Reducing Court Delays: A Critical Element in the Fight Against Corruption

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One consistent finding from the research on anticorruption policy is that those tempted to commit an act of corruption can be deterred from doing so if they are afraid they will be caught and punished.  That is the good news.  Deterrence works. But as I noted in an earlier post, deterrence requires a court system that can resolve cases within a reasonable time.  If those contemplating whether to take or pay a bribe or participate in some other form of corruption know that, if caught, they can delay the case for years if not decades, the fear of punishment will be lessened if not eliminated altogether. An effective national anticorruption policy thus requires ensuring cases are resolved without inordinate delay.

Court delay is a long-standing problem in many nations, and courts in any number of jurisdictions have implemented programs to reduce delays. Few, however, have succeeded.  In a new policy brief for the U4 Anti-Corruption Resource Centre I argue that one reason why so many delay reduction programs have failed is that they have ignored how the formal and informal rules governing case disposition shape the incentives of judges, lawyers, court staff, and litigants.  I urge that a successful delay reduction strategy must start with such a “political economy” analysis and that reforms be built around what that analysis reveals. Comments welcome.

A Regional Anticorruption Convention in the Asia-Pacific?

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In my last post I discussed Transparency International’s proposal for an “ASEAN Integrity Community” (AIC) to promote and harmonize effective anticorruption policies in the Southeast Asian region. The proposed AIC would be part of the formal ASEAN framework but would not impose additional legal obligations on member states. This got me thinking a bit more about whether it would be a good idea to push for a more robust international anticorruption convention, either in ASEAN or in the Asia-Pacific region more generally. (I’m not alone in having at least entertained this idea: the Thai National Anti-Corruption Commission has apparently been developing, and occasionally floating, a proposal for an ASEAN Anti-Corruption Convention.) After all, in addition to the two main global anticorruption conventions—the UN Convention Against Corruption (UNCAC) and the OECD Anti-Bribery Convention—there are also a number of regional anticorruption conventions, including the Inter-American Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, the League of Arab States Anti-Corruption Convention, the Council of Europe’s Civil and Criminal Law Conventions on Corruption, and the European Union’s Convention against Corruption involving Officials. Indeed, the Asia-Pacific region is one of the few regions in the world (along with South Asia, Central Asia, and a handful of others) that lacks a regional anticorruption convention of some kind. Is there a case for creating such a regional instrument in the Asia-Pacific (or, more narrowly, in ASEAN)?

I think, upon further reflection and discussions with people who have much more expertise than I do, that the answer is probably no. But nevertheless I thought it would be worth at least floating the idea, if only to stimulate further discussions. Continue reading →

Asset Recovery and the Department of Justice’s Discretion to Return

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The U.S. Department of Justice’ trumpets its so-called “Kleptocracy Asset Recovery Initiative,” which seeks to freeze and seize illicit assets stashed by corrupt foreign leaders in the United States. When Attorney General Eric Holder had introduced the Initiative before the African Union in 2010, he described it as a program for recovering public funds for “their intended – and proper use”. For his audience, “proper use” was no doubt understood as implying return of the looted assets to the victim countries. Yet over the past few years, these expectations have been eroded, as the US has proved reluctant to turn over seized asses, and the DOJ’s public statements regarding asset return now increasingly incorporate qualifying language to the effect that forfeited assets will be returned to the originating jurisdiction “where appropriate“. This is inequitable and harmful to global anticorruption efforts. Continue reading →

The Social Psychology of Corruption

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There are many theories about the causes of corruption, ranging cultural explanations to economic models. But relatively little attention has been paid to the social-psychological causes of corruption, especially at the individual level. Yet as the sociologist Marina Zaloznaya persuasively argues in a recent paper, we need to pay more attention to the individual social psychology of corrupt behavior if we are to combat it effectively. And indeed, there is a small but growing number of empirical studies (including some discussed previously on this blog) that have investigated why a person might act dishonestly, and in particular consider how an individual’s tendency to commit corrupt acts may depend on both the person’s moral identity and the surrounding circumstances. Although there is still much we do not understand, this research offers some revealing insights. Continue reading →

Do We Need an “ASEAN Integrity Community”?

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The Association of Southeast Asian Nations (ASEAN) is taking a major step toward greater regional economic integration at the end of this year, with the long-awaited launch of the “ASEAN Economic Community”, a region-wide agreement designed (among other things) to promote the freer movement of goods, capital, and labor throughout the region. Yet many worry that this greater economic integration might exacerbate the region’s already serious struggles with corruption, especially cross-border corruption. Largely in response to that concern, last April Transparency International published a report calling for the creation of an “ASEAN Integrity Community” (AIC) that would, in the words of the report, “create a coherent regional anti-corruption strategy” and “provide space for civil society and the business sector to be able to have input into and shape this regional anti-corruption agenda.”

