Hoang Minh Hoi, LL.D
Ho Chi Minh National Academy of Politics
Regulations on the responsibility of heads for corruption occurring in their agencies
Under current regulations, heads are assigned to organize and run operations of their agencies, organizations or units, manage subordinate officials and public assets, and personally organize the implementation of the Party’s policies and State’s regulations. They play a crucial role in anti-corruption work. The legal bases for determining their responsibility are regulations on their tasks and powers in the prevention and combat of corruption, and on the competence, forms and procedures for examining their responsibility for poor performance or non-performance of their tasks.
|Party General Secretary Nguyen Phu Trong addresses the 9th meeting of the Central Anti-Corruption Steering Committee on December 27, 2015, in Hanoi __ Photo: Tri Dung/VNA|
Regulations on the responsibility of heads are contained in many legal documents, from the Constitution to laws and sub-laws. Laws include the 2015 Penal Code, 2008 Law on Cadres and Civil Servants, 2010 Law on Inspection, 2011 Law on Complaints and Law on Denunciations, 2005 Anti-Corruption Law (revised in 2007 and 2012), 2013 Law on Thrift Practice and Waste Combat, and 2013 Law on Reception of Citizens. Sub-laws include Government Decree No. 157/2007/ND-CP prescribing responsibility of heads of state agencies in the performance of tasks and official duties; Decree No. 107/2006/ND-CP on handling of heads for letting corruption occur in their agencies, organizations or units; Decree No. 211/2013/ND-CP amending a number of articles of Decree No. 107/2006/ND-CP; and Decree No. 90/2013/ND-CP prescribing the accountability of state agencies in performing their assigned tasks and powers; and the Ministry of Home Affairs’ Circular No. 08/2007/TT-BNV guiding the handling of heads of non-business units, state enterprises, social organizations and socio-professional organizations using state budget and property for letting corruption occur.
Regarding the responsibility of heads for corruption occurring in their agencies, the 2005 Anti-Corruption Law requires heads of state agencies, Party organizations, socio-political organizations, socio-professional organizations and other state-funded organizations to bear direct responsibility for corrupt acts of persons whom they directly manage or to whom they assign tasks, and for corruption occurring in their agencies or in working fields or units directly managed by their deputies. Meanwhile, deputy heads must bear direct responsibility for corrupt acts taking place in their working fields and units under their charge. Heads are exempted from bearing responsibility in case they are unable to know corrupt acts or have applied necessary measures to prevent or stop corrupt acts.
According to the Law on Cadres and Civil Servants, cadres and civil servants who are heads are obliged to direct the performance of assigned tasks and take responsibility for the performance of their agencies; and inspect, press for and guide the performance of official duties by cadres and civil servants. In anti-corruption work, heads have to organize the application of measures to prevent and fight bureaucracy and corruption, practice thrift and combat waste, and bear responsibility for bureaucratic, corrupt and wasteful practices in their agencies.
Regarding handling measures applicable to heads who let corruption occur in their agencies, Decrees No. 107/2006/ND-CP and No. 211/2013/ND-CP stipulates that heads and deputy heads who bear direct or joint responsibility for corrupt acts in their agencies will be disciplined in the form of reprimand, warning or dismissal, or be examined for penal liability in case their acts show signs of crime. The identification of direct responsibility or joint responsibility of heads and their deputies for corruption occurring in their agencies will be based on the assignment of tasks and decentralization of management responsibility in their agencies and on the working relations between the management responsibility of the heads or their deputies and corrupt acts of the persons under their management.
Decree No. 211/2013/ND-CP specifies that ministers, heads of ministerial-level agencies, heads of government-attached agencies and the equivalent, chairpersons of provincial-level People’s Councils and People’s Committees must bear responsibility and be handled under current law for the occurrence of “particularly serious corruption cases, causing bad political, economic and social impacts in sectors or localities under their management.”
The above regulations serve as the basis for the State to punish leading officials who fail to comply with or violate the anti-corruption law.
However, some limitations can be seen in the regulations on responsibility of heads for the occurrence of corruption.
Firstly, the definition of heads fails to address the question whether they are only individuals or both individuals and collectives. This makes it difficult to determine their responsibility. Currently, there are insufficient legal grounds for handling collective leaderships. Whereas, individual heads may pass the responsibility on their collectives. The Vinashin case is a typical example. For this reason, some analysts hold that it is necessary to define heads as both individuals and collectives and determine their distinctive responsibilities in line with the principle of “collective leadership and individual responsibility.”
