Monthly Archives: March 2022

Tackling Corruption While Preserving Judicial Independence: Lessons from India’s Supreme Court 

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In India, Justices of the Supreme Court and judges of India’s 25 regional High Courts are appointed through a process known as the Collegium System. Although the Constitution vests the appointment power in the President of India, the President may only appoint a Supreme Court or High Court nominee recommended by a body called the Collegium, which consists of the Chief Justice, the four other senior-most Supreme Court Justices, and, in the case of High Court nominees, the senior-most judge on the High Court of the prospective appointee.

This system, which developed over the 1980s and 1990s as part of a decades-long tug-of-war between the branches of government, is controversial. Some critics have argued that the Collegium, which operates largely as a black box, leads to the selection of judges based on cronyism and quid pro quos, regardless of a nominee’s merit or scruples. Notably, critics contend, the Collegium System allows for the appointment of corrupt judges because the secrecy of the Collegium’s deliberations prevents accusations of impropriety against those nominees from becoming public. In buttressing this claim, critics point to instances of High Court judges who have been credibly accused of corruption, including one who was formally charged at the end of last year for taking a bribe in exchange for a favorable verdict. Critics also contend that the Collegium System exacerbates judicial corruption through another, more indirect channel: The Collegium’s slow pace has left hundreds of High Court seats vacant, which exacerbates the Indian court system’s extreme case backlog. That backlog, in turn, encourages petty bribery, as many frustrated litigants would prefer to bribe a judge or court official to jump the line or get a case dismissed rather than wait years for a final resolution. Even former Chief Justice V.N. Khare acknowledged that bribes for bail are rampant in the lower courts given the delays litigants may face down the line.

In response to these concerns, the Indian Parliament, led by Prime Minister Narendra Modi, voted overwhelmingly in 2014 to amend the Indian Constitution to replace the Collegium with a National Judicial Appointments Commission (NJAC) composed of representatives from all three branches. But before the law could go into effect, the Supreme Court ruled it an unconstitutional threat to judicial independence. While calls for reform temporarily abated, just last December a member of Modi’s cabinet expressed support for reintroducing the NJAC amendment to replace the Collegium System.

Any such attempt, however, would be misguided. Anti-Collegium reforms like the NJAC would undermine India’s hard-won judicial independence, and the corruption problem these reforms would purport to solve has been greatly exaggerated.

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Corruption, Sanctions, and the War in Ukraine: A Short Interview in Harvard Law Today

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My home institution’s in-house publication, Harvard Law Today, recently interviewed me on some of the topics we’ve been covering on this blog (see, for example, here, here, here, here, and here) and on the KickBack podcast (here and here) related to Russia’s attack on Ukraine. As I tried to emphasize in the interview itself, I am very far from an expert in many of the specific issues at the intersection of corruption and the Russia-Ukraine war, but I tried to pull together succinctly some of what I’d learned from conversations with actual expert over the last couple of weeks. For those who are interested, you can find the interview here.

Why Has Ukrainian Military Corruption Been a Non-Story in the Current Conflict?

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In my post two days ago, I noted that one reason that the Russian army’s progress in Ukraine has been slower than expected—notwithstanding Russia’s overwhelming numerical superiority—may be the corruption that has been rampant in the Russian military and defense sector for years. (See, for example, here, here, and here.) While I don’t want to attach too much importance to this factor, it does seem at least plausible to me that widespread corruption has undermined Russian military effectiveness, particularly with respect to things like supplies, maintenance, and equipment quality, and possibly also with respect to training and the competence of the leadership.

But if we think that widespread defense sector corruption has played a non-trivial role in Russia’s under-performance on the battlefield in the current war, this naturally invites a question: Why haven’t we also seen reports suggesting that Ukrainian defense sector corruption has hampered the effectiveness of the Ukrainian defense against Russia’s invasion? After all, while corruption has long been recognized as a serious problem in the Russian military, many commentators—including many Ukrainian analysts—have been saying for years that the Ukrainian military also suffers from serious corruption problems, and that those problems threaten to undermine Ukrainian military effectiveness (see, for example, here, here, and here). And yet the news out of Ukraine suggests that the Ukrainian armed forces are fighting quite effectively, without reports of equipment or operational problems that might plausibly be due to corruption.