It’s an intriguing idea, and the report is worth reading. (Full disclosure: I wrote a background paper for one of the meetings TI organized last September to discuss corruption challenges in ASEAN. Indeed, substantial chunks of the background paper that I wrote appear – uncredited – in the TI Report on the AIC.) Certainly, there’s a good case to be made for greater regional cooperation on anticorruption challenges within ASEAN. That said, I found the TI report on the proposed AIC frustrating in several respects, most significantly the vagueness regarding how, exactly, the AIC would operate, and how it would add value above and beyond the existing regional forms and groupings that address corruption issues. I realize that this is an early-stage proposal, designed to generate political momentum for greater action and political buy-in (particularly in advance of the International Anti-Corruption Conference in Malaysia next week), so it may not really fair to criticize the report for being a bit light on specifics. Still, it’s worth reflecting a bit more on what we might hope to get out of something like an AIC, and whether this is the right way to go about tackling what most experts would agree is a genuine and serious set of problems and challenges. Continue reading →

How to Corrupt an Anticorruption Commission: The Case of Nepal

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Narayan Manandhar, an international consultant on anticorruption, contributes the following guest post:

Nepalese lawmakers recently promulgated a draft constitution that envisages new roles and responsibilities for its anticorruption agency, the Commission for the Investigation of Abuse of Authority.  The proposed changes to the commission’s mandate shows how, if policymakers don’t have the guts to abolish an anticorruption agency, they can defang it by eroding its power and responsibilities.  This recent effort is the latest attempt by Nepal’s elite to ensure the commission cannot do what it is supposed to do: fight corruption.    Continue reading →

A U.S. Court Jeopardizes Corporate Transparency Rules, in the Name of Free Speech

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Transparency is often seen as an important anticorruption tool, perhaps nowhere more than in extractive industries. Notably, an international movement has called on extractive industry firms to “Publish What You Pay” (PWYP). The idea is that if it were public knowledge what these firms had paid for the concessions they receive from governments, the citizens in those countries (as well as journalists, NGOs, and others) would be better able to hold governments accountable for what they did with the money (and would make it harder for governments, or individual government officials, to lie about how much money they received). Many advocates therefore believe that it would be good public policy to enact PWYP rules that would compel these sorts of disclosures. But would such disclosure requirements violate the constitutional principle of freedom of speech? Alas, some U.S. judges seem to think so.

If the whole idea that disclosure requirements of this sort might infringe free speech rights seems bizarre, I’m with you—in my earlier post on this topic, discussing an earlier case that seemed to take this position, I used words like “absurd” and “inane.” Yet last week the U.S. Court of Appeals for the D.C. Circuit issued a new ruling (a follow-up to the earlier decision I ranted about last year) that seemed to strongly endorse a very broad constitutional protection for corporations against “compelled commercial speech,” which bodes ill. Although the most recent opinion, like the one I posted about last year, does not directly address PWYP mandates, the larger themes of the D.C. Circuit opinion are troubling, and suggest that this court (or at least some judges) may be hostile to the whole idea of using mandatory disclosures as a way to advance important public policy goals, including the fight against corruption. Continue reading →

Conflicting Philippine Identities and the Fight Against Corruption

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In his book, From Third to First World, Lee Kuan Yew remarked that the Philippines has two societies, and that the “elite mestizos had the same detached attitude to the native peasants as the mestizos in their haciendas in Latin America had toward their peons.” While this analogy may be extreme, there’s hardly any denying that reforms and economic progress have done little to alleviate the socio-economic disparities entrenched in Philippine society. Even today, Philippine identity looks vastly different for the rich than it does for the poor—in terms of heritage, cultural attitudes, daily experiences, and values. In short, the class divisions that Singapore’s great leader alluded to still exist today, and contribute to a sense of alienation among the two so-called “societies” within Philippine culture.

How does this division play out when it comes to governance, and, for our purposes, anticorruption efforts? Alienation on both sides of the economic divide, and the inability of Filipinos of different classes to relate to one another, have had deleterious effects on progress in this field, and it is important that Philippine policymakers take into account the limits imposed by socioeconomic disparities when considering possible strategies to tackle corruption.

Continue reading →

Danger, Will Robinson: Can Robots Protect Us from Corruption?

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Technology is a frequent recourse for anticorruption advocates, be it in the form of crowdsourced reporting, tree tracking, or drug verification.  To that list, one can now add one of the Democratic Republic of the Congo’s recent initiatives: robots.

We may not yet be at the point where, like something out of a summer blockbuster, robots can chase down offenders or take the lead in corruption investigations. Nevertheless, building upon their earlier efforts in Kinshasha, a group of engineers has recently been hired to install a traffic robot in Lubumbashi. The robots, eight feet tall and looking like something out of the 1960s, have traffic lights embedded in their torsos and are equipped with cameras which allow them to record traffic violations. The theory behind these cybermen? Robots can’t be bribed, thereby circumventing the notoriously corrupt (human) police force of the DRC, whose officers could either baselessly stop drivers and demand money or be bought off by a driver who truly has committed an infraction.

There are many good things about this initiative. Encouraging Congolese startups (and women in business and science–the engineering team that developed the robots is all-female) seem like worthwhile goals. And if people are somehow intimidated into being better drivers, as some Congolese have claimed is occurring, then the DRC’s horrific traffic accident rate may drop. However, are these robots really effective as corruption-fighting tools? Continue reading →

Cool Graphics and Useful Data: The “FCPA Map”

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Earlier this summer the director of the Mintz Group (a private firm specializing in corporate investigations matters) referred me to a useful resource his firm has developed, an interactive “FCPA Map,” displaying in graphic and user-friendly from all the FCPA cases that have resulted in penalties, broken down by country, industry, and size of penalty (along with links to the court decisions or press releases announcing the resolution of each of the cases). All the information on this FCPA Map is publicly available and can be downloaded from other sources (including the DOJ’s website), but the interactive map is a helpful, user-friendly resource that I thought might be of interest to some of our readers (and may be especially useful for students). So I thought I’d give it a plug here.

[By the way, in case anyone is wondering: I have no relationship, financial or otherwise, with the Mintz Group. I’ve only met the director once, briefly, after he attended a lecture I delivered at the International Anti-Corruption Academy. Mentioning this may seem gratuitous, but on an anticorruption blog of all places, it’s probably important to address any concerns about conflicts of interest!]