New Case Studies on Specialized Anticorruption Courts in Indonesia, the Philippines, Slovakia, and Uganda

As is well-known, many countries around the world–especially developing and transition countries–have established specialized anticorruption institutions with prosecutorial and/or investigative functions. These agencies have attracted a great deal of attention and analysis (including on the blog–see, for example, here, here, here, and here). Many countries have gone further, and established specialized courts (or special divisions of existing courts) to focus exclusively or substantially on corruption cases. These specialized anticorruption courts have gotten relatively less attention, but as proposals for such courts have become increasingly prominent in many countries, there is a growing need for close analysis of these institutions.

To meet this need, the U4 Anticorruption Resource Centre has a new project, under the direction of Senior Advisor Sofie Arjon Schutte, on specialized anticorruption courts (a project in which I have been fortunate enough to participate). The first set of publications to result from this project are a series of short case studies on four of the existing special courts, in a diverse set of countries: Indonesia, the Philippines, Slovakia and Uganda. Readers who are interested in this topic might want to click on the links. Also, in addition to these four country briefs, there’s a longer U4 paper in the pipeline (coauthored by Sofie and myself) that discusses and compares a larger set of special courts around the world. I’ll do a post announcing that as well, as soon as it’s ready. And if anyone out there has information and insights about any special courts in other countries, please feel free to send it!

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

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:

Continue reading

A Role for the Courts in Limiting Philippine Political Dynasties

In an earlier post I wrote about Philippine political dynasties, I argued for the adoption of an anti-dynasty law that would bring into effect Article II, Section 26 of the 1987 Philippine Constitution, which states that “[t]he State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.” Since the Philippines gained its independence, political dynasties have dominated national and local government—70% of the last Congress, for example, belonged to a political dynasty. Because these families have maintained an effective oligarchy over the country for decades, they can easily abuse their discretion and commit corrupt acts without consequence.

While the Framers of the 1987 Constitution recognized the danger these elite families posed to fair governance and their propensity to engage in corruption, the Supreme Court has found that the constitutional ban on dynasties is not a self-executing provision. In May 2014, for the first time in history, an anti-dynasty bill made it out of committee and was sponsored before the House plenary. In his final State of the Nation Address, President Noynoy Aquino urged Congress to finally pass an anti-dynasty law. Politicians in Congress, however, have since blocked efforts to pass such a law. By October 2015, the Senate President publicly announced that no anti-dynasty law would be approved before the May 2016 election. Despite my hope that the recent bill would result in a new law at last, this outcome is not surprising. Political dynasties have controlled the majority of Congress for decades, and numerous politicians seeking office in this year’s election would have been prohibited from running if the law had passed.

Now the results of the May election are in, it looks as though Congress will continue to be dominated by dynastic politicians. President-elect Rodrigo Duterte’s stance on political dynasties is currently unclear, although he himself belongs to a political dynasty. Given this, legislative action may simply be out of reach for the time being. One interesting question is whether the courts could intervene to bring the constitutional ban into effect. Doing so would be a radical departure from past practice, and would require rethinking certain core judicial doctrines, but might be nonetheless be legitimate under the circumstances. Continue reading

Mandatory Prison Corruption Report Looks for a Cure in Brazil

In a recent provisional measure (currently only in Spanish), the Inter-American Court of Human Rights ordered the Brazilian government to take a variety of steps to address human rights violations at the notorious Curado prison complex. Such violations are pervasive: Shockingly, the Curado guards, in exchange for kickbacks or other illicit benefits, essentially handed over control of the prison (and other prisoners) to certain inmates (often the most violent or feared), turned a blind eye to or participated in the complex’s massive drugs and weapons trade, and repeatedly failed to stop prison breaks and riots.

Notably, among the steps in the Court’s order is a demand that the government investigate and report back to the Court on corruption, particularly on weapons and drugs trafficking, among officials at the prison. The Court—like its companion institution, the Inter-American Commission on Human Rights (IACHR), which investigates and reports to the Court—is not directly tasked with addressing corruption. However, its mandate includes protecting the right to humane treatment. At Curado, the prison guards, as agents of Brazil, affirmatively jeopardized the safety of prisoners with their corruption, and the Brazilian government failed to protect prisoners from abuses stemming from those actions. The Court’s measure, drawing from the Commission’s recommendations, emphasizes that the widespread corruption of the guards and other prison officials was one of the factors that allowed the inhumane conditions in the prison to continue.

The Court’s ruling seems to be one of the first times an international judicial body has ordered a country to undertake a review of corruption within its borders and then be held directly accountable to that international body. Thus, beyond its immediate significance to the Curado situation, the Court’s decision is a milestone in more directly recognizing and addressing corruption as a proximate cause of human rights violations. While this recognition will not by itself resolve the dire situation at Curado, it is an important step forward, and is notable for several reasons:

Continue reading

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

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.

Rooting Corruption out of the Courts: The Use of Undercover Sting Operations

No anticorruption policy can succeed if the courts themselves are corrupt.  If those tempted to offer or accept a bribe or otherwise rob the public can buy their way out of trouble, laws against corruption are meaningless.  Ensuring judges decide cases honestly is thus the keystone of any broader effort to control corruption.  The best defense against judicial corruption is, as a recent U4 paper stressed, a rigorous process for selecting judges, one which screens out those willing to sell their integrity for a price.

Character tests are not foolproof, however, and so even with the most thorough screening a few crooked apples can slip through.  When they do, rooting them out is especially difficult, for proving a judge has taken a bribe to fix a case is extremely difficult.  A judge may acquit the defendant for any number of reasons, and even if the reason given seems obviously wrong, that alone is not enough to establish corruption.   Moreover, bribery is a consensual crime.  Neither the judge taking a bribe, nor the defendant paying it, nor a go-between facilitating the transaction will have any reason to reveal the crime and every reason to keep it secret.

Purging the judiciary of corrupt judges will thus almost always require an undercover operation, one where law enforcement personnel or informants pretend to be dishonest to elicit incriminating statements or conduct from the investigation’s target.  Such “stings” are often controversial and are fraught with risks, those targeting judges even more so.  Yet given the great harm judicial corruption causes, the risks will often be worth taking.  When they are, designers of a sting may find it useful to review how U.S. authorities minimize the risks of undercover operations in the judiciary. Continue reading