Why is this? I have no idea—so this is going to be one of those posts where I raise a question rather than trying to argue for what I think is the most likely answer. I may try to do more research and address this in a future post, but for now let me throw out three hypotheses. I would welcome comments from readers who know more about this topic as to which of these seem most plausible, or whether there might be another explanation that I have overlooked: Continue reading →

The Maldives: No Safe Haven for Oligarchs’ Yachts

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Contrary to recent reports (here, here), Russian oligarchs’ yachts harbored in the Maldives are by no means safe from confiscation. As a party to the United Nations Convention Against Corruption (UNCAC), the Maldives has made bribery, embezzlement, and money laundering crimes under its domestic law (here).  Pursuant to article 46, it pledges “to afford [other UNCAC parties] the widest measure of legal assistance in investigations, prosecutions and judicial proceedings” to enforce their laws against bribery, embezzlement, and money laundering.

These provisions put the oligarchs’ yachts at risk of confiscation in two ways. 

One, Maldivian authorities could initiate an action under the domestic antimoney laundering law. Given the evidence on the public record, there is certainly reason (what American law terms “probable cause”) to believe that the yachts were acquired with the proceeds of a crime, likely embezzlement from the Russian state. (Remember, there need not be a conviction for embezzlement in Russia or elsewhere to launch the related prosecution for money laundering.) The yachts’ presence in the Maldives appears to be more than sufficient grounds for its courts to assert jurisdiction under article 13 of the penal code and therefore to issue a “freeze” order which would prevent the yachts from pulling anchor until a final decision on a seizure action issued.

Alternatively, Maldivian courts have the power under UNCAC and domestic law to issue a freeze order at the request of another UNCAC party.  A country where one was built, for example, could open a case to see whether the shipbuilder was paid with the proceeds of a crime, a money laundering offense, and request that the Maldives prevent the yacht from leaving until its case were concluded. 

Some say will say that whatever the law, the Maldives is a small island nation without the guts to stand up to Russia.  Not so. During the UN General Assembly debate on the resolution denouncing Russian aggression, the government not only backed the resolution but its ambassador left no doubts where its stood: “The Maldives has always taken a principled stand on violations of the territorial integrity of a sovereign country, [a] position based on a bedrock belief in the equality of all States and unconditional respect for the principles of the United Nations Charter.”

Others will be claim that confiscating the oligarchs’ yachts is not possible legally for ownership is obscured by layer upon layer of shell of corporations headquartered in countries.  But those layers can be stripped away by the determined efforts of police and prosecutors, a determination surely stiffened by magnitudes given the yacht owners’ complicity in the appalling events daily unfolding in Ukraine.

Hooray for Corruption (in the Russian Military)

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As I write this, the tragic unjustified conflict in Ukraine drags on, with anguishing reports of civilian casualties and needless destruction mixed with encouraging news of the valor of the Ukrainian armed forces and the resolve of the Ukrainian people and their leaders. I won’t pretend to have any idea what will happen. I’m just hoping that outnumbered the Ukrainian resistance can hold out long enough for the political and economic pressure to have some effect—if not in changing the Russian leadership’s policy, then at least in undermining its capacity to wage war or maintain a long-term occupation.

In trying to slow the Russian army’s advance and deny Russia control of major cities and other strategic targets, the Ukrainian military may have the help of an unexpected ally: corruption. The corruption, that is, of the Russian military and defense sector. Without taking anything away from the skill and bravery of the Ukrainian armed forces, many analysts have noted that the invading Russian force appears to have been hampered by cheap and poorly maintained equipment, shortages of fuel, rations, and other supplies, and deficiencies in training and coordination. And some of these analysts have suggested that while no one factor can explain Russia’s poor showing in the field (so far), pervasive corruption in the Russian defense sector may be an important contributing cause (see, for example, here, here, and here). Continue reading →

The Brazilian Supreme Court’s Most Recent Ruling in the Lula Case Reveals the Court’s Own Bias

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Back in 2017, a Brazilian court convicted former President Lula for corruption offenses in connection with a seaside apartment that Lula allegedly received as a bribe from a construction firm. In 2019, he was again found guilty of a corruption offense in a separate trial, this time for receiving bribes in the form of improvements to his country house. And he faced other corruption charges as well, including an indictment in which Odebrecht—a major construction firm and one of the most significant players in the Car Wash scandal— allegedly bribed Lula by agreeing to construct a headquarters for his foundation, the Lula Institute. The principal evidence for this latter accusation was acquired by prosecutors as part of a so-called “leniency agreement” with Odebrecht. In Brazil, leniency agreements are negotiated settlements, regulated by the Clean Company Act (CCA), in which companies voluntarily agree to confess unlawful conduct, pay penalties, and take other remedial action—including cooperating with prosecutors by providing evidence against other wrongdoers—and, in return, the companies have their sanctions and fines reduced (see, for example, here, here, and here). Such agreements have been critical to the success of the Car Wash Operation, and more generally to the effectiveness of Brazil’s fight against corruption.

