CC BY
24Makhmudov Firuz
Deputy Director of Center for Professional Training of Lawyers by International Standards, Independent Researcher ORCID: 0000-0001-9036-0277 E-mail: [email protected]
MANAGING CONFLICTS OF INTEREST IN THE PUBLIC CIVIL SERVICE AS AN EFFECTIVE MECHANISM TO PREVENT
CORRUPTION
Abstract: This article provides a scientific and theoretical analysis of the conflicts of interest, which is one of the most widespread forms of corruption and its causes. The content of current legal reforms in the fight against corruption in the Republic of Uzbekistan, as well as achieved indicators, are assessed on the basis of statistics.
The legal nature of conflicts of interest is analyzed on the basis of scientific views of national and foreign scholars, as well as a comparative analysis of legal norms. Taking into account the characteristics andperformance ofpublic service, the possible risks of conflicts of interest in the system, shortcomings and gaps in the legal system are examined, and mechanisms for eliminating them are described.
The article also provides a scientific and legal assessment of the causes of conflicts of interest in the public and private sectors, as well as commercial conflicts. The system of income and expenditure declaration is described as one of the key mechanisms in minimizing corruption and its other manifestations in the activities of civil servants.
Based on existing best practices of foreign countries, proposals and recommendations are made for the prevention of conflicts of interests in order to minimize corruption in the context of the Republic of Uzbekistan.
Keywords: corruption, conflicts of interest, public service, personal interest, public civil servant, administrative procedure, declaration of properties of public servants, lobbying, gifts for a public servant, types of corruption, officials.
Introduction
The purpose of the ongoing legal reforms in the country is to increase the prestige of the public service, reduce the gaps in the professional activities of public servants, strengthen the administrative and legal status of public servants, as well as prevent corruption and conflicts of interests.
In recent years, our country has been waging a fierce struggle to prevent corruption and its various manifestations. However, despite the implementation of large-scale legal reforms, there are some law-breaking conditions, and as a result, the country's anti-corruption indicators in international rankings do not increase enough. For example, if we analyze the situation of the last three years, in the Corruption Perception Index
2018, Uzbekistan increased 1 point compared with 2017 and earned 23 points out of 100 points, so the country's ranking dropped to 1 place, standing 158th out of 180 countries. Because of large-scale practical efforts in
2019, positive changes were seen in the work of the
country in this area. Uzbekistan scored 25 points in the Corruption Perceptions Index, ranking 153rd out of 180 countries [1].
It should be noted that if we look at the problem in detail and by the international rankings, the level of corruption in the country is still quite high. Therefore, the President of the Republic of Uzbekistan emphasized the early prevention of corruption rather than combating its consequences and proposed creating a specific body for it in the Address to Parliament [2].
In addition, in the state program for implementation of the National Action Strategy on five priority development areas of the Republic of Uzbekistan in 2017-2021 in the "Year of Science, Enlightenment and Digital Economy", a strategy for developing the public service of the country by 2030 was proposed.
Discussion
It should be noted that today, various forms of corruption exist in the life of the state and society. In particular, there are some types of corruption related
to conflicts of interest, which are mainly reflected in their negative impact on the organization of an effective public service. In most cases, corruption is assessed in terms of taking and giving bribes, mediating such actions, in general, in relation to money or material values. But, today, various forms of corruption, such as e-corruption, nepotism, cronyism, and conflict of interest, are also common.
According to the Law of the Republic of Uzbekistan "On Combating Corruption", conflict of interest is a situation in which personal interest (direct or indirect) affects or can affect the proper performance by a person of official obligations or duties and in which arises or may arise a contradiction between personal interest and the rights and legitimate interests of citizens, organizations, society or the state. Conflict of interest creates a conflict between personal interests and the rights of citizens, organizations, society, or the state.
