Last month, as a part of the LIDS Global initiative (discussed here), a research team at the University of the Philippines (U.P.) put forth an ambitious legal proposal to combat corruption in the Philippines. The centerpiece of the proposal is a private right of action that would allow individual citizens to bring civil claims against public officials for violations of the Philippines’ Anti-Graft and Corrupt Practices Act. The proposal is designed to overcome the problem of “state capture”–the shaping of laws, rules, and regulations through illegal and non-transparent payments to public officials. Because state capture is so severe in the Philippines—reaching even high-ranking officials within the country’s own anticorruption agencies—citizens cannot “rely solely on the political will of government officials to prosecute their peers in the government.” The private cause of action is intended to address (or at least circumvent) this problem by enabling private citizens injured by corruption to go directly to court, without having to rely on public enforcers.
While I agree that state capture presents a huge problem for anticorruption efforts, I’m skeptical that the proposed private right of action will be effective–at least in the Philippines. The roots of my skepticism are threefold:
- First, the belief that a private right of action would get around the state capture problem is premised on the implicit assumption that the courts will not be susceptible to the same systemic corruption that infects other government agencies and instrumentalities. But is this a safe assumption? Corruption in the judiciary is not unheard of in the Philippines. In fact, in May 2012, on the basis of corruption charges, Renato Corona became the first Chief Justice of the Philippine Supreme Court to be impeached and removed from office. The Philippine anticorruption court has since ordered the temporary seizure of his assets, worth over $2 million. Within the anticorruption court itself, Justice Gregory Ong was recently found guilty of gross misconduct, dishonesty, and impropriety after he was linked with a major discretionary funding scam that also implicated several members of Congress. Although the guilty finding was issued in July, Ong was not dismissed from his post until September 23. Given the susceptibility of judicial officers to corruption and capture, it’s not clear why we should expect that entrusting the anticorruption effort to courts will be more effective than relying on public prosecutors and anticorruption agencies.
- Second, access to legal talent is limited. The mere existence of the right of action is not likely to be an effective deterrent to wrongdoing unless it is utilized frequently by competent counsel. Although the report notes a potential free rider problem associated with a private right of action, they fail to address how pronounced this problem will be in a country that suffers from extreme disparity of wealth, where the resources needed to successfully litigate a civil claim for corruption are concentrated among the political and economic elite. This means that instances of smaller, local corruption will likely go unchallenged by the poorer individuals most affected by these acts. And while there are undoubtedly members of the elite who would like to rid the government of corruption, many people with the capacity to expend time and money on private suits likely have an interest in keeping the status quo.
- Finally, a private cause of action could prove difficult to implement if it conflicts with prosecutorial discretion (a topic which has been discussed more generally on this blog here). While it is certainly the stated purpose of the proposal to serve as a check on public prosecutors, the U.P. report gives insufficient consideration to the possible negative effects such private actions could have on the effectiveness of the prosecutorial process. For example, although the report proposes a civil rather than criminal action to “avoid conflict with the well-established procedural rule that criminal action should be initiated and prosecuted under the direction and control of the public prosecutor,” the discovery required to win a civil case may well complicate any parallel criminal action, or bleed into criminal actions against public officials who have some connection to the official implicated in a civil action. This could compromise criminal investigations, including against officials not yet charged, raise issues of state secrecy, and limit the public prosecutor’s capabilities.
I do think that the U.P. report raises some thought-provoking ideas. My sense, however, is that there are significant intermediary issues that should be addressed before a private right of action in the Philippines could realistically advance the fight against corruption.