U.S. State Grand Juries Can Be Powerful Watchdogs. Let’s Put Them To Use (Again).  

Many commentators in the United States—including a number of GAB contributors—have lamented the lack of robust anticorruption investigations at the state level, and have advocated the creation or strengthening of state-level anticorruption commissions (see, for example, here, here, and here). While there is much to be said for these proposals, the existing commentary often overlooks the fact that states already have a powerful institution with the potential to perform many of the functions that reformers hope to vest with the state commissions. That institution is the state grand jury.

When most people hear the phrase “grand jury,” if they know the term at all, they probably imagine a scene from some TV crime show where a prosecutor endeavors to persuade a group of average citizens to indict someone that the prosecutor believes has committed a crime. And indeed in most states, grand juries’ principal function is to determine whether a state prosecutor has “probable cause” to put a defendant on trial. (After the trial beings, a different jury—the “petit jury”—decides whether the defendant is actually guilty.) But grand juries don’t just evaluate the prosecutor’s evidence at the indictment stage. Grand juries also have robust investigatory powers of their own. Like some state anticorruption commissions, state grand juries have the authority to subpoena documents or other tangible things. But unlike state anticorruption commissions, state grand juries can also compel witnesses to testify, and can hold those who refuse in contempt. (Indeed, while witnesses can invoke their constitutional right against self-incrimination to refuse to testify in a criminal trial, no such right exists in a grand jury investigation.) Moreover, grand juries can not only return criminal indictments (their more familiar function), but grand juries can also issue public reports about unethical and unsavory behavior.

If wielded properly, these immense powers could help unearth evidence of wrongdoing. Moreover, grand juries’ investigative powers may be especially valuable in cases involving corruption. While it might seem radical to propose that grand juries exercise these existing but largely moribund powers to assume the role of anticorruption watchdog, this would in fact be a return to one of the grand juries’ traditional functions.

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How to Make the Iraqi Commission of Integrity More Effective in Fighting High-Level Corruption

Last fall, anti-government protests broke out in Iraq. The protests started in Baghdad before spreading to other cities from Najaf to Nassiriya, rocking the country through the beginning of this year. High on the list the protestors’ demands: rooting out pervasive government corruption. The protestors are more than justified in making this demand. Systemic embezzlement, kickbacks, and bribery schemes pollute Iraqi politics and government services, and seemingly little has been done to get the problem under control.

Iraq’s chief anticorruption body is an entity called the Federal Commission of Integrity (CoI), an independent commission originally created in 2004, and recognized under Article 102 of the 2005 Iraqi Constitution as an independent body subject to monitoring by the Iraqi Parliament. CoI is tasked with investigating corruption cases, recovering stolen government assets, proposing anticorruption legislation, and overseeing mandatory financial disclosures for Iraqi government officials. With respect to its investigative functions, CoI has a mixed track record. On the one hand, despite the extraordinarily challenging environment in which it operates, CoI has achieved some successes. For example, last November a CoI investigation led to the arraignment of a Member of Parliament, Ahmed al-Jubouri, on  corruption charges for misappropriating government funds. A month later, in December 2019, a previous CoI investigation into former MP Shadha al-Abousy culminated in her conviction. More generally, official statistics indicate that in 2017, CoI handled 8,537 criminal cases, and of the 1,221 cases completed that year, 753 resulted in convictions—including seven convictions of ministerial-level government officials. The 2018 data reveal 1,218 convictions, including four ministerial-level officials. (Official 2019 statistics are not, to my knowledge, available yet.)

