Anti-corruption movement in India and the role of an Independent Anti-corruption agency like Lokpal

Dear Fellow Indians,

 I take this opportunity to present a very clear, third and un-biased angle on anti-corruption movement going on in India and the world. Here is the complete transcription of an Interview with Mr Mr. Tony Kwok - the anti-corruption soldier, former Operations Head of ICAC Hong Kong. This interview is very important because of the fact that lots of people have different opinion on the whole Jan Lokpal Bill movement, and they think everyone else is biased with their own views because of various reasons... very soon the video and audio files will be updated on this blog... but this interview will be an eye opener for many of us...

 Mr. Tony Kwok: Let me give the key point; let me give my message first because I have done this many times in many countries. That’s the interesting part - wherever you go, people go, my country is different. But that’s not true - no country is different in terms of corruption.

Corruption is a crime. We cannot say that a theft or bank robbery is different from one country to another.

I have been to 25 countries to provide consultancy and training on anti-corruption. But there have been common misconceptions. Wherever I went, people say: "My country is different, our culture and the nature of corruption is different." Corruption is very serious and widespread and therefore some of them say that it is probably impossible to fight it in my country. Some say it would take a decade or generations before changes are seen. What I always tell them is that these are ALL EXCUSES. Hong Kong's experience shows that, when it was very corrupt in the 60s and 70s, provided you have the political will and the right methodology, you can change the situation within 3 years. Within that timeframe, HK had already changed from a very corrupt place to being less corrupt. In the olden days, corruption in HK was part of daily life - it used to be described as from "the womb to the tomb" - it was all open and syndicated. But after 3 years, it was no longer open and syndicated. That is not to say corruption was entirely eradicated - that claim can never be made. But my main message is that within a short period of time, corruption can be controlled.

Question: Some people say HK is a city of 7 million people, whereas India's population is 1.2b. So the HK model cannot be replicated in India. Are you saying that is not true?

Mr. Tony Kwok: I cannot say that this is not true. This is a question that has been posed to me before. Just because that we are only a city-state and that we have different cultures, religions so the same model will not apply. I challenge them that if there is the will, why not set up an ICAC in your capital city, say, for the first 2 years - that is, start small. When you talk about capital, of course Delhi has a larger population than Hong Kong, but that is still comparable. If you can model the ICAC there and start with that, then you can show the rest of the country that it can be done. Then the model can be applied to other provinces as well. Of course, I am not able to provide any concrete proof that it can be done. Because in the past 50 years, there are only two examples of countries which were notoriously corrupt and then transformed/converted into relatively clean countries - Singaporeand Hong Kong. I would be curious if there is a 3rd example.

Question: Neither Singaporenor HK is multi-party, vibrant democracy like India is. There is so much corruption tied to politics. Do you think that is an impediment to fixing the problem?

Mr. Tony Kwok: When you say vibrant democracy, we must qualify whether it is a successful and fair democracy. Coz I see many examples of so-called democracy, which, in my view is itself a source of corruption. They have corruption because of democracy. In a democracy, you go for elections, and if you do not have a proper system or effective enforcement of fair election practices or prevent bribery, then politicians need money to buy votes and once they get elected, then they need to get their money back. This explains the close ties between democracy and corruption in many places - Africa, Eastern Europe etc. First thing they got democracy and next thing was corruption. I don’t know enough about India, but for you to fight corruption, you need to look into the election system and examine how widespread is the malpractice and bribery there. If an MP can easily/successfully be elected through malpractice - if it is easy, then it is a big impediment to fighting corruption - since these people will not have the political will to fight corruption and without it, you can all go home. You can never fight corruption without political will. So you must make sure that the top men are really corruption-free and have a genuine desire to fight corruption. If not, then corruption must be on the top of the agenda during every election and people must choose to vote for someone that is clean.

Question: How bad was corruption in Hong Kong before the ICAC came into being?

