Tag Archives: judicial corruption

US Courts’ Evaluation of Foreign Judicial Corruption: Different Stages, Different Standards

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Last August, a US appeals court may have finally brought to a close a case that the court described as “among the most extensively chronicled in the history of the American federal judiciary”: a lawsuit, initially filed in 1993, seeking damages for adverse environmental and health consequences of oil exploration and drilling by Texaco (later acquired by Chevron) in the Ecuadorian Amazon. Chevron and the plaintiffs each have their own version of the long, complicated, and contentious litigation. (For a concise, relatively balanced summary see here.) For present purposes, the essential facts are as follows: After eight years of US litigation, in 2001 Chevron persuaded a US court to send the case to Ecuador. In 2011, after an additional decade of litigation in Ecuador, the Ecuadorian courts ultimately found in favor of the plaintiffs, ordering Chevron to pay an $18.5 billion judgment (later reduced to $9 billion). Unfortunately for the plaintiffs, Chevron doesn’t have any assets in Ecuador, so the plaintiffs have been trying to enforce their judgment in a number of other jurisdictions, including the United States. In its August ruling, the US appeals court affirmed the district court’s 2014 holding that the Ecuadorian judgment could not be enforced in the United States because it was a product of fraud and corruption—including the shocking finding that plaintiff’s attorneys had bribed the judge with a promise of $500,000, and ghostwrote the multi-billion dollar judgment.

At first glance, there appears to be a contradiction, or at least a tension, between how the US courts treated allegations of judicial corruption in Ecuador at two different stages in the proceedings. After all, Chevron was able to successfully persuade a US court to send the case to Ecuador in 2001 because Chevron had successfully argued that Ecuador’s judiciary was sufficiently insulated from corruption to prevent injustice, yet in the most recent ruling, Chevron convinced the court not to enforce the judgment on the grounds of judicial corruption in an Ecuadorian court. But what might at first glance appear to be a contradictory set of rulings can be explained by the fact that US courts apply divergent standards when assessing judicial corruption at different stages of litigation.  Continue reading →

Guest Post: Curbing Judicial Corruption To Make “Justice For All” a Reality

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Elodie Beth, Asia-Pacific Regional Anti-Corruption Advisor for the United Nations Development Programme (UNDP), submits the following guest post:

Judicial corruption is a serious problem, one that threatens further progress on a range of other good governance and institution-building initiatives. According to Transparency International’s 2013 Global Corruption Barometer, citizens around the world perceive the judiciary as the second-most corruption-prone sector (after the police). That depressing figure is a worldwide average; in some countries, the situation is even worse. For example, a recent study by the International Bar Association in Cambodia (discussed at greater length here) reported that Cambodian lawyers estimated that bribes are paid to judges or clerks in 90% of cases. Some renowned judges and legal experts have taken the matter in their own hands at the international level by creating the Judicial Integrity Group and developing the Bangalore Principles of Judicial Conduct. However, the implementation of the Principles remains a major challenge in many countries.

One way to help fight corruption in the judiciary would be to incorporate anticorruption more explicitly and comprehensively into judicial capacity assessments. Many development partners have already created tools and methods to assess the judiciary, but with a few exceptions, these evaluation tools rarely focus on corruption. Moreover, these judicial assessments tend to be externally driven, meaning that their recommendations often do not generate a sense of ownership on the part of the judiciary being evaluated, and there is therefore often too little follow-up.

So what more can we do? Fortunately, there are some lessons we can draw from UNDP’s capacity development work for other institutions and sectors, such as National Human Rights Institutions and anticorruption agencies, while keeping in mind some of the specific characteristics of the judiciary. UNDP’s recent report A Transparent and Accountable Judiciary To Deliver Justice for All, produced jointly with the U4 Anti-Corruption Resource Centre, illustrates how experiences from around the world can help promote judicial integrity. The report also suggests some general principles that could guide capacity assessments of the justice sector and follow-up implementation strategies: Continue reading →

CICIG’s Achilles Heel: Suggestions for Reforming the Guatemalan Judiciary

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In 2015, an innovative institution in Guatemala—the International Commission Against Impunity (CICIG)—got a lot of attention (including from me on this blog). Among CICIG’s triumphs last year were the resignations and arrests of former Guatemalan President Otto Perez Molina and Vice President Roxanna Baldetti on corruption-related charges following a Guatemalan Spring of sorts. Perez was formally charged in December with illicit association, customs fraud, and bribery. He maintains his innocence, claiming to be a scapegoat and arguing that nothing has changed about corruption in Guatemala except that he is now in jail. Unfortunately, without major changes he is likely to be right on the latter point. To be sure, removals of corrupt leaders like Perez and Baldetti are victories. But while Perez’s fall from grace and the general outpouring of public anticorruption sentiment in Guatemala are cause for great optimism, there is reason for trepidation as his case moves toward trial this year.

