Category Archives: Commentary

Transparency International’s Muddled Use of “Corruption,” and Why It Matters

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What corruption means informs what and how anticorruption reformers reform.

Unfortunately, Transparency International’s Corruption Perceptions Index (CPI) dodges this important issue by averaging together the responses from polls employing competing definitions of “corruption.”  This is a problem because different types of corruption have different causes, have different effects, and require different types of remedies. Transparency International should disaggregate its index of perceived “corruption” into two distinct indices: one for perceptions of illegal corruption, and one for primarily legal (but distrust-generating) conduct, which could fairly be characterized as institutional corruption.  This change would make the CPI more precise, better educating the press, public, and policymakers who rely on it. Continue reading →

Would the US Really Benefit from More Corruption? A Comment on Rauch

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Jonathan Rauch’s recent Atlantic piece has a provocative title: “The Case for Corruption.”  Extending an argument about the unintended effects of international efforts to combat corruption to the domestic sphere, Rauch asserts that “in most political systems, the right amount of corruption is greater than zero. Leaders need to be able to reward followers and punish turncoats and free agents.”  According to Rauch, the U.S. political system used to give party leaders several tools to enforce discipline: pork-barrel spending, earmarks, campaign contributions, committee assignments, and endorsements.  The problem, he says, is that these mechanisms have become too weak–that we do not have enough of the “honest graft” famously celebrated by the Tammany Hall politician George Washington Plunkitt.

Rauch makes a valuable point that pork barrel spending (including earmarks), though unseemly, might serve a useful function in facilitating deals.  But does this mean that some amount of “corruption” can be good, as his title implies?  Maybe not–it depends on your definition of corruption, and Rauch is using a very expansive, and perhaps misleading one.  Rauch also urges us to change current regulations to empower party leaders, and is persuasive–to an extent.   Continue reading →

Are the Thai Anticorruption Agency’s Charges against the PM Politically Rash or Politically Shrewd?

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In my last post, I discussed the recent charges brought by Thailand’s National Anti-Corruption Committee (NACC) against the current Prime Minister, Yingluck Shinawatra, for failing to prevent corruption in the Thai government’s controversial (and recently discontinued) rice purchasing program. There are a few respects in which this case raises important questions not just for Thailand, but for anticorruption enforcement more generally. One, which I discussed last time, is the fact that the NACC has charged the Prime Minister not with engaging in corruption, but with (criminally) failing to prevent corruption. Another concerns how the NACC is managing – or failing to manage – the delicate and difficult politics of bringing charges against a sitting Prime Minister in the midst of ongoing political turmoil, in which the Prime Minister and her party remain very popular with much of the nation — and would almost certainly would have won the election that opposition protesters effectively blocked. My educated guess is that if you were to ask members of the NACC how the political situation affected their decision-making, they would say that it had no effect at all – they simply followed the evidence where it took them, without fear or favor. This is what anticorruption enforcement officials always say, at least publicly. I suspect they may actually believe it, and perhaps it’s (sometimes) true. But anticorruption enforcers operating in politically difficult environments often do, and often should, think carefully and strategically about the constraints and opportunities those environments create – Gabriel Kuris’s studies of the Indonesian KPK (here and here) provide nice evidence of that.

So, was the NACC’s decision to bring these charges against the Prime Minister at this moment a politically rash decision, or a politically shrewd one? It’s easier to make the case for “rash”, but at the risk of revealing my ignorance of Thai politics (or my ignorance more generally), I’m going to make a tentative case for “shrewd”. Continue reading →

Bright Line Rules: A Way to Reduce Politicized Enforcement?

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Yesterday Matthew discussed the wisdom of the Thai anticorruption agency’s recommendation that Thai Prime Minister Yingluck Shinawatra be charged with failing to prevent corruption.  The case would be brought under Article 157 of the Thai Criminal Code, a broadly worded law providing that a public official commits a crime if someone is injured as a result of the official’s failure to exercise his or her duties.

Statutes with such a broad sweep are a standard response to corruption in many countries, enacted out of a fear that a clever criminal can find a way around tightly drawn provisions of law.  Indeed, countries as diverse as Tanzania, South Korea, Indonesia, and Vietnam have all enacted broadly drawn laws that criminalize the “abuse of public office for private gain.”  However, such laws vest enormous discretion in the hands of law enforcement.  A critical–and often overlooked issue–is whether law enforcers should enjoy such discretion. Continue reading →

When Should Government Officials Be Criminally Liable for Failure to Prevent Corruption? Reflections on Thailand, and Beyond

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Three weeks ago, Thailand’s National Anti-Corruption Commission (NACC) recommended charging the sitting Prime Minister, Yingluck Shinawatra, with violating Section 157 of the Thai Criminal Code, one of Thailand’s key anticorruption laws. The corruption allegations concerned malfeasance in the Thai government’s controversial rice-purchasing program. There is much to be said about the NACC’s action and the underlying allegations, as well as how this will play out in the roiling cauldron of contemporary Thai politics. But perhaps the most striking thing about the charges, with the greatest potential significance outside of Thailand, is that the NACC did not allege that Prime Minister Yingluck herself committed any corrupt act, or even that she oversaw or directed or approved of any corrupt act. Rather, the NACC’s criminal complaint alleges that Prime Minister Yingluck knew about the alleged corruption in the rice-buying program and failed to stop it. This is possible because Section 157 applies to any official who “wrongfully exercises or does not exercise any of his functions to the injury of any person” (emphasis added). The NACC seems to read the prohibition on wrongful failure to exercise official functions quite broadly, so that it extends not only to an official who corruptly fails to take action (such as a health inspector or customs officer who looks the other way in exchange for a bribe), but also to an official who fails to take action to prevent corruption in the programs that official supervises.