On the other hand, CoI has had difficulty securing the convictions of powerful, influential figures. For example, only days after Ahmed al-Jubouri’s arrest, he was released following the intervention of Iraq’s Parliament Speaker, Mohammed Halbusi. Furthermore, of the high-level convictions CoI has achieved, most have been handed down in absentia, with defendants remaining at large. And CoI has had limited success recovering stolen public funds. Statistics for the first quarter of 2018 reveal that CoI had recovered $131.8 million in stolen funds. In all of 2017, $111.7 million previously lost to corruption made it back into government coffers. That may seem like a lot, but keep in mind that in 2019 alone, CoI estimated that $15.6 billion of Iraqi state funds had been lost to corruption. Since 2003, estimates put total state funds lost to corruption at upwards of $300 billion. So CoI’s recovery efforts have barely made a dent in the amount of money embezzled. Moreover, most of the cases handled by CoI that involved stolen funds have been against relatively low-level government employees.

So, while COI has brought thousands of corruption cases to courts and secured hundreds of low-level convictions, it has been less successful in tackling high-level corruption. But this is no reason to give up on the commission. A few key changes could make CoI a much more effective anticorruption body.

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Guest Post: Assessing the Relationship Between Parliament and Anticorruption Agencies

Today’s guest post is from Franklin De Vrieze, a Senior Governance Advisor for the Westminster Foundation for Democracy (WFD), a UK public body that works with parliaments, political parties, and civil society groups to promote fairer, more transparent, and more accountable democratic political systems.

In many countries, especially developing or transition countries, an independent anticorruption agency (ACA) is an important part of the country’s national anticorruption strategy. Today, there are more than 100 ACAs around the world, and though there are many different types of ACAs—some have only preventive and policy coordination roles—many ACAs have law enforcement powers (investigation and/or prosecution). To be effective in carrying out these law enforcement responsibilities, particularly when dealing with high-level corruption, ACAs must be sufficiently independent and sufficiently powerful. At the same time, though, the interest in autonomy may sometimes be in tension with other interests. For one thing, an ACA needs to maintain constructive working relations with state bodies dealing with corruption, including courts and the police. For another, accountability is also important. Any entity with law enforcement powers might wield those powers abusively, and in extreme cases, one must worry about the politicization of ACAs

What is the appropriate role of the parliament in addressing these challenges? Somewhat surprisingly, relatively little has been written on this topic. Relatively few ACAs report directly to parliament, probably due to understandable concerns regarding the need for independence from politicians who might themselves be the target of anticorruption investigations. Yet some have argued that for ACAs to be effective, they must be overseen, at least to some degree, by multiple external bodies, including parliament. More generally, in a democracy parliament will often bear ultimate responsibility for establishing measures that guarantee ACA independence but that also provide for sufficient ACA accountability.

In order to assist researchers and the democracy assistance community in optimizing parliament’s relationship to an ACA, the Westminster Foundation for Democracy (WFD) has recently published a research paper on parliament and independent oversight institutions (including ACAs), together with a companion assessment framework for the analysis of the relationship between parliaments and independent institutions. The assessment framework, which is rooted in existing international and comparative standards such as the Jakarta Statement on Principles for Anti-Corruption Agencies, focuses on four main aspects of parliament’s relationship with the ACA: Continue reading

Guest Post: A Defense of Anticorruption Orthodoxy

Robert Barrington, Professor of Anti-Corruption Practice at the University of Sussex’s Centre for the Study of Corruption, contributes today’s guest post.

The international anticorruption movement, which has been so successful over the last 25 years in putting this once-taboo issue squarely at the forefront of the international agenda, is suffering a crisis of confidence. The aspiration to eliminate corruption now seems to many like a fantasy from the dreamy era of the fall of the Berlin Wall. And what had appeared to be an emerging consensus about how to diagnose corruption, and how to respond, is fracturing. There has long been a lively debate within the anticorruption community about the best ways to understand and respond to corruption; and likewise, a growing challenge from several different quarters (including governments, businesses, journalists, and academics) on areas such as measurement, what has been successful, and whether the evidence matches the theory for fundamental approaches such as transparency. The debate and challenge have been broadly healthy, and have led to sharper thinking and improved approaches. But some criticism has veered towards attacking simplistic caricatures of the perceived orthodoxy, or launching broad-brush critiques that, intentionally or not, serve to undermine the anticorruption movement and provide nourishment for those that would prefer to see the anticorruption movement diminished or fail.