But this past June, the Brazilian Supreme Court decided to nullify the evidence against Lula that had been collected under the Odebrecht leniency agreement (here). The Court’s ruling was not only legally flawed, but its reasoning, if accepted, threatens to undo dozens of prior corruption convictions and to create a cloud of uncertainty surrounding the validity of evidence obtained in leniency agreements. Such a ruling would needlessly undermine the ability of Brazilian prosecutors and courts to fight corruption in the future. Of course, the Court may not actually adhere to its legal reasoning in future cases—but that only underscores another problem: though the Brazilian Supreme Court has criticized lower court proceedings as biased against Lula, the Court’s own conduct, particularly in the most recent case, suggests an unacceptable bias in Lula’s favor.

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New Podcast Episode, Featuring Inna Melnykovska

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A new episode of KickBack: The Global Anticorruption Podcast is now available. During the ongoing emergency in Ukraine, as Russia’s unprovoked military aggression throws the region and the world into crisis, my colleagues at the Interdisciplinary Corruption Research Network (ICRN) and I are going to try as best as we can to feature on KickBack experts who can shed greater light on how issues related to corruption relate to the ongoing crisis. And rather than keeping to our usual schedule of releasing new episodes every two weeks, we will release new episodes as soon as they are available. In the new episode, I had the opportunity to speak to Inna Melnykovska, Assistant Professor of Political Science at Central European University. Professor Melnykovska is an expert on state-business relations and crony capitalism in Ukraine and Russia, and is working on a book project tentatively titled Global Money, Local Politics: Big Business, Capital Mobility and the Transformation of Crony Capitalism in Eurasia. Our podcast conversation focuses on her research in this area and its implications for the current crisis. We discuss the similarities and contrasts between the “crony capitalism” systems in Ukraine and Russia, the extent to which Ukrainian President Zelensky was pursuing policies that would reduce the influence of oligarchs on Ukrainian government, whether movement toward cleaner and more democratic government in Ukraine may have been perceived by Putin’s administration as a political threat, and whether (or when) we might hope that economic sanction on Russian elites and oligarchs might have a political impact. You can also find both this episode and an archive of prior episodes at the following locations:

KickBack is a collaborative effort between GAB and the Interdisciplinary Corruption Research Network (ICRN). If you like it, please subscribe/follow, and tell all your friends. And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

A Message from Ukraine’s Anti-Corruption Research and Education Center

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On my previous visits to Kyiv, I have had the opportunity to meet and exchange ideas with several of the outstanding scholars and researchers affiliated with the Anti-Corruption Research and Education Centre (ACREC). This morning, ACREC a message to a list of people in the worldwide anticorruption research community, describing the situation in Ukraine and appealing for more international support. With ACREC’s permission, I am reproducing the message below:

Dear colleagues

Anti-Corruption Research and Education Centre (ACREC) addresses you on the ninth day of the invasion of the russian federation.

All these days we have been trying our best to help the Armed Forces of Ukraine – to transfer funds, organize aid and necessary purchases. We also helped people in need and those who were forced to leave their homes.

Some of us still remain in the hottest spots of today’s war – Kyiv and Kharkiv.

You can see how russian troops are bombing Kyiv and its suburbs, Kharkiv, Sumy, Chernihiv, Enerhodar and it’s nuclear power plant. We are sure that many of you have been to these cities and remember them only for the best. Help us save these cities, their people and Ukraine. Call on your governments to close the skies over Ukraine in order to prevent further casualties and to help neutralize military aggression. This is a war not only against Ukraine, but also against the whole civilized world. Putin’s terror will not stop exclusively on the territory of Ukraine, after some time it may be repeated with other neighboring countries of russia. Ukraine is only the first outpost on the path to a peaceful Europe. Ukraine will fall – Europe will fall.

We, as a think tank at the Kyiv-Mohyla Academy, appeal to you to call on your governments to support Ukraine in every possible way and to prevent further losses among the military and civilian population of our country by:

  • closing the skies over Ukraine as it was done during the 2008 Russian-Georgian war;
  • further implementation and strengthening of sanctions against russia, its leadership and its satellite countries, family members of the russian leadership;
  • sanctions against those associated with the leadership of the aggressor country should be sought separately: https://putinwallets.org/
  • depriving Russia of the status of a member of the world’s leading organizations, such as the UN Security Council and the UN General Assembly.

