Basic theories of openness, transparency and accountability in state governance and anti-corruption

Unlike t aditional gove nance cente ed a ound the state, he e the gove nment exe cises the ight to ule and to pass out se vices, and the public a e passive eceive s of such se vices, mod[r]

BAS C T EOR ES OF OPENNESS, TRANSPARENC

AND ACCOUNTAB L T N STATE GOVERNANCE

AND ANT -CORRUPT ON

Openness, t anspa ency and accountability a e the basic elements of good gove nance and p evention of co uption in gove nance Being studied fo a long time, they have become the popula p inciples applied in public gove nance and anti-co uption in the context of ne theo ies of gove nance that ackno ledge and inc easingly p omote the pa ticipation of people in gove nance Ho eve , some theo etical issues on this topic a e not cla ified and comp ehensively unde stood In

pa ticula , the e a e still many p oblems ofthese p inciples implementation in diffe ent

p actical contexts

This a ticle cla ifies the concepts, oles and conditions to ensu e openness,

t anspa ency and accountability in state gove nance (public gove nance) and anti-co uption It cont ibutes to the cla ification of some concepts and suggest a numbe of conditions to ensu e this implementation

Co cepts ofope ess, tra spare cy a d accou tab l ty state gover a ce

a d a t -corrupt o

Openness, t anspa ency and accountability a e long-standing concepts; ho eve , they have been studied ith inte est fo about 20 yea s along ith the eme gence and development of ne gove nance theo ies that emphasize coo dination, coope ation and pa ticipation of State and non-state entities in gove nance activities

Openness, in state management, is, in the o iginal sense, to disclose states info mation Acco ding to the Vietnamese Dictiona y, openness is “no hide, no secrecy

chool ofLaw, Vietnam National University, Hanoi

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

then lets everyone knows”1 Acco ding to this meaning, the La on Anti-co uption of

2005 stipulates that “openness means a state agency, organization or unit announces,

c al n mat n n c ta n cum nts, act t s c nt nts”2 I V et amese legal science, openness is basically unde stood in this meaning: “In the ope ation

of the state appa atus, openness means that all state activities must be published, disseminated and t ansfe ed on mass media, making it easy fo people to access state decisions ”3Ho eve , the implication of openness in gove nance has been expanding, not only the disclosu e of info mation, but also the public pa ticipation in gove nance The idea of building an "open gove nment”4is based on the disclosu e of info mation and people’s ability to pa ticipate in gove nance Openness in this sense is based on the cha acte istics of gove nance, namely: t anspa ency, accessibility and esponsiveness 5 Acco dingly, t anspa ency is a content of openness in an open gove nment model The e is no commonly ag eed definition oft anspa ency Instead, the e a e many app oaches that emphasize itsva ious aspects Acco dingto the Vietnamese Dictiona y,

t anspa ency is “appa ent and clea ”6 In this sense, t anspa ency means b inging something to light to make it clea , appa ent and unde standable In gove nance, this concept has been ecognized by non-gove nmental and t ansnational o ganizations since the ea ly 0s The c eation of T anspa ency Inte national and its activities have helped to define this concept and aise a a eness about it in the public and academics

T anspa ency Inte national as established ith the o iginal goal ofcont ibuting to the fight against co uption th ough activities ofassessing the impact and consequences of

co uption on citizens, making epo ts on count ies, and p oposing policy changes to fight co uption Thus, the o iginal idea of t anspa ency as associated ith the issue

of anti-co uption Inte national o ganizations and non-gove nmental o ganizations have been inc easingly inte ested in ensu ing t anspa ency th ough openness, f eedom

Nguyen Nhu (ChiefEdito ), Vietnamese Dictiona y, Vietnam National Unive sity Publishing House, Ho Chi

M inh City, 2007, pp 346

2Acco ding to the explanation of the te ms specified in Clause 2, A ticle 2 of the 2005 La on Anti-co uption The La on Anti-co uption 20 8 also p ovides a simila definition: “disclosing o f information and provision

of explanation for the organization structure, performance o f duties, entitlements and responsibilities of an organization during its operatio (Clause 4, A ticle 3)

