The Constitution and oversight over public funds [Archives:2008/1142/Opinion]

March 31 2008

Dr. Yousef Al-Wafi
High-level monitoring is known to be practiced by any high-ranking authority that is constitutionally and legally in charge of practicing oversight over public funds irrespective of its terminology, or the way it is established or organized. Such a senior governmental body is delegated the power to oversee how the state's public budget is spent and then provide exact information to Parliament, tasked to approve this budget and its final accounts, or the Cabinet that is responsible for overseeing performance of executive offices, or to both Parliament and the government at the same time.

Information provided by such an oversight body relates with how public funds are managed or spent. This means that the power and responsibility of fighting corruption must be delegated to a high-ranking or senior body, due to be constitutionally established and then run by an autonomous judicial staff. Oversight is part of the process of fighting corruption.

First: There must be a constitutional provision stipulating establishment of high-ranking body to oversee public spending and combat corruption. Undoubtedly, Constitution of the Republic of Yemen is pondered upon as the most sublime legislation in the country. If the Constitution stipulates forming a high-ranking board or body to practice oversight over public spending and fight corruption, as well as inaugurate branches in the various governorates, this will constitute the basic guarantee for maintaining continuity, independence and effectiveness throughout the process of fighting corruption and overseeing how public funds are spent.

The relevant constitutional article must be interpreted into the establishment of real and effective body with full administrative and financial autonomy because stipulating independence of the oversight body in the constitution is more powerful that doing the same thing in another ordinary law. Another reason for this is that other laws are often exposed to amendments and annulments.

The constitutional article concerning the establishment of a high-level or senior body to oversee public spending and limit spread of corruption appears to be in line with agreements and recommendations reached by some international organizations. These organizations stress the necessity of the Constitution stipulating and approving high-level oversight over public funds and how they are spent.

Lima Declaration of 1977, Tokyo Declaration of 1985, Bali Declaration of 1988, Beijing Declaration of 1991, Banjul Statement of 1993, New Delhi Declaration of 1994 and Cairo Declaration of 1995 all helped several Arab and western states understand the constitutional role in specifying high-level oversight, and its objectives and scope.

For instance, Article 47 of the French Constitution stipulates that Parliament and Cabinet shall pledge assistance to the Accounts Court in executing funding-related laws and legislations. In Germany, Chapters 121 and 128 of the Constitution enacted in 1948 determine the jobs delegated to the Accounts Court, its formation and the responsibility of its chairman.

In Jordan, the government established an accountability divan in 1952 in accordance with Article 119 of the State's Constitution that reads, “An accountability divan shall be formed by a relevant law to oversee the state's revenues and how they are managed and spent.” In Tunisia, Chapter 57 of the State's Constitution enacted in 1957 stipulates the establishment of an accountability circle to be in charge of revising and auditing state's accounts and then submit reports in this regard to President of the Republic and Parliament.

Second: judicial autonomy of the oversight body concerned with fighting financial corruption. We see that judicial autonomy is prerequisite to ensure that the relevant body oversees public spending and combats all the forms of corruption. At this point, the main objective is to ensure that financial oversight bodies are run by an effective judicial system that grants broad powers and guarantees to judges in order to be more able to combat corruption, control public spending and restrict financial violations.

The accountability circle is thought of as the highest financial oversight body and enjoys broad judicial and administrative powers to perform its duty. A prominent example in support of this exists in Algeria where the accountability board enjoys judicial and administrative powers while practicing oversight over public funds and spending.

Third: financial oversight and fighting corruption in Yemen. In our country, oversight of public funds is practiced by Central Organization for Control & Audit, established by a relevant law in 1992 as an agency made up of senior or high-ranking staff experienced in practicing oversight over public funds and fighting corruption, but its autonomy is moral.

In addition, more or less the same job is practiced by the Supreme National Anti-Corruption Authority, established by the Law No. 29 as a senior national autonomous body delegated broad legal powers to fight corruption and crack down on corrupt individuals.

The main objective of establishing these agencies is to oversee public funds and how they are spent, however, Constitution of the Republic of Yemen doesn't stress the necessity of their being judicially autonomous.

Source: Al-Thawra State-run Daily.