To fight corruption more effectively, many countries have created specialized government institutions that focus primarily on corruption issues. Most common are specialized anticorruption agencies (ACAs) with investigative and/or prosecutorial functions, although some countries have also created specialized anticorruption courts, special coordinating bodies, or other entities. This trend has generated a great deal of debate, both about whether to create such specialized bodies at all and about how they should be designed (for example, whether ACAs should combine prosecutorial and investigative power). Absent from much of this debate, however, is a discussion of the means countries should use to create these specialized bodies—in particular, whether these specialized anticorruption bodies should be enshrined in the nation’s constitution, or should be created by ordinary law.
Anticorruption bodies vary quite a bit on the extent to which they are constitutionalized. Most existing ACAs and other anticorruption institutions—including many considered highly successful—are not mandated by the constitution. For example, Indonesia’s anticorruption agency (the KPK) and its anticorruption courts (the Tipikor courts) were created by ordinary legislation, as was Belgium’s anticorruption investigation body and Spain’s anticorruption prosecutor’s office. However, in other countries specialized anticorruption bodies are explicitly established (or required) by the constitution. For example, the Philippines’ anticorruption court, the Sandiganbayan, is enshrined in that country’s 1987 constitution. Indeed, the trend (if one can be discerned) seems to be in the direction of constitutionalization. Tunisia’s new constitution, adopted in 2014, includes a specialized anticorruption investigation body. Egypt’s 2014 constitution similarly includes a specialized anticorruption prosecutor. Mexico’s 2015 amendments constitutionalized three types of anticorruption agencies (investigative, prosecutorial, and judicial), as well as a coordinating body.
But should these agencies be constitutionalized? And if so, when?
There is no consensus view on this question. For example, a 2008 OECD report emphasized the importance of ACA independence but also noted that “few, if any [ACAs] have constitutional status equivalent to that of the judiciary or an ombudsman,” and concluded that “such a level of [ACA] independence is not required, nor advocated by  international standards.” In apparent contrast, the 2012 Jakarta Statement on Principles for Anti-Corruption Agencies recommended that, to ensure ACA “permanence,” these bodies should “be established by [a] proper and stable legal framework, such as the Constitution or a special law.” The absence of a clear view on this question is not surprising, given both the wide variation in countries’ circumstances and constitutions, and the difficult trade-offs involved: On the one hand, it makes sense to entrench ACAs in the nation’s constitution in order to shield them from political interference. On the other hand, as Matthew noted in an earlier post, constitutionalizing ACAs can be problematic if the agency ends up being ineffective and its place in the constitution makes it difficult to change. Further, these efforts can also do more harm than good if courts are willing to strike down effective statutory anticorruption institutions when their authority overlaps with less effective constitutional ones, as was the case in Nepal in 2006.
Though this is perhaps obvious, it bears emphasizing that the mere act of adding a provision to a formal constitution does not guarantee greater insulation from political interference. In countries where constitutions are flagrantly ignored and violated by the ruling class, constitutionalizing reforms may not make sense regardless of the constitutions’, or the countries’, particular characteristics. While recognizing this, and acknowledging the difficulties in generalization, there are still identifiable considerations that bear on whether a given country should enshrine its ACAs in the constitution:
- First , countries with difficult-to-amend constitutions should be more inclined to constitutionalize ACAs than those with easy-to-amend constitutions. The harder the constitution is to amend, the harder it is for self-interested legislators to undermine an ACA with constitutional status–thus generally strengthening the case for constitutionalization. This argument, however, is subject to two important and interrelated caveats. First, as noted above, there have been some instances in which courts have struck down legitimate legislative anticorruption efforts (see here and here). Because constitutionalized ACAs will be so difficult to change, it is critical that such ACAs be given a strong, sweeping mandate in the first instance. In addition, the specific details of the ACAs—how precisely they will be organized, etc.—arguably should be left to secondary legislation. While this could permit the legislature to undermine the ACAs’ authority, that risk is outweighed by the benefits gained from increased flexibility and the ability to make adjustments based on experience. This constitutional “space” should also minimize the likelihood that the legislature’s reforms will be struck down, as long as the legislature attempts to work within the established anticorruption framework.
- Second, countries should consider constitutionalizing ACAs if they have a federal structure (as roughly twenty-five countries do today) and amending the constitution requires the consent of federal states. Corruption often takes place at local levels. If the state governments have their own authority, it might not be possible to create anticorruption agencies with local jurisdiction absent a constitutional amendment. Even if an amendment is not required, having the state governments (or citizens within the state) approve the anticorruption institutions through the process of ratifying a constitutional amendment, at least in the cases where this is required, can create important buy-in at multiple levels of government. And these local officials can then be a part of the post-amendment discussions that hold national officials accountable.
- Third, and perhaps the most important, ACAs should be constitutionalized where the judiciary is more effective and less corrupt than the legislature is. The decision whether to enshrine something in a country’s constitution is, in a sense, a choice between giving authority to the legislature or to the judiciary (assuming that country has constitutional judicial review). When an agency is created by ordinary legislation, legislatures can unilaterally adjust the agency’s design and prerogatives. Self-serving legislators can cabin the agency’s jurisdiction or remove teeth from its sanctions; legislators committed to fighting corruption, meanwhile, can make important modifications to the ACA’s design to increase its effectiveness. In either instance, the courts will likely have little ability to limit such changes (again, for good or for bad). In cases where the ACA is enshrined in the constitution, honest courts can more readily review whether the legislature is enacting legislation to effectively carry out the agency’s mandate, and can strike down legislation that impinges on the ACA’s constitutional powers. Courts that are less honest (or simply misguided), on the other hand, could potentially use the constitutional basis of the ACA to strike down legislation designed to protect or expand the ACA’s authority. Ultimately, at least some of the decision to constitutionalize ACAs thus may come down to who the country trusts more: the legislature or the courts.
Obviously, the list of factors I’ve outlined above is not comprehensive, and many countries will have factors that cut in different directions. Ultimately, the most important determinant for the success of an institution is whether it is given the resources and independence to be effective. Constitutionalizing anticorruption institutions can be a powerful way to ensure this. While it does not always make sense to embed ACAs in the constitution, this should not discourage countries from constitutionalizing these agencies when it does.