Mr. Tony Kwok: Corruption was described as from the womb to the tomb. I remember when my mother went to the public hospital to give birth to my younger brother; she brought, along with other necessities, a bag of coins. Why? Every time she needed a glass of water or a towel or any other service, she had to pay the helper a dollar. This has become the norm. Although they were government servants and it was their job to do this service, it was actually an offence for them to seek these kind of favors/bribe/tips.

Then, if you have to go to school, you need to pay - same with jobs or promotions, you need to send gifts. Even if you die, you have to pay before you can get a decent burial.

Question: This is sort of the same situation in India today.

Mr. Tony Kwok: It was probably even worse in Hong Kong then. For example, the fire brigade would not douse a fire unless given money. There is a Chinese saying that 'water is money'. The joke goes that the firemen would say, 'No water, no water', 'Have water, get water'. If your house is on fire, you have to pay the fireman before they tackle the fire. If you require an ambulance- no money, no delivery. This was in the 50s, 60s. Everybody could witness it. People used to smoke opium and gamble behind curtains in shops. It was clear police were also involved even though it was illegal at the time. At the time, everybody accepted it as a way of life. Corruption was very syndicated and well organized. It was part of the system and everybody knew.

Question: What opposition did the people proposing the ICAC face and how was it overcome? Do you see similarities to the movement in India?

Mr. Tony Kwok: Key success factor in Hong Kongwas political will. There is a lot of similarity between India and Hong Kong- we were both corrupt and the movement gathered pace because of people power, protests and demonstrations that force the government to do something. Hong Kong was lucky that after the protests, the governor was someone very genuine and wanted to eradicate corruption. Apparently, he gave a blank cheque to the first commissioner and promised all resources he wanted to get rid of the problem. So, Hong Kong's ICAC is one of the most well-funded and staffed anti-corruption organisations in the world. This is very important for it to be effective.

Political will can [and should be] measured by the extent to which the politician provides resources to the anti-corruption agency. For a yardstick, in Hong Kong, around 0.3% of annual government spending is reserved for ICAC whereas there are many other countries where only peanuts (<0.01%) is budgeted for the anti-corruption agency. So, one lesson for India is that the Lokpal system should be provided sufficient resources to employ the best people to be effective. In Hong Kong, we were able to hire the best talent from places like UK- that way, they were totally disconnected from the happenings in HK and could be unbiased and effective in their jobs in the ICAC. This was also a way to ensure the independence of the organization and very important for the success of the ICAC.

My advice would be for India to follow a step/step approach. Firstly, you get a strong Lokpal bill passed and secondly, get the right person to be the first head of Lokpal and thirdly, this head should ensure that the Lokpal is properly resourced (budget etc.). And this does not take much money. Take Hong Kong's example- we are well-resourced while using up only around 0.3% of the annual government budget. So any government that is genuine about fighting corruption can easily spend 0.3% of its budget on it, should it see it as a major problem.

So the key success factors are strong law; well-resourced agencies with professionals and independence; and freedom from political interference.

On the subject of removal of a person from Lokpal: I don’t quite understand how you can REMOVE people from Lokpal. Once a commissioner is appointed, he/she should be able enjoy a period of total independence (3-5 years) and during this, he should be free to pursue cases of corruption and should be removed only if there are serious allegations via impeachment which also requires legal and parliamentary processes.

Question: One of the criticisms of the Lokpal bill is that it does not address corporate corruption. What is your view?

Mr. Tony Kwok: One of the reasons Hong Kongwas successful was that we did not have double-standards. If you want to fight corruption, you should fight it anywhere, whether politics or business. If you allow the double-standard, no way can the society become clean. So what you need is a policy of zero-tolerance. This means 2 things: (1) you deal will corruption both at the very top of the government and the very bottom; with one million rupee as well as 1 rupee. What would vary is only the punishment and (2) you deal with corruption both in government, SoE's and private sector, education etc.

You have seen headlines in Hong Kong, covering cases in government as well as private sector. That's what you need for a clean society.

