Giving below only the definitions of Lokpal and Use of Terms of UNCAC. The scope of UNCAC is surely far and wide than Lokpal. Once UNCAC is ratified the power to arrest the corruption is more effective than Lokpal. Lokpal basically can dig out the past corruption cases whereas UNCAC has the singular capability to prevent corruption.
However I am in full support of Anna Hazare on his endeavor to enact Lokpal Bill. The announcement by PM Manmohan SIngh on 21st April 2011 to ratify UNCAC is a welcome step in the right direction. Please also see the video on the scam levels here in India that the video calls the country as ‘Indian Republic of Scams’, as provided by IAC – India Against Corruption, a group of eminent men and women of India who have taken a lead in eradication of corruption.
[State Party in this context is India]
2. Definitions:- In this Act, unless the context otherwise requires,-
(1) “Action” means any action taken by a public servant in the discharge of his functions as such public servant and includes decision, recommendation or finding or in any other manner and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly;
(2) “Allegation” in relation to a public servant includes any affirmation that such public servant-
(a) has indulged in misconduct, if he is a government servant;
(b) has indulged in corruption
(3) “complaint” includes any grievance or allegation or a request by whistleblower for protection and appropriate action.
(4) “corruption” includes anything made punishable under Chapter IX of the Indian Penal Code or under the Prevention of Corruption Act, 1988;
(5) “Government” or “Central Government” means Government of India.
(6) “Government Servant” means any person who is or was any time appointed to a civil service or post in connection with the affairs of the Central Government or High Courts or Supreme Court either on deputation or permanent or temporary or on contractual employment but would not include the judges.
(7) “grievance” means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration;
(8) “Lokpal” means
a. Benches constituted under this Act and performing their functions as laid down under various provisions of this Act; or
b. Any officer or employee, exercising its powers and carrying out its functions and responsibilities, in the manner and to the extent, assigned to it under this Act, or under various rules, regulations or orders made under various provisions of this Act.
c. For all other purposes, the Chairperson and members acting collectively as a body;
(9) “Mal-administration” means action taken or purporting to have been taken in the exercise of administrative function in any case where,-
a. such action or the administrative procedure or practice governing such action is unreasonable, unjust, oppressive or improperly discriminatory; or
b. there has been willful negligence or undue delay in taking such action or the administrative procedure or practice governing such action involves undue delay;
(10) “Misconduct” means misconduct as defined in CCS Conduct Rules and which has vigilance angle.
(11) “public authority” means any authority or body or institution of self- government established or constituted—
a. by or under the Constitution;
b. by any other law made by Parliament;
c. by notification issued or order made by the Government, and includes any body owned, controlled or substantially financed by the Government;
(12) “Public servant” means a person who is or was at any time,-
(a) the Prime Minister;
(b) a Minister;
(c) a Member of Parliament;
(d) Judges of High Courts and Supreme Court;
(e) a Government servant;
(f) the Chairman or Vice-Chairman (by whatever name called) or a member of a local authority in the control of the Central Government or a statutory body or corporation established by or under any law of the Parliament of India, including a co-operative society, or a Government Company within the meaning of section 617 of the Companies Act, 1956 and members of any Committee or Board, statutory or nonstatutory, constituted by the Government;
(g) Such other authorities as the Central Government may, by notification, from time to time, specify;
(13) “Vigilance angle” includes –
(a) All acts of corruption
(b) Gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible/public interest is evident; failure to keep the controlling authority/superiors informed in time
(c) Failure/delay in taking action, if under law the government servant ought to do so, against subordinates on complaints of corruption or dereliction of duties or abuse of office by the subordinates
(d) Indulging in discrimination through one’s conduct, directly or indirectly.
(e) Victimizing Whistle Blowers
(f) Any undue/unjustified delay in the disposal of a case, perceived after considering all relevant factors, would reinforce a conclusion as to the presence of vigilance angle in a case.
(h) Any other matter as notified from time to time by Lokpal
(14) Make unfair investigation or enquiry to either unduly help culprits or fabricate the innocent.
(15) “Whistleblower” is any person who faces threat of (1) professional harm, including but not limited to illegitimate transfers, denial of promotions, denial of appropriate perks, departmental proceedings, discrimination or (2) physical harm or (3) is actually subjected to such harm; because of either making a complaint to Lokpal under this Act or for filing an application under Right to Information Act.