That theory of criminal liability, applied in this context, is bold, and perhaps unprecedented. Of course, in private organizations, many legal systems may impose civil liability on corporate officers and directors who knew (or should have known) about corrupt activities by the corporation and failed to take appropriate remedial measures. But I can’t think of another instance in which an anticorruption enforcement agency has brought criminal charges against a senior government official (let alone a sitting head of government) for that official’s failure to stop corruption in a government program.

So what should we think about this? Is the expansive theory of liability under Section 157—as interpreted by the NACC—something that other countries should emulate? The short answer is that I’m not sure, but I have a few preliminary thoughts.

Continue reading →

US Moves to Freeze and Seize Nigerian Dictator Abacha’s Assets–But Who Will Get the Money?

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Last week, the U.S. Department of Justice (DOJ) announced that it had frozen about $458 million in corruption proceeds that former Nigerian dictator Sani Abacha and his conspirators allegedly embezzled from Nigeria’s central bank, laundered through U.S. financial institutions, and deposited in bank accounts around the world. The freeze is a first step in the DOJ’s largest-ever forfeiture action under its recent Kleptocracy Asset Recovery Initiative (KARI).  There is much to say about this development, but the question that most immediately comes to my mind (and likely many Nigerians’ minds) is: What will the DOJ do with all this money? Continue reading →

When Transparency Makes Corruption Worse: Cartels in Public Procurement

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Yesterday Matthew commended the work of Mihály Fazekas, István János Tóth, and their colleagues to those concerned with corruption in public procurement.  I second that recommendation.  In their July 2013, slyly-named “Corruption Manual for Beginners”, the authors describe better than anyone yet how a government buyer can connive to steer a contract to a particular seller — from skewing the contract specifications so that only the favored firm can meet them, to failing to notify others about the procurement, to disqualifying on specious grounds firms that submit bids lower than the favored firm’s bid.

Yet despite the value of the contribution, the authors have not (yet) provided a similarly penetrating analysis of another form of public procurement corruption: that which results not from a conspiracy between a government buyer and one seller but that between the buyer and a group of sellers organized into an industry cartel.  Judging from the results of investigations in settings as different as the American states, the Netherlands, the Philippines, Nepal, France, Columbia, Uganda, Slovakia, and India, this type of corruption maybe be at least as common as the single seller form.  Costly too.  More than half the time, the price a buyer pays in a cartelized market is 25 percent or more higher than what it would have been had there been no collusion among the sellers.

The distinction between these two types of collusion–one involving a single favored seller, the other involving a cartel of sellers–is important, because the appropriate policy response is quite different. When the procurement process is corrupted by a cartel, the standard prescription for combating corruption–transparency–is not only ineffective but self-defeating.  Continue reading →

The U4 Proxy Challenge–some quick reactions

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One of the big challenges in anticorruption work, which I suspect we will be discussing quite a bit on this blog, concerns the measurement of corruption. After all, there are a bunch of different theories about the causes and consequences of corruption, and about the best way to combat it. Testing these theories requires some way of measuring the extent of corruption (or different forms of the corruption problem). And for folks actually doing anticorruption work (donors, governments, NGOs, etc.), it would be nice to be able to assess how well programs are working. Yet all of the existing measures have significant problems.

To try to inspire some creative thinking about new ways to measure corruption, the good people at the U4 Anti-Corruption Resources Centre (affiliated with the Christian Michelsen Institute in Bergen, Norway), with the assistance of the UK’S Department for International Development (DFID), recently sponsored a competition (the “Proxy Challenge”) to come up with new proxies that would help track the progress of anticorruption reform initiatives. U4 hosted a one-day workshop last month to let the five finalists present their proxies, to choose a winner, and to promote some general discussion of the challenges of developing useful proxies for corruption in a variety of contexts. I was able to attend. I’ll try to post a some more substantive thoughts in a later post, but here are a few quick reactions. Continue reading →

Politically Motivated Anticorruption Enforcement: What Russia Can Show Us

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The recent focus on the unchecked corruption in the Sochi Olympics made me reflect on what Russia can teach us about the costs and benefits of politically-motivated corruption prosecution, discussed in Matthew’s February 18 post. Businesspeople with close ties to Putin won and abused lucrative Olympic contracts with no repercussions from the state. Ironically, opposition blogger Alexei Navalny, who publicly exposed the rampant corruption in Olympic construction projects, was the target of a fabricated corruption prosecution in July of last year, and placed under house arrest (allegedly for violating the terms of his earlier suspended sentence) just last week–perhaps not coincidentally, right after the conclusion of the Sochi Olympics.

Navalny’s prosecution is just one example of the fraught landscape of corruption prosecution in Russia. In a 2008 paper entitled “Law as Politics: The Russian Procuracy and its Investigative Committee,” Ethan Burger and Mary Holland provide excellent background on the politicization of the Russian Procuracy, as well as the vivid examples of the Procuracy’s politically motivated activities described in this post. The Russian experience demonstrates that the costs of targeted corruption prosecutions may be higher and the benefits much more elusive than Matthew suggests. Continue reading →

A Cautionary Note on the “World Anticorruption Police”

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In an Op-Ed in the New York Times this past Wednesday, Alexander Lebedev, former KGB officer and current owner of the Moscow newspaper Novaya Gazeta, calls for “an international body to police corruption.” Lebedev astutely describes how “international banks, law firms and accountants” make it far too easy to hide the proceeds of corrupt activities, and far too difficult to bring the perpetrators to justice.  Yet his proposed solution–an international anticorruption police force–is likely to have costs that far outweigh whatever benefits it may have. Continue reading →