3Nguyen Van Tiep, ‘Imp oving the Mechanism of openness T anspa ency in State Management’, no 05/20 3, Jou nal of State O ganization

4In this pape , the te m “Gove nment” and “State” a e used ith a simila meaning

5 OECD, ‘Mode nising Gove nment: The Way Fo a d’ (2005) <https:// ead oecd-ilib a y o g/gove nance/ mode nising-gove nment_ 78 2640 0505-en#page2> accessed 6 Septembe 20 ,2

6Nguyen Nhu (ChiefEdito ), Vietnamese Dictiona y, Vietnam National Unive sity Publishing House, Ho Chi Minh City, 2007, pp 037

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

of info mation, citizen’s pa ticipation, accountability and conflict of inte est as the equi ements to fight against co uption

T anspa ency has been inte p eted and developed by esea che s It is not only

a means of anti-co uption, but also a means to encou age gove nments to open, enhance accountability and to be conside ed as a value that needs to be included in policies and la s Finel and Lo d gave a ve y comp ehensive definition oft anspa ency:

“ ransparency comprises the legal political, and institutional structures that make information about the internal characteristics of a government and society available to actors both inside and outside the domesticpolitical system ransparency is increased by any mechanism that leads to the public disclosure of information, whether a free press, open government, hearings, or the existence of nongovernmental organizations with an incentive to release objective information about the government”1 Michell a gued that

t anspa ency constitutes the demand fo info mation, the ability of citizens to obtain info mation, and the p ovision and disclosu e of info mation by gove nments and non-gove nmental o ganizations 2

Resea ch on t anspa ency as o iginally associated ith inte national elations and the ope ation of non-p ofit o ganizations Afte that, t anspa ency has focused as

a solution fo gove nance, especiaily in the p ocess ofpublic policy making One ofthe

fi st studies on t anspa ency in gove nance conducted in 2000, by a g oup of schola s and p actitione s, as “T anspa ency in Public Policy: The G eat B itain and the United States” - a study compa ing t anspa ency in public policy in the United Kingdom and the United States By studying t anspa ency in the policy-making p ocess, esea ch on

t anspa ency has moved f om the idea of anti-co uption to a ay of managing the policy making p ocess Hien, many issues of t anspa ency in gove nance have been studied, such as t anspa ency in the use of public budgets and assets, t anspa ency in politics and administ ation T anspa ency has been linked closely ith disclosu e of info mation in gove nance In this espect, studies on t anspa ency in gove nance have added a ne dimension of t anspa ency hen placing it in opposition to “sec ecy” compa ed to the o iginal app oach on the “co uption”3

Fine!, Be na d L, and K istin M Lo d, ‘The Su p ising Logic of T anspa ency’ ( ) Inte national Studies Qua te ly43» no 2,3 5-33

2 Mitchell, Ronald B , ‘Sou ces of T anspa ency: Info mation Systems in Inte national Regimes’ ( 8), Inte national Studies Qua te ly42>no , 0 - 30

3 Ca olyn Ball, ‘What Is T anspa ency* (200 ), (4) Public Integ ity, 2 3-308 <https:// esea chgate net/ publication/250 74526_What_Is_T anspa ency> accessed 6 Septembe 20

T anspa ency is usually unde stood as the disclosu e and accessibility of gove nment info mation OECD defines t anspa encyas“the disclosu e and subsequent accessibility of elevant gove nment data and info mation” The Inte national T ade

O ganization (WTO) believes that ensu ing t anspa ency is based on th ee co e equi ements: (i) to make info mation on elevant la s, egulations and othe policies publicly available, (ii) to notify inte ested pa ties of elevant la s and egulations and changes to them; and (iii) to ensu e that la s and egulations a e administe ed in a unifo m, impa tial and easonable manne ,2 Kaufmann defines t anspa ency as he

