Report of Bokoev S. Kenzhebek, Chairperson of the Committee on Rule of Law and Fight against Crime of JK KR at the Conference «Consolidation and effective interaction between the Government branches, local self-government and citizens: resources, efficie
The Conference held on March 13-14, 2015, in Bishkek.
by Bokoev S. Kenzhebek,
the deputy of Jogorku Kenesh of the Kyrgyz Republic,
the Chairperson of the Committee on Rule of Law and Fight against Crime of JK KR
Bishkek, 13 March 2015
The interaction of local self-government and law enforcement system.
Framework for state control over local self-government
Dear participants of the international conference!
First of all, I want to thank the organizers for the invitation and for the opportunity to make a presentation at the conference!
The topic of my report: "The interaction of local self-government and law enforcement system. Framework for state control over local self-government"
I am convinced that today's conference will provide an important and necessary impetus to the development of local self-government in Kyrgyzstan, will be a key platform for discussing actual issues in the field of local self-government and the development of professional, informed decisions.
One of the decisions required to make lays in the field of control and supervision of the LSG bodies. Almost at every meeting the representatives of local self-government talk about a non-systemic, chaotic, often unjustified audits by the supervisory government agencies. They also noted numerous checks and duplication, lack of clear procedures and regulations, indefinite timeframes of inspections, and the presence of misuse by unscrupulous auditors.
The urgency of this problem does not cause a doubt. Today I would like to speak the main causes of this problem in our country and offer own recommendations for its resolution.
Of course, a chaotic system of checks in LSG shall be considered with a special attention, there is a need for improvement, streamlining and legislative settlement for LSG checks because the consequences of this chaotic systems are having more acute negative nature.
The main reasons of the topical problem in the sphere of checks of LSG, in my opinion, due to the following factors:
- lack of a unified legal regulated procedure for conducting inspection of LSG;
- unjustified expansion of the functions and powers of local self-government;
- lack of close cooperation between government agencies with LSG aimed at establishing preventive measures to avoid violations of the law;
- poor capacity of the LSG staff.
Let’s consider these factors in more detail.
- Lack of a unified legal regulated procedure for conducting inspection of LSG
Local self-government should not suffer from administrative pressure from supervisory authorities. Excessive number of inspections and inquiries, in some cases, formally held "for tick box" significantly complicates the work of local self-governments. Instead of carrying out direct duties, the employees of municipalities spend a lot of time with the inspection bodies, replying to their appeals and requests, including frequent trips to the district, regional institutions of government agencies.
Excessive attention to the activities of local self-governments is paid by public authorities such as:
- prosecutor’s office;
- Accounts Chamber of KR;
- Anti-corruption service of the State Committee of National Security;
- bodies of interior affairs;
- State service to fight economic crimes under the Government of KR (finance police);
- State Inspection for veterinary and phyto-sanitary safety under the Government of the Kyrgyz Republic;
- State Inspection for ecological and technical safety under the Government of the Kyrgyz Republic;
- The district administration, and others.
Of course, it should be remembered that regulatory authorities have a very important function, and they are required to continuously and efficiently perform own functions, especially when it comes to life and health, safety of citizens. However, control activities should not hinder the work of LSG. A formal approach, which often focused on quantitative indicators and the applying penalties is not always an effective method and, more importantly, does not increase the quality of municipal services.
In practice, there are cases where a number of representatives of state authorities conduct checks of LSG simultaneously or in succession, with a short break. Naturally, this situation indicates a lack of unified and clear rules of interaction between the inspection bodies and the bodies of local self-government, as well as between state control and supervisory bodies. This happens due to the fact that the checks in respect of municipalities governed by different sectoral laws and departmental regulations and not coordinated with each other.
Frequent checks even affect staffing issues make the heads of the municipalities to resign, not to mention the fact that this situation causes of employee turnover in the municipalities.
It is necessary to carefully review and understand the depth of the situation, as far as inspections conducted are effective, whether they lead to positive changes, whether they involve preventive measures, whether they eliminate violations of the law or all of these checks provide only an illusion of "intense activity" of the public bodies. With regard to corruption there is the "golden rule" in the world – fight against corruption only if the cost of spending on the fight against corruption does not exceed the economic damage caused by the very corruption. This is true for inspections. Conducting them only makes sense if the economic effect of the checks is higher than the cost of these checks. Nobody calculated the economic impact of inspection and enforcement activities of the LSG bodies, but it must be done in order to understand if we do not waste state funds for hundreds of inspectors, daily "digging" in local self-government across the country.
