Although most countries have traditionally relied on public bodies to enforce anticorruption laws, frustration with the ineffectiveness of public enforcement has led a growing number of activists and scholars to champion private lawsuits as an additional tool in the anticorruption arsenal (see, for example, here and here). Not only can private enforcement supplement government enforcement, but (as I have discussed previously) private enforcement can push public enforcers to do their job more scrupulously. However, in many jurisdictions private actions to enforce anticorruption laws face a daunting obstacle: the doctrine of standing (known in some jurisdictions by its Latin name, locus standi). The difficulty is that most corruption cases do not have an identifiable victim, or an aggrieved person in its traditional sense. For this reason, in many jurisdictions, those parties (often civil society NGOs) attempting to bring private suits against corrupt actors may be deemed not to have the requisite standing.
The question, then, is whether it is possible and desirable to adopt a broader conception of standing, one that would entitle citizens or NGOs to initiate actions against corrupt actors, even if the complainants cannot establish that they were personally and directly injured by the alleged corrupt conduct. Proponents of a restrictive interpretation of standing doctrine tend to argue that a more expansive notion of standing could inundate the courts with weak cases, including cases brought by vexatious litigants without a genuine interest in the underlying allegations. But these concerns are exaggerated. It is quite possible, as several jurisdictions have already demonstrated, to liberalize standing doctrine to empower private anticorruption plaintiffs without opening the floodgates of meritless litigation. Moreover, the legitimate concerns about abuse of the judicial process can be addressed in other ways.
The best illustration of the benefits and feasibility of a more liberal standing doctrine is perhaps the French system. French criminal procedure allows associations working in the field of combatting corruption, which have been lawfully registered for at least five years, to pursue or to join actions against acts of bribery, trading in influence, and money laundering. Transparency International France (TI France) has deployed the newly adopted provision to file a criminal complaint against three African heads of state for suspected money laundering Congo, Gabon, deceased and Equatorial Guinea. One of the claims resulted In placing Mr. Teodorin Obiang Nguema, Vice-President of Equatorial Guinea, under formal investigation for money-laundering in the Biens Mal Acquis (“ill-gotten gains”) by a Parisian court in March 2014.
Additionally, the Environmental field could be analogues to that of corruption in terms of the absence, in many cases, of direct personal injury. Thus, it would be easier to start form where environmental law scholars left off. In this regard, Countries like France, Germany and Italy have adopted provisions that allow civil society organizations to initiate private lawsuits against alleged violators of environmental laws. (This stands in sharp contrast to the US approach, under which private environmental plaintiffs are required to demonstrate a concrete to the defendant’s conduct.) These and other examples illustrate that the concerns about a more liberal standing doctrine are exaggerated.
Moreover, to the extent that these concerns are legitimate, they can be addressed in a number of ways, without shutting the courthouse doors to litigants who cannot prove concrete personal harm:
- First, the French model, in which an anticorruption association rather than an individual has the power to bring a private suit, addresses many of the concerns about a liberal standing doctrine, because the association can handle the suit professionally and filter out meritless complaints rather than swamping the courts with them.
- To enhance civil society organizations’ incentives to behave professionally and screen cases appropriately, countries could adopt a recordkeeping system with periodic review, and organizations found to have filed abusive petitions, or to have had a consistent practice of filing meritless petitions, could be stripped (temporarily or permanently) of their authorization to file private suits.
- More straightforwardly, concerns about abusive or vexatious litigation could be addressed simply by imposing a high civil fine on organizations found to have abused their special privileges by intentionally or negligently filing meritless claims.
Of course, a significant difficulty with these proposals, or any proposals to revise standing doctrine, is that such revisions require political will and legislative support. (And in countries like the United States, where aspects of standing doctrine are considered by the courts to be constitutional requirements, either doctrinal revision or constitutional amendment might also be required.) Yet we should not simply throw our hands in the air and conclude that nothing can be done. The law has never been immutable and significant amendments do happen all the time. Given the increased attention to private enforcement of anticorruption law, there may be opportunities in many countries to revisit traditional doctrines of standing, and to reform those doctrines so as to empower private parties to sue corrupt actors.