“inc eased flo oftimely and eliable economic, social and political info mation, hich

is accessible to all elevant stakeholde s”3 Ho eve , the e a e diffe ent app oaches to

t anspa ency In gene al, the e a e th ee follo ing metapho s:4

First, t anspa ency is a public value o code of conduct to p event co uption In this espect, t anspa ency is achieved hen people have info mation, ensu ing open decision- making T anspa ency equi es the accountability of gove nments; the efo e,

t anspa ency must be egulated by a system of national and inte national ules

econd, t anspa ency is open management This app oach focuses on the p ocess

of administ ation management T anspa ency is about the ease of access and use of info mation by othe gove nment agencies and o ganizations The mo e open and mo e accessible it is fo the public to get info mation, the highe the t anspa ency Unlike the

fi st app oach that conside ed open policy-making to be a component of t anspa ency,

in this app oach, open policy-making has the same meaning as t anspa ency

hirdly, t anspa ency is complex and is elated pa ticula ly to policy-making

T anspa ency is complex because t anspa ency deals ith all issues of gove nance,

f om the acto s, decisions, and policy-making p ocess Mean hile, t anspa ency

is c eated in policy design, o in othe o ds, t anspa ency is pa t of good policy

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce _

https:// oecd o g/gov/open-gove nment htm accessed 6 Septembe 20

2Ana Beile & Danel Kaufmann, ‘T anspa enting T anspa ency* Initial Empi ics and Policy Applications’ The discussion pape p esented at the IMF confe ence on t anspa ency and integ ity,held on July6th-7th, 2005 chttps:// site esou ces o Idbank o g/INTWBIGOVANTCOR/Resou ces/T anspa enting_T anspa encyl7 005 pdf> accessed 6 Septembe 20

3 Kaufmann, D and K aay, A , ‘G o th Without Gove nance5(2002), Wo ld Bank Policy Resea ch Wo king Pape 2 28, Wo ld Bank; Kaufmann, D , K aay, A and Zoido-Lobaton, p , ‘Gove nance Matte s’ ( ), Wo ld Bank Policy Resea ch 2 6

4 Ca olyn Ball, ‘What Is T anspa ency’ (200 ), (4) Public Integ ity, 2 3-308 <https:// esea chgate net/ publication/250 74526_What_Is_T anspa ency> accessed 6 Septembe 20 , 302-303 https:// oecd o g/ gov/open-govemmenthtm accessed 6 Septembe 20

The efo e, th ough policy analysis and evaluation, policy make s cont ibute to the

c eation of t anspa ency

Accountability a ises in a elationship he e a pa ty (an individual o

o ganization) and the pe fo mance of tasks o functions by that individual o

o ganization, a e sub ect to anothe ’s ove sight, di ection o equest that they p ovide info mation o ustification fo thei actions OECD defines accountability as the gove nments’ esponsibility and duty to info m its citizens about the decisions it makes as ell as to p ovide an account of the activities and pe fo mance of the enti e gove nment and its public officials Hie concept of accountability involves t o stages: answerability and enforcement Ans e ability efe s to the obligations of gove nment agencies and officials in p oviding info mation about thei decisions and activities and ustifying those decisions and activities ith the public and the institutions of accountability Enfo cement suggests that the public o the institution esponsible fo accountability can impose sanctions on the agencies and officials that do not pe fo m,

pe fo m imp ope ly o cont a y to the above obligations, o othe ise fo ce them to

be esponsible fo thei misconduct Even the institutions of accountability have the same accountability as othe states agencies

Hie e a e many types of accountability: ho izontal and ve tical accountability; political and legal accountability; social accountability

Horizontal accountability is the accountability among state agencies, usually accountability befo e supe viso y institutions, such as the National Assembly, the Cou t, independent constitutional agencies These supe viso y institutions may question, impose and implement va ious measu es to handle i esponsible acts of public agencies and officials

