Turkish Court of
Prepared for ECOSAI Ist Seminar ( 26 - 27 May 1997, Turkey)
I - INTRODUCTION
1. Supreme audit is part of the public administration of every sovereign country. It is almost impossible to imagine a well functioning system of public administration without type of accountability that the supreme audit ensures.
However, supreme audit, which is also called state audit by some authors, varies from one country to another as a result of the historical background of the relevant country as well as its political, legal and cultural climate. Accordingly, name, structure, powers, and functions of the Supreme Audit Institution (SAI) of each country differs from one another. This spectrum of varieties should be considered as the riches of the audit world. It is this colourful fabric of international practices that nourishes the ideas in a national framework which eventually evolves into new audit techniques and approaches.
2. Nevertheless, it must be stated here that the supreme audit as a concept includes some unchanging elements in its definition, and as an institution has some features common to all SAIs. These common features are the outcome of long historical experiences of all countries
3. This paper first briefly discusses the basic characteristics of the supreme audit and the Supreme Audit Institution, then highlights the concept of independence, and finally explores issues associated with independence. When discussing the essential features of supreme audit and particularly the issue of independence, the paper initially refers to the relevant INTOSAI documents and the professional Literature, then, where appropriate, touches on the Turkish experience.
II -BASIC CHARACTERISTICS OF THE SUPREME AUDIT
4. The development of modern supreme audit can be traced back to the eighteenth and nineteenth century, and coincides with the decline of the powers of absolute monarchies and the rise of popular democracies. As the democracy developed deeper and wider, the need for accountability of State organs to the public became indispensable.
5. From this brief historical account one can deduce that the raison d’être of Supreme Audit Institutions is the need for accountability of the state organs to the parliament and public. Therefore the primary aim of supreme audit is to ensure public accountability. Furthermore, it should uphold and promote it.
6. In the XVI th Conference of Commonwealth Auditors General held in Lahore, Pakistan accountability was defined as ‘’the process by which public service bodies and their staff are responsible for their management of public funds, their actions and decisions including all aspects of performance and submit themselves to appropriate external scrutiny.’’
7. The SAI should be entrusted with certain powers and provided with some special features in order to attain this aim and to fulfil its other mandates properly. It is not possible to prescribe a recipe to satisfy the needs of every SAI as there are many variables arising from each country’s constitutional, legal and other circumstances. However, it can be safely stated that there is a common agreement on the following.
8. In many countries Supreme Audit function and its Institutions are specified in the Constitutional framework. Constitutional statute of Supreme Audit is generally accepted as one of its main features.
9. This feature is attributed a special significance also by INTOSAI. The Lima declaration, which is also called the Mange Carta of supreme audit, states that the establishment of Supreme Audit Institutions and necessary degree of their independence shall be laid down in the Constitution The need for constitutional basis of Supreme Audit Institutions is also mentioned in INTOSAI Auditing Standards.
Activity sui generis
10. Most authors assert that the SAI cannot be put under any one of the three traditional powers, namely legislative, executive and judiciary. In fact supreme audit is considered as an activity sui generis, distinct from other forms of government checks and controls because of its position, aims and also, sometimes its techniques.
11. A direct corollary of the sui generis nature of the supreme audit, is its external character. In order to assure accountability of the executive to Parliament , supreme audit is to be carried out by auditors not connected or related to the executive branch of the government.
12. The Lima Declaration defines the external character of the supreme audit by comparing it with the internal audit. It states that ‘’ Internal audit services are established within individual agencies and institutions, whereas external audit services are not part of the organisational structure of the institutions to be audited.’’
Objectivity and impartiality
13. Objectivity and impartiality are the inherent qualities of the supreme audit which are of course subsets of the independence. INTOSAI Auditing Standards states that ‘’The SAI must be, and be seen to be, objective in its audits of entities and public enterprises. It should be fair in its evaluations and its reporting of the outcome of audits.’’ This general standard also implies that the SAI’s objective and unbiased audits will contribute to its credibility and public image.
14. Competence may be considered another important characteristic that adds value and credibility to supreme audit. INTOSAI Auditing Standards emphasise the fact that both the auditor and the SAI must possess the required competence. These Standards also state that the SAI should be equipped with the range of skills and experience necessary for effective discharge of its audit mandate. Whatever the nature of the audits under that mandate, the audit work should be performed by auditors whose education and experience is commensurate with the nature, scope and complexities of the audit task. As for the SAI, it should provide itself with the full range of up-to-date audit techniques and methodologies.
15 It is considered that the most important feature of supreme audit is independence. It is the key concept of the successful supreme audit. Some authors think that the degree of SAI’s independence is the phenomenon that makes modern supreme audit unique. Supreme audit is generally subject to major public interest and concern. The SAI always runs into risk of controversy and confrontation as a result of its work. Consequently, every SAI needs the strength and support of independence for fearless and effective functioning. It is also necessary for retaining the confidence of Parliament and the public,.
