Argentina. Conflict of Interest with high officials
Por Lucio Maria Fabani Larrañaga
Conflict of interest, there’s nothing more ordinary in our lives than having to deal with opposing interests. It exceeds the government or corporate worlds. It comes from much beyond, from the depth of our roots, because we are naturally individuals. We regularly deal with different interests, sometimes we may incline the balance to satisfy our own personal interests; sometimes we cannot, either because of law, custom, practices or other requirements that recommend us going for other valuable interests in pursuit of a group or a more general welfare. Taking the right decision when dealing with opposing interests is not easy task. As a matter of fact the burden may be quite heavy when the battle goes around government officials’ personal interests and those of the Government or State they are supposed –and obliged- to protect.
Let’s see what recently happened in Argentina. The newly appointed President was involved in a huge scandal around a litigation (a sort of Chapter 11) involving the former concessionary of the official national mail service (Correo Argentino), a business owned, administered and under the responsibility of President’s family. The pressure of the media and the opposing political parties was of such a nature that compelled the same President, in a wrongly move from an integrity perspective, to undo specific procedural steps that originally affected the Government rights. It was too late to revert things back. In addition, as a way to address the compliants from unsatisfied citizens, the President swiftly issued two decrees, National Decree 201/2017, and National Decree 202/2017. Basically the Procurador del Tesoro (responsible of the legal representation of all legal matters concerning the National Government) and the Anti-corruption Office were ordered to be notified and get involved in all litigation -the first one- and all public bids, contracts, permits, authorizations -the second one- when there might be a potential conflict of interest between the President, Vice-president or its Cabinet with the interests they represent and are obliged to protect.
Fast measures do not necessarily lead to good outcomes. There’s no question that both measures served to hold back a twitchy mass of people eager for a deeply positive change for Argentinean institutions. Unfortunately the opportunity to take a step further in this field may have been lost. The Government missed the chance to heal the wounds opened back in 2013 when the National Congress – with the initiative of the former Government- suppressed the National Commission for Public Ethics (Law 26,857), an independent institution chartered with the duty of reviewing, assessing and even sanctioning deviations from government officials in terms of corruption, ethics, conflict of interests, etc.
It’s rather questionable that institutions hierarchically reporting within the same Executive Branch like the Procurador del Tesoro or Anti-corruption Office assess any conflict of interest of the nature of those involving the Nation interests and the President, Vice-president and Cabinet. The sole circumstance that the Procurador as the Official Anti-corruption are appointed or removed by the President or members of the Cabinet is strongly enough to confirm that we cannot expect true independence when those individuals are called to opine on interests involving its master in chief. As said during the old Rome, “Caesar’s wife must be above suspicion”, when talking about public figures, there must not be a mere doubt of potential wrongdoings.
Besides the lack of independence it’s unfortunate that Argentina did not take advantage of years of experience coming from different parts of the world. As a matter of fact “self disclosure” from high officials would have helped in resolving conflict of interests as there’s no one more suitable to raise the hand when facing a challenge than the same official. A self-disclosure regime may serve as an early warning tool to detect conflict of interests in advance. Charging on Procurador’s back the burden to identify conflicts of his or her boss or from members of the Cabinet may be like jumping through hoops with endless investigations and defocus from main legal responsibilities.
There’s no grayer zone than the one we see with conflict of interests. Wrong decisions, hurried rulings or lack of transparency when dealing with opposed interests may hinder any country’s ability to strengthen its institutions and keep credibility within the international community.
This note contains a personal opinion and does not necessarily represent that of my employer. In writing this opinion I am not representing nor acting on behalf of my employer.
[Publicado originalmente no LinkedIn]