Mean hile, Vertical accountability is the accountability of state agencies and officials to citizens, mass media and civil society Ho izontal accountability and ve tical accountability have ecip ocal and mutual suppo t Citizens and civil o ganizations can seek fo the suppo t ofsupe viso y institutions to esolve complaints and inte ventions

in case ofviolations of state agencies and officials Mean hile, th ough the use ofpublic hea ings, committee investigations o public petitioning, pa liament can give citizens and social o ganizations the ight to pa ticipate and question gove nment and seek

pa liamenta y sanctioning he e app op iate

_ Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

https:// oecd o g/gov/open-gove nment htm, accessed 6 Septembe 20

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

olitical accountability is distinguished f om Legal accountability Pa liament and Cou ts acts as ho izontal checks on the po e of the executive Ho eve , the gove nment is politically esponsible to pa liament, hile the udicia y holds the executive legally accountable Independent supe viso y institutions, such as state audito s, national anti-co uption committees, national human ights agencies, and ombudsman offices often exe cise legal ove sight ove the executive b anch, ho eve ,

in most cases, they have to epo t befo e pa liament, but they a e independent of the executive and the udicia y One sub ect ho exe cises supe viso y functions may still be supe vised by anothe Mean hile, one sub ect must be esponsible at the same time to many diffe ent sub ects Fo example, state agencies a e sub ect to

ho izontal supe vision of the institutions of accountability and ve tical sc utiny of the people

ocial accountability efe s to actions initiated by citizens to hold public officials and politicians to account fo thei conduct and pe fo mance in te ms of delive ing public se vice, p oviding elfa e and p otecting people's ights It involves citizens: gathe ing info mation about gove nment p og ams so that they have solid evidence; analyzing this info mation; and then using this info mation udiciously to di ectly engage ith public officials, politicians, and se vice p ovide s and demand that they

se ve the public inte est efficiently, effectively, and fai ly

In addition, the e is the concept of Diagonal accountability that allo s citizen

pa ticipation in the activities of ho izontal accountability mechanisms

Depe d go t ed ffere trelat o s ps,t eco te ta dmet odsofaccou tab l ty among the sub ects a e also diffe ent Fo example, supe viso y institutions must also be accountable like othe institutions, but based on some ofthe specific p inciples ofthese institutions, one of the most impo tant equi ements is to ensu e the independence of supe viso y autho ities In pa ticula , udicial accountability needs to be balanced ith and does not negatively affect the p inciple of udicial independence

L ks betwee d sclosure, tra spare cy a d accou tab l ty

Disclosu e, t anspa ency and accountability a e ecip ocal Disclosu e is a condition to ensu e t anspa ency and accountability Disclosu e and t anspa ency play

an impo tant ole in enabling people to pa ticipate in state management and calling fo accountability of public agencies and officials The influence and impact of disclosu e and t anspa ency a e assessed on the base of thei ability to p omote accountability

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

and public pa ticipation in gove nance, hile inc easing accountability ill motivate the gove nment to become mo e and mo e t anspa ent

Somerelated concepts

Disclosu e, t anspa ency and accountability a e ve y closely elated to human ights, especially ight to public pa ticipation and the ight to access info mation

he right to publicparticipation

The ight to public pa ticipation is a equi ement and content of disclosu e and

t anspa ency In othe o ds, ensu ing the ight to pa ticipation is also to ensu e disclosu e, t anspa ency and vice ve sa Public pa ticipation constitutes a social monito ing mechanism fo state agencies and officials Th ough public pa ticipation, people can seek the esponsibility of public agencies and officials

he right to access information

The ight to access info mation is a basic human ight that allo s people to kno , access, use and sha e the state info mation The ight to access to info mation can only be gua anteed hen the info mation of the state is available; the activities of state agencies a e t anspa ent and engage the people to pa ticipate In fact, the ecognition and development ofthe ight to access to info mation is ealized along ith the st uggle

fo disclosu e and t anspa ency in political life Confidentiality and sec ecy of public info mation have many negative impacts on society, so it is equi ed fo mo e open and t anspa ent gove nance Mean hile, ensu ing the accessibility of info mation ill enhance disclosu e, t anspa ency and accountability

he right to privacy, national secrets and restrictions on human rights

In gove nance, ensu ing disclosu e and t anspa ency is al ays in elationship ith p ivacy, national sec ets and othe human ights est ictions Disclosu e and

t anspa ency should be limited in necessa y ci cumstances fo the easons fo the

p otection of p ivacy, national sec ets and othe human ights Although inte national

la has egulations and guidelines on these issues, count ies still have ve y diffe ent ules about ho ell these elationships a e fo mulated

