Author Archives: Richard Messick

A Global Stocktaking on This First International Right to Know Day

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GAB is pleased to welcome this guest post by the Centre for Law and Democracy:

Today marks the first of what will be an annual recognition and celebration of citizens’ right to access information held by their governments.  Making September 28 International Day for Universal Access to Information will, as the UNESCO resolution establishing it explains, help make governments and citizens alike aware that an “open and transparent government is a fundamental component of a democratic and developed state,” that all natural and legal persons have a “right to seek, access and receive information from public bodies and private bodies performing a public function,” and that it is “the duty of the state to prove such information.”

For the past five years the Centre for Law and Democracy and Access Info Europe have been tracking nations’ efforts in fulfilling this duty, and we are pleased to note that substantial progress has been made.  There are now 112 countries with some form of right to information or freedom of information legislation on the books with six nations enacting a new law this year alone.  Not all RTI laws meet the minimum criteria for granting citizens the right to information, and even those laws that do are not always enforced effectively.  To keep watch over developments, our two organizations annually produce an RTI Rating reporting legal changes and assessing their compliance with international norms.  This year’s report has a number of surprising findings.    Continue reading →

Anticorruption Investigators and Prosecutors: Bookmark this Web Site!

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The International Anticorruption Resource Center, a Washington-based group of American investigators and former prosecutors, has developed a first-class web site on how to investigate and prosecute corruption crimes that everyone in the business of investigating or prosecuting corruption crimes should bookmark.  Divided into three main sections – Detection, Proof, and Evidence – the site guides the reader through the entire process of developing and presenting a corruption case: from the first interview with a whistleblower through assembling the facts to proving them in a court of law.  While there are any number of Web sites with material useful for investigators and prosecutors (here and here for examples), this is the only I have found that pulls together in one place the basics that every anticorruption investigator or prosecutor needs.

Although clearly aimed at those in the early stages of their career, I recommend that even the most harden veterans peruse the site.  They will find it a valuable refresher and may well find some helpful tips.  Two pages I particularly liked were – Continue reading →

Solomon Islands Prime Minister Manasseh Sogavare: Time to Act Agressively, Quickly on Corruption

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Below is the full text of remarks Solomon Islands Prime Mininster Manasseh Sogavare delivered September 8, 2016,  at a workshop in Honiara, Solomon Islands, to develop a national anticorruption strategy for the country 

Hon Premiers and your delegations, Members of the Steering Committee of the National Anti-Corruption Strategy, Representatives of the diplomatic corps and international organisations, senior officials from our integrity institutions and various institutions of our Government, representatives of our business community from the private sector, representatives from our civil society based organisations, ladies and gentlemen. Good morning to you all.

Let me say at the outset how pleased I am to see many of you attending this national workshop which undoubtedly, you would now know, is a precursor-event to the development and formulation of our country’s first ever National Anti-Corruption Strategy.

I had wanted to address you and the public on the subject matter of “our fight against corruption”, and I am pleased that this opportunity has come up. Like many of you, I am personally convinced that the fight against corruption is not just a fight by Government alone, it is a fight by all stakeholders. It is a fight that must be pursued by all of us collectively. Continue reading →

Fighting Natural Resource Corruption: The Solomon Islands’ Challenge

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On September 8 & 9 the Government of Solomon Islands, the UN Office on Drugs and Crime, and the UN Development Program will host a workshop in Honiara to discuss the national anticorruption strategy the government is preparing.  One issue almost certain to arise is how the government can intensify the fight against corruption in the logging and mining sectors. Both sectors are critical to the nation’s economic well-being.  Commercial logging is currently the largest source of export revenues, but earnings are expected to decline sharply over the coming decade as forest reserves are depleted (due in no small part to corruption).  The hope is that increases in the mining of the country’s ample reserves of bauxite and nickel will replace losses from forestry.

Corruption in both sectors has been documented by scholars (here, here, and here for examples), the World Bank (here), and the Solomon Islands chapter of Transparency International.  The government has not only acknowledged the problem but has committed to addressing it.  Its recently released National Development Strategy 2016 – 2035 makes controlling corruption in logging and mining a priority.  As the strategy explains, corruption in the two sectors robs government of needed revenues and deprives local communities of the benefits from the development of resources on or under their lands.