16. The public would like to know whether government funds are being handled properly in compliance with the existing laws. Moreover, today, in developed and developing countries the public is interested in information about the use of public funds as whether government programs are being conducted efficiently and effectively. They want this information provided by an independent and objective institution which is independent of the executive. This necessitates an independent SAI which can be impartial in its opinions, judgements and recommendations.
17. According to the Lima Declaration Independence is a Sine Qua Non Feature of SAIs because“(they) can fulfil their tasks objectively and effectively only if they are independent of the audited entity and are protected against outside influence.”
III - FACETS OF INDEPENDENCE
18. The principles of independence was first codified in the Lima Declaration, and has been developed since then by various INTOSAI Congresses. INTOSAI Auditing Standards, an important document which addresses independence in a very detailed manner, was adopted at the Washington Congress in 1992.
19. There are various classifications for Independence of the SAI in the professional Literature. Here we will discuss the concept of independence from organisational and functional, personal and financial stand points:
ORGANISATIONAL AND FUNCTIONAL INDEPENDENCE
Independence vis-a- vis Parliament
20. Most SAIs work on behalf of the Parliament. The legislature is one of the main users of SAI’s services .This does not mean that they should be attached to the Legislature in any way. To enjoy its independence fully the SAI should be organisationally separate not only from the executive branch of the government but also from the legislature.
21. On the other hand, the SAI can be expected to work closely with the legislature, however, adequate independence requires that it should not be subject to any directions by the legislature in the programming, planning and conduct of audits. The freedom should be given to the SAI to set priorities in programming its work in accordance with its mandate.
22. As regards the organisational and functional independence, the Turkish Court of Accounts ( TCA) is equipped with some guarantees. TCA is not subject to the directions of Parliament in planning and conducting its audit work. The elements of TCA’s organisational and functional independence can be listed as follows:
specification of functional responsibilities and the position of auditors and other personnel, establishment of auditing groups are decided by the President of TCA,
Independence from executive
23. In the framework of the SAIs’ independence it is important that there should be no influence of the executive on the SAI in relation to the conduct of its mandate. This aspect is strongly emphasised in the INTOSAI documents. It is stated that the SAI should not be obliged to carry out, modify or refrain from conducting an audit or suppress or modify audit findings, conclusions and recommendations because of any kind of influence of the administration. The rationale behind this rigid rule is rather obvious: the SAI should maintain its credibility with Parliament.
24. As to the TCA’s position, there are no rules that jeopardise its independence. Conversely, TCA has an important power: On the issues related to TCA’s own activities the General Assembly of TCA may decide instead of the Council of Ministers.
Free access to information
25. Another salient component of the organisational and functional independence is the free access to information. The auditor should not be hindered to obtain any information whatsoever needed for accomplishing his or her examinations. Even possible or real danger to the security of the state or damage to the peace and welfare of the people or any such pretext .should not be considered as an acceptable reason for not furnishing required information to the auditor. As well put in INTOSAI Auditing Standards, “the legal mandate should provide for full and free access by the SAI to all premises and records relevant to audited entities and their operations and should provide adequate powers for the SAI to obtain relevant information from persons and entities possessing it.”
26. TCA’s power in this context is believed to serve it adequately to carry out its work. TCA has a right of access to information. TCA can question responsible officials orally or in writing. At any stage the authorised audit personnel of TCA have the authority to examine records of goods, properties, activities and services of government offices and of the other institutions under TCA jurisdiction. The accounts of all entities within its jurisdiction have to be submitted to TCA. Moreover, The Law specific to TCA provides the right to access to all sort of information and documents possessed by the entities outside its jurisdiction, if needed for its audit.
27. Reporting, in broad sense, is submitting audit findings together with auditors’ evaluations to the relevant authorities, usually in a written form. It is an important component of the audit function. Freedom of reporting would mean freedom to decide what to include in the report, how to put audit findings into words and when to submit them. Publishing audit reports may also be considered within the boundaries of this freedom. However, reports on programs and projects in such high-profile areas as defence, education, health and employment brings the SAI face-to-face with matters of major public interest and concern.
28. It is stated in INTOSAI Auditing Standards that SAIs’ reporting to the legislature without restriction on content and timing of reports would support the maintenance of independence. There is no doubt that it is appropriate for legislation to specify minimum reporting requirements, including the matters subject to an audit opinion and a reasonable time within which reports should be made.
29. In this field TCA enjoys some remarkable privileges. TCA produces two types of external reports: the statement of general conformity, and other reports to Parliament. The time for submission of the Statement of General Conformity is stated by the Constitution. The Constitution and the TCA Law do not establish any restrictions for the Statement of General Conformity other than its timing. As for the other reports to Parliament, there are no restrictions at all. In other words the timing, format and content of these reports are determined by TCA itself.
