Removing Barriers to Private Actions Against Corruption by Liberalizing Standing Doctrine

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.

4 thoughts on “Removing Barriers to Private Actions Against Corruption by Liberalizing Standing Doctrine

  1. Expanding private standing in anti-corruption is an intriguing idea. I assume that there has always been standing (hopefully with significant punitive damages) when someone can show that they were asked to pay a bribe, and so the issue would mainly be the theft of public funds when there is not one clear identifiable victim.

    The parallel you make to environmental law has a lot of potential; corruption and environmental wrongs share some theoretical similarities as far as significantly damaging society without necessarily having identifiable specific victims. I do wonder, however, whether anti-corruption suits could be more prone to attracting those looking to tarnish their political enemies than environmental suits would, and if that could somehow require safeguards above and beyond what you are proposing. I think the more difficult issue would not be the random private citizen filing hundreds of frivolous anti-corruption suits, but rather political enemies filing targeted but baseless ones. Perhaps your proposal to allow only established NGOs, rather than individuals, to sue would be the best protection against that.

  2. Thanks for your Comment. I also believe that NGOs can handle private actions more efficiently. First, their abusive litigation can be easily monitored as the government can have a record for cases brought by NGOs and those with repetitive baseless claims may be deprived from brigning any actions for a while. Secondly, NGOs have access to more funds and legal skills that allow them to handle the case more professionally. As for citizen lawsuit, you are raising a legitimate concern of. However, it may not be amiss to mention that citizen lawsuit has long been applied in Spain for different sorts of crimes including corruption and to the best of my knowledge it has not been politically abused in a way that justify eliminating that mechanism. Additionally the law may provide for a civil fine for claims proven to have been brought frivolously or abusively . Noting that in many civil law systems abusive litigation is a criminal offense. After all this preventative measures might reduce the risks of citizen lawsuit but still NGOs will be more efficient for the consideration I said earlier.

  3. Very interesting proposals. A few questions regarding the idea to limit standing in anticorruption suits to anticorruption NGOs:

    First, which institutions to you think should make the decisions as to which NGOs are authorized to bring these cases (and, similarly, to make decisions when an NGO should be stripped of that right)? I gather in France it’s the Ministry of Justice that authorizes these NGOs (though I could be wrong about that — if I am, I hope someone out there will correct me). Alternatively, the courts themselves could be empowered to make these decisions. I can see some advantages and disadvantages each way.

    Second, do you think the standing to bring such suits should be limited to domestic NGOs (as is, I believe, the case in Bangladesh), or should international or foreign anticorruption NGOs should also have standing (as is, I believe, the case under the French law you reference)?

    Third, do you think the rules here should be the same in civil and criminal contexts, or should standing to bring a civil suit alleging corruption or related conduct be different from (and perhaps broader than) standing to initiative or participate in a criminal action?

    I’d be curious to here your further thoughts, if you have the time.

  4. Thanks Professor for your thorough and penetrating comments. In fact, a proper response to this set of questions could be sketched in two or three journal articles but I will try to briefly reflect on the posed question based on the ideas I came across while researching the matter
    Yes In France , It’s the ministry of Justice who gets to decide in light of the attached decree Definitely Leaving it to the judiciary to authorize NGOs is intuitively appealing as it guarantees more objectivity in the process. However, authorization is principally an administrative task where the authorizing body has to review all the documents of the applicant, inspect the premises and review the budgetary or financial matters. Judicial resources are scarce and should be consumed wisely which implies not to engage the courts in such time-consuming procedures. This does not mean that the executive has an arbitrary power, rather the court will review his decision based on the applicant’s claims. Reviewing is way easier and less time-consuming than initiating the authorization from scratch. The only exception to that could be in countries that have a specialized corruption courts it might be viable to entrust them with the power to authorize association as the court is devoted to one single kind of cases.
    As for whether International NGOs should be included or not, practically Int’l NGOs are more capable of handling the case due to the efficiency of their personnel also they have h\higher resources and more immune against political retaliation. On the other hand, in many developing countries domestic NGOs riddles with malfunctions and suffers from lack of efficient personnel. In the French case example it was TI whose ratcheting up efforts culminated in the court’s historic decision which in turn led to the legislative amendment of the law. The problem that states usually perceive International NGOs as nibbling at their sovereignty and most states will be reluctant to expand the roles of NGOs generally and International ones in particular
    Whether it’s civil or criminal courts, each has its own advantage. For example criminal courts advantage is to benefit from the investigatory facilities of the state and the psychological element of perceiving the adversary as a criminally accused .While civil courts are not bound by immunities and procedural guarantees, also the evidentiary threshold is lower. In civil law countries private parties can bring civil claims before criminal courts which give them the advantages of both civil and criminal courts. If one has to decide either route; civil or criminal numbers of factors bear on the choice. On the top of which will be the case load and the pace of the particular type of courts. In Egypt for example Civil courts are backlogged 10 times more than criminal ones, legislator will not welcome any expansion of the jurisdiction of civil courts.

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