Secondly, regulations on cases in which heads are exempted from bearing responsibility remain unspecific. Under the Anti-Corruption Law, heads will be entitled to exemption from or reduction of legal liability if they have taken necessary measures to prevent, or overcome consequences of, corrupt acts; strictly handled such acts and promptly reported them to competent agencies and organizations (Clause 2, Article 55). However, in reality it is not easy to ascertain whether heads have taken such measures or not. Article 11 of Decree No. 107/2006/ND-CP says that heads and deputy heads will be exempted from bearing responsibility in case they are unable to know or have applied necessary measures to prevent or stop corrupt acts poses the same problem to law enforcers.
Thirdly, the legal grounds for determining handling measures applicable to heads for occurrence of corruption remain unclear. The Anti-Corruption Law stipulates that heads or deputy heads will be reprimanded for letting a serious corruption case occur or many less serious corruption cases occur in their agencies (less serious corruption involves corrupt acts not serious enough for penal liability examination or serious enough for examination of penal liability of persons to be subject to non-custodian reform or imprisonment up to three years). Warning will be imposed on those who let a very serious corruption case occur or many serious corruption cases occur in their agencies (serious corruption involves corrupt acts punishable by between three and seven years in prison). Dismissal will be imposed on those who let a particularly serious corruption case or many very serious corruption cases occur in their agencies (very serious corruption involves corrupt acts punishable by between seven and fifteen years in prison). As such, these handling measures are determined based only on the seriousness of corruption cases that have occurred, without taking into consideration subjective factors (fault of heads). Though the fault of heads has been touched upon in the revised Anti-Corruption Law, including poor capacity, irresponsibility, and cover-up of corruptors, it will be reflected only in inspection conclusions, auditor reports, or investigation conclusions on corruption cases to be sent to agencies, organizations or persons competent to manage these officials.
|Hanoi People’s Committee Chairman Nguyen Duc Chung gives a speech at the Conference reviewing 10 years’ implementation of the Anti-Corruption Law on March 15 __ Photo: An Dang/VNA|
Some unclear regulations have caused difficulties to and affected the handling of heads for corruption occurring in their agencies. This has even led to the wrongful handling of heads for letting corruption occur in their agencies while in fact they committed corrupt acts (or were involved in or abetting corrupt acts) and vice versa. This problem can be partly attributed to indulgence in the treatment of officials and partly to unclear regulations on decentralization of responsibility and management of officials and lack of guidance from competent authorities.
In the course of implementing regulations on the responsibility of heads for anti-corruption work, in some cases, for fear of responsibility or degraded performance results of their agencies, heads intentionally suppressed information about or did not resolutely fight corrupt acts of their subordinates. Some heads even refused to cooperate with inspection bodies in verifying information about corrupt officials. Laying the blame on objective factors such as incomplete mechanisms and regulations or on collectives in order to shirk personal responsibility also happened in some places.
Lack of a comprehensive mechanism to clearly draw the limits of responsibility of heads (direct responsibility, joint responsibility, and management and inspection responsibility) also makes the determination of the responsibility of heads a hard job.
Therefore, the handling of heads for letting corruption occur in their agencies has not yet recorded significant results, failing to truly reflect and meet the requirements of the anti-corruption task. In most reported cases in which heads were handled, they were handled for their direct involvement or complicity in corruption, not for their responsibility for letting corruption occur.
According to the 2015 anti-corruption report, the Government was still confused in determining the level of responsibility of heads of superior agencies for corrupt acts of heads of subordinate agencies or for wrongdoings involving many sectors, agencies, units or departments. This situation necessitates not only the clear determination of the responsibility of heads for failure to perform their anti-corruption tasks but also the timely commendation and reward of those who detect and strictly handle corrupt acts.
To ensure the responsibility of heads for anti-corruption work, the following solutions should be synchronously implemented:
- Revise regulations on the responsibility of heads for anti-corruption work. First of all review 10 years’ implementation of the Anti-Corruption Law and implement regulations and revise them in conformity with the 2013 Constitution, the Law on Organization of the Government and the Law on Organization of Local Administration.
- Develop a mechanism for clearly distinguishing powers and responsibility of heads from the responsibility of collectives toward vesting more powers and increasing responsibility for heads; issue operation regulations of agencies, organizations and units which define tasks under the collective leadership and those under individual responsibility, upholding democratic centralism in agencies’ activities.
- Step up dissemination of the anti-corruption law and regulations on responsibility of heads for occurrence of corruption, and intensify political, theoretical and ethical education among heads; and refrain from appointing, promoting or re-electing heads who were involved in or tolerated or abetted corruption.
- Regularly examine and inspect the appointment, transfer and employment of officials who are heads of agencies, organizations and units; enhance publicity and transparency in operations of state agencies and accountability of their heads.
- Quickly, stringently and lawfully handle corruption cases without any “forbidden zone” in the determination of responsibility of heads; increase supervision by the Party, National Assembly, People’s Councils, Vietnam Fatherland Front and its members at all levels, as well as the role of the mass media in anti-corruption work.-