Identifying a problem is one thing.  Coming up with solutions is another, particularly in the case of resource corruption in the Solomons where the combination of geography, poverty, and huge payoffs from corrupt deals make curbing it especially challenging.  The remainder of this post describes the hurdles Solomon Islanders and their government face and suggests ways they might overcome them.       Continue reading →

When Lunch is a Bribe: American and Korean Law Compared

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It is the rare businessperson or lobbyist who takes a politician or bureaucrat they barely know to lunch just for the pleasure of their company.  Lunch-buyers may enjoy the food (particularly if the money comes out a corporate pocket) and not all politicians and bureaucrats are self-centered bores.  But face it: the main reason bureaucrats and politicians world-wide are wined and dined by people they hardly know is because they are in positions of power and the meal-buyers want to influence them — perhaps to persuade them to purchase the lunch-buyer’s product for their ministries, maybe to change their minds about pending legislation.  Yet as obvious as the reason for picking up a lunch the tab is, in the Republic of Korea, and many American jurisdictions as well, on its face the law provides that if lunch-buyers admit why they paid for lunch, they and their luncheon companion go to jail.

That despite these laws Seoul’s upscale restaurants and their counterparts in many American state capitols continue to do a brisk lunchtime business suggests many lunch-buying businesspersons and lobbyists and their government guests regularly deny the obvious.  It would be one thing if lawmakers had intended to turn this group into liars and hypocrites, but they did not.  It is instead an unintended consequence of laws actually meant to permit public servants to take lunch with those having business with them. Continue reading →

Public Trust Theory: A Way Citizens Can Combat Resource Corruption?

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Public trust theory derives from the sovereign’s duty to act as the guardian of certain interests for the benefit of the nation as a whole. In the United States it serves as the basis for citizen suits to vindicate environmental rights, and it has been incorporated into the African Charter on Human and Peoples’ Rights which provides in article 21 that the wealth derived from a nation’s resources is for “the exclusive interest of the people . . . [and in] no case shall a people be deprived of it.”  Could it be used by civil society to combat grand corruption in the allocation of land and natural resources?

That is the question Elmarie van der Schyff, a professor of law at South Africa’s North-West University, addresses in a new paper prepared for the Open Society Justice Initiative’s project examining how civil society can help spark more anticorruption enforcement actions.  After carefully parsing South African law governing civil suits for damages, Professor van der Schyff concludes that “public-trust theory has a supportive role to play” in helping South Africans recover damages for injuries sustained when corruption infects the distribution or use of the nation’s natural resources.  Her thoughtful analysis shows how citizens of other states can use the principles that underlie the public trust doctrine to bring damage actions too.

Professor van der Schyff’s paper is the sixth in a series commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on i) standing by GAB editor-in-chief Matthew Stephenson, ii) civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, iii) private suits for defrauding government by Houston Law School Professor David Kwok, iv) private prosecution in the U.K. by Tamlyn Edmonds and David Jugnarain, and v) damages for bribery under American law by this writer.

Are Anticorruption and Prodemocracy Policies Antithetical?

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That is the question Pennsylvania State University Political Scientists Vineeta Yadav and Bumba Mukherjee leave readers to ponder at the conclusion of their fine new book, The Politics of Corruption in Dictatorships.  But not before the authors provide a plethora of new insights on anticorruption policy and political change in authoritarian states.

They begin with the well-known finding that non-democratic states are more corrupt than democratic ones and continue with a review of the standard explanations for why this is so.  Authoritarian states lack a free press, separation of powers, and the other means democracies have for holding corruption in check.  Furthermore, corruption is many times the glue that holds a dictatorial government together.  It’s the way rulers buy the support of the security services, business elites, and others that might be tempted to overthrow them.  It also provides leaders an insurance policy in the event supporters don’t stay bought as they can siphon off a bit (okay often a lot) into a rainy day fund somewhere offshore.