2 Position and role of disclosure, transparency and accountability in state governance andanti-corruption

Disclosu e, t anspa ency and accountability a e the main equi ements ofmode n gove nance/Good Gove nance Unlike t aditional gove nance cente ed a ound the

state, he e the gove nment exe cises the ight to ule and to pass out se vices, and the public a e passive eceive s ofsuch se vices, mode n gove nance is cente ed a ound the people In mode n and democ atic gove nance, the people plays an active and essential ole in all gove nance p ocesses, such as planning, p omulgation, decision making, and the implementation of policies and la s “Good Gove nance” is a novel ay of gove nance that has ecently become inc easingly popula and is actively p omoted by both egional and inte national development o ganizations Many economists believe that the effectiveness of economic efo ms depends st ongly elies on healthy and good political institutions The co e ob ective of good gove nance is to imp ove political institutions and to foste economic development Hence, it is based on institutional

p inciples and equi ements that p omote t anspa ency and educe co uption

Mo e specifically, Good Gove nance is based on the follo ing basic p inciples: the ule of la , t anspa ency, accountability, fai ness, se vice, efficiency and effectiveness, consensus, data and fo ecast based decision; t ust and pa tne -stakeholde equality in the gove nance p ocess

Disclosu e, t anspa ency, and accountability cont ibute to the building

of democ atic gove nance Democ atic Gove nance is the gove nance p ocess that p omotes the esponsiveness of institutions to p ovide equitable se vices to all Consequently, the public achieves a st ong consensus on policies and the implementation of such systems>la s and socio-political st uctu es The eby, esulting

in a society ith a high level of ustice, fai ness, human ights, and civil ights Policies and la a e implemented by a va iety of institutions: f om t aditional institutions such

as state agencies, political pa ties, to mo e dive se nont aditional entities in the p ivate secto and civil o ganizations In this sense, Democ atic Gove nance add esses the question of ho to o ganize a society to ensu e equality and fai ness fo all citizens2 Disclosu e, t anspa ency and accountability cont ibute to building t ust and positive attitudes of the people in the public autho ity Acco ding to the OECD Sec eta y-Gene al, disclosu e and t anspa ency a e conside ed pilla s of democ acy, t ust and development Theya e the essential conditions fo democ acies and ma ket economies 3

Noha El-Mika y và Ingvild Oia, ‘Unde standing and P og amming fo Linkages: Democ atic Gove nance and Development, Discussion Pape 8 Oslo Gove nance Cent e’ <http:// fes-globalization o g/ne _yo k/ ny„assets/p og ammingfo linkages pdf> accessed 6 Septembe 20

2http:// nyu edu/gsas/dept/politics/g ad/syllabi/G53 73 _cheema_f05 pdf, accessed 6 Septembe 20

3 Angel Gu ia, OECD Sec eta y-Gene al, ‘Openness and T anspa ency ~ Pilla s fo Democ acy, T ust and

P og ess’, <https:// oecd o g/about/sec eta y-gene al/opennessandt anspa ency-pilla sfo democ acyt ust

>!andp og ess htm> accessed 6 Septembe 20

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Ope ess>Tra spare cy a d Accou tab l ty State Gover a ce

Mean hile, accountability ensu es that state agencies a e esponsible fo fully fulfilling thei duties and esponsibilities in the ope ation of state agencies, meeting the needs and inte ests of the community, society and all people

Disclosu e and t anspa ency based on the access to info mation b ings the follo ing meaningful values to both the state and the people, specifically on the follo ing aspects:

articipation: F eedom of info mation foste s pa ticipation in the democ atic system Giving the public access to info mation about decisions, activities and policies

is a substantial step to a ds empo e ing them to take pa t in political dialogue and decision-making p ocesses