Take, for example, two common lines of attack against the “orthodox” approach to tackling corruption, one concerning the diagnosis of the problem and the other concerning appropriate responses: Continue reading

One Year After Bolsonaro’s Election, How Well Is His Administration Fighting Corruption in Brazil?

Exactly one year ago, on October 28th, 2018, Jair Bolsonaro, a right-wing congressman and former army captain, was declared the winner of Brazil’s presidential election after receiving 55.13% of the valid votes. He defeated the center-left-wing Workers’ Party (PT) candidate Fernando Haddad, ending the PT’s streak of four consecutive presidential election victories that had begun in 2002.

Brazil’s corruption problem played a major role in the election and in Bolsonaro’s victory. The Car Wash Operation had not only uncovered widespread corruption scandals during the PT administrations, but that Operation also led to the prosecution and conviction of former President Luiz Inácio “Lula” da Silva, which rendered Lula ineligible to compete in the 2018 election. Moreover, Bolsonaro centered his campaign especially on a vigorous anticorruption discourse, promising to set a new standard of public integrity and to hold corrupt companies and politicians liable for their misconduct (see here and here). To be sure, Bolsonaro did not campaign exclusively on an anticorruption platform. He also positioned himself as the defender of more conservative social values and pledged to take a hardline approach to violent crime and drug trafficking. Yet his anticorruption rhetoric undoubtedly played a key role in his victory.

Even before the election, though, some commentators expressed skepticism that Bolsonaro would undertake genuine efforts to fight corruption and strengthen the institutions needed to promote integrity, and this skeptical view has been echoed by other commentators, both inside and outside of Brazil, during Bolsonaro’s first term (see, for example, here and here).

Now, one year since Bolsonaro’s electoral victory, is a suitable time to analyze the Bolsonaro Administration’s performance so far on anticorruption related issues. Have his substantive accomplishments in this area matched his tough rhetoric?

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The Australian Government Shows Us How Not To Create an Anticorruption Agency

Two recent polls of the Australian public make two things quite clear: the Australian people have little trust in their federal politicians, and they want a federal anticorruption agency to investigate misuse of public office. This is perhaps not surprising given the string of scandals that have come to light in the past few years (see, for example, here, here, and here). And ordinary citizens are not alone: a survey of government workers found that thousands believed they had witnessed acts of corrupt behavior, particularly cronyism and nepotism. And a group of 34 former Australian Judges, including a former Chief Justice of the High Court, have published an open letter to Prime Minister Scott Morrison stating that Australian trust in federal politics is at an all-time low due to perceptions of corruption, and that a federal anticorruption agency is the necessary response. 

It is therefore unsurprising that the proposed creation of a federal anticorruption agency has emerged as a salient issue in the upcoming federal elections, to be held on May 18 (one week from tomorrow). The Morrison government initially dismissed the idea, but in December 2018 changed its tune and announced that, if the Liberal Party (Morrison’s party) wins the election, the government would create a Commonwealth Integrity Commission with two separate divisions: a law enforcement integrity division and a public sector integrity division. The former would have the power to investigate police officers and other law enforcement personnel, while the latter would have the power to investigate politicians.

Unfortunately, while a federal anticorruption agency is an idea whose time has come, the Morrison government’s proposal suffers from four key shortcomings: Continue reading

Lithuania’s Judicial Scandal Shows Why Public Communication Matters in Corruption Investigations

