Category Archives: Commentary

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 →

Political Bias in U.S. Anticorruption Enforcement

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In my post last week, which reacted to Dani Rodrick’s discussion of the political situation in Turkey (and also to some of the commentary on recent anticorruption enforcement patterns in China), I noted the ambivalence that many people (myself included) feel about anticorruption enforcement that is simultaneously (1) legitimate (in the sense that there is evidence that the targets have indeed violated the law) and (2) politically-motivated (in the sense that the targets may have been selected not only, or not primarily, because of the alleged corruption, but also because of partisan or factional political conflict).

One thing that I should have made clearer in the post, but didn’t, is that concerns about politically-motivated anticorruption enforcement are not limited to developing countries. Indeed, there’s some fairly strong evidence of partisan political bias in anticorruption enforcement in other countries, like the United States. The strongest evidence that I know of is a terrific paper by the political scientist Sandy Gordon, which finds very strong evidence that the U.S. Department of Justice is more likely to prosecute state and local officials for various corruption offenses if those officials belong to a different political party than the one that controls the White House. (This effect was particularly strong during George W. Bush’s presidency.) Continue reading →

Personal Financial Disclosure by Chinese Officials: Will China Finally Get Serious?

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Matthew noted yesterday how continuing revelations of the vast wealth some Chinese officials have accumulated put China’s leaders in a bind.  If they don’t curb corruption, they risk undermining their legitimacy; on the other side, so many senior individuals are involved that a serious crackdown could ignite a power struggle.

An important gauge of the direction the leadership will choose is how vigorously it enforces a directive issued in November 2013 requiring public servants to disclose details about their and their family members’ finances.  Requiring senior officials to reveal their personal finances can be a valuable tool in the battle against grand corruption, as one of China’s East Asian neighbors can testify.  In the Philippines, the Statement of Assets, Liabilities, and Net Worth officials must file has been central to exposing the corrupt dealings of a president and a chief justice as well as revealing a nest of corrupt tax collectors. Continue reading →

Reflections on the ICIJ’s Expose on Chinese Princelings’ Offshore Holdings

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For those who haven’t seen it already, last month the International Consortium for Investigative Journalists (ICIJ) released a highly detailed report on the extensive offshore holdings of China’s “princelings” (close relatives of China’s political elite), and other relatives and close associates of the leadership. It’s worth a read. I doubt anyone who follows China even slightly will be terribly surprised to learn that friends and family of the Communist Party elite have stashed billions of dollars in shell companies and offshore bank accounts, but the level of detail—and the naming of names—is impressive. And while nothing in the report directly indicates that the money is the product of corruption or other illegal activity, as the saying goes, where there’s smoke…

A few quick thoughts on the report: Continue reading →

Do Investment Arbitration Treaty Rules Encourage Corruption?

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Is it possible that current investor-state arbitration rules actually encourage states to tolerate corruption? A terrific 2012 note by Zachary Torres-Fowler in the Virginia Journal of International Law raises that question. Here’s the gist of his argument: According to the widely discussed arbitral decision in World Duty Free v. Kenya, states in investment treaty arbitration can escape liability by proving that the aggrieved investor engaged in corrupt activities in connection with the investment under dispute–even if senior state officials were full participants in the corrupt transaction. That being the case, states that receive inbound foreign investment have a perverse incentive to tolerate corruption in the officials who deal with foreign investors, because that corruption may help shield states from legal liability should the state subsequently renege on its agreement with the investor. This is a great insight, and one which I think could actually be expanded a bit further.

Continue reading →