Increasingaccountability, limitingcorruption: Gove nments need to be accountable

fo thei actions and spending Allo ing access to this info mation puts a gove nment unde the sc utiny of the people and educes co uption Decisions a e fa mo e likely

to be ob ective athe than fo the benefit of specific inte est g oups T anspa ency not only c eates checks on hat is spent and he e, but it can also gene ate competition

a ound p ocu ement and makes fo mo e efficient spending of public esou ces

rust in government: Disclosing info mation to the public signifies a ‘nothing

to hide5attitude on the pa t of the gove nment Being able to access this info mation significantly educes suspicion and gene ates t ust in gove nment In count ies moving

f om ep essive egimes to democ acies, disclosing info mation up also c eates an obvious and necessa y b eak f om the past

Adhering to the rule of law: Publishing info mation on la s and policies is key to ensu ing that people unde stand them and obey them - disclosu e in this sense has a

di ect impact on the ule of la

Making government work better: The p ocess of o ganizing info mation and making it accessible actually assists in gene al info mation management as it equi es good inte nal info mation systems In a sec etive gove nment, public officials have

1Da bishi e, H , ‘P oactiveT anspa ency, The futu e ofthe ight to info mation? A evie ofstanda ds, challenges, and oppo tunities’ Gove nance Wo king Pape Se ies, Wo ld Bank Institute <http://site esou ces o ldbank

o g/WBI/Resou ces/2 37 8- 25 0 53 325/65 8384- 268250334206/Da bishi e_P oactivelT anspa ency pdf> accessed 6 Septembe 20 ; Banisa , D> ‘F eedom of Info mation A ound die Wo ld 2006: A Global

Su vey of Access to Gove nment Info mation La s’, P ivacy Inte national (2006) <http:// f eedominfo

o g/documents/global_su vey2006 pdf> accessed 6 Septembe 20 ; Mendel, T , Freedom of Information: A Comparative Legal urvey (2008, UNESCO, Pa is)

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

little idea about hat info mation the administ ation holds, and this inc eases the

t ansaction costs of gove nment business An effective info mation svstem means that gove nments have a bette handle on the info mation that they possess Policies and decisions a e mo e info med the efo e and suited to the population’s needs

Access to services: Gove nments a e bette able to info m citizens about the

se vices they p ovide so that citizens kno hat these se vices a e and ho to access them This not only benefits individual citizens, but is also a ay fo the gove nment to display the tangible steps it is taking fo its constituents, and this is evidence of positive change fo vote s

Open Gove nment based on disclosu e and t anspa ency is a ne and mo e efficient ay fo the state to gove n and fo citizens to exe cise thei citizenship It makes su e that gove nments and citizens actually o k togethe to achieve bette outcomes fo all and to find the solutions to the most p essing gove nance challenges Open gove nment c eates value fo gove nments, citizens and the p ivate secto :2 Benefitsfor governments: open Gove nment help the State manage and allocate esou ces mo e effectively Th ough open data and info mation systems, as ell as

th ough t anspa ency in gove nment ope ations and t ansactions, gove nment can build a st ong foundation fo optimal use of esou ces and enhanced efficiency

Benefits for citizens: open gove nments a e built on obust and inclusive engagement bet een citizens and gove nments Fluid t o- ay communication bet een citizens and gove nments allo s gove nments to bette unde stand citizens’

t ue needs and to espond to those needs Fu the mo e, it facilitates gove nments and citizens to build t ust ith each othe and to o k togethe in the gove nance p ocess Disclosu e and t anspa ency in gove nance p omote development th ough enhancing the state’s ability to p ovide citizens ith p oducts and se vices that citizens need and dese ve Most of the gove nance issues elated to the ights and inte ests of the people The efo e, t anspa ency and disclosu e allo people to supe vise gove nance activities

to ensu e that they a e not abused in a ay that does not se ve o against the ights and inte ests of the people

Benefits for the private sector: By c eating mo e disclosu e and t anspa ent

http:// openinggove nment com/, accessed 6 Septembe 20

2 Robe t Hun a, Felipe Estefan, ‘Joseph Mansilla và Ke ina Wang, Openness ĨS the Key to Effective and Inclusive Development” (20 4) <https://biogs o ldbank o g/gove nance/openness-key-effective-and-inclusive-đeveỉopment> accessed 6 Septembe 20