This past February 20th, the people of Lithuania awoke to the shocking announcement that the country’s anticorruption body, the Special Investigation Service (STT), and the Prosecutor General’s Office had opened an investigation into alleged bribery, trading in influence, and abuse of power in the Lithuanian judiciary. The scope of the investigation is breathtaking. So far 26 people have been arrested, including a Supreme Court Judge, eight other judges, an assistant to a Supreme Court Judge, and multiple lawyers. The scale of the allegations dominated media coverage in Lithuania and was picked up by news outlets around the world (see, for example, here, here and here). But this was not the only reason that news of this investigation may have come as a shock to many Lithuanians. Before this story broke, it looked like the ongoing efforts to increase Lithuanian citizens’ trust in their courts had finally started to bear fruit. In 2017, for the first time since polling on the issue began in 1996, more Lithuanians trusted than distrusted their judiciary. This increase in trust was due to several factors. It likely helped that the President, Dalia Grybauskaite, made judicial transparency, openness, and efficiency top priorities during her tenure. The judiciary has also worked to reform itself and together these reforms brought a lot of changes, for example by reforming the judicial selection process, introducing rotation of court leadership, increasing openness, introducing an automated system for assigning cases to judges, and a number of other procedural changes. The Council of Judges—a judicial self-governance body—has also promulgated a Courts Anticorruption Program, pursuant to which individual courts (including the Supreme Court) adopt their own concrete anticorruption plans. On top of this, the National Courts Administration (NCA) (the external administrative institution that serves the judiciary and judicial self-government bodies) has worked on increasing communication about the work of the courts by trying to reach out to the explain how the judiciary works, and also encouraging judges to issue explanations about their decisions.

What many now fear, with good reason, is that that the new corruption case will cause the public confidence in the judiciary to collapse. This worry is exacerbated by political dynamics: with elections coming up, many politicians jumped on the bandwagon of attacking corruption in the courts and declaring the need for more reforms—though often without offering any specifics, and sometimes seemingly having no clear understanding of how exactly the judiciary works.

The unfolding drama over judicial corruption in Lithuania highlights the importance of communication between government institutions and the general public—both by the institution under investigation (in this case the judiciary), and by the institutions doing the investigating (in this case the STT and the Prosecutor General). It may seem odd to focus on public relations strategy when the underlying substantive allegations are so serious. But while no one could sensibly claim that better communication is a replacement for, or more important than, substantive action, it would be a serious mistake to underestimate the importance of public communication in a case like this.

Consider each of the dimensions of public communication noted previously—by the courts and by the investigators: Continue reading

Combating Corruption in Belize Requires Structural Modifications to the Ombudsman’s Office

In the small Caribbean nation of Belize—as in many small, relatively poor countries with scarce human capital—corruption is an entrenched part of government and society. The country’s small population—less than 400,000—exacerbates issues such as nepotism and conflicts of interest, and make it difficult to hold corrupt actors accountable. Citizens harmed by corruption are understandably reluctant to report these incidents when the people to whom they would have to report are the corrupt actors’ close friends and colleagues—or in some cases the corrupt actors themselves. In an attempt to address this problem, Belize (following suit with the rest of the Caribbean) adopted an Ombudsman Act in 1994 and, pursuant to that Act, established the Office of the Ombudsman in 1999.

There is considerable variation in the role that similarly-named “Ombudsman’s Offices” play in different countries; Belize employs the classical model of an Ombudsman, though the Belizean Ombudsman has a broader human rights and anticorruption mandate than the typical Ombudsman. The Ombudsman can receive complaints from any person who alleges injustice, injury, or abuse by an authority; complaints are handled anonymously, outside of what is perceived as a corrupt system. Additionally, the Ombudsman is responsible for investigating those complaints, and it has investigative powers comparable to a judicial tribunal, which is necessary to secure crucial information from the government. The Ombudsman, which acts independently of the Government of Belize, would ideally play a significant and constructive role in combating corruption.

For these reasons, one might think that Belize’s Ombudsman is well-positioned to take a lead role in anticorruption. Yet it doesn’t seem to be doing so. Citizen complaints to the Ombudsman are relatively infrequent (only 122 new complaints were received in 2017, down from 207 new complaints filed in 2016), and of those complaints, very few concern government corruption. And when it comes to larger anticorruption reform strategy, it’s perhaps telling that the UN’s Project Document on strengthening Belize’s national systems to support the implementation of the UN Convention Against Corruption doesn’t even mention the Office of the Ombudsman as a potential avenue for supporting UNCAC’s implementation.