If the story were that simple, an examination of non-democratic states’ scores on cross-national measures of corruption would reveal two things:  first, the scores would all cluster at the “most corrupt” end of the measures; second, absent the rare political upheaval, the scores would remain relatively stable over time.  Here is where the story gets interesting – and where Yadav and Mukherjee go to work. Continue reading →

ສໍ້ລາດບັງຫຼວງ’: The Laotian Approach

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The American Supreme Court’s recent decision that confusion over what constitutes corruption entitles former Virginia Governor Robert McDonnell to a new trial again illustrates how critical it is that “corruption” be precisely defined.  As Matthew explained yesterday, the Court in McDonnell ruled that the definition the jury was given to decide whether the former governor had broken the law was too broad.  The justices feared that were such a definition allowed to stand, public servants would shy away from doing their duties for fear they could be accused of “corruption.”  While Matthew argues that in McDonnell this fear was misplaced, there are instances where it is not.  Take Indonesia.  Bureaucrats there are refusing to spend billions of dollars on legally approved projects ranging from schools and hospitals to garbage trucks and parking meters because they fear it would open them to investigation for vaguely defined corruption crimes such as “abuse of office.”

As I have argued on this blog, the problem begins with the term “corruption.”  As passed down from Latin to Old French and into English, the word carries the idea of something that has spoiled or become impure.  Milk left in the heat too long sours or is “corrupted.” But while there is no mistaking when milk has gone sour, the endless debates over whether such (lawful) practices as private donations to political candidates are “corrupt” shows that when applied to politics and government, “corruption” is in the eye of the beholder.

But not all languages derive their expression for “corruption” from Latin, and thus not all languages are saddled with the subjective meaning the Latin imparts to the modern-day term.  Take ສໍ້ລາດບັງຫຼວງ‘ – the Laotian term for corruption. Continue reading →

Fighting Environmental Corruption in the Mekong River Basin: More Firepower Needed

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The forests, wildlife, plants, and vegetation of the Mekong River Basin are under sustained assault.  Not from some virulent new fungus or mutant virus.  No, the attacker is a man-made pathogen: the inability of the region’s governments to curb the rampant corruption eating away at the legal structure that protects the basin’s ecosystem.  Officials of basin governments are being paid to condone logging in conservation zones, to issue export permits for protected flora and fauna, and to otherwise flaunt laws meant to prevent an environmental catastrophe.  No other ecosystem is under such deadly assault, and unless the trend is arrested, the World Wildlife Fund predicts that within 20 years the region, twice the size of California and rivaled only by the Amazon for biological diversity, could lose more than a third of its remaining forests along with the exotic plants and wildlife that inhabit them.

The six governments of the region – Cambodia, China, Lao PDR, Myanmar, Thailand, and Vietnam – have declared war on environmental corruption and have begun counterattacking.  Environmental protection laws are being tweaked, and investigators and prosecutors trained to detect and prosecute environmental crime.  But important though these steps are, in the face of impending ecological disaster more firepower is needed.  Here are four ways to step up the fight: Continue reading →

Compensating Corruption Victims: American Law on Bribery Damages

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Parties to the UN Convention Against Corruption pledge in article 53 to “pay compensation or damages to another State Party that has been harmed” by an act of corruption, but nowhere does the convention say who it is that is harmed by corruption or how compensation is to be calculated.  In a submission to the 2015 meeting of convention parties, the UNCAC Coalition, an global network of civil society organizations, argued that the absence of guidance is “one of the main obstacles to the award of damages to victim countries” and urged the publication of “best practice examples with respect to the identification, quantification and reparation of the damage caused by corruption” as step in developing the needed guidance.

This writer recently summarized how American courts deal with compensation issues when the corrupt act is the payment of a bribe.  Written for the Open Society Foundations’ Justice Initiative, the paper explains that under both federal and state law individuals, businesses, and even foreign governments can recover damages for injuries sustained as a result of bribery and that with passage of the Foreign Corrupt Practices Act the number of cases has exploded.  Not all claimants have been successful of course.  In some actions their damages were too remote (not proximately caused in legal language); in others claimants failed to show how the bribery injured them, and in some cases foreign governments were denied recovery because their officials were so deeply involved in the bribery scheme that the government did not qualify as a victim under U.S. law.  But other claimants have enjoyed significant success — realizing in some instances awards in the tens of millions of dollars.

Whether American law is a “best practice example” of the kind the UNCAC Coalition had in mind I don’t know.  But it is an example, and one, given the creativity of American lawyers (spurred by the chance for a lucrative fee), that provides those thinking about victim compensation for corruption a rich vein of case law to explore.

The paper is the fifth in a series of papers commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on standing by GAB editor-in-chief Matthew Stephenson, on civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, on private suits for defrauding government by Houston Law School Professor David Kwok, and private prosecution by Tamlyn Edmonds and David Jugnarain.