The reason is a decade-old compromise made during CICIG’s founding based on national sovereignty concerns. A Guatemalan court ruled that CICIG would be unconstitutional if empowered to try cases outside of the Guatemalan judicial apparatus. As a result, the success of CICIG and its proposed spin-offs remains inextricably tied to the strength of domestic institutions. CICIG can investigate and support prosecutorial efforts, but must rely on the domestic judiciary to hear its cases. Unfortunately, domestic governments across Central America remain notoriously corrupt. Even after a decade of CICIG’s efforts toward capacity building, the Guatemalan government is no exception. The Guatemalan court system is largely defined in Guatemalan citizens’ political consciousness by its inability to obtain convictions in important cases. Reform of the judiciary must be a central focus of anticorruption efforts going forward. The following challenges should be prioritized: Continue reading →

The Indian Judiciary on Trial: Tackling Corruption in India’s Courts

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Corruption in Indian judiciary is considered pervasive: over 45% of Indians believe the judiciary is corrupt, a view shared by external assessments. Not only is corruption rampant in the lower courts, some have alleged that this corruption reaches the highest levels. In 2010, a former Law Minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made “improper compromises” to let a corrupt High Court judge continue in office. Sadly, the Indian judiciary has shown a predilection to treat every call from the executive or the legislature for greater judicial accountability as an attack on the judiciary’s independence. That concern is not altogether unreasonable given the terse history of power battles among the three branches, but it increasingly rings hollow, given the rising reports of corruption in judiciary’s ranks (see here, here and here).

Indian judges may be nowhere near as corrupt as its politicians; but Indian judiciary, like its counterparts elsewhere, relies on its reputation for fairness, impartiality, and incorruptibility. The courts can scarcely afford any loss of public faith. Hence, it must have been a wake-up call for the judiciary to face wavering public support as it battled the executive and legislature during 2014-15 on the National Judicial Accountability Commission Act (NJAC), which sought to expand executive’s say in judicial appointments and make them more transparent. When the Supreme Court finally struck down NJAC in October 2015, citing the need for absolute judicial independence, the judgment was met with both veiled skepticism and open criticism. Although the current appointment system (in which judges appoint their successors) has been relatively free of corruption allegations, the NJAC debate brought forth long simmering concerns of judicial corruption and worries that even judicial appointment was not above suspicion.

How has this come to pass? Why is public confidence in the integrity of the Indian judiciary eroding? Four main issues need addressing in the context of India’s judicial corruption: Continue reading →

Justice v. Corruption: Challenges to the Independence of the Judiciary in Cambodia

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Last month, the International Bar Association (IBA) Human Rights Institute issued a report entitled Justice versus Corruption: Challenges to the Independence of the Judiciary in Cambodia which paints a dark picture of the extent of political and financial corruption in the Cambodian judicial system. This report was prompted by the enactment of three controversial laws that enabled the Cambodian government to undermine the independence of the courts, but the IBA’s investigation went beyond these three laws to examine the judicial system as a whole, only to discover that, in addition to persistent problems of government interference with judicial independence, the entire Cambodian judicial system was riddled with both bribery and political corruption.

There are credible allegations that cases are often decided in favor of the party offering the larger bribe; Cambodian lawyers interviewed by the IBA researchers estimated that 90% of the cases heard by the courts involve bribes to judges or clerks, and that when no bribe is offered, judges often give no attention to the case, and court staff will refuse to release basic information, or give lawyers access to the case files. In addition, the report found that trainee judges are asked for large bribes to access to their professional trainings — meaning that what the report calls the “the culture of bribe giving and receiving” is taught to judges from the very beginning of their career. In addition to this widespread bribery, political corruption of the judiciary is also pervasive. The report notes suspicions of judges and clerks sometimes being given specific instructions from powerful politicians how to decide cases in which these politicians have a financial interest.

To address this widespread, systemic corruption, the IBA offers a series of recommendations. A few of the report’s recommendations are concrete and implementable. For example, report recommends that the IBA exercise influence on the Cambodian Bar Association (the BAKC) to reform itself if it wishes to remain a member of the IBA; such pressure may be help to end corrupt practices in the BAKC itself, and encourage the independence and protection of lawyers in Cambodia. Unfortunately, however, most of the report’s recommendations, while appealing in theory, are not terribly practical, at least in the context of Cambodia today. In emphasizing idealistic, aspirational recommendations, the report perhaps missed an opportunity to recommend some more concrete, practical goals that, while not fully addressing the problem, might at least have some chance of being adopted. Continue reading →

Should the TPP Address Corruption? If So, How?

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The Office of the U.S. Trade Representative (USTR) says it is trying to include anticorruption pledges in the proposed Trans-Pacific Partnership (TPP) trade deal. According to USTR, it not only wants “commitments to promote transparency, participation, and accountability” in trade issues (commitments USTR claims it has already had some success securing recently), but also more general “commitments discouraging corruption . . . among public officials.” It’s not entirely clear what USTR means, particularly with respect to this latter suggestion that it is going to push for more general anticorruption pledges in the TPP. Maybe it doesn’t mean much – it might just be feel-good rhetoric, with little connection to what’s actually going on in the closed-door TPP negotiations. But suppose that USTR is sincere, and that it genuinely hopes to include some sort of anticorruption language in the final TPP deal. Is this a good idea? If so, what sorts of anticorruption commitments would be appropriate in a mega-regional trade agreement like the TPP?