This problem is clearly reflected in paragraph 2.5. of the National Sustainable Development Strategy of the Kyrgyz Republic for the period 2013-2017, approved by Presidential Decree as of 21 January 2013, "The current state of judicial and law enforcement systems suggests that they are not able to resist corruption, as yet themselves are often the subject of it.
However, the fight against corruption only with methods and means of law enforcement and special bodies - means to fight only with the consequences, but not with the causes of this social evil."
In fact, in recent years the number of inspections of LSG has doubled after the business entities became legally protected from non-system checks.
So, after the entry into force of the Law "On the order of business entities" as of 25 May 2007, the number of inspections of businesses has much reduced. Since the above-mentioned law clearly established the rules for inspections of businesses, even identified an exhaustive list of government agencies authorized to inspect businesses.
In addition, the range of government agencies authorized to conduct inspections of businesses was also narrowed by the adoption of the new Constitution of the Kyrgyz Republic on June 27, 2010. If previously the prosecutor's office oversaw the correct and uniform application of laws and other regulations for all subjects, regardless of ownership, the new edition of the Constitution of the Kyrgyz Republic, allows prosecutors to oversee the correct and uniform application of laws, only:
- by executive bodies,
- by LSG,
- and their officials.
Business entities according to the new Constitution of the Kyrgyz Republic went out of control of the supervisory authorities. However, in practice there were other "extreme" regulatory authorities turned the other way and started active checks of LSG, i.e., put all their efforts on local self-governments. For example, the district prosecutors supervise only state and municipal officials, namely, apparatus of akimiat, 5-6 territorial divisions of state agencies and generally from 8 to 15 LSG that are located in this area.
I do not propose to stop inspections of the activities of local self-government, but the methods of this control should be clearly systematized and organized. In my opinion, some amendments to the basic laws of local government should be made, or by analogy with the Law "On the Procedure for Conducting Inspections of Businesses", to develop a separate law, which regulates inspections of LSG.
The new law should clearly set out the requirements for the frequency and order of scheduled and unscheduled inspections with a mechanism to appeal the results of audits, the definition of an exhaustive list of regulatory bodies authorized to carry out inspections of LSG.
2. Unjustified expansion of the functions and powers of local self-government
I want to draw your attention to another equally important issue - the number of functions and powers executed by LSG now. They can be divided into four main groups, such as:
- The powers of local self-government on addressing local issues and provision of municipal services;
- The powers of self-government on execution of delegated state powers and provision of public services;
- The powers of local self-government to assist state agencies in the implementation of government programs;
- The powers of self-government for the implementation of individual orders state agencies pursuant to sectoral legislation.
If any ministry carries clearly established sectoral legislation activities, which relates solely to its sector, while the LSG bodies dealing with the activities of each ministry, state agency or service, carry out its own functions and responsibilities of public authorities laid down in sectoral legislation and also for the LSG.
Such legally unwarranted expansion of the functions and powers of local self-governments naturally becomes one of the main reasons for the large number of checks of LSG. Therefore, in the performance of their own functions, and a sufficiently large number of public powers, local self-governments constantly become the subject to inspection by the various supervisory government agencies.
In this case, I think that it is necessary to speed up the process of separation of functions and powers of state bodies and local self-government, as well as the opportunity to establish a list of the main provisions of the legislation which will be inspected by authorized state bodies.
3. Lack of close cooperation between government agencies with LSG aimed at establishing preventive measures to avoid violations of the law
One of the most important reserves for increasing the effectiveness of efforts to ensure the rule of law in the sphere of local self-government is more close interaction between LSG and control and oversight public authorities, aimed at the use of preventive measures.
Close relationships with regulatory authorities, aimed at joint preventive measures will not only detect violations in the sphere of activity of local self-government, but also create the conditions to prevent them in the future.
I can responsibly say that over the past 20 years I have never seen an initiative of the supervisory authorities to establish constructive cooperation with LSG, aimed at the applying preventive measures to ensure compliance with the law in the sphere of local self-government. Today, for local self-government the audit became one of the most serious problems, perhaps as serious as lack of funds in local budgets or the lack of qualified municipal personnel. There are enough experienced managers and municipal officials in LSG, who sincerely seek to ensure the development of their towns and villages, to improve the quality of life of citizens. But, unfortunately they do not find understanding and support from the supervisory and inspection bodies.
