Integrity assessment (of Country St. Maarten) (1)

POSTED: 10/8/13 11:21 AM

What would a national integrity system assessment of St. Maarten look like? Critics of Transparency International’s reports say that the findings are to general; at times they have even been compared to “a refined Google search.” Below is part 1 of TI’s executive summary of the National Integrity system assessment of Curacao. It gives a pretty good idea of the results one may expect from a similar exercise in St. Maarten.

Corruption is rarely an isolated phenomenon found only within a specific institution, sector or group of actors. It is usually of a systemic nature and fighting it requires a holistic and all-encompassing strategy. This is why Transparency International developed the concept of National Integrity System (NIS) assessments in 2001. The purpose of a National Integrity System assessment is to assess systemic corruption risks faced by a country and produce a set of recommendations on how to mitigate those risks in the future. Those recommendations can then be used by actors in civil society, government and the private sector for promoting integrity and creating defenses against corruption in the country. In order to be effective and sustained, the prevention of corruption must be considered a responsibility of leaders and communities in all areas of society; it is task that falls on many rather than any one individual.

In 2012, Transparency International signed a grant agreement with the Government of Curaçao to undertake the National Integrity System assessment on the island. To date, assessments have been completed in more than 100 countries around the world, including in Latin America, the Caribbean, Europe, Asia and Africa.

The assessment focuses on an evaluation of the key public institutions and non-state actors in a country’s governance system with regard to (1) their overall capacity, (2) their internal governance systems and procedures, and (3) their role in the overall integrity system. The assessment examines both the formal legal framework of each pillar and the actual institutional practice. The analysis highlights discrepancies between the formal provisions and reality on the ground, making it clear where there are gaps in the integrity system. The assessment concentrates on the institutions at the country level, and only refers to the Kingdom level where this is thought to be relevant to improve understanding of the integrity system of the country as it stands today.

The assessment process in Curaçao has been consultative and seeks to involve key stakeholders on the island. Transparency International staff visited Curaçao in September 2012 and again in April 2013 to meet with the local research team and various experts from all of the principal institutions involved in the assessment. All discussions have been constructive and well attended by most stakeholders, who appeared to place high importance on the dialogue.

It is Transparency International’s hope that the Curaçao assessment will generate a set of concrete recommendations for the island’s key institutions and local actors to pursue in order to strengthen transparency, accountability and integrity. It should also provide a set of good governance benchmarks for the citizens of Curaçao to hold their government and elected officials to account through public dialogue, policy engagement and voting.

National Integrity System context

Any country’s National Integrity System is deeply embedded in the country’s overall social, political, economic and cultural context. In Curaçao, society can be characterized by the absence of a strong middle class, roughly dividing the country into ‘haves’ and ‘have nots’. The country is – or at least was in 2009 – also strongly divided over the desired level of influence the Kingdom is to have in local affairs, which clearly marked the following elections, and went hand in hand with a change in the political landscape. Political parties are not sufficiently able to effectively overcome these and other divisions in the political sphere. The dominance of party discipline governs both acts of Members of Parliament as well as those of the Executive, blurring the constitutionally-prescribed division of powers. As a result, the Curaçao National Integrity System contains insufficient safeguards to ensure that the rights of the usually large minority are adequately represented in the political sphere.

Prevailing ethics, norms and values are also not especially conducive to an effective National Integrity System, although the level of awareness of the importance of good governance is growing.

The level of interpersonal trust is not high. Although some do challenge breaches of integrity, in practice, due to the risks involved in naming and shaming and a fear of job loss, only a few people actually are willing and financially or otherwise able to do so. Those without a credible exit option, such as another job in Curaçao or abroad, or a sufficient amount of money, are not in a good position to challenge misconduct of those in power. As a result, accountability mechanisms in place are not sufficiently supported.

Moreover, whereas there are many allegations of corruption, hard evidence on the state of affairs of corruption in Curaçao is not available and there are few facts to provide insight into the extent and types of corruption. Therefore, Curaçao’s corruption profile is characterized by a gap between the perceptions of corruption on the one hand, and the amount of available, concrete evidence on corrupt practices on the other. This fuels distrust and undermines confidence in Curaçao’s integrity system.