Focusing on the definition, the Legislative Chamber prioritizes personal interest as the basis for the occurrence of a conflict of interest. It does not pay attention to whether it is direct or indirect, that is, it defines whether a personal interest directly related to the public servant or his relatives is the same. Indirect interest may be in the form of gifts (such as cheap sales, soft loans, and vacation vouchers) to the civil servant himself or his relatives and other acquaintances.
At the same time, we can see that this law sets out a number of measures to prevent and eliminate conflicts of interest:
Employees of state bodies while performing official obligations or duties should not allow personal interest, which leads or may lead to a conflict of interest;
> in the cases of a conflict of interest, government officials should promptly inform their immediate supervisor;
> the head, who received information about the presence of a conflict of interest, is obliged to take timely measures to prevent or resolve it;
> special units or ethics commissions of state bodies monitor compliance with rules for resolving conflicts of interest.
> employees of state bodies and their managers, who commit a violation of the requirements for prevention or settlement of conflicts of interest, are liable in accordance with the legislation [3].
It should be stated that the Legislative Chamber stipulates that conflicts of interest must be avoided, but in which cases a conflict of interest may arise, it is not indicated. This can be explained by the fact that the public civil service is very wide, and conflicts of interest can not be integrated into a single system.
Although the current legislation of the Republic of Uzbekistan does not specify the circumstances in which conflicts of interest may occur, based on the characteristics of the civil service, scientific literature, as well as the rules established by foreign laws governing conflicts of interest, conflicts of interest often occur when a public servant:
- performs certain functions of public administration for his relatives or other persons on the basis of personal interests;
- performs other paid work;
- possesses securities, bank deposits;
- receives of gifts and services;
- interacts with a former employer and gets a job after leaving the public civil service;
- violates the bans imposed on public servants.
As noted above, a conflict of interest is reflected in a conflict between the state, society and the personal interests of a public servant. A public servant does not perform his duties properly on the basis of personal interests and puts them at real risk. The legislation of the Republic of Uzbekistan does not link personal interests only with a person serving in the public civil service, the interest may be related not only to the public servant but also to his relatives, family members, acquaintances, or other business entities. The current legislation stipulates that a public servant informs an employer's representative or supervisor immediately if there is a possibility of a conflict of interest [4].
It should be noted that the responsibility for non-compliance with this obligation rests with the public servant. If there are serious consequences, sanctions may be imposed on public servants, from dismissal to criminal liability.
In this case, the presence of signs of corruption in the offense leads to criminal liability. Pursuant to the general requirement of the current legislation, if the actions of a public servant in connection with a conflict of interest show signs of a disciplinary offense, administrative offense, or criminal offense, the head of the public body must decide whether to impose disciplinary action or send relevant information to law enforcement agencies.
The shortcoming in this regard is that a public servant does not always inform about a conflict of interest, the current legislation does not provide clear mechanisms for determining the situation. For example, tax officials are assigned to the relevant areas and are required to conduct tax audits. In this area, a public servant, his relatives, or other acquaintances are engaged in entrepreneurial activities. And, this kind of situation puts the transparency of tax audits under real threat because of personal interests.
The activities of the public civil service are so broad that there is no real possibility to standardize the situations arising in connection with the conflicts of interest, but taking into account function performance of public servant, conflicts of interest often occur in the following situations:
- participating in the work of the commission on the supply of goods,
the performance of work, and the provision of services for public needs, including the placement of orders;
- making decisions on the allocation of budget funds, subsidies, and other limited resources;
- granting the right to enter into lease agreements for state-owned buildings;
- investigating the causes of damage to the property;
- protection of the rights and legitimate interests of other subjects in the state organization in which he operates.
In addition, some domestic scholars argue that it is necessary to distinguish the following situations which may lead to conflicts of interest:
- direct participation of officials, civil servants, deputies in commercial activities for personal or corporate interests;
- using official position to transfer public funds to commercial entities for the purpose of appropriation;
- providing benefits for their corporate (political, religious, national, etc.) group at the expense of state resources;
- using the official position to put pressure on the media for personal or corporate gain;
- the use of persons and relatives in commercial structures for the purpose of personal enrichment by officials and public servants;
- using the official position for manipulation of information (such as distortion, non-disclosure, and an extension of a deadline) for personal or corporate gain;
- promoting decisions on the adoption of regulations in the interests of a particular group;
- providing state financial and material resources to the election funds of individual candidates [5].