What could be done to make the Belizean Ombudsman’s Office a more significant and effective player in this small country’s struggle against entrenched corruption? Three things:

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The Case for Abolishing Police Commissioners’ Extendable Terms in Israel

The investigations into corruption allegations against Israel’s Prime Minister Benjamin Netanyahu have received massive attention from the media in Israel and around the world ever since they began in late 2016. In one of the most recent developments, last September Israel’s Minister of Public Security, Gilad Erdan, officially announced his decision not to extend the three-year term of the current head of the Israeli Police, Commissioner Roni Alsheich, by an additional year. Therefore, Alsheich is expected to complete his tenure at the end of this year. Erdan ascribed his decision not to extend Alsheich’s tenure to “differences of opinion and divergent approaches on various issues, some of them substantial and weighty, and which had a significant impact on the public’s trust in the police.” Opposition members and commentators, however, claimed that this decision was driven by the fact that Alsheich has been (or has been perceived as) leading the investigations into Prime Minister Netanyahu. According to the critics, Erdan, a member of Netanyahu’s Likud Party, was acting to please influential senior members of the Likud, as well as Netanyahu himself – an allegation that Erdan denied.

The facts of this particular case are murky. There is no solid evidence to show that Erdan’s decision not to extend Alsheich’s term was related to the latter’s involvement in the Prime Minister’s corruption probe. (In fact, even critics of Erdan’s decision do not seem to claim that Alsheich’s commissionership was flawless.) Nevertheless, this incident highlights a larger institutional flaw in Israel’s current practice of appointing police commissioners for three years with the option for extension.

Israeli law does not actually specify a fixed length for a police commissioner’s term, nor does it mention anything about the potential for term extension. In fact, Israel’s Police Ordinance says only that the commissioner is to be appointed by the government, per the recommendation of the Minister of Public Security. However, over the years it has become an accepted practice (though not without exceptions) that the police commissioner is appointed for a term of three years, and toward the conclusion of that term, the Minister of Public Security decides whether to recommend that the government extend the commissioner’s term by approximately one additional year. This practice should be abolished. Instead, the law should be amended such that the commissioner would be appointed for a fixed, non-extendable term (except in certain emergency situations) – a proposal that has been advocated by commentators and some members of the Knesset (Israel’s parliament), but so far has gone nowhere.

There are three strong arguments, from the perspective of anticorruption policy, for giving the police commissioner a fixed non-extendable term (at this point, regardless of its exact duration): Continue reading

Giuliani’s Inappropriate Letter to Romania’s President Will Harm Anticorruption Efforts

Romania has long been considered one of the most corrupt countries in the European Union, but in recent years it has been making a concerted effort to bolster its fight against graft. Since 2013, Romania’s National Anticorruption Directorate (DNA), with the support of the ruling political parties, has been convicting roughly 1,000 people on corruption-related charges each year. However, once these anticorruption efforts began ensnaring high-level politicians—including Liviu Dragnea, the head of the biggest party in the Romanian Parliament—the government began to criticize the DNA’s work as biased, overzealous, and unfair. This conflict has been escalating, most dramatically in late 2017, when hundreds of thousands of Romanians took to the streets to protest an overnight decree that pardoned those serving sentences of five years or less for corruption-related crimes, and also decriminalized government officials’ corruption offenses involving less than $47,000 (raised to $240,000 in a later draft bill). The protests led to violent clashes with the police, who used tear gas and water cannons to disperse the crowds.

Adding to the turmoil, Rudolph Giuliani, former Mayor of New York City and current personal attorney of U.S. President Trump, recently wrote a letter to Romanian president Klaus Iohannis, condemning the overreach of the DNA and supporting the government’s efforts to curtail the DNA’s enforcement of anticorruption laws. Giuliani was paid to write the letter by the Freeh Group, a private American firm whose overseas clients include a Romanian businessman convicted for fraud last year, and another Romanian businessman currently under investigation by the DNA for bribery. Giuliani’s letter raises two distinct corruption-related problems. Continue reading