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OBSERVATIONS ON THE COMMENTS FORMULATED BY THE UNITED STATES OF AMERICA AND THE ARGENTINE REPUBLIC

a.  OBSERVATIONS ON THE COMMENTS FORMULATED BY THE UNITED STATES OF AMERICA

A2. This kind of progress has already been dealt with in the body text of other Reports. Additionally, the comment is short and to the point, in that what it demonstrates is the initiative of the country undergoing analysis to remedy the shortcomings of the current Civil Service Law. Irrespective of this, we will accept a Recommendation from the Committee on this point.

A3. We will accept the recommendation formulated in this regard, particularly regarding the publication of the parts of the Post Classification Manual that it is determined that state employees and the general public should be aware of.

As regards the different notifications recommended, these are a part of procedures set out in the Law on Administrative Procedure, other laws, and regulations; these laws are known to the general public by reason of their publication. In procedural matters, the word “notification” means to tell interested parties about a resolution adopted during a formality or matter; thus, the word “inform” or communicate” should be used instead.

A4. We will accept a recommendation from the Secretariat or the Committee, as appropriate.

As regards the recommendation, we believe that the General Internal Control Standards contain adequate provisions for checking the transparency of competitions and the other components of a professional career regime and that the internal auditing units and other oversight bodies involved in those processes can and must assume that function; nevertheless, we will accept the recommendation made by the Committee as regards the analysis of those systems.

A5. There are no distinctions. Employees are appointed by agreement or by means of professional service contracts or interim contracts.

A6. We agree with the comment. It should be noted that the preference given to current employees or those on service is based on the protection of those employees and their continuity within the administrative career. Moreover, the State is also obliged to protect its civil servants within the administrative career, in compliance with the terms of Article 256, last paragraph, of the Constitution of the Republic.

As regards the different processes for candidate selection – the judicial branch, for example, through its Selection Tribunal, carries out the selection process by means of competitions for jurisdictional positions; these entail several phases, including merit-based competitions, the results of which are published so that all the candidates are duly informed. It should be noted that judicial experience is not a determining factor.

A7. We agree with the comment as regards the age of the Law. In the specific case of our country, the authorities have decided it is necessary to modernize the system and make substantial reforms to the regime or system.

A8. Other Reports have already commented on this and included it in the structure of the Report’s contents. We will accept the Committee’s decision.

A9. As regards the notification of the results of bid assessments, in the comments we have offered and that are also related to Recommendation 1.2.1 c of Section I of Chapter III, we note that bid assessments are confidential and not for public use. (Article 6 of the Law, and Article 12 of its Regulations.)

A10. We agree with the comment. But in addition, the country also has internal audits and external controls and external supervisors for its work projects.

A11. We agree with the comment in that it is a sound practice, but since it “is not a matter related to corruption or transparency” we request the deletion of this paragraph.

A12. We agree with the comment and request the deletion of that paragraph.

A13. Same remark as given with respect to comment A10.

A14 to A16. We note our concern in that the content of these comments does not necessarily reflect the reality of the country, as we stated in our comments on the draft Report drawn up by the Secretariat

A17. We believe that certain types of progress have already been considered in the structure of Reports dealing with other analyzed countries.

A18 &

A19. As stated in section 2.3, increases or itemizations of reports of acts of corruption, in addition to confidence in the system, we believe that these are the result of effective compliance in protecting the identity of informants.

The term “dealt with” means: processed to conclusion or resolution.

A20. The comment is appropriate; nevertheless, if the Committee has specific recommendations in the wording of a given rule or provision, and these are admissible, as in the case at hand, we see no reason why they should not be accepted, since their implementation is practicable.

A21. In a public or private bidding process there can be no negotiation, since it is bound by the terms offered in the bids.

A22. The comment is appropriate. The country has parameters that restrict that ability.

A23. The comment is for the Committee Secretariat. However, in Honduras the awarding resolution must be grounded; in other words, the reasons why the winner was selected must be specified.

