When Should Countries Outsource Key Anticorruption Functions to Foreigners?

Partly because of previous work I’ve done (with Sofie Schütte of the U4 Centre) on specialized anticorruption courts, I recently had the opportunity to participate in some interesting discussions in Kiev about ongoing debates about the possible the creation of such a court for Ukraine. There’s much to say on this topic generally, but what most and surprised me about the discussions I was fortunate enough to attend was how much they focused on a specific proposal—advanced by certain influential members of the Ukrainian civil society community—for the international donor community to participate (indirectly but formally) in the selection of the judges to serve on this court. There are a few different proposals floating around, but I’ll focus on the version embraced by a draft law currently pending in the Ukrainian Parliament. Under this proposal, judges on the special anticorruption court would be chosen by a nine-member Judicial Selection Committee. Of these nine members, three would be appointed by the President, three would be appointed by the Parliament, and three would be selected by the international donor community. (Formally, the last three would be appointed by the Minister of Justice, but that’s a formality: According to the proposal, the Minister of Justice would be obligated to consult with the international donor community and to appoint the three individuals that they recommend.)

For some in the civil society community, this feature of the proposal is absolutely essential, and they fear that without a formal role for the international community in the judicial selection process, the anticorruption court will be a failure. Others feel equally passionately that formalizing a role for international donors in the selection of special court judges is deeply misguided, and will jeopardize (both politically and legally) the special court experiment. I don’t know nearly enough about Ukraine’s specific situation to have an informed view on this one way or the other. But the proposal seemed sufficiently novel and interesting to be worth contemplating more generally. After all, though to the best of my knowledge there’s no precedent for what the draft Ukrainian law proposes, it’s not unheard of for countries to “outsource” (for lack of a better term) aspects of the law enforcement apparatus that most countries most of the time would consider core functions of the state, particularly in the context of anticorruption or closely related matters. (Probably the best known example is CICIG in Guatemala, in which a UN-sponsored body, headed by a non-citizen, has substantial investigative—though not prosecutorial or adjudicative—powers.) Is this an approach that more countries should adopt—for their investigators, prosecutors, or even their courts?

Again, I don’t have a terribly strong or well-informed view on this question, so this isn’t one of those posts where I’m going to take an aggressive, argumentative stand. I’m still thinking this through myself. But I figured that since this question might be of interest to others as well, I’ll offer a few thoughts on the possible advantages and disadvantages of outsourcing some or all of a state’s core law enforcement functions. I’ll think about this mainly in the context of anticorruption, though many of the arguments would apply more generally.

Long story short: I can think of two big potential advantages for this sort of outsourcing, and four countervailing drawbacks. Continue reading

South Korea’s Corruption Crisis: Sung Wan-jong’s List and Its Fallout

The South Korean political scene is embroiled in a sensational corruption scandal–one that erupted when Sung Wan-jong, a successful businessman whose company was facing financial problems, was found dead (he had hanged himself), holding onto a note containing the names of South Korean officials he had bribed, and the amounts involved. In this note–now known as “Sung Wan-jong’s list”–Mr. Sung wrote that he gave 700 million won (US$639,971) to former Presidential Chief of Staff Huh Tae-yeol, 300 million won (US$274,273) to Incheon Mayor Yoo Jeong-bok, 100 million won (US$91,424) to South Gyeongsang Province Governor Hong Joon-pyo, and 200 million won (US$182,849) to Busan Mayor Suh Byung-soo. Moreover, shortly before he committed suicide, Mr. Sung gave an interview in which he claimed to have passed on bribes of 30 million Korean Won ($27,390) to Prime Minister Lee Wan Koo and 200 million Won ($182,600) to Hong Moon Jong. Since then, the press has consistently followed up with updates and new evidence related to the bribery rising to the surface.

All eight of the figures Mr. Sung accused of accepting bribes have denied the allegations. Investigations are currently still in process. (Reports indicate that progress has been made on gathering necessary evidence to indict Governor Hong Joon-pyo for violating the political funds act. The next target in line is likely to be former Prime Minister Lee Wan Koo, who (perhaps ironically) had led the fight against corruption upon his appointment as Prime Minister just a few months ago.) Still, the accusations are deeply troubling, given that the accused figures are powerful leaders in domestic politics, and Mr. Sung’s list, if it proves accurate, could be evidence of an entirely contaminated political system that could potentially reach the top of the pyramid in South Korean politics. Moreover, the accusations, if corroborated, could also potentially shatter the legitimacy of the 2012 presidential election, particularly given that Mr. Sung alleges that the bribes he paid to Mr. Hong were to be spent for President Park Geun Hye’s presidential election campaign.

Of course, we must be careful not to leap to conclusions—and as a legal matter, these officials are presumed innocent until proven guilty. Nonetheless, given the seriousness and sensational nature of the accusations, and the threat they pose to the legitimacy of the entire South Korean political system, I would advocate two unusual measures in connection with the investigation and potential prosecution of these cases (and similar cases that might arise in the future): Continue reading