Re-shaping corporate governance: A momentous responsibility for government

COPYRIGHT, interestingly, is often interpreted as a right to copy by Bangladeshis. Let me elaborate. Most Dhallywood movies are in effect Bollywood hits remade, with a mother or sister character added to indigenize the same. Scrape them a little, compare them a bit or even give them a cursory glance, and you would know instantly what I mean. This is not restricted to the world of cinema. In fact, most of our well researched, extensively debated and heavily studied’ reports of some of the high-power committees appointed by our government are not original works. Bluntly put, they are adopted, or adapted, from reports on the same subject already published in other countries, mostly the Western ones.

By now one can safely argue that there is a complete grammar, a well-defined code, for adopting such committee reports in Bangladesh. This practice of somehow willingly becoming a carbon copy or rubber stamp of others has been our Achilles’ heel since Independence. This has only been accentuated in the post-liberalisation era. No wonder, in the past fifteen years, for every report of the government that has gone on to shape and de-shape the economic policy formulations of Bangladesh one can readily trace its origins to an authentic source abroad. The capital adequacy norms, the competition law and the accounting standards belong to this genre.

The concept of ‘Corporate Governance’ is an innovative idea in the current business perspective which is the after-effect of de-shapes of economic policy. It is such an idea that has traditionally been associated with the “principal-agent” or “agency” problem. A “principal-agent” relationship arises when the person who owns a firm is not the same as the person who manages or controls it. Consequently, while we proceeded to ‘adopt’ the idea we failed to internally debate the various models that would be suitable to the Bangladesh business environment. Neither did we bother to observe the external debate world over on the various models of corporate governance.

Like most things in life, issues arising in the field of corporate governance boil down to a set of questions about relationships. For all the current debate about whether ‘corporate governance’ refers solely to matters affecting the structure and composition of boards of directors or a broader range of issues relating to the framework within which corporate policy is made and articulated, there is no escaping the fact that we are discussing a series of arrangements contrived by and for human beings. When it comes to the nature, form and functions of a corporation, nothing is given. Everything is a matter of choice. All is open to criticism and justification. As such, there is a critical ethical dimension to the debate – which, inevitably, forces us to consider the nature, quality and extent of the underlying relationships on which the corporation is founded.

Indeed, this is in line with the definition of corporate governance offered by Monks and Minow (1995, p. 1). In answering the question, “what is corporate governance?”, they reply; “It is the relationship among various participants in determining the direction and performance of corporations”. This may seem to be a fairly obvious point to labour. However, most of the discussion about corporate governance seems to ignore the implications of this simple observation. Specifically, advocates of various regimes for corporate governance are silent about an absolutely fundamental question; namely, “What (if anything) is the basic nature of humanity?”

Corporate governance is the set of processes, customs, policies, laws, and institutions affecting the way a corporation is directed, administered or controlled. It is a multi-faceted subject. An important theme of corporate governance is to ensure the accountability of certain individuals in an organisation through mechanisms that try to reduce or eliminate the principal-agent problem. A related but separate thread of discussions focuses on the impact of a corporate governance system in economic efficiency, with a strong emphasis shareholders’ welfare. Corporate governance also includes the relationships among the many stakeholders involved and the goals for which the corporation is governed. The principal stakeholders are the shareholders, management, and the board of directors. Other stakeholders include labour (employees), customers, creditors (e.g., banks, bond holders), suppliers, regulators, and the community at large.

Nevertheless “corporate governance”, despite some feeble attempts from various quarters, remains an ambiguous and often misunderstood phrase. For quite some time it was confined only to corporate management. That is not so. It is something much broader, for it must include a fair, efficient and transparent administration and strive to meet certain well defined, written objectives. Corporate governance must go well beyond law. The quantity, quality and frequency of financial and managerial disclosure, the degree and extent to which the Board of Director (BOD) exercise their trustee responsibilities (largely an ethical commitment), and the commitment to run a transparent organisation — these should be constantly evolving due to interplay of many factors and the roles played by the more progressive/responsible elements within the corporate sector.

The role of corporate by and large has been understood in terms of a commercial business paradigm of thinking that focuses purely on economic parameters of success. As corporates have been regarded as institutions that cater to the market demand by providing products and services, and have the onus for creating wealth and jobs, their market position has traditionally been a function of financial performance and profitability. However, over the past few years, as a consequence of rising globalization and pressing ecological issues, the perception of the role of corporate in the broader societal context within which it operates, has been altered. But legitimacy is the thing which comes when Corporate Governance is discussed. To talk of education (as opposed to indoctrination) is to allow room for consideration of the interests of those being educated. Thus, in this environment, there will be a legitimate expectation that adherence to best practice in corporate governance will be of benefit to each of the parties bound into the relevant relationships.

These benefits may be of two types. Some will be ‘intrinsic’ benefits – such as when things are done for their own sake. These might include reforms in relations between stakeholders based on respect for the inherent dignity of persons. For example, board functions designed to ensure that accounts are ‘true and fair’ (compelling concepts despite their official demise), would just as likely be based on a belief that lying and deceit are an affront to the dignity of persons, as a desire to ensure technical accuracy as a way of securing market approval or avoiding punishment.

Then there are ‘extrinsic’ benefits — goods that flow from an action and which are external to the deed. For example, returning a lost wallet in order to secure a financial reward is to act in order to receive an extrinsic benefit. As indicated above, a decision to determine the quality of annual accounts according to the likelihood of earning praise from the market or regulator would be to act in the expectation of extrinsic benefits. In such circumstances, all manner of wrongs can be committed by otherwise decent people who have suspended their judgments in deference to the authorities.

