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Asia: Rule of Law and Elimination of Corruption - DRAFT

A group of 23 legal professionals and human rights activists from Sri Lanka, Indonesia, the Philippines, Pakistan, India, Nepal, Cambodia, Bangladesh, China and Thailand gathered in Hong Kong from May 14 to 18, 2007 for the second consultation on the Asian Charter on the Rule of Law, on the topic, Executive Control & Corruption in the Judiciary.

The first gathering was held in February 2006 under the theme, Towards Elimination of Corruption and Executive Control of the Judiciary. The participants at the second seminar endorsed the statement of the first event and further considered several important matters on eliminating of corruption.

The participants unanimously agreed that in their respective countries corruption still remains a way of life. Corruption is not just a marginal problem but a very central one affecting the whole social fabric of each country. All aspects of life are permeated with corruption. Attempts by citizens to get services such as medical care, access to public utilities and educational institutions, and even hearings of cases in courts all are vitiated by the need to pay bribes at every point. Many services are delayed or withdrawn till bribes are paid. Bribery has its own language and ways of communication. Those who do not get co-opted to this form of communication have to suffer the consequences. Elimination of corruption thus is a central issue for everyone.

Corruption gives rise to negligence. It weakens systems of supervision required to maintain essential services for health, transport, education and welfare. The rules that need to exist for proper management are sacrificed when energies are concentrated on making a fast profit rather than observing the norms and standards required for public life. Negligence also spreads to professional bodies such as those of doctors, lawyers, accountants and auditors. When negligence sweeps into all such areas, the capacity to monitor various aspects of society gets paralyzed. Such paralysis is witnessed everywhere in Asia.

Corruption also encourages the use of gangsters and other criminal elements to resolve disputes, as they are seen as speedier and more efficient in ending disputes over rent, hire purchase issues, loan repayments and the like through the power of the gun and other methods. This in turn leads to more serious crimes, which in turn foster more criminal intimidation and corruption. Often elements of law enforcement agencies themselves combine with syndicated criminals to provide services.

The poor are affected by corruption much more than all other parts of society. Thus all attempts to eliminate poverty and assert human dignity in Asian countries have to be combined with strong and decisive moves to eliminate corruption. Programmes to eliminate poverty not accompanied by efforts to eliminate corruption do not benefit the poor. Instead, they become the means by which the poverty is enhanced and the freedoms of people further restricted.

There seems to be a growing tendency in the judiciary to decide matters in favour of the corporate sector to the detriment of the poor. Various development practitioners have also influenced judicial thinking with the idea that the rights of the poor have to be sacrificed in favour of corporate ventures. The earlier judicial development of public interest litigation, which emphasizes the need for the judiciary to be the guardian of human rights, has in recent times often been sacrificed. Instead, the idea of being guardians for the corporate sector has become part of the new nationalism adopted among sections of the judiciary. This contributes to serious judicial corruption. Emphasis needs to be placed on the human rights consequences of corporate ventures and the rights of the poor should not be sacrificed on the pretext of development.

Faced with the absence of justice in the courts and other official channels, people often feel that to take any form of official action will be futile. While people complain about corruption in private conversations and intimate circles, they often do not care to pursue their complaints through official channels. This is because they have realised that these channels are so manipulated that they cannot obtain the desired results.

What is often seen as the absence of will to fight corruption is in fact the absence of leadership to give expression to the deepest aspirations of people to live in a much freer social environment. The elites in Asian countries have proved themselves incapable and unwilling to provide the necessary direction to bring policies and practices to effect that would eliminate corruption. Civil society movements should create more awareness and pressure from among the people so that wishes to eliminate corruption are better expressed and cannot be ignored by policymakers.

The administration of justice in the Asian countries has suffered enormous setbacks due to widespread corruption. The systems of policing, prosecution and the judiciary have all been cowed by the enormous pressure it exerts, leading to widespread loss of faith in them. Instead of solving problems confronting people, these institutions are themselves submerged in corruption and thus complicate the problems, adding more burdens to people seeking redress.