If you have friends and / or colleagues from russia, please spread the truth about their military aggression against Ukraine by their state.

We also sending you the links on:

  • website for fundraising for the needs of the Ukrainian army: https://savelife.in.ua/. In addition, we encourage you to join the volunteer initiatives in your countries to help Ukrainian citizens in need;
  • website with news in English about the course of military aggression in Ukraine: https://edition.cnn.com/; https://www.bbc.com/russian;
  • website for the search for prisoners of war and victims of military aggression: https://gdemoysyn.com/.

If you have any questions, you can contact us – we will help with any kind of information.

Best regards,
ACREC Team

Guest Post: The Ukraine Crisis Demonstrates (Again) that the U.S. Must Crack Down on Illicit Finance

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GAB is pleased to welcome back Shruti Shah, the President of the Coalition for Integrity, to contribute today’s guest post:

Like so many of us, I am shocked and horrified by Russia’s invasion of Ukraine and unforgivable attacks on civilian targets. At the same time, I have been encouraged by the resistance to Russia’s unprovoked aggression—most obviously and importantly by the brave Ukrainians defending their homeland, but also by the response of the international community. The United States, the European Union, Canada, the United Kingdom, and other nations have announced coordinated sanctions against Russia, including cutting off major Russian banks from the SWIFT system and preventing Russia’s central bank from drawing on foreign currency reserves held abroad. In addition to sanctions targeted at Russia’s financial system, Western nations have also sought to use targeted sanctions aimed at oligarchs close to President Putin. The Biden Administration also announced a transatlantic task force to ensure the effective implementation of financial sanctions by identifying and freezing the assets of sanctioned individuals and companies and an interagency law enforcement group called KleptoCapture.

This renewed focus on the corruption of the Russian political and economic elite is welcome. Russia’s deep-rooted corruption is one of the reasons that Putin has been free to engage in such outrageous acts. He relies on the security services and corrupt oligarchs to protect him. Oligarchs also serve as his personal wallet. Yet for far too long, these corrupt oligarchs have lived lives of luxury off of ill-gotten wealth, which they have used to purchase luxury property in places like New York and London. Yet while some oligarchs and Russian political figures were already the subject of targeted sanctions prior to the recent attack on Ukraine. Overall the West had been far too complacent. The Ukraine tragedy seems to have prompted Western governments to pay more attention to this problem. Indeed, the new sanctions are significant in both scope and size, and they welcomed by the Coalition for Integrity and most other anticorruption activists around the world.

But there’s more work to be done. It’s time for Western governments to ask some hard questions about how these corrupt elites were able to use their ill-gotten gains to buy luxury property and assets and enjoy their wealth in places like New York and in London for so long, and about the role of Western “enablers” in hiding the sources of their wealth and shielding questionable transactions from scrutiny. And, to turn to more specific priorities for policy reform in the United States, there are three specific things that the U.S. government should do to crack down further on illicit finance and thereby advance the agenda laid out in the White House’s Strategy On Countering Corruption: Continue reading →

The UK’s Promised War on Kleptocracy: Reinforcements Needed

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Putin’s invasion of Ukraine has created a new-found resolve among the world’s financial centers. They are now committed to seizing the money Putin and oligarchic cronies have stolen from the Russian people and hidden in their territories. Given the enormous media attention on where it is stashed (examples here, here, and here), that may sound straightforward.

It is not.  Even bad guys have rights, and as Radha Ivory reminds, that includes the right to their property. To confiscate the assets Putin and cronies have squirrelled away outside Russia will require proof that (a) no matter what ownership records show, the assets really do belong to one of them and (b) the assets were acquired with the proceeds of corruption or other criminal activity.

London has been one of the premier destinations of dirty Russian money. James Mather, a barrister of the U. K’s Serle Court, explains below what the British government must do to fulfill its pledge to confiscate every shilling of stolen Russian money hidden in its territory.

The gloves have come off in the United Kingdom’s effort to cleanse itself of ‘dirty money’, or so we are told.  To signal its commitment, the UK government has sped up new legislation, but its contents seem unlikely to advance matters very far.  There is amendment of the legislation for Unexplained Wealth Orders (totemic but misunderstood powers that are of quite limited practical use) and new requirements to register the beneficial ownership of property (as always easily evaded by clever structuring or simple lies).  What has really been lacking all these past years is harder to legislate for: the adequate enforcement of the asset recovery laws that exist. 

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