Guest Post: How One Family Is Capturing the Sri Lankan State

Today’s guest post is from Professor Liz David-Barrett, Director of the Centre for the Study of Corruption at the University of Sussex.

Sri Lanka, a fragile democracy that emerged from a 26-year civil war only in 2009, is on the verge of becoming a captured state, thanks to a concerted power grab by the Rajapaksa family. When Gotabaya Rajapaksa was elected president in late 2019, he appointed his brother Mahinda to serve as both premier and Finance Minister. He later relieved Mahinda of the latter role, but replaced him with another brother. A fourth brother is Minister of Irrigation, and Mahinda’s son runs another two ministries. All told, Ministries run by the Rajapaksa family control an estimated 24% of the state budget. And another six Members of Parliament are members of the family. The Rajapaksas have further extended their control by appointing allies (including other family members) to other high-ranking government jobs and leadership roles in state-owned enterprises.

Even more troubling than the extent of the Rajapaska family’s dominance over Sri Lankan government is the way in which the Rajapaksas are using the familiar state capture playbook to ensure that they stay in power:

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Guest Post: Illicit Enrichment Laws and the Presumption of Innocence

GAB is pleased to welcome this guest post by Andrew Dornbierer of the Basel Institute on Governance, author of the recently released open-access book Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth.

Laws targeting illicit enrichment are increasingly prevalent. To date, at least 98 jurisdictions have some form of illicit enrichment law. While the design and scope of these laws vary—some are criminal laws that can be used to convict individuals who control assets disproportionate to their lawful income, while others are civil laws that allow governments to seize assets whose lawful origins cannot be adequately explained—the common characteristic of all illicit enrichment laws is that they do not require prosecutors to secure a conviction for the underlying criminal conduct that allegedly produced the illicit wealth. Rather, illicit enrichment laws only require that the government show that the person enjoyed an amount of wealth that cannot be explained by reference to their lawful sources of income.

This characteristic serves as the primary point of attack for many critics. They claim that by not requiring a state to prove criminal activity, illicit enrichment laws effectively reverse the burden of proof, requiring the targets of the enforcement action to prove their innocence. And some countries have resisted adopting illicit enrichment laws for this very reason. While the UN Convention Against Corruption includes a specific article recommending that state parties consider adopting illicit enrichment laws, during negotiations “many [national] delegations indicated that they faced serious difficulties, often of a constitutional nature, with the inclusion of the concept of the reversal of the burden of proof.” Similar concerns were raised during the drafting of the Inter-American Convention Against Corruption (IACAC), and while in the end this convention did include a provision calling on states parties to adopt illicit enrichment laws, the United States filed a particularly clear reservation to this provision when it joined, noting that because “[t]he offense of illicit enrichment … places the burden of proof on the defendant,” such an offense “is inconsistent with the United States Constitution and fundamental principles of the United States legal system.” And in Ukraine, in February 2019 the Constitutional Court of Ukraine invalidated the local illicit enrichment law on the basis that it was inconsistent with the presumption of innocence.

Is there any truth to the claim that illicit enrichment laws unfairly place a burden of proof on the defendant, and thus violate the presumption of innocence?

The short answer is no.

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Guest Post: How Not To Balance Efficiency and Integrity in Public Procurement–The Case of Italy

Today’s guest post is from Roberta De Paolis, a Ph.D. researcher in criminal Law at the Sant’Anna School of Advanced Studies.

In designing an effective public procurement system, a key challenge is striking the proper balance between ensuring efficiency and promoting integrity. But emergency situations make it hard to maintain an appropriate balance, as the response to the global Covid-19 pandemic has again demonstrated. When confronted with an urgent situation, governments often allow the need for speed to trump the interest in transparency and oversight, and thus grant public procurement authorities exemptions from the ordinary rules and monitoring procedures.

If one wants to find a good example of how not to address the challenge of striking the right balance between these competing interests, one need look no further than Italy. Rather than design a system that can ensure an appropriate degree of integrity without stifling efficiency, while at the same time building in adequate flexibility to handle urgent situations appropriately, the Italian public procurement system is characterized by a set of overly rigid, stifling baseline rules, from which the government has created a set of overly broad discretionary exceptions to address situations in which the application of the usual rules is untenable.

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Guest Post: A Market Research Approach to Encouraging Citizen Participation in Anticorruption

Today’s guest post is from Torplus Yomnak, Jake PattaratanakulApichart Kanarattanavong, Thanee Chaiwat, and Charoen Sutuktis of Chulalongkorn University in Bangkok, Thailand.