The main goal of the interaction of supervisory state bodies with LSG should be to caution against violations of the law and the establishment of a constructive dialogue between two parties.
In case of establishment of such interaction, LSG would be able to openly and constructively, in the format of bilateral dialogue to discuss all aspects and factors contributing to the occurrence of violations of the law, would have formed a relationship of trust, it would be possible for receiving consultations and explanations on the individual regulations.
Such forms of cooperation could be useful for checking representatives of state bodies, which could get feedback on the gaps in the law, the dual interpretation of certain rules and other problems associated with the causes of violations of the law. And, most importantly, would be removed the label "punitive body" away from supervisory government agencies.
Of course, ideally, an understanding of public authorities of the need to use preventive measures, creating constructive partnerships would enhance compliance with the law and reduce the level of violations of the law by LSG. Unfortunately, in reality, control and inspecting public authorities do not seek partnership with LSG, perhaps relying on other benefits or try to show a quantitative result, making the work with the local government in the pursuit of the number of violations.
I am convinced that the state policy in this case should be primarily aimed at the prevention, prevention of violations of the law in the field of local self-government, and not vice versa. It is necessary not just to streamline control and supervisory activities, the most important thing we need to redirect the inspection authorities on the use of preventive measures and the implementation of comprehensive measures to improve the situation on the ground. It needs to get away from the practice of evaluation of the regulatory bodies in terms of quantitative indicators of conducted inspections and issued instructions, legal proceedings of crimes and offenses.
4. Poor capacity of the LSG staff
I do not deny that LSG due to its poor capacity often violate the law. Representatives of local self-governments are not fully aware of the rights and duties of the auditors, but do not try to learn about them.
Legal requirements to provide the necessary documents confirming the right to conduct the inspection, cause unreasonable adverse reactions from the government officials. Moreover, the process is one-sided, where the inspecting party has more rights in relation to the one under inspection.
There is a strong tendency when the inspectors act as a person mentally and psychologically overwhelming over municipal employee, knowledge of the rights and obligations, normative legal acts is not the dominant factor, and in certain situations exacerbates the situation of the LSG and generates negative reaction products, such as a breach of ethics, fraud, corruption and bribery.
The characteristic difficulties in carrying out inspections, the municipal employees refer to two important factors:
- breach of ethical norms of civil servant by some inspectors. This is reflected in the illegal demand of increased attention to the person: providing transportation, food, other expenses while locating in the municipality, as well as in excess of lawful authority and abuse - attempts to pressure and extortion;
- non-rational and ineffective distribution of timing and schedules for checking that cause unreasonable costs of municipal employee’s labor-time.
For their part, representatives of the inspection bodies have noted that the implementation of audit also face difficulties such as:
- misunderstanding and failure to execute functions and powers by members of the local self-government;
- ignorance of the law and other normative legal acts of the Kyrgyz Republic,
- lack of qualified professionals in the bodies of local self-government,
- no willingness to cooperate with the control authorities (avoiding meeting, busy staff of LSG);
- not law-abiding citizens (during the checks), which for example do not respond to the requests and others.
Settlement of disputes and conflicts with the inspectors during inspections and coordination of the results indicates that the majority of them are settled in places without the use of legitimate rights and standards set forth in the legislation. This demonstrates the manifestation of the principle of self-preservation, the unwillingness to spoil relations with the control authorities, which may adversely occur in the near future. In fact, examples of protest and disagreement with the results of inspections are minimal.
This whole situation is exacerbated by low skills and poor knowledge of municipal officials of the regulations, lack of sufficient attention by the authorized government agencies to enhance the capacity of municipal officials and leaders of local self-governments.
Ignorance and inability to apply the rules governing the rights and obligations ultimately generate abuses and search for own benefit in the course of inspections by the individual civil servants, the substitution of public interests.
The time has come to tell the truth and make a difference.
Thank you for your attention!
- Strategic and program documents
- Constitution and codes
- Decrees of the President of the Kyrgyz Republic
- Resolution of the Government of the Kyrgyz Republic
- Resolution of the Central Election Commission for Elections and Referendums of the Kyrgyz Republic
- Charter community, regulation of the village council