Some of the obstacles to eliminating corruption in Asia, and possible solutions, are described below.

Ineffective commissions to eliminate corruption

Often governments acting for the benefit of more corrupt groups in society create commissions that are purported to be to eliminate corruption. However, these are often no more than public relations exercises. They do not have the investigative capacity necessary for proper criminal inquiries or adequate mandates, and also are under-resourced. However, creating inefficient measures to end corruption is also part of the strategy to maintain the status quo.

Corrupt policing

At the core of corruption in most societies is the policing system itself. The making of complaints to the police often must be accompanied with payment of bribes. From the very inception of a complaint the police get new opportunities for money. Bribes are collected not only from complainants but also from alleged suspects and anyone else who is directly or indirectly affected. Thus complaints into crimes such as murder and rape may spread into extremely complex webs of relationships between the police and other sections of society. Lawyers and judges can be found in the webs. Instead of a complaint opening the way to justice, what in fact happens is that it opens extremely sophisticated and manipulative processes that deny a place for reason, whereas money, muscle power, cunning and shrewdness ultimately prevail.

Corrupt prosecutors

Prosecutors are also corrupt. Where investigations into crimes relate to powerful persons or state officers, the prosecutor’s branch may--if able to do so--interfere with the investigation process itself and provide various excuses not to proceed with inquiries. While in a good system of criminal justice the investigators and prosecutors should cooperate, in Asia cooperation is often limited to efforts to defeat justice because of undue influences. The supervision of more senior officers often fails and there are various ways by which illegal practices are devised or allowed to go on.

Corrupt judges

In some parts of Asia the judiciary has deteriorated to a point that it has become a law unto itself and flouts all rules of legal and ethical conduct to which it should be bound. There are many allegations of corruption and abuse of power at the highest levels. Internal processes to control corruption exist, in practice many people doubt that they are functioning at all. The lack of ethical standards in the superior courts makes them unable to supervise lower branches. Even where judges of greater integrity still exist, they often do not exercise attempt to ensure that the subordinate judiciary works within the framework of law and ethics, and avoids corruption. Even worse, there have been glaring instances when more honest, capable and intelligent judicial officers with high integrity have been punished because they have refused to compromise with corruption. Thus the judiciary is not playing the role that it should to eliminate corruption and often instead plays a negative role, encouraging and buttressing it.

The absence of proper inquiries by the judiciary into allegations of corruption within the system has given rise to expressions such as ‘judicial mafia’, where judges are seen to be protecting each other’s illegal activities. It is increasingly common to see members of the judiciary in parts of Asia ganging together to support a particular political party or defend each other against allegations of abuse of power and corruption. The public perception of some judicial officers as acting deliberately to take advantage of their authority and prevent effective investigations into corruption has extremely far-reaching consequences, which alienate people from defending the independence of the judiciary itself. The corresponding loss of faith in the judiciary contributes to a strengthening of executive power, since as the public loses confidence in the judiciary it is less likely to resort to it to seek redress against the arbitrary actions of the executive.

Delays in justice, close companions of corruption

Justice systems in Asia are being paralyzed by the failure of governments to modernize their machinery. Often all that remains are obsolete institutions that maintain procedures and working habits which are ill suited to the modern age. Delays in justice are among the most discouraging factors for people who have grievances and want redress. It often also appears that the failure to modernize justice systems is deliberate, as thereby certain powerful groups may benefit. Justice institutions are kept obsolete by not allocating them adequate resources. However, this is not a saving of national resources. The cost of an inefficient justice system is very heavy. It includes the cost of increased crime, of all sorts, and social instability.

Delays in justice are close companions of corruption. All well-meaning measures taken to achieve justice or to eliminate corruption get trapped delays. Shrewd manipulators can rely on delays to defeat attempts at reform. Unscrupulous politicians may propose legislation that appears to be progressive; knowing that it will be defeated by delays in adjudication. Thus rulers and their governments may readily display enthusiasm to address corruption, quite assured that there is no possibility of success while the justice system remains as it is.