Question: Is it a good idea to start with political corruption (and public sector) given a country as large as India?

Mr. Tony Kwok: I think you need a clear message to the country from the beginning that you have zero-tolerance to corruption. However, given the size and scale, you could first allocate more resources to deal with selected cases in a specific area, just to demonstrate serious intent. For example, we invested 90% in the early days on investigation and on government sector corruption and only 10% on business. That changed with time. Now, after 30-odd years, it is about 50-50. Even within the investigative arm, around 70% were focused on major corruption cases but 30% still focused on petty corruption. This way, the message of zero-tolerance was conveyed to the public. People would read in media about government cases as well as some business sector, hospital malpractice etc. This ensured that someone could not think they were still immune and could continue their corrupt ways. The same applies to the provinces as well - strong messages need to be sent.

However, it is not possible to spread your wings too wide too early, so it is a question of allocating resources.

We emphasized zero tolerance from the beginning and followed it up with action. That is probably what made it so successful.

Regards the enforcement strategy, when you start, it is important that you tackle high-profile cases. That is what gets people's attention. People seeing petty corruption cases will not be so easily transformed. So you must have the 'big-fish' case as soon as possible to demonstrate your determination and independence. The closer to the prime minister would be the best to also show the independence of the agency. that will get the attention of the public. Along with it, you also target smaller cases which are close to common people to show them that no one is immune.

Question: Is the bribe-giver on same terms of liability as the bribe-taker?

Mr. Tony Kwok: This is an important principle which was also enforced. The giver and taker are EQUALLY culpable in law. But we need to look at it on merit as well - perhaps the giver was coerced into paying the bribe. In Hong Kong, both in the law and in our public education and awareness programs, we always emphasise that both giver and taker are equally liable. In some countries, giver is not liable but it is difficult to claim a clean society without this. In other countries, solicitation is not an offense because you only asked for it, but that is also ridiculous. This is all just to protect the government and the corrupt employees.

Question: People who man an anti-corruption agency must have impeccable credentials for it to be effective. How has the ICAC ensured that, at every level, their people's personal probity is unimpeachable?

Mr. Tony Kwok: There are two areas where there are checks and balances. First, when someone is recruited, we look for the best talent; carry out integrity check, background check. Any doubt would automatically be cause for rejection irrespective of performance in the interview. Second, we set up an ICAC within ICAC. We have a small unit, about 10 people, who are responsible for staff monitoring (Vinod: like counter-intelligence in spy agencies). In addition, as an on-going rule, we have very stringent rules for f the employees. While government employees have to declare assets every year (senior) or when they join (junior level), ALL ICAC employees have to declare their ASSETS and LIABILITIES every 6 months. For example, you buy stocks and shares; you declare it within 2 weeks.

There are also rules regarding declaration of conflict of interest. If any public servant is involved in a official situation of conflict of interest with his private interest, he should declare it. If not, it is punishable as an offence - even if you are NOT the direct benefactor (for example, a relative wins a contract thanks to your position, it must be declared else you are punishable). This is very important since this is what the MPs typically do, isn’t it? Abuse their position to help their families and others. This is vigorously enforced in ICAC and civil service.

We have an open complaint system where anyone can complain against another person/institution. We have directives to investigate them.

Internally, we also have a hotline so anyone can complain directly to a concerned department without going through the normal channels.

We receive both named and anonymous complaints. Anonymous complaints on corruption are assessed but not always investigated. On average, we might investigate 1 in 5 anonymous complaints since further information to start off is very difficult to obtain in such cases. However, EVERY anonymous complaint against an ICAC official is investigated without exception.

Question: Is that the whistleblower provision?

Mr. Tony Kwok: Hong Kong does not have such a provision. Whistleblower helps but not a lot in fighting corruption. In those cases, whistleblowers need to be part of witness protection, a provision that Hong Kong has. IF you are classified as a witness, we are legally bound to protect your life and identity.

