefore, foolish to depend on personal integrity to end corruption. Most of all corruption takes place when opportunity or opportunities are provided and when those involved know they can get away with it. The best way to curb corruption is by reforming and modernizing core systems of government as pointed out in THE SYSTEM CHANGE article.

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