Category Archives: Commentary

Sextortion Victims Are Not Guilty of Bribery

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On this blog, I have repeatedly called for the anticorruption community to put greater emphasis on fighting sexual corruption around the world. I have argued that a police officer demanding sex in order to perform (or not perform) an official function is a form of bribery; in a few cases, officials have been charged with and convicted of bribery or official misconduct for sexual corruption.

Characterizing this sort of sexual coercion as bribery, however, raises a potential problem: In typical monetary corruption cases, it is possible to prosecute the bribe giver as well as the bribe receiver. Does that mean that the private citizen (almost always a woman) from whom sexual favors are extorted by a public official could be deemed to have “paid” an unlawful bribe? Unfortunately, the idea of charging victims of sexual corruption with bribery is not too far-fetched. In one New York case, two police officers demanded sex from a female motorist if she wanted to avoid arrest (for drugs found in her car); at the officers’ trial, the jury was instructed that the woman was an accomplice as a matter of law to bribe receiving. The appellate court wrote that the test for whether the woman can be considered an accomplice is whether she “theoretically could have been convicted of any crime based on at least some of the same facts that must be proven in order to convict the defendant.” And because the woman in this case acquiesced to the officers’ demands, she met the definition of an accomplice to bribe receiving. (She was not charged, but according to the court she could have been.)

Thus one potential concern with heeding the call to treat so-called “sextortion” as a corruption offense (that is, soliciting a bribe) is that it could lead to greater use of anti-bribery laws to charge the women from whom sex is extorted. (For example, suppose an American businesswoman had sexual relations with a foreign procurement officer as a quid pro quo for receiving a government contract; the businesswoman in this case could conceivably be charged with violating the Foreign Corrupt Practices Act.) It will be crucial to ensure that this never happens. This can be accomplished through a generous interpretation of coercion as a defense to bribery, informed by the existing American jurisprudence on sexual harassment in the employment setting.

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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 →

The Supreme Court’s McDonnell Opinion: A Post-Mortem

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I’m a bit late to the party, but I thought I should perhaps say something about last month’s unanimous U.S. Supreme Court decision to vacate the conviction of former Virginia governor Bob McDonnell, on the grounds that the trial judge had not properly instructed the jury on the meaning and scope of the term “official act” in the relevant anti-bribery statutes. (As readers of this blog are likely aware, I thought that McDonnell’s conviction ought to be affirmed. This is not the first time the U.S. Supreme Court’s views differ from my own, nor will it be the last.) There has already been a spate of helpful commentary on the decision—including a succinct summary of the opinion’s likely impact from the Center for the Advancement of Public Integrity, and an insightful commentary from Daniel Richman and Jennifer Rodgers on the NYU Compliance & Enforcement Blog (a new blog that’s worth following). I’m not sure I have all that much new to add, but let me throw in my two cents.

While it would have been satisfying to see McDonnell get his just desserts, what happens to McDonnell himself is less important that the broader impact of the decision on the enforcement of anti-bribery laws more generally. So what does the Supreme Court’s opinion portend for anti-bribery enforcement in the U.S. going forward? After reading the opinion, my reaction is mixed. On the one hand, the decision rests on fairly narrow grounds, which might well cabin its impact on the mine-run of federal bribery prosecutions. On the other hand, the Court’s opinion both bespeaks an unrealistic view of how senior politicians exert influence over policy, and places undue weight on concerns about chilling (allegedly) desirable conduct. Continue reading →

When Should We Put Anticorruption Agencies in the Constitution?

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To fight corruption more effectively, many countries have created specialized government institutions that focus primarily on corruption issues. Most common are specialized anticorruption agencies (ACAs) with investigative and/or prosecutorial functions, although some countries have also created specialized anticorruption courts, special coordinating bodies, or other entities. This trend has generated a great deal of debate, both about whether to create such specialized bodies at all and about how they should be designed (for example, whether ACAs should combine prosecutorial and investigative power). Absent from much of this debate, however, is a discussion of the means countries should use to create these specialized bodies—in particular, whether these specialized anticorruption bodies should be enshrined in the nation’s constitution, or should be created by ordinary law.

Anticorruption bodies vary quite a bit on the extent to which they are constitutionalized. Most existing ACAs and other anticorruption institutions—including many considered highly successful—are not mandated by the constitution. For example, Indonesia’s anticorruption agency (the KPK) and its anticorruption courts (the Tipikor courts) were created by ordinary legislation, as was Belgium’s anticorruption investigation body and Spain’s anticorruption prosecutor’s office. However, in other countries specialized anticorruption bodies are explicitly established (or required) by the constitution. For example, the Philippines’ anticorruption court, the Sandiganbayan, is enshrined in that country’s 1987 constitution. Indeed, the trend (if one can be discerned) seems to be in the direction of constitutionalization. Tunisia’s new constitution, adopted in 2014, includes a specialized anticorruption investigation body. Egypt’s 2014 constitution similarly includes a specialized anticorruption prosecutor. Mexico’s 2015 amendments constitutionalized three types of anticorruption agencies (investigative, prosecutorial, and judicial), as well as a coordinating body.