Article 2. Use of terms
For the purposes of this Convention:
(a) “Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public of every kind, whether corporeal or incorporeal, movable or immovable, tangible or intangible, and legal documents or instruments evidencing title to or interest in such assets;
(e) “Proceeds of crime” shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence;
(f) “Freezing” or “seizure” shall mean temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;
(g) “Confiscation”, which includes forfeiture where applicable, shall mean the permanent deprivation of property by order of a court or other competent authority;
(h) “Predicate offence” shall mean any offence as a result of which proceeds have been generated that may become the subject of an offence as defined in article 23 [Article 23. Laundering of proceeds of crime] of this Convention;
(i) “Controlled delivery” shall mean the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence.
4 thoughts on “Lokpal ~ UNCAC Definitions Compared”
Thank you Sir. You seem to have the full bill Ready and Re-drafted.
IMHO and it is my thought whether the LOKPAL responsibilities be tri-furcated.
1. Dealing with Elected Representatives, Officials and Legal bodies.
2. Dealing with the Corporates. I wish to refer to the PACI initiative of the World Economic Forum here – http://www.weforum.org/issues/partnering-against-corruption-initiative as many corporates subscribe to this worldwide.
3. Dealing with the Media and the Civil Society, NGOs and local bodies.
Two pennies for my thoughts.
As I have been stressing from the beginning, UNCAC must be ratified and Lokpal will be part of UNCAC under Article 6 Preventive anti-corruption body or
1. All will be covered. No exception. Elected representatives are the trustees of the people. All the three wings of the govt. Legislature, Judiciary and Executive Branch are answerable to the people. All the three have only fiscal responsibility, meaning they get paid for the job they are entrusted with and answerable for all their actions.
2. As the report says: more than a $trillion are paid as corruption, Corporate is the main culprit. UNGC must be adopted by all companies and Principle 10 would address the issue raised by you. UNCAC has a separate chapter for private sector. I want not just 8600 companies, as of now but every company to come out with a Balance Sheet of sustainability values adhering to UNGC. I must be posting my blog in a couple of days time on this issue. I did see the report on Corporate Sustainability by KPMG that I tweeted: @PBBsRealm This survey amazes me: singularly bereft of Sustainability of values.
3. I am of the opinion and strongly recommend media, NGOs, Civil Societies and local bodies are brought under UNGC 10 principles. Each is an organization and no one can take cover under any pretext as to the sustainability of values.
I saw the tweet from: @vinaytalwar Vinay Talwar: Kaushik Basu, Chief Economic Advisor’s take on corruption by ‘civil society’ – ‘harassment bribes’ http://bit.ly/g3TJiD Kaushik Basu’s analysis of harassed and non-harassed bribes can be studied and it is an interesting one that should be adopted immediately. However I disagree with him that corruption cannot be prevented. It can be prevented, anywhere in the world. The $trillion amount will be available for the World Economy.
Lokpal Bill draft I saw has been done in a shabby manner. UNCAC is the most well crafted instrument and Lokpal Bill must be part of it without any tinkering to show the genius of some lawyers. All the three areas you have indicated have a slot in UNCAC and in fact more comprehensive in very many areas like Asset recovery and laundering of proceeds of crime.
I am indeed grateful for your thoughts that I value indeed immensely.
Thank you for reminding your readers how essential is the fight against corruption. IMHO it should be core to any business social responsibility strategy. It’s important that national initiatives (not only for businesses obviously) aim to strengthen existing international guidelines and agreements. Companies should clearly explain wether their anti-corruption management systems adhere to international reporting frameworks such as ICGN or, as mentioned in your last comment, the United Nations Global Compact. The Global Reporting Initiative (GRI) offers an additional reporting framework that many companies already use (not as extensively as they should in terms of detailed content). What strikes me is that even companies that openly report on the GRI SO2, SO3, SO4 and SO8 indicators related to the fight against corruption, rarely mention corruption as a relevant material issue in their sustainability reports. Many companies don’t report at all anyway on those indicators. It’s particularly alarming in some sectors such as construction, defense or capital goods. It may be the word “corruption” itself that those companies don’t want to see printed in their sustainability reports, even if they actually have anti-corruptions measures in place (code of conduct, training, risk analysis software etc…). It’s especially clear in the case of companies that believe that their sustainability or corporate citizenship report is only a pretty marketing brochure.
Very true, the reluctance to exemplify the word ‘corruption’ for fear of losing contracts with the government. Middle order companies must take a call and lead on this area declaring that they would do business only with those companies and government contracts who can be counted as top-order in Principle 10 of UNGC which is anti-corruption. Big companies are worried because of their overheads being pretty heavy.