So-called “corruption proofing” is an ex ante preventive measure that entails review of the form and substance of legal acts (principally statutes or regulations) in order to minimize the risk of future corruption. It is a relatively new strategy in the anticorruption toolkit. As of 2015, 13 countries had enacted some form of corruption proofing: Armenia, Albania, Azerbaijan, Kazakhstan, South Korea, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Tajikistan, Ukraine, and Uzbekistan.
While there is some divergence between each country’s specific practices, generally a corruption proofing system requires that draft and/or existing legal acts (statutes and regulations) are subjected to a review process by a designated institution (or institutions), which are tasked with identifying “corruptogenic factors”—aspects of those laws that might create risks of future corruption. Examples of corruptogenic factors that corruption proofing systems have identified include unclear definitions of the rights and duties of public officials; broad discretionary power; over-broad freedom to enact by-laws and other subsidiary legislation; linguistic ambiguity; inadequate sanctions; lack of (or conflicting) regulatory and administrative procedures; and disproportionate burdens on citizens to exercise their rights. The reviewing institution then makes recommendations for changes to the law that would mitigate those risks. The governmental body from which the legal acts originate (the parliament, in the case of statutes) is obligated to consider these recommendations but is not required to implement them, though in some systems the governmental body must state its reasons for rejecting the reviewing institution’s recommendations. Another common practice is that the proofing agency’s recommendations (and, if applicable, the explanations for why they were disregarded) are circulated as an annex to the draft law being debated in the legislature and are also published online, thus providing both lawmakers and citizens with more information about the potential corruptogenic factors associated with the law.
An example from Lithuania illustrates the corruption proofing process. Lithuania has a Law on Physical Culture and Sport, which established a Fund administered by a Council that can make grants for sports-related projects; the law further stated that the Council can appoint outside experts to assist in evaluating project applications. Regulations were promulgated to implement these provisions of the law, but these had to first be submitted to Lithuania’s corruption proofing entity, the Special Research Service (known as the STT). The STT pointed out that the regulations did not specify the number of experts that could be invited, their selection criteria, or their role in evaluating projects, nor were there provisions on the publication of information about the contracts that had been concluded with these experts, or how they were reimbursed for their services. These gaps, the STT concluded, created risks of corruption—in particular, the misuse of government funds to provide excessive remuneration to unnecessary “experts.” The STT therefore recommended that the regulations should be revised to establish clear criteria for determining who could be considered an expert, and for how these experts would be selected; and that all contracts with such experts be publicly available.
In addition to the designated governmental reviewing body, many corruption proofing systems also empower civil society organizations to perform a parallel process of review. For example, in Moldova all laws and regulations are subject to corruption proofing by both the National Anticorruption Center (NAC) (a government agency) and the Center for the Analysis and Prevention of Corruption (CAPC) (an NGO). Moreover, the CAPC closely collaborated with the NAC to develop the Methodology and Guide for corruption proofing being used in Moldova. When the corruption proofing law in a country provides for the participation of civil society in the process, this increases the stakeholders scrutinizing the law, the perspectives represented, and general levels of transparency.
More generally, corruption proofing provides the public with more information about draft laws, which in turn can promote a more robust discussion about these laws and decrease the ability of government to blindside constituents with “surprise” legal acts. Increased scrutiny by the public also makes it more likely that drafters and lawmakers sincerely consider the recommendations of the proofing agency. Corruption proofing by a designated governmental agency and civil society will also result in a substantive body of expertise and experience to be built up within these institutions, and what they learn from their work can inform future anticorruption strategies.
As is the case with most anticorruption initiatives, measuring the efficacy of corruption proofing is a complex task. However, the initial evidence seems promising. If we assume that the proofing agency’s recommendations are sound, one measure of effectiveness would be the extent to which those recommendations are accepted. In many countries, this acceptance rate is quite high—for example, the rate at which the proofing agency’s recommendations were accepted was 68.5% in Moldova in 2014; approximately 60% in Kazakhstan between 2012 and 2014; and 92% in South Korea in 2013. When recommendations are accepted, the substance of the law is changed—often in a manner that reduces untrammeled discretion, increases checks and balances, and heightens transparency and accountability. The corruption proofing agency can also have an impact even when its recommendations are initially rejected. For example, when Lithuania’s drafting bodies had dismissed recommendations from the proofing agency regarding three draft laws – including a law seeking to exempt political parties from public procurement law – the proofing agency voiced its concerns to the President, who then vetoed the laws and sent them back to Parliament for further consideration.
Corruption proofing is a promising initiative. It operates ex ante, before corruption has manifested. It alters the process by which the state enacts laws by requiring the participation of the corruption proofing agency in the drafting process, usually from the preparatory stages onward. It influences the substance of legal acts. It increases the participants in the drafting process and can lead to the development of a body of expertise which will make existing anticorruption strategies more robust. And the preliminary evidence suggests reasons for optimism. It is therefore a bit surprising that corruption proofing has not attracted more attention from academics and international civil society organizations. This post is meant in part to invite more sustained attention to corruption proofing. After all, prevention is better than cure.