In addition, a conflict of interest occurs when a public servant participates in investment projects, tenders, and public procurement, as well as in various funds.
The introduction of transparency mechanisms in the public civil service to prevent corruption and conflicts of interest, which are widespread occurrences, is a crucial issue. In particular, familiarizing citizens regularly with the activities of the public servants, monitoring their
income, having access to information on employment and salaries in the public civil service, familiarizing with decisions affecting the interests of the individual and society are the key mechanisms for ensuring transparency.
According to the United Nations Convention against Corruption, the process of providing services in public bodies must be open and transparent, and that gifts and hospitality based on the interests of individuals and others must not affect the public servant's formal actions and decisions [6].
At the same time, some scholars argue that the system of property declaration of civil servants allows the minimization of conflicts of interest between different social groups and prevents corruption.
Conclusion and Recommendations
In this regard, in order to organize an effective public civil service, prevent corruption in the activities of public servants and conflict of interest, which is one of its manifestations, it is appropriate to make the following suggestions and recommendations:
First, it is necessary to pay serious attention to the adoption of laws and regulations that may lead to lobbying and corruption in order to improve the mechanisms for the examination of norms.
We know that the grounds, circumstances, and powers that give rise to many conflicts of interest are reflected in legislation or bylaws. For example, a public servant holds different positions simultaneously (the governor is the chairman of the local council and a senator at the same time, the members of the government are senators, and the ministers work as the chairmen of committees concurrently). Moreover, some legal situations, such as the monopoly of one state body and lack of mechanisms to appeal against its decisions (appealing against decisions and conclusions of the Constitutional court is prohibited), also have their own legal basis.
Besides, in the Law of the Republic of Uzbekistan on Administrative Procedures adopted on January 8, 2018, administrative voluntariness (discretionary authority) is the voluntary application or refusal to apply one of the measures taken by the administrative body on the basis of self-assessment of legality and expediency. This rule, that is, the voluntary decision of a public servant to apply one of the measures can also lead to a conflict of interest.
Therefore, firstly, Legislative Chamber should pay attention to the law-making process and try to avoid laws, which can lead to corruption situations.
Second, it is necessary to identify the areas of activity and positions of public servants most exposed
to the risk of corruption, as well as to form a list of their functions (powers), and develop measures against corruption crimes.
Third, it is expedient for the state to strengthen the process of declaring the income and expenses of public servants. It should be noted that it is likely that
public servants may evade the declaration system and transfer their property or other material values to other persons - relatives. Therefore, it is necessary to create a continuous declaration system, that is, State should check the basis of the property of the relatives of the public servant as well.
References:
1. Corruption Perceptions Index, Available at https://www.transparency.org/cpi2019
2. Address by the President of the Republic of Uzbekistan Shavkat Mirziyoyev to the Oliy Majlis. Available at: https://www.un.int/uzbekistan/news/address-president-republic-uzbekistan-shavkatmirziyoyev-oliy-majlis-0
3. Law of the Republic of Uzbekistan On combating corruption. Available at: https://lex.uz/docs/4056495
4. Resolution of the Cabinet of Ministers of the Republic of Uzbekistan of March 2, 2016 № 62 On approval of the Standard Code of Conduct for employees of public administration and local executive authorities. Available at: https://lex.uz/docs/-2911869
5. Ismailov B.I. Declaration of assets of officials in foreign countries. -T.: Academy of General Prosecutor Office of the Republic of Uzbekistan. 2019.
6. United Nations Convention against Corruption, Adopted by the UN General Assembly: 31 October 2003, by resolution 58/4 Available at: https://www.unodc.org/unodc/en/ corruption/uncac.html