But should these agencies be constitutionalized? And if so, when? Continue reading →

Building Booms and Bribes: The Corruption Risks of Urban Development

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Windfall gains often create opportunities for corruption. The big inflow of money increases the opportunities and incentives for kickbacks and bribery as a means to capture new funds. Well-known examples of this phenomenon include disaster relief efforts, resource booms, and humanitarian aid. Yet the concern is not limited to those contexts. Changes in the price and value of land in a given area can also create the opportunity for windfall, and associated corruption risks.

The corruption risks in the land sector and real estate industry have been discussed broadly as pervasive; routine land administration and land grabbing provide ample opportunities for corruption to flourish where land governance is weak. Yet these discussions sometimes overlook another sort of corruptogenic windfall in land markets, one that is often hiding in plain sight: the effects of gentrification of urban centers. Experiences from cities around the world exemplify three common ways in which these windfall gains from gentrification provide opportunity 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 →

Brexit and Anticorruption

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So… Brexit. I don’t know nearly enough to weigh in on what this startling development means for European politics, British politics, macroeconomics, Donald Trump’s chances in the U.S. presidential election, or the price of tea in China. But since Brexit is such a major development, I felt like I should say something about the implications for anticorruption, even though that probably wouldn’t be on most people’s top-ten lists of important Brexit implications.

Fortunately, in coming up with something to say about Brexit and anticorruption, I don’t have to work too hard, because two excellent recent posts—one from Robert Barrington at Transparency International UK, another from Corruption Watch—have very nice, clear discussions of the issue. I don’t really have much to add, but let me highlight three of the key worries raised in both posts, and then throw in one more, somewhat more speculative and longer-term question: Continue reading →

Coming Along for the Ride: Regional Human Rights Courts Should Demand Government Measures to Affirmatively Address Corruption

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In an earlier post, I discussed an order by the Inter-American Court of Human Rights demanding that Brazil investigate and report on prison guards’ corruption. Mandating that a country review its own corruption seems to be a new step for an international judicial body. The approach suggests a way to more closely integrate corruption-related concerns into international human rights work: including corruption-specific mandates within broader holdings. Other international adjudicative bodies, particularly regional human rights courts, should follow this model.

The idea of directly adjudicating corruption through an international court has been floated but also strongly opposed. Some corruption commentators advocate making grand corruption a crime against humanity that could be prosecuted by the International Criminal Court (ICC). As discussed on this blog, Judge Mark Wolf has proposed an independent international anticorruption court, an idea that met with some tempered support and a good deal of opposition (see here, here, and Matthew’s concerns here). I agree that grand corruption does not belong in the ICC or an independent court. To reject grand corruption as a stand-alone offense to be prosecuted in international criminal tribunals is not, however, to reject that corruption should be addressed by international criminal tribunals where it is relevant. Existing bodies like regional human rights courts—the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the much newer African Court on Human and Peoples’ Rights, as well as other, even younger human rights bodies in Southeast Asia and the Middle East—should explicitly address corruption-related issues within the context of the large volume of human rights adjudication already taking place. As other commentators have already discussed, these regional human rights courts can fold corruption into their respective mandates and generate meaningful corruption-related law (see here, here, and here). Indeed, regional human rights bodies are already well-placed to highlight corruption where it emerges and to respond appropriately to both the existing situation and future concerns:

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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.

 

The Correlation Between Economic Freedom Indexes and Corruption Indexes Tells Us Nothing

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Anticorruption advocates often argue that the fight against corruption is not just about strengthening systems for detecting and punishing corrupt behavior, but about implementing broader systemic reforms to policies and institutions that create the conditions in which systemic corruption is more likely to take hold. That advice is sound as far as it goes—but the challenge then becomes identifying those policies and institutions that have this “corruptogenic” character. One prominent hypothesis in this vein is that corruption thrives in environments where there is a lack of “economic freedom”—where the government plays an outsize role in the economy, imposes lots of burdensome regulations on private enterprise, does not provide effective protection for private property and contract rights, and generally restricts economic activity. This idea (which is perhaps especially attractive to those who favor a limited government role in the economy for other reasons) is certainly plausible. But is it true?

Proponents of the idea that a lack of economic freedom leads to more extensive corruption can point to a substantial body of cross-country research that purports to find a strong negative correlation between economic freedom and corruption. Most of this research measures (perceived) corruption using one of the familiar international indexes, most commonly Transparency Internationals’ Corruption Perceptions Index (CPI). The research in this vein also measures “economic freedom” using indexes produced by NGOs—the most widely-used of which is the Heritage Foundation’s Index of Economic Freedom (IEF), which aggregates a number of variables thought to be related to economic freedom, grouped into four different categories (rule of law, limited government, regulatory efficiency, and open markets). Numerous studies have found a strong and statistically significant correlation between the IEF and the CPI, and treated this as strong evidence that a lack of economic freedom is at the very least associated with, and most likely causes, more widespread corruption (see here, here, here, here, here, and here).

Unfortunately, these results tell us precisely nothing. Put aside the standard admonition that we can’t infer causation from correlation. Put aside the concern that “economic freedom” may not be a coherent concept, and that the Heritage IEF aggregates a large number of disparate factors. And put aside worries about whether these studies control for potential additional variables that might influence both corruption and economic freedom. The fatal flaw in drawing any inferences at all from the correlation between the IEF and the CPI is in fact much more straightforward: Continue reading →