The financial situation of the country is also not especially conducive to an effective National Integrity System, although recently important measures have been taken to restore fiscal stability and structurally improve the country’s public finances. Nevertheless, the country still faces important challenges, especially in the field of education and criminality.

The National Integrity System is characterized by the strength of three public institutions: the judiciary, the Ombudsman, and the supreme audit and supervisory institutions (public sector). However, their performance is weakened because of the weaknesses in other pillars. Most notably, shortcomings in political parties, which feed into the legislature, the Executive and the public sector, suggest critical deficiencies in the core of the National Integrity System. The private watchdog of the media magnifies the weaknesses, whereas the impact of civil society and business is difficult to measure.

Moreover, the Curaçao legislative framework is a fairly strong one, and further strengthened in the run-up to the constitutional changes in 2010. However, there are some weaknesses and there are considerable gaps between law and practice in several of the pillars, most notably those of Parliament, the Executive and the media.

The judiciary, the Ombudsman and the supreme audit and supervisory institutions (public sector) are three of the strongest institutions of the Curaçao National Integrity System. This finding is very important as it shows that the institutions which typically are entrusted to provide oversight and uphold the rule of law have relatively high levels of integrity. This study shows that they are largely independent and considered adequately resourced. They have the potential to effectively create a system of checks-and-balances over the public, private and social sectors of the country and serve as a key defense against impunity. Also, the instruction issued by the Kingdom Council of Ministers on the recommendation of the Board of Financial Supervision stands out as one of the few illustrations since October 2010 of effective oversight of the Executive’s activities in practice. However, this potential is undermined by weaknesses identified in other pillars. For example, even when court decisions and recommendations of the Ombudsman and the audit and supervisory institutions are effectively issued, the lack of enforcement or follow-up undermines their impact.

The assessment reveals that there are broader concerns as well about other pillars of the country promoting integrity, particularly those inputting into the political and electoral processes in Curaçao.

The electoral management body should be mentioned first because of its pivotal role in safeguarding the integrity of the electoral process. The assessment of this pillar stands out given the inverse gap between policy and practice. Whereas all other pillars score higher for law than for practice, the electoral management body showed the reverse; practice was far more positively assessed than the legal framework. While this is positive in certain respects, weaknesses in the legal framework remain an important concern. This is particularly troubling in regard to the insufficient legal safeguards that exist to ensure the body’s independence as well as provisions which provide any outgoing cabinet the opportunity to leave its mark on the body’s composition. This loophole was already identified in 2010 and has gained significance now that the electoral management body is also tasked with regulating candidate and political party finances. Until this is corrected, there exists the possibility that any party exiting power can exert influence over future elections and more broadly the political party system.

The weakness of the laws regulating the electoral management body is of particular concern given the governance challenges facing political parties. The assessment reveals that political parties are not functioning well and more often than not appear to represent the interests of their leaders and members rather than those of the electorate. There is also very limited transparency in political party financing. The legislation to regulate how parties are funded has been in place since 2010 but has not yet been effectively implemented. The law also contains significant loopholes and ambiguities which need to be addressed. As a result, political parties score particularly low on transparency and accountability. The level of integrity of political parties could not be scored due to a lack of sufficient information and response form the parties themselves. For this reason, political parties are in many ways one of the great unknowns within the integrity system of Curaçao. This should be of particular concern because they elect or appoint members to many of the bodies making up Curaçao’s constitutional system.

The weaknesses in Curaçao’s political parties in turn undermine the independence of both the legislature and the Executive. Although Parliament and Members of Parliament do act independently on occasion, this is considered to be significantly limited by party discipline. Consequently, the legislature is not sufficiently able to provide effective oversight of the Executive. This is especially worrying because, although there are comprehensive additional legal checks and balances within the country and the Kingdom to hold the Executive accountable, in practice these are not used very often or effectively.

The integrity of both institutions also requires attention. Parliament, for its part, lacks a code of conduct and there are no specific provisions related to reporting gifts and monies received from additional functions. When it comes to the Executive, there are more integrity provisions in place, including measures to ensure that ministers do not decide on issues where they might have a conflict of interest, such as when they involve a minister’s own business interests, that of a family member or other personal interests. However, monitoring compliance is not sufficiently provided for.

Tomorrow: Part 2 of Transparency International’s Executive summary.

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