QCOSTARICA — During his election campaign leading to the 2022 presidential elections, Rodrigo Chaves promised to follow a course of fighting corruption.
Contradictorily, the president’s proposals in his “Ley Jaguar’ (Jaguar Law) represent going in the opposite direction and going back some 75 years in the progress made in actions to monitor public spending and combat corruption.
This is the path taken, both in Costa Rica and internationally, to move from a rigid audit to a modern one. In Costa Rica, this began to be marked with the inclusion of the Comptroller’s Office (CGR) in the Political Constitution of 1949; which allowed the creation of an audit entity whose powers, by repeated rulings of the Constitutional Court, can only be strengthened and expanded, never cut or reduced.
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Internationally, the creation of the International Organization of Supreme Audit Institutions (Intosai), in 1953, would lead to the Lima Declaration, in 1977, considered the “Magna Carta” of government auditing. This was the fundamental step to move from quantitative control to modern control.
The professor of the School of Public Administration of the Universidad de Costa Rica (UCR), Rodrigo Rivera, warned that the development of not only the fight against corruption is at stake, but also the evolution of the control of public funds, which involve aspects of efficiency that are not limited to corruption.
“Control in the 1950s was only about legality, spending what was approved and not transgressing the allocations, that evolved into control bodies that can tell the administration that it should do things better,” he explained.
This evolution included concepts such as broad independence, prior control, control of legality and efficiency, the power of the control entities to prevent possible damage in the use of public funds, strict regulation so that public purchases are carried out under transparent procedures and the commitment that these norms would not be weakened; the reforms should be to strengthen them.
This situation was noted by the Comptroller General in its opposition to the project, stating that “it considers that the bill constitutes a regression in terms of prior and subsequent oversight, which undermines the guarantee of independence as a Supreme Oversight Entity, and the binding constitutional jurisprudence on the scope of our functions. This is because, since the Lima Declaration, the approaches to prior control, efficiency controls and regulations on administrative investigations have been fundamental for the evolution of modern oversight. The reduction of these powers, as proposed by the Jaguar Law, can be interpreted as a step backwards.”
In a similar direction, the Asociación Costa Rica Íntegra, a non-profit organization created in 2012 to promote transparency, issued a statement on the referendum, in which it warns that, given the increasingly frequent episodes of corruption, it is not convenient to weaken the regulations or the institutionality for the control of public resources.
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The Association also highlighted that constitutional principles and international conventions on the fight against corruption are threatened by the discretion that the referendum promotes in matters such as leases and strategic alliances, which would damage transparency and the system of controls.
In this sense, President Chaves’s argument in bill 24.364 that there are infrastructure works that cannot advance due to the objection of the Comptroller’s Office, for which he requests that the referendum “clarifies” to allow the development of works such as Ciudad Gobierno, the marina and the cruise terminal in Limón, and that the governors “be responsible for their actions” and the Comptroller’s Office not become co-administrator.
Part of Casa Presidencial’s argument also includes that no articles of the Comptroller’s Law or constitutional provisions are eliminated: this deliberately ignores constitutional jurisprudence, in the sense that control laws cannot be weakened, but they can be strengthened; Furthermore, this is a commitment assumed by Costa Rica in international agreements that it has signed.
In summary, the proposals of the Jaguar Law seek to cut, reduce or eliminate powers that the law granted to the Comptroller’s Office and that are in line with the evolution of oversight over 75 years. Almost a century of the fight against corruption would be reversed, with the justification of carrying out infrastructure works tailored to Casa Presidencial and without prior controls.
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The path to maturity in controls
Public spending controls have moved from quantitative approaches to efficiency approaches, in order to seek better use of resources, avoid government abuses and control and prevent corruption:
- 1949: The Constituent Assembly of Costa Rica included the Office of the Comptroller General of the Republic in Chapter II, Title XIII, Public Finance. Article 184 defines its duties and powers and includes “others that this Constitution and the laws assign to it.”
- 1953: The International Organization of Supreme Audit Institutions (Intosai) is founded in Havana as an autonomous, independent and apolitical organization.
- 1959: The third Intosai meeting in Rio de Janeiro includes topics such as control in the execution of development plans.
- 1977: The Lima Declaration, at the IX Inotosai summit. It is considered the Magna Carta of external government auditing and defines the principles for its effective operation. It revolutionized auditing by moving from error detection and quantitative emphasis to one aimed at improving administration, with an emphasis on efficiency and performance control. It deepened the relationship between prior and subsequent control, and formal and performance control.
- 1994: Costa Rica approved the Organic Law of the Comptroller General of the Republic, which incorporates concepts such as prior control, efficiency control for public funds and the power to make warnings, instructions and orders to the administration, as part of efficiency control.
- 1996: Inter-American Convention against Corruption (IACC), under the auspices of the OAS. Costa Rica signed it that year and converted it into law the following year. The signatories commit to create, maintain and strengthen different instruments, including higher control bodies, and develop modern mechanisms to prevent, detect, sanction and eradicate corrupt practices.
- 1998: Constitutional Court ruling 00998 states that the ordinary legislator may expand, clarify or complement the functions of the Comptroller’s Office, since they have constitutional status defined by article 184, but “may not reduce, diminish, suppress or attribute them to other public bodies.”
- 2003: United Nations Conference in Mérida culminates with the United Nations Convention against Corruption, with the aim of promoting measures to prevent and combat corruption more efficiently. It includes the adoption of standards to establish public procurement systems based on transparency and competition.
- 2007: Costa Rica ratifies the United Nations Convention against Corruption, which becomes Law 8557.
- 2018: In ruling 02396, the Constitutional Court established that legal reforms to the Comptroller’s Office that void the powers conferred by the original constituent are not valid. However, he also specified that “what the legislator could do is add other functions compatible or related to those that constitutionally correspond to it.”
Translated and adapted from the UniversidadSemanario.com article “Ley Jaguar retrocedería medio siglo de control de gasto público y lucha contra corrupción”. Read the original here.
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