Today, about 300 multinationals control 25% of the world’s assets. Bangladeshi companies currently comprise only a fraction of this number. However, with our economy coming of age, more and more of them will lay claim to this elite list. While this is truly a matter of great pride, we must remember that there rests an equally momentous responsibility on us to give back to the society that has nurtured our growth. Today, most companies contribute to society by means of well-defined corporate citizenship initiatives executed by their not-for-profit trusts and foundations. However, I believe it is important for corporations to look beyond charity and redefine the act of ‘giving back’. Corporations must look at cultivating and encouraging social entrepreneurship in society with the same degree of focus and energy that keeps profitable businesses running. What are we to make of this discussion? As a first point, it should be noted that it is extremely unlikely that any explicit view of human nature is informing the process of developing policies that provide the framework within which corporate governance occurs.

Such a view persists — even in circumstances where the initiative has been launched with the best and most positive of intentions. Turning around such perceptions is a major challenge, not just for companies but also for the whole community. We cannot afford to have developments, designed to foster best practice, being labeled in predominantly negative terms.

This is no more so than in the field of ethics. The grounds for serious concern already lie in the frequency with which the topic of ‘ethics’ is linked to programmes of fraud prevention and control. While it is true that a healthy, ethical culture will reduce the incidence of fraud and also lower the costs of compliance, it is a grave error to think that this necessitates the type of specific link that is currently in vogue in all too many organisations.

A proper concern about ethics is of importance for far more pressing reasons. Not least of these is the fact that a decision to include the ethical dimension, as an explicit element in the daily management environment, is a commitment to ensure that the organisation is equipped to handle new issues arising in a rapidly changing world. How might this be done? One suggestion is to amend the Corporations Law so that courts can take into account the extent to which corporations have instituted best practice in corporate governance (in its broad construction) when sentencing those that have been found guilty of an offence. Companies are still held accountable for their actions. However, the Govt. recognises that even, with the best intentions, things can go wrong. In these cases due weight is given to the effort made by the corporation. As such, the community sees the responsibility is properly apportioned, while shareholders and other stakeholders with a financial interest in the company are ‘rewarded’ for their efforts aimed at preventing wrong-doing. Under such a scheme, bodies like the Securities & Exchange Commission (SEC), National Board of Revenue (NBR), Finance Ministry, Planning Commission and other respective regulatory bodies are responsible for monitoring and investigating breaches of the regulations and would continue to recommend prosecutions. Self-regulatory organisations would then be responsible for providing support services to companies inclined to engage in best practice in this area. The final leg of the tripod would be the auditing firms which would be required to conduct independent audits of each company’s framework for compliance. Unlike normal financial or risk audit, the necessary audit would have to take into account measures designed to strengthen the ethical culture of the organisation.

Those blessed with a sharp eye for an apparent contradiction may be ready to pounce on this latest turn in this argument. It could be objected that a legislative response, such as that proposed above, would reinforce a tendency for organisations to shape their behaviour in response to external stimuli. After all, is there much difference between engaging in compliant behaviour through fear of punishment and the alternative, of engaging in positive behaviour in hope of a reduced punishment – if something should go wrong? However, the force of the objection can be nullified by being clear about that which is to be specified as best practice in corporate governance. It should be stressed that participation in these arrangements would be entirely voluntary. Companies feeling sufficiently confident about the efficacy of their own programmes could choose not to be audited. This would generate a saving in expenditure but at the price of taking on extra risk if something should go wrong.

Govt. can take a legislative solution that is specifically designed to encourage a form of education such that companies will naturally come to avoid some or all of the excessive behaviour that occurs in lightly regulated markets when largely populated by selfish egoists. Should the government consider adopting such a recommendation, it would be combining a concern for the ethics of the market place with that of promoting economic hygiene. As in public health campaigns, prevention would be better than cure. Needless to say, a great number of practical souls will be wondering about the detail of a programme designed to deliver the kind of results that I envisage. Those of a more skeptical bent may even doubt that such a programme can be devised.

The thing needed in today’s conditions is an organisation that can efficiently and effectively govern itself with a fair measure of self-regulation in which individuals take personal responsibility for applying the corporation’s ‘ethical compass’. This then allows flexible responses to changing conditions – but with well-defined cultural boundaries based on a clearly articulated ethical framework that is consistently applied across every part of the organisation. Beyond this, it is highly undesirable that an ethical culture be built on negative sentiment – such as the need to have a defense should the issue of criminal responsibility ever arise. The thing needed is a positive commitment to a set of core values and principles that help the organisation to answer the questions, “Who are we? What do we stand for?”

Unfortunately, the task of creating such a culture is not a matter of applying a ‘quick fix’. However, there is no mystery to be found in the process for developing a robust ethical environment in corporations. Indeed, there is a growing range of people able to offer practical assistance based on extensive experience. Of course, it is possible to motivate people with ‘fear of the lash’. However, it is only unhealthy cultures that tend to emerge from such conditions. The real prize is to be had by those who offer the promise of a positive workplace in which people can make meaning as they pursue that part of their life based around work.

Yet, this idea of corporate governance was celebrated as the most original idea in our reforms process by finance professionals, chartered accountants and the company secretaries. In the process we never debated it origins, potency or efficacy in the Bangladeshi context. Sadly, the very idea was marketed as ‘professional opportunities’ by various professional bodies. It would thus be difficult even to point out three genuine differences between the committee report that went on to prescribe the code for corporate governance in Bangladesh and the original report on corporate governance in the United States (the Cadbury Report).

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