A team at Chulalongkorn University recently undertook a research project to examine the factors that increase public participation in anticorruption efforts, so as to develop a more effective communication strategy to promote public participation. (The final paper is currently only available in Thai, though an English translation is in progress, and a summary of the work can be found here.) The study employed a concept used in marketing research called “segmentation,” which seeks to identify latent classes of people—sorted by various characteristics and indicators—who will be more responsive to particular kinds of messaging. In marketing research, the idea is to identify which potential consumers will be most responsive to certain marketing strategies. The same research techniques can be used to classify different segments of the public by their likely responsiveness to anticorruption messaging (or to different kinds of anticorruption messaging).

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Guest Post: Highlights from the UNGASS Anticorruption Session Side Events

Last month, the UN General Assembly held its first-ever Special Session focused specifically on the fight against corruption. In addition to the UN General Assembly Special Session (UNGASS) itself, various governments and civil society organizations arranged various side events, held in parallel with the main UNGASS meeting, to allow activists, policymakers, and researchers to share their expertise. Today’s guest post, contributed by Michaella Baker, a JD-MBA student at Northwestern University (working in collaboration with Northwestern Law Professor Juliet Sorensen), summarizes the themes and principal contributions of three of these side events.

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Guest Post: The Case for Corruption Truth Commissions

Today’s guest post is from Blair Glencorse, the Executive Director of the Accountability Lab, a civil society network that promotes accountability, transparency, and open government.

When corruption is deeply entrenched, it is very difficult to dislodge through criminal prosecution and similar law enforcement efforts. In systems that create very strong incentives to behave corruptly—those where powerful social norms favor graft over honesty—one can expect widespread resistance to attempts at stepped-up enforcement of anticorruption rules, given the number of people who might rationally fear being implicated in wrongdoing. Moreover, given the reluctance of participants in systemically corrupt regimes to disclose their illicit conduct and improper relationships, it is very hard to understand how the corrupt systems operate, who the most culpable perpetrators are, and how such systems can be more effectively dismantled.

A promising response to these problems might be drawn from the experience of addressing widespread human rights violations in moments of transition: truth commissions. While it would obviously be very difficult to set up such a commission during normal times, when the opportunity arises—say, after a regime change, or a significant political turnover sparked by popular protests against corruption—a country could set up an independent body—a corruption truth commission—to manage a process by which amnesty would be offered to those who had engaged in unlawful corrupt acts, in exchange for a full and truthful accounting of the corrupt conduct that they had perpetrated or witnessed.

This approach has several practical benefits. It creates a permanent record of the abuse of power, builds an evidence base to go after those perpetrators who either reject the offer of amnesty or are too high-level to be eligible, and can help countries recover ill-gotten assets. By exposing the workings of corrupt networks, corruption truth commissions would also help us better understand how to identify and counter corrupt networks before they can take root.

While the appropriate design of such a body would obviously depend on the specific circumstances of each individual country, five general principles are broadly applicable:

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Time for the U.K. to Match U.S. Ambitions in the Fight Against Corruption

GAB is pleased to welcome this guest post by Susannah Fitzgerald, Network Co-Ordinator of the UK Anti-Corruption Coalition, which brings together the UK’s leading anti-corruption organisations to tackle corruption in the UK and the UK’s role in facilitating corruption abroad.

President Biden’s June 3 commitment “to prevent and combat corruption at home and abroad” is welcome news to corruption fighters around the globe. Five years ago, then U.K. Prime Minster David Cameron outlined similar ambitions at the International Anti-Corruption Summit in London. Yet, despite a promising start in the years after the Summit, the U.K. anti-corruption agenda now looks alarmingly close to stalling.

It is time reinvigorate that agenda, and not only for the sake of British citizens. Like the United States, the United Kingdom is an important financial center, and the measures it takes to curb corruption, fight money laundering, and ease the return of stolen assets will benefit populations around the world.

Here is what the UK has done so far do to tackle corruption, why it matters, and what more the Coalition believes it needs to do.

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Guest Post: The Role of Assemblage Theory in Rethinking Anticorruption Reform

Today’s guest post is from Grant Walton, a Fellow at the Development Policy Centre at Australia National University’s Crawford School of Public Policy, and the Chair of ANU’s Transnational Research Institute on Corruption.

For more than twenty years, international donors have advocated and supported anticorruption reform programs in developing countries. While supporters of these efforts can point to some demonstrable successes (see, for example, here and here), many skeptics have questioned the effectiveness of such interventions. Indeed, the harshest critics echo Barney Warf’s assessment that many anticorruption reforms “amount to little more than hollow rhetoric, the punishment of a few sacrificial lambs, and little substantive change.”