A24. We agree that the recommended mechanism is not contained in the vast majority of statutes. The State designates supervisors for works and projects through competitive procedures, and oversight of execution is the task of the Internal Auditors and the Superior Court of Accounts, as the body charged with controlling public resources. As in the United States of America, challenge procedures are provided for.

A25. The comment is appropriate.

A26. We will accept this only if the recommendations in question correspond to the elements set out for the acts of corruption described in Article VI of the Convention.

A27. We believe the Secretariat is clear in detailing progress with implementation of the recommendations; nevertheless, we will accept the suggested change, provided that it does not affect the content of replies given in the questionnaire and that the change in format is applied equally to the other countries undergoing analysis.

A28. In the recommendations served on our country, it was suggested that in order to comply with them, consideration be given to specific measures; thus, the ordering of observance of those measures means that the recommendations were duly addressed by the relevant authorities.

A29. The Rules of Procedure on the Integration and Functioning of the Probity Committees came into force on April 19, 2006. By June 30 of that year, thirty-seven (37) Committees had been set up at centralized and decentralized agencies and within municipalities. A copy of these Rules of Procedure was attached to the response to the questionnaire, along with details on how these Committees are being set up.

A30. Same reply as to comment A8.

b.  OBSERVATIONS ON THE COMMENTS FORMULATED BY THE ARGENTINE REPUBLIC

1.  CONCLUSIONS AND RECOMMENDATIONS:

III. CONCLUSIONS AND RECOMMENDATIONS REGARDING IMPLEMENTATION OF THE PROVISIONS OF THE CONVENTION SELECTED IN THE SECOND ROUND

Based on the review of Chapter II of this report, the Committee makes the following conclusions and recommendations with respect to the implementation, in the Republic of Honduras, of the provisions indicated in Article III(5) (systems of government hiring and procurement of goods and services); Article III(8) (systems for protecting public servants and private citizens who, in good faith, report acts of corruption); and Article VI (acts of corruption) of the Convention, which were selected in the context of the second round

1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III, PARAGRAPH 5 OF THE CONVENTION)

1.1. Government hiring systems

The Republic of Honduras has considered and adopted measures designed to create and strengthen civil service hiring systems, as stated in Chapter II, Section 1.1. of this report.

In view of the comments made in that section, the Committee suggests that the Republic of Honduras consider the following recommendations:

1.1.1 Taking the existing proposed law into account, strengthen public hiring systems for executive branch employees and officials. Promote the effective implementation of the Civil Service Law and its Regulations, and review the consistency of the civil service hiring system for Executive Branch employees and officials with the National Constitution, International Human Rights Treaties signed by the Republic of Honduras and the Inter-American Convention against Corruption. To implement this recommendation, the Republic of Honduras could consider the following measures:

COMMENT FROM THE REPUBLIC OF ARGENTINA:

When amending the recommendation as indicated above, a comment should be added in section “1.1.2. Adaptation of the legal framework and/or other measures,” before the specific analysis of each system:

“In this respect, as a general observation regarding the current legal framework, the Committee notes that there may be certain inconsistencies between constitutional provisions adopted since 1982 and legal systems preceding that date that, formally, remain in effect. This would be the case with the Civil Service Law (Decree Number 126 of 1968), its Regulations (Agreement Number 175 of 1976) and the Judicial Career Law (Decree Number 953 of 1972).

Something similar might occur with legal systems approved after 1982 that, in some parts, substantially reproduce measures provided in the aforementioned systems. This would be the case of the Labor Law for Legislative Branch Employees (Decree Number 151 of 1993); the Regulations for the Judicial Career Law; the Statute on Careers in the Public Prosecutions Office; and the System Governing the Career of Officials and Employees of the Court of Accounts.”

Consequently, later we suggest eliminating recommendation 1.1.7. on “implementing the law as soon as the proposed law takes effect”. (see page 11 herein)

Observation on the Comment: We find no inconsistency between the cited constitutional provisions and the different systems or legal regimes adopted since 1982, and those prior to that year, in that they remain in force and their observance is obligatory; in addition, they are not in conflict with the terms of the Constitution.

a)  Amend the Civil Service Law and its Regulations to ensure that those wanting to join the civil service have the same opportunities, eliminating the preferential treatment given to those who already are or have been government employees. Amend the Civil Service Law and its Regulations to ensure equity among those applying for a civil service position, ensuring that no provision will distort the application of objective criteria of suitability in the selection of the employee; in particular, weigh experience in civil service as one more factor among many of equal or greater importance, according to the hierarchy of positions established in the Job Classification Manual and the operational advisability of issuing vacancy notices open to the general public or restricted to those already in the civil service (see Chapter II, Section 1.1.2 of this report).

Comment: This replacement of the original measure is admissible.

COMMENT FROM THE REPUBLIC OF ARGENTINA:

We suggest substituting the recommended measure for the formula used above.

b)  Establish provisions requiring publication of the Job Classification Manual so that the major requirements for the positions can be consulted by anyone wanting to enter public service (see Chapter II, Section 1.1.2 of this report).

c)  Establish provisions specifically granting the Civil Service Board, as the agency responsible for hearing and resolving disputes with respect to decisions made by the General Directorate, the power to invalidate the results of a particular selection or take pertinent measures when the law has been violated or there has been some irregularity (see Chapter II, Section 1.1.2 of this report).

d)  Require a person selecting a specific candidate to leave a written record justifying his decisions in those cases where the positions are filled through Competitive Comparison of Employment Histories, so that the selection process for such positions can be challenged (see Chapter II, Section 1.1.2 of this report).

COMMENT FROM THE REPUBLIC OF ARGENTINA:

Despite the fact that the appropriateness of some of the suggested measures could vary based on the responses that the Republic of Honduras provides to the questions asked in Chapter 4 of this document, we suggest adding the measures indicated below.

- Revise the Civil Service Law and its Regulations to ensure that employees excluded from its application are excluded solely because they carry out policy management/direction functions, or because the type of activity is covered under a specific system. In particular, evaluate the possibility of considering “confidential staff” to mean only those who provide advisory service and/or collaboration with the political authorities, (Ref.: Article 3 of the Law and Article 21 of the Regulations).

Comment: Article 5 (26) of the Regulations already defines personnel of trust. In addition, the final paragraph of Art. 265 of the Constitution of the Republic states that directors of decentralized organs are personnel of trust of the executive branch.

- Evaluate a change in the Civil Service Law, as relevant, to ensure that licenses are granted to public servants who are appointed to senior positions by political authorities, for the period during which that appointment lasts (Ref.: Articles 4 and 38 of the Law).

Comment: Regulations already exist regarding the granting of leaves of absence to civil servants who are elected to political or public office: see Decree No. 72-2002 of April 9, 2002.

- Analyze the advisability of including express provisions in the Civil Service Law to ensure the impartiality of the members of the body rating those applying to enter the civil service (Ref.. Article 6(5) and Article 23).

- Eliminate from the requirements for entering civil service that of “being in possession of the documents needed to establish one’s personal identity” (Ref.:Article 11(1)).

COMMENT FROM THE REPUBLIC OF ARGENTINA:

This recommendation is based on the following observation from the Argentine experts, which could be included in the section “1.1.2. Adaptation of the legal framework and/or other measures,” in the part relating to Executive Branch hiring systems:

“In that identity is a fundamental right of any citizen that all States are obliged to guarantee, it is inappropriate to establish as a requisite for entering Civil Service “being in possession of the documents needed to establish one’s identity” (Article 11(1) of the Civil Service Law).”

Comment: Honduran nationality is a requirement for entry and, to provide evidence of this, a birth certificate or Identity Card must be submitted (protection of nationality). Accrediting personal identity refers to the presentation of the aforesaid documents and, most particularly, the Identity Card.