Question: ICAC had experienced cases where witnesses have been lost, run away, refused to testify etc. What has been done about that?

Mr. Tony Kwok: You need a legal provision to protect the witness. You have to do it professionally. You dont and should not use another agency, like police, to do it. In ICAC, we have our own witness protection unit; they are authorized to carry arms and trained on WP.

The Lokpal law should be properly written so that all the offenses are listed, the policy should reflect zero tolerance and should cover loopholes like bribe giver/taker, witness protection. It should provide adequate power full investigative powers - arrest, search, detain, investigate, surveillance (with court approval), phone tap etc.

To follow up on the law, a comprehensive approach is needed - Hong Konghad adopted such an approach. For example, ICAC has a 3-pronged approach - enforcement, prevention and education. So your Lokpal should have at least three distinctive depts: investigation, prevention- and the third dept should looks into the system like government procurement to look for loopholes and reduce the opportunities for corruption. Another department could focus on public education with experts educating the public - put material into the school education system and so on.

Question: Is the judiciary also covered? If so, did HK government have to make any amendments or judicial process to accommodate it?

Mr. Tony Kwok: The law clearly said that ANY public servant (and this includes judiciary), that is, anyone who is paid by government is under the ambit of the law. It also included the Chief Executive (Editors: The PM, in the case of India). The procedures to investigate judges are no different; however, for the Chief Exceutives it is a separate procedure, which is reasonable, but they are still covered.

Question: Did judiciary feel they should NOT be part of this law and outside?

Mr. Tony Kwok: Corruption is a crime. So it does not matter who committed it. Whether the judge committed a bank robbery or theft or murder, it is the same, and he should face a criminal investigation. Therefore, this cannot be claimed as infringing on the independence of the judiciary. Of course, he has his rights and if wrongly accused, he knows the remedies. There should not be any difference when it comes to zero tolerance of corruption.

Question: How do you guard against frivolous complaints (because reputations could take a hit)?

Mr. Tony Kwok: Malicious or false complaints are treated as a criminal offense under law. There are 2 aspects: if your complaint is false or malicious, you go to jail; secondly, for any investigation, the fact-finding mission is always a secret and no one is allowed to divulge the nature and identity of the suspect or the investigation. Even the media is not allowed to publish it. If it does, it is an offense. However, after this, once ICAC is ready to take action, the nature of the complaint should be established. That’s how frivolous complaints are targeted.

We have taken action against media in this regard before. Media claimed this infringed on their independence. At that time, Hong Kong was a British colony, so they appealed to the Privy Council in London, but the Privy Council upheld the law as proper to protect the integrity of the investigation and of the suspect. This is important to pacify the parliament, judges and people in senior positions that the investigations will not be made public unless there is a good amount of evidence.

Question: Do Legislative Council members have any privileges that they can invoke?

Mr. Tony Kwok: Only privilege is that they cannot be arrested when in the chamber. You have to wait till they get out. Just to maintain their dignity.

Mr. Tony Kwok: What is needed when they the Lok Pal organization is set up you should have an advisory meeting with Lokpal head and invite consultants to train, advise them, staff them etc.

Question: Why not strengthen existing agencies like CBI, CVC instead of bringing in a new organization?

Mr. Tony Kwok: It is an issue of public perception. If the current perception is that these existing agencies have not been effective, then you should have a new organization if you are serious about fighting corruption. If they are already perceived to be effective, then you don’t need a new organization – you can focus on strengthening the existing ones. For ex:, FBI in the USis perceived to be effective in enforcement & investigation, so no change required. However, if the existing agencies do not have a strong voice and are not independent, the perception in spite of changes will not help fight corruption. In many corrupt countries that I visited, police in the front line may also corrupt. People in these countries also doubt the anti-corruption agency’s investigations as influenced and not independent.

Therefore, for it to be effective, you need an independent agency to fight corruption. Also, the current agencies might not have people with the level of integrity required by the new agency.

Question: Corruption in cases of relationships between the government and the market.