In response to these criticisms, some academics have started to reassess the assumptions that have guided donor-supported anticorruption efforts, including how corruption and the responses to it are conceptualized. One of the most innovative strands of this burgeoning literature draws on a framework called “assemblage theory.”

This framework, devised by the philosophers Gilles Deleuze and Félix Guattari, is complex, but to boil it down, assemblage theory attempts to describe the world by focusing on the fluid non-hierarchical relationships that form between humans, ideas, and objects. Assemblages come together at crucial moments (to design a policy for example) and then disperse. Rather than examining the role of different groups or institutions, assemblage theorists focus on the way people, ideas, and objects are connected across time and space, and how these connections help shape events, ideas, and policies.

An increasing number of scholars now draw on assemblage theory to understand the complex world of policymaking, which is rarely a linear process, and involves humans, ideas and objects that stretch across the globe. And, as I highlight in a recent article, anticorruption scholarship in particular has drawn on assemblage theory to reimagine the effectiveness of anticorruption reforms in two ways:

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Guest Post: Why Sweden Needs To Clean Up Its Act

Today’s guest post is from Aiysha Varraich, a Ph.D. candidate at the University of Gothenburg’s Quality of Government Institute.

This past January, Transparency International released the latest version of its Corruption Perceptions Index (CPI). And once again, Sweden’s score was among the best in the world (tied for third place with Finland, Switzerland, and Singapore). Sweden’s position near the top of this and other international integrity and good governance indexes may create the impression that Sweden is a corruption-free country. But this is misleading. To be sure, Sweden is free from the daily petty corruption that burdens so many citizens throughout the developing world. But high-level corruption and associated financial crimes are alive and well in Sweden — and often the perpetrators escape meaningful accountability. Consider just a few recent high-profile examples:

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Guest Post: A Bleak Future for Indonesia’s Anticorruption Commission?

GAB is pleased to welcome back Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, to contribute today’s guest post:

Indonesia’s Corruption Eradication Commission, known by its acronym KPK, was established during Indonesia’s reformation period in the early 2000s, and quickly became one of the world’s most powerful and independent anticorruption commissions. When the KPK began operations in 2004, a government regulation granted the agency substantial autonomy in its human resources management system, which the KPK used to ensure the integrity and competence of its staff. This control over personnel is considered good practice by international standards for anticorruption agencies, especially in environments where the existing state apparatus, and in particular law enforcement, is part of the corruption problem. And in Indonesia’s case, the KPK’s success in ensuring a competent and honest staff has been crucial to the agency’s track record of success—a track record that includes bringing more than 700 cases, the large majority of which resulted in guilty verdicts against members of Indonesia’s national and regional political elite.

But the KPK’s threat to vested interests has provoked strong resistance. This resistance has taken many forms, from judicial hostility, orchestrated demonstrations and threats, personal attacks on members of the organization, stalling the agency’s budget, and attempts to curtail its authority and autonomy through other legislative changes. The most devastating development was a new KPK Law, adopted in 2019, that was pushed through the legislature in rapid time without public input. This law effectively stripped the KPK of autonomy in important investigative functions and in its human resources management (here and here). Under the law, by September 2021 the KPK is to be integrated into the state apparatus, and its employees must become regular civil servants.

Allegedly as part of this process of integrating KPK employees into the regular civil service, the government recently required all KPK officials to take a specially concocted “national vision exam.” To be clear, neither the 2019 KPK Law nor its implementing regulations explicitly require such a test, which differs from the standard civil service entrance exam that all civil servants must take. Rather, this special test was developed by the National Civil Service Agency in collaboration with the Indonesian Armed Forces and Intelligence Service specifically to determine which KPK officers were radical and lacked neutrality and integrity and therefore presumably unfit for future civil service.

Seventy-five KPK employees failed this special exam. That may not seem like a big deal, both because 75 people amounts to less than 6% of the KPK’s current staff of over 1,300 employees, and because it might seem that failing a civil service exam is a reasonable ground for dismissal. But as the names of those who failed the test, and more details about the questions and the process, were made public, many critics have raised legitimate concerns. Indeed, even before the test was administered, the KPK employees’ union (which, by the way, will cease to exist after the conversion of the KPK into a regular civil service agency) warned that such a test could be misused to legitimize the marginalization or dismissal of KPK officers that handle strategic cases or hold strategic positions in the agency. And now that the results have come out, there are reasons to believe these fears were well-founded.

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