Systemic persistence of transparency deficiencies in the decision-making of the Moldovan Government (April 2012-October 2014)

Systemic persistence of transparency deficiencies in the decision-making of the Moldovan Government (April 2012-October 2014)

Systemic persistence of transparency deficiencies in the decision-making of the Moldovan Government (April 2012-October 2014)[EN]
Persistența sistemică a carențelor transparenței decizionale în Guvernul RM (04.2012-10.2014)[RO]
Стойкость транспарентности процесса принятия решений системных недостатков в Мексиканском Заливе[RU]

 


SYSTEMIC PERSISTENCE OF TRANSPARENCY DEFICIENCIES IN THE DECISION-MAKING OF THE MOLDOVAN GOVERNMENTa (April 2012 – October 2014)

Executive Summary

In the monitoring period, there took place 97 meetings of the Cabinet of Ministers that discussed around 2,260 subjects.j The total number of subjects that did not fully observe the decision-making transparency requirement (the 15 day term for consultation or the 3 day term for verification before the meeting) represents at least 48% - which is an unchanged and unimproved situation since the previous report.

Trend of monitoring conducted:

Monitoring period I

Monitoring period II

Monitoring period III

18 April 2012 – 27 Feb 2013

5 June 2013 – 30 Dec 2013

1 Jan 2014-31 Aug 2014

 

 

 

39 meetings, 860 subjects

30 meetings, 706 subjects

28 meetings, 694 subjects

 

 

 

Main conclusions:

1. Failure to observe the consultation requirement at the decision drafting stage.

733 or 32.4% (30% - in the previous report) of the subjects put on the agendas of Government meetings did not fully observe the consultation procedure, i.e. were not identified on the website of the responsible institution and the portal  www.particip.gov.md or were not posted for a 15 day term as provided by the Law on Transparency in Decision Making. Perhaps, the number of decisions failing to meet the transparency requirements is even higher because there are other provisions of the law not observed. Of them, 489 subjects, or 21.6% (18.4% in the previous period) of the total, were draft legislative and normative acts, and 244 subjects, or 10.8% of the total, were advisory opinions to the legislative acts initiated by the members of the parliament. See more in section 4.1.

2. Transparency requirement avoided via the procedure of endorsing legal acts initiated by MPs. For this category of decisions, there is currently no single decision-making transparency mechanism in place. Hence, the central public authorities avoid subjecting such endorsements to the transparency procedure, thus promoting onto the agenda of the Cabinet of Ministers important draft laws unsubjected to the transparency procedure. The monitoring identified complex draft laws and sectorial regulations that most likely had been prepared by ministries and subsequently promoted as initiated by MPs, thus avoiding the consulting procedure at the ministry level. In the NPC opinion, all the endorsements are required to go through the transparency procedure. See more in the section 4.2.

This is the number of subjects indicated on the Government website (http://www.gov.md/sedinte.php?l=ro&idc=495). De facto, some subjects could be removed and other entered into the agenda during the meetings.

3. Failure to meet the transparency requirements at the decision-making stage: For 723 subjects, or 32%, the 3 day term for communicating the subjects and sending out the materials for the Government meeting was not observed. Of them, 597 subjects, or 26.4% of the total, were announced additionally on the day of the meeting, or after working hours in the evening before the day of the meeting. This practice is becoming already traditional, complicates the monitoring of transparency in decision-making, does not enable the stakeholders check to what extent the final draft act reflects the consultation results, and reduces the trust of the civil society and the potential of cooperation for improving the transparency and the quality of this process. Other 126 subjects, or 6.25%, were put on the agenda during the meeting of the Cabinet of Ministers at the initiative of ministers. Other 32 subjects (1.5%) were included on the agendas of the Government meetings of 12 June 2013 and 21 July 2014, without making a relevant announcement in this sense or sending out relevant materials. See more in section 4.3.

4. Systematic practice of failing to subject acts to the anticorruption expertise is attested by the fact that over 9% of the drafts liable to this procedure had not been sent for expert examination by the authors and were included in the meeting for examination by the Cabinet of Ministers without having conducted the mandatory anticorruption expertise. The RIA was missing in over 60% of the drafts liable to this procedure. None of the individual privatization decisions (putting public property into use) followed the transparency requirements. From the transparency perspective, a clear involution in all cases. See more in sections 7.1 and 7.2.

5.Possible causes that explain the lack of full transparency that persist in decision drafting and making: Implicit interpreting of exceptions from the decision making transparency procedure; Ambiguity and declarative character of the requirements for transparency in decision-making; Inefficiency and unclearness of the mechanisms for invalidating decisions in the conditions of non-observance of transparency requirements (by establishing the superior body and at the stakeholder’s request); Inefficiency of the mechanisms of individual accountability for failure to observe the transparency requirements; Inadequate capacities for observing the transparency requirements (skills, technologies); High costs for conforming to the transparency requirements. The political influence determines the failure to observe the transparency requirements. See more in section 6.

6.The Government rejected the proposals for amending and strengthening the transparency in decision-making during 2014,the reasons invoked were procedural, not substance-related. See more in section 7.

7.  Main recommendations:

- regulatory (the specific proposals can be found in the text of the report):

1) Introduce the obligation of the body that adopts the decision or of its highest body to examine ex officio the observance and conformity to the requirements of transparency in decision drafting or making;

2) Assure the right of interested/referred to/affected parties to notify the body responsible for decision drafting or passing or its highest body, as necessary, about the failure to observe the positive transparency requirements and obligations, including the efficient remedy that would require the responsible body to comply with the transparency requirements;

3) Provide individual disciplinary and other types of sanctions for violating the transparency requirements;

4) Apply the transparency in decision-making requirements for the Government’s advisory opinions to the acts initiated by MPs.

- Capacity-building:

1) Assign a unique code to each draft act to facilitate the traceability of the draft act;

2) Develop a new IT infrastructure environment that would facilitate covering the entire process of initiation, drafting consultation, and making of decisions according to the existing positive practices;

3) Include feasibility studies, RIAs, anticorruption expert examinations, and other relevant materials in the package of additional materials for the Government meetings.

- Specific for the privatization process, RIA, and anticorruption expertise:

1) For privatizations, the law on transparency in decision-making shall be observed: posting the announcement of intention and the invitation; publishing the decision on the applicants selected for participation with reasoning; publishing the final decision and the sale contract with the implementation clauses; publishing the periodical reports and relevant decisions for the post-privatization monitoring.

2) For RIA: subject the decisions and opinions of the Commission for regulating the entrepreneurship to the transparency in decision-making procedure; creating a dedicated website (www.air.mec.gov.md or www.mec.gov.md/air); communicate the agenda and the materials related to the decision as well as invite the stakeholders, at least 3 days prior to the date of the Commission’s meeting; post the final decisions on RIA with the amendments made and their reasoning to the respective website, posting periodical monitoring reports on implementing RIA by the Government and Parliament.

4) For the anticorruption expertise: none of the normative acts shall not be accepted for approval by the Cabinet of Ministers without the anticorruption expertise; the term of anticorruption expertise by the National Anticorruption Center shall be observed; the entire set of documents related to the normative act shall be posted to be website of the Cabinet of Ministers and of the authority responsible for preparing the draft normative act.

 

Share: