Statutory obligation
Statutory obligation to "act independently" certainly includes the need to "demonstrate an independent mindset" during the action, increasing the appearance of independence. Hence the "symbiotic" relationship between independence and impartiality[1].
Statutory obligation[2]:
- "An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so.
- Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even, if a minimum penalty is prescribed the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute".
Violation of statutory obligation
It often happens that an act committed by one person that causes injury or damage to another also violates a certain statutory obligation. This naturally means that:
- a person is punishable regardless of the penalty provided for by law, but our current concern affects, if any, the statutory violation of that person's liability for damages to the claimant.
Many legal systems treat the fact that the defendant infringed or does not violate statutory provisions, only as material. to the question of whether negligence occurred. On the contrary, English law considers that a breach of a statutory obligation may in itself be a tort, completely independent of the defendant's negligence, with its own elements of liability and defense. However, it is not suggested that every statutory obligation entails a civil action because it is such a large part of modern legislation that the widespread imposition of liability would be considered a huge burden. Thus, the initial task for a plaintiff who wants to formulate an action in this way (in order to recover damages without the need to prove negligence) is to convince the court that the provision or regulations concerned an infringement, the infringement of which may result in being awarded[3].
Impartiality as a specific statutory obligation
An examination of the statute and regulations of various international criminal jurisdictions reveals the lack of specific regulations imposing an explicit obligation on prosecutors to exercise their functions impartially. One notable exception is the international teams of Timor-Leste, in which United Nations Transitional Administration in East Timor, not recognizing its prosecutors as independent, however, imposed on them the obligation to perform their functions impartially, without prejudices and in accordance with their impartial assessment of the facts[4].
Examples of Statutory obligation
- In the UK, the Companies Act 2006 requires company directors to act independently in the best interests of the company and its shareholders. This includes being impartial and free from conflicts of interest when making decisions on behalf of the company.
- In the US, the Sarbanes-Oxley Act of 2002 requires public companies to have an independent audit committee in order to ensure impartiality in financial reporting.
- The International Monetary Fund’s Code of Good Practices on Fiscal Transparency requires governments to act independently and impartially in the administration of public funds.
- The UN Convention on the Rights of Persons with Disabilities requires governments to act independently and impartially when making decisions about the rights of persons with disabilities.
- The World Bank’s Guidelines for Establishing and Maintaining an Independent Regulatory Agency requires governments to act independently and impartially when regulating industries.
Advantages of Statutory obligation
The statutory obligation to act independently provides a number of advantages:
- It reinforces public confidence in the independence of decision makers, as well as public trust in the fairness of the decision-making process.
- It enables decision makers to make decisions without worrying about being influenced by outside interests.
- It encourages decision makers to make decisions based on evidence and facts, rather than personal or political motivations.
- It ensures that decision makers are accountable for their decisions, and that they can be held accountable for any mistakes or failures.
- It helps to ensure that decisions are made with the best interests of the public in mind, rather than those of a single individual or group.
Limitations of Statutory obligation
The statutory obligation to act independently can be limited in several ways. These include:
- The inability of the individual to be completely unbiased in their decision-making due to their own personal beliefs, values and experiences.
- The individual may not have the necessary skills or knowledge to make an informed and impartial decision.
- The individual may be hindered by any conflicts of interest, such as financial or personal relationships, which could influence their decision-making.
- The individual may be influenced by external factors, such as political pressure, or the expectations of other stakeholders.
- The individual may be limited by the resources available to them, such as time or funding, which could affect their ability to make an independent decision.
One approach to meeting the statutory obligation to "act independently" is to focus on impartiality. Other approaches include:
- Adopting a "no surprises" policy with stakeholders, which means informing them of decisions that have been made in a timely manner and allowing them to participate in decision-making processes.
- Ensuring accountability to stakeholders by creating open and transparent channels of communication.
- Demonstrating objectivity by listening to all stakeholders without bias and making fair and impartial decisions.
- Establishing clear policies and procedures to ensure the fair and consistent application of the rules.
- Abiding by ethical standards and avoiding conflicts of interest.
These approaches are essential to meeting the statutory obligation to "act independently" and promoting impartiality. By taking these steps, organizations can ensure that decisions are made in an impartial and independent manner.
| Statutory obligation — recommended articles |
| Professional misconduct — Quality of public administration — Copenhagen criteria — Wrongful trading — Shop steward — Model of corporate governance — Nominee director — Personal ethics — Bureaucratization |
References
- Card R., Murdoch J., Murdoch S., (2011), Real Estate Management Law, Oxford University Press Inc., United States
- Kapila S., (2002), Academic Foundation`s Bulletin On Banking And Finance, Volume - 30, Academic Foundation, New Delhi
- Reydams L., Wouters J., Ryngaert C., (2012), International Prosecutors, Great Clarendon Street, United Kingdom
Footnotes
Author: Weronika Nowak