30. INTOSAI Auditing Standards addresses the issue in paragraph 72 and 73 observing the structural difference between the monocratic and collegiate SAIs. It states that: “ Conditions of tenure for the head of the SAI can contribute to the SAI’s independence from the executive , for instance through appointment for a lengthy fixed term or until a specified retirement age. Conversely, tenure conditions which put an SAI under pressure to please the executive would have an erosive influence on independence . For this reason it is in principle desirable that provisions relating to the termination of appointment or removal from office should be exercisable only by special process akin to that relating to the holders of judicial or like office” ( Par. 72 ) “ For those SAIs which exercise a jurisdictional function and which are most frequently organised in a collegial form, the independence of their members should be assured by various guarantees, particularly the principle of irremoveability of judges, the privilege of jurisdiction, the determination of the treatment by the law, and the independence of the examining magistrate.” (Par. 73)
31. The independence of Supreme Audit Institutions is closely linked to the degree of the independence of its president and staff. The procedure for appointment and removal from office is of vital importance, not only for the independence embracing these officials but also for the organisational independence. It is always desirable that appointment or removal from office should be laid down in the law.
32. The President and Members of TCA are elected by Parliament without any intervention of the executive. Professional staff other than the President and Members, i.e auditors are appointed by the President of TCA. The President and Members cannot be dismissed from office and cannot be retired before the age of 65. TCA Law stipulates a special disciplinary and penal investigation for the President and Members which is akin to supreme judges. It also specifies that the auditors enjoy disciplinary and investigation procedures similar to those applied to magistrates.
33. Financial independence requires that the administration should not impose any undue limitations on both preparation and implementation phases of the SAI’s budget. The SAI should be provided with the financial means to enable it to fulfil its tasks. Any limitation on the SAI’s budget is a constraint upon its work and its independence. Of course absolute budgetary freedom is not possible. It depends on the budgetary and economical balances of each country. Another important point ,in this connection, is that the SAI should be entitled to spend out of the funds allotted to it under a separate heading in the budget of the State.
34. TCA fully enjoys the financial independence.
IV- CHALLENGES AND RESPONSIBILITIES OF SAIs
Absolute freedom is impossible
35. As it is underlined by the Lima Declaration , absolute freedom is impossible in the context of SAI. In fact the SAI cannot be absolutely independent, because it is a part of the state after all. It will be adequate if the SAI is given the functional and organisational independence required to fulfil its tasks. Some modifications may be acceptable as long as the core issues are recognised and attained in practice.
Only rules cannot guarantee independence.
36. On the other hand, independence is not a matter to be ensured merely by laws, rules or standards. Rules may provide independence but cannot guarantee it. Independence is rather a state of mind not a collection of written rules and procedures. The SAI itself should appreciate the value of its independence and should be determined to make best use of it in its work. The quality of work produced by the SAI should clearly reflect that it enjoys indigence to serve only the public interest and the needs of proper accountability for public funds. The recognition and support which the supreme audit has won by its past activities is the greatest safeguard of independence.
The SAI needs allies
37. Furthermore, the SAI needs allies in order to secure and retain its independence. Especially support from parliament, parliamentary committees, members of parliament and the public is almost indispensable. The SAI may also win support from the departments, agencies and other entities it audits. The support of latter should not be considered as a negligible matter.
38. As stated in the INTOSAI Standards the SAI should not only exercise its function independently of the executive but it should also be seen to do so. It is important that its mandate and its independent status be well understood in the community.
Refrain from exaggerated perception of independence
39. Independence of supreme audit should not isolate it from outside world in particular from the auditee. It is to be emphasised that independence does not mean an adversary relationship between the SAI and the auditees. Collaborative spirit must be the governing rule. Good relations can help the SAI to obtain better results. In short, SAIs should be in a close but not cosy relationship with the audited entities.
Sensitivity to special issues
40. Full right of access to information requires that the SAI should show care and confidentiality in handling the information obtained.
41. The SAI’s reports, especially the published ones, should present the facts and their assessment in an objective, clear manner and should not deviate from the essentials. Audit reports must be understandable and reader friendly However effective and thorough the auditing may be, it will not contribute much unless the message of the audit report register in the minds of the addresses.
V - CONCLUDING REMARKS
42. In the words of a colleague, “independence is both servant and master in shaping the SAI’s discharge of its responsibilities.’’ To be independent is a great privilege, but this privilege creates a great responsibility on the part of the SAI. To assist legislature and other governing bodies in holding the government accountable for its managing of public funds, to promote transparency and good governance and therefore democracy and to combat corruption by well performed and reported audits are some of the responsibilities that the SAI assumes.
43. We should consider our independence together with our own accountability to the public. We must be sure that the funds entrusted to us are not only used properly but also with economy, efficiency, effectiveness.
If we are going to criticise others for poor management of funds we should get our own house in order first and set an example.