As COVID-19 continues to spread across the globe, nations are scurrying to direct their limited resources towards evolving an effective public healthcare response. In the process, many governments have begun to institutionalize their relief funding. Beyond their corporate veils, these funds largely constitute an aggregation of tax revenue and voluntary public contributions. It is thus imperative that states managing these critical resources are subjected to reasonable checks and balances. Without checks in place, vulnerable governance structures can serve as potentially fertile ground for vested interests and ineffective policy outcomes. Even more importantly, any potential misappropriation of critical resources in current times can have serious human rights implications.
Unfortunately, state practice appears to exhibit a consistent pattern of preferring lax regulatory frameworks for relief-funding. Such tendencies undermine oversight measures and inhibit public scrutiny of government actions. This piece seeks to articulate the prevailing oversight issues across three differently-structured relief funds, as they exist in the United States of America, India and Pakistan.
Structures Of Relief Funding
While the US has adopted a statutory mechanism through the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Indian government has chosen to give PM-CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund) the identity of a charitable trust. The Pakistani government, on the other hand, has set up the Pandemic Relief Fund- 2020 as a bank account in the state-owned National Bank of Pakistan. Owing to the varied legal identities, oversight mechanisms differ in each of these jurisdictions.
Besides Congressional checks, the US has provided jurisdiction to statutorily appointed Inspectors General to audit the $2 trillion relief-package through two institutions: the Special Inspector General for Pandemic Recovery (SIGPR) and the Pandemic Response Accountability Committee (PRAC). In stark contrast, both the South-Asian jurisdictions have ousted the authority of their constitutionally-appointed independent auditors, namely the Comptroller and Auditor General of India and the Auditor General of Pakistan.
Rather, Pakistan intends to appoint private entities to conduct audit of its relief fund. In India as well, the government has taken the same path. The marginal difference is that while Pakistan plans to appoint multiple private firms, including multinational entities, the Indian government prefers a particular domestic entity. More importantly, broad guidelines regarding the procedure of appointment of these auditors are palpably amiss in both nations, leaving much to the discretion of respective national governments.
Information Disclosure Practices
Irrespective of their structure, all these oversight frameworks are heavily reliant upon executive cooperation to ensure transparency. In this aspect, one can find convergence between the three governments, all of whom seem to extend a cold shoulder to transparent reporting of finances.
In the case of the US, the preliminary report of the audit already voices “concerns over the lack of transparency and accountability.” The recent determination made by General Counsel of Treasury prompts Division-A funds, meant for economic stimulus and health care spending, to be excluded from audit. This in turn keeps roughly $1 trillion outside the bounds of PRAC’s jurisdiction. As for the portion of funding over which PRAC can exercise jurisdiction, concerns over insufficient data to conduct an audit have been raised. The White House maintains that shortage of time warrants detailed reporting procedures to be dispensed with. The same, however, potentially circumvents the statutory obligations of the executive and even violates legislative intent of the law.
The much-cited, rather classic, reason to forgo independent oversight – that commitment to transparency frustrates economic resources and time – stands negated by modern public policy theory. Evidence-based studies establish that a general increment in openness shares a positive correlation with policy measures. Rather, moving too quickly can often prove self-defeating for policy goals. This can be evidenced by the first report of CARES Act as issued by the US Government Accountability Office (GAO). It reveals that more than a million economic stimulus payments amounting to $1.4 billion dollars went to ineligible individuals who were actually dead.
Pakistan’s government has come under fire for reasons of transparency as well. The nation’s Supreme Court has taken up suo motu cognizance of the matter. It reportedly held that the government is managing the fund without any standard operating procedure, and the fund therefore remains in complete absence of any information disclosure mechanism. Also, concerns have been expressed over the manner in which resources are being devolved towards provinces. A particularly worrisome finding of the court is that certain finances in the form of zaqat (donations) which were to be utilized for substantive relief were wrongfully directed to finance expenses of the administration. To quote the Supreme Court’s Chief Justice, “there is no transparency to be seen in any of the step(s).”
In India too, disclosure practices have met with an evasive reception. The nation’s Right to Information Act requires the state to release information surrounding public interest to its citizens. However, recently, the Prime Minister’s Office ruled that PM-CARES Fund does not fall within the dragnet of the law, by reasoning that the fund is not a “public authority” within the meaning of the legislation. This effectively implies that the government is neither liable to disclose aggregated details of the fund’s value nor required to give an account of how the fund’s money would be spent.
In terms of the fund’s management, the Prime Minister is the chairperson, while the Ministers of Defense, Home Affairs and Finance are its ex-officio trustees. Moreover, the administrative responsibility of the fund rests upon the officials working for the Prime Minister’s Office. In such light, jurisprudential foundations of the assertion that the fund is not a public authority seem to be legally suspect.
There exists a pressing need to strengthen existing mechanisms that subject executive control over relief funds to continued check. Towards this end, we must acknowledge the potential role of legislative bodies and binding international law framework.
Specialized legislative committees can prove to be an effective watchdog for transparent relief funding. As was seen recently, the US Congressional Oversight Commission was able to successfully negotiate disclosure of previously withheld aggregate details concerning the $349 billion Pay Protection Program. In India and Pakistan, however, the already established Public Account Committees are yet to convene any substantive proceedings over relief-funding. A more active approach on their part can have far-reaching consequences towards ensuring financial and performance audits.
Due consideration must also be accorded to binding international law obligations. The United Nations Convention Against Corruption (UNCAC) mandates “…effective and efficient systems of risk management and internal control…” The convention also requires the participation of society towards “…ensuring that the public has effective access to information.” These treaty obligations bind the convention’s 187 signatories, including India, the US, and Pakistan. For the enforcement of these provisions in spirit, groundwork needs to be laid down through legislative and judicial mechanisms.
The practice of responsible information disclosures not only enhances public confidence in a state’s pandemic relief effort, but also facilitates harmonious participation of civil society in the process of investing community resources. In these challenging times, the same can go a long way towards securing desirable healthcare outcomes.