The idea of incorporating anticorruption measures into trade deals is hardly novel. (See this panel summary for some high-level background). Last year, Colette’s post on this blog recommended adopting Transparency International’s suggested anticorruption measures for the proposed Transatlantic Trade and Investment Partnership (the T-TIP), though she also opposed addressing corruption through the multilateral WTO regime. Other commentators and civil society groups have pressed for the incorporation of anticorruption measures in other regional free trade agreements (for example, see here and here). With respect to the TPP, these prior discussions suggest several considerations that USTR negotiators should keep in mind if they are serious about pushing for more anticorruption language in this agreement: Continue reading →

Ridding the Courts of Corrupt Judges: Ghana Takes the First Step

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Last week Ghanaians awoke to depressing news.  A team of investigative reporters revealed they had 500 plus hours of video tapes showing High Court judges and lower court magistrates accepting payoffs to acquit defendants in cases ranging from robbery and murder to bribery itself.  (Click here, here, and here for news accounts.) For Ghana, this is bad news, very bad news: dangerous criminals remain at large; some innocent individuals may have been jailed because they didn’t pay off a judge; and whatever confidence citizens may have had in the courts has been shattered.

But the initial reports contain some very good news as well.  The government is taking forceful and responsible action to cleanse a critical state institution of corruption. In accordance with article 146 of the Ghanaian Constitution, Chief Justice Georgina Theodora Wood has established a committee to examine the allegations against each judge and advise Ghanaian President Mahama whether he should remove any of them from office per the constitutional test of “stated misbehavior.”  At the same time, the Attorney General has announced his intention to prosecute judges, magistrates, and their accomplices for bribery and related crimes.

The scandal is similar in many ways to the one that engulfed Chicago’s courts in the 1980s, recounted in a Foreign Policy article flagged here last week.  As in Ghana, the Chicago cases arose from secret tape recordings showing judges fixing cases for money.  Like the Chicago judges caught on tape, some of those implicated in the Ghanaian scandal claim the taping violated the sanctity of the judicial chambers and evidence from them should therefore not be heard in any legal proceeding.  And, as in Chicago, many in Ghana are urging that those who bribed their way out of a criminal case be re-tried before an honest judge.

As the Ghanaian scandal unfolds difference between it and the one in Chicago will emerge, but some issues will be the same, and it may help Ghanaian authorities and citizens to know about Chicago’s experience. Probably most useful is the reasoning American courts relied upon to overcome the defense of double jeopardy when prosecutors sought to retry those defendant who had paid a judge to acquit them. Continue reading →

Judges on the Take: How the FBI took on Chicago’s Crooked Courts

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FBI Special Agent Ken Misner was in Chicago on a critical mission: to get arrested for drunk driving. Yet each time the police pulled him over, he escaped with a warning – no matter how erratically he had driven, and no matter how well he had faked his drunkenness. It was 1980, and the Chicago police simply didn’t arrest middle-aged white guys for traffic offenses. When his act failed yet again, he finally decided it was time to resort to desperate measures. He jumped from his car, leaped onto the hood of the police cruiser, and started screaming obscenities. The officer promptly yanked him down and began writing a summons. At last, thought Misner, mission accomplished. But as he read what the cop had written, he saw he had caught another “break.” The charge was disorderly conduct, a minor offense that wouldn’t get him anywhere near traffic court. Misner never succeeded in becoming a traffic court defendant, but fellow FBI agent Woody Enderson did, realizing an important milestone in the federal undercover investigation into corruption in Chicago’s court system known as “Operation Greylord.”

Click here to read the rest of this article from Foreign Policy magazine.  It appears in the series, “Curbing Corruption: Ideas that Work,” DemLab Case Studies exploring successful approaches to fighting corruption.  Democracy Lab is Foreign Policy’s home for coverage of transitions to democracy, published in partnership with the Legatum Institute.

Can a Private Right of Action Solve State Capture in the Philippines?: A Skeptical View

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Last month, as a part of the LIDS Global initiative (discussed here), a research team at the University of the Philippines (U.P.) put forth an ambitious legal proposal to combat corruption in the Philippines. The centerpiece of the proposal is a private right of action that would allow individual citizens to bring civil claims against public officials for violations of the Philippines’ Anti-Graft and Corrupt Practices Act. The proposal is designed to overcome the problem of “state capture”–the shaping of laws, rules, and regulations through illegal and non-transparent payments to public officials. Because state capture is so severe in the Philippines—reaching even high-ranking officials within the country’s own anticorruption agencies—citizens cannot “rely solely on the political will of government officials to prosecute their peers in the government.” The private cause of action is intended to address (or at least circumvent) this problem by enabling private citizens injured by corruption to go directly to court, without having to rely on public enforcers.

While I agree that state capture presents a huge problem for anticorruption efforts, I’m skeptical that the proposed private right of action will be effective–at least in the Philippines. The roots of my skepticism are threefold: Continue reading →