Mr. Tony Kwok: Key aspect is that government must act in public interest. Therefore, a conflict of interest mechanism needs to be in place.

Question: 2G scam; Telecom was responsible but Finance and PMO were also involved. So who is responsible in your view?

Mr. Tony Kwok: Was it because of incompetence or on purpose? If the decision was made on purpose to favor individual company be causer of gain or personal interest, then it is corruption.

Question: The need for change in people’s mindset to corruption– how did ICAC address it?

Mr. Tony Kwok: The public education arm of ICAC was responsible for this. We used PR, education experts to spread the message. But it has to start effective enforcement and be supported by public education – you show examples and then tell the public, ‘look what happened to that guy, if you are corrupt, you go to jail as well’.

Media played a big role in the 70s for public education. Every evening, people are bombarded with commercials about how bad corruption is. At that time, everyone knew our hotline number because of the bombardment. Even today, we have retained the same hotline number to maintain continuity and make it easy for people to report corrupt practices. Our commercials were actually award-winning and useful in changing people’s attitudes.

Usually, public education arm followed the enforcement arm. For example, if there was a major case in a govt. dept… after the investigation and closure, the public education arm would then follow up and train that dept. on avoidance in future.

Citizen’s charter is good. Lot of corrupt countries have it, but important point is the enforcement and monitoring system to ensure that the charter is being followed. Either ombudsman or civil society does the monitoring and there is an effective means to report any complaints.

Question: Your opinion on having different agencies enforcing different parts of the system?

Mr. Tony Kwok:You cannot rely on one single agency/person but on the whole society. Need a mechanism for coalition. You need a central agency for this – could be Lokpal which chairs a coalition council. It will invite the representatives from the right agencies as appropriate but these reps should be under one body, preferably the ICAC/Lokpal

Instead of citizen’s charter, try a Prime Minister’s workshop. He should demonstrate political will by inviting heads of government agencies and have a facilitator to discuss how each agency should fight corruption within its own walls. This will create an action plan for each agency (anti-corruption action plan), vetted by the ICAC/Lokpal and approved by PMO. Once approved, the head of each agency then prepares a quarterly report about the progress. The whole thing is monitored and followed-up by ICAC. Then have a yearly review followed up refinements and another workshop. This kind of a system ensures each agency to fight its own corruption, through PM’s leadership, while being monitored and possibly advised by the anti-corruption agency.

I have done this in Philippines, Serbiaand Mongolia.Mongoliais a good example: they had a PM’s workshop just few months before the elections when his popularity was low. He got re-elected. In the 2^ndyear, he expanded coverage from 30 to 100 govt. agencies and then expanded scope to the provinces. Now all SoE’s also get to do the workshop.

Now I am integrating this into a business course and trying to get it to businesses to maintain ethics and integrity in your own house. Every company should have an integrity plan and appoint an integrity manager. He knows how to design and implement an anti-corruption action plan and be an internal auditor/watchdog.

Question: Personal question: have you been asked to pay a bribe?

Mr. Tony Kwok: When I was young, when you try to apply for telephone then in HK, it used to take years. I was a student then. We finally got it, and the men came to install it, and it worked fine. We were very excited. And then the linesman said ‘you know what to do’. But we did not understand. When he left, by the time he reached the ground floor, the phone did not work. My mother said that we should have tipped him. My mom gave them some tips and then it started working again. I was very young then.

Question: Should Lokpal official be given authority for removal of a corrupt public official?

Mr. Tony Kwok: NO. That should be an independent, judicial process. Lokpal should only investigate and prosecute. If there is not enough evidence, the agency should have a monitoring mechanism on why no action was taken.

In Hong Kong, we don’t prosecute. The Secretary of Justice team would then prosecute.

Question: Parallel courts?

Mr. Tony Kwok: We only have standard courts. In some countries, when the judiciary is perceived to be corrupt, typically they come up with an anti-corruption court. Also helps fast track cases.

.../ends.