Seemingly insurmountable obstacles caused by delays can also be used to argue against any meaningful reforms at all. Instead, leaders may seek authoritarian powers on the pretext that they are needed to deal with all sorts of heavy corruption. They may claim that these excessive powers are the only way to deal with problems of extraordinary scale. In fact, such authoritarian measures enhance corruption and make the task of eliminating it a matter of pure political authority. Many critics of corruption mistakenly end up by supporting such regimes, treating it as a matter of political realism that delays in justice are insurmountable and therefore the judiciary should be bypassed.

No effective strategy to deal with corruption is possible where beginning with the premise that delays in justice are insurmountable. All effective policies regarding justice, including eliminating corruption, must begin with comprehensive strategies to deal with the problems which are the root causes of delays in justice. There is no shortcut to avoid this problem and to deal with corruption in any other way.

Delays in the justice discourage complainants and may cause them not to come forward. If citizens feel that complaining against corruption is likely to bring more problems than benefits, they are unlikely to be enthusiastic and energetic about its elimination. Without a firm belief that a system of justice is efficient, fair and effective, people feel alienated from it. They may resign themselves to suffer under the existing system rather than try to fight, expecting that their efforts will end in failure. Thus, among the close companions of corruption are delays in justice.

Alternative dispute resolution

One of the most alarming developments in recent times is the view taken by some within the legal community that alternative dispute resolution techniques should be adopted within the criminal justice administration itself. Some legal and academic professionals have even advocated the abandonment of basic principles in modern criminal justice administration, including the presumption of innocence, the right to silence of the accused and the burden of proof beyond reasonable doubt. Fair trial rests upon these notions and threats to displace them amount to calls for a return to practices which prevailed before the development of modern jurisprudence.

The Malimath Committee in India proposed such changes in its official report to the government. Enormous protests within India and outside led to it being shelved. However, the proposals are now being progressively introduced through separate pieces of legislation. Strong advocacy campaigns led by well known persons are trying to make alternative dispute resolution on criminal justice issues seem palatable and acceptable. In some other countries, judges themselves have taken the lead in introducing alternative dispute resolution in courts, although no legislative provisions authorize them to do so.

Proponents of alternative dispute resolution point to the delays in justice described above as justification for new methods. The problem in their thinking is, as already mentioned, the idea that delays in adjudication are an insurmountable problem and therefore it is better to depart from the judicial process altogether. What alternative dispute resolution means in practice is displacement of the concept of trial as per the rule of law. Even if alternative dispute resolution takes place within the confines of a court, it means abandoning the building's practices and instead bargaining over the delivering of judgements without adhering to legal norms. If court premises and judges are thus transformed, their functions in all respects become substantively different. They are reduced to arbitration, not criminal justice. Thus, alternative dispute resolution cannot be introduced into the criminal justice system without destroying the entire system itself. Though advocates of alternative dispute resolution in criminal justice do not dare to talk openly of doing away with the basic norms and standards of fair trial, their project cannot be achieved fully without this.

Alternative dispute resolution in criminal law also means opening the criminal justice system to the greatest possible corruption. It opens the way for culprits to escape much easier and also makes it more possible to implicate innocent persons who may not have legal avenues to defend themselves. People with money, muscle power and social linkages may find it simpler to exert influence through alternative dispute resolution. The police may also find in it a fecund source of enrichment that will be less subject to scrutiny than existing sources.

Alternative dispute resolution in criminal matters also undoes the whole process of appeal. As ultimate results are based not on reasoning upon facts and law, there is nothing left for an appeals court to judge. This too will encourage greater corruption.

Some basic characteristics of an effective agency to eliminate corruption

To devise and establish an agency able to eliminate corruption requires serious policy decisions on how to overcome weaknesses of law and its implementation to wipe out corruption.

When a country makes a policy shift from entrenched corruption to no corruption, one of the main institutional problems is its policing system. Therefore effective anti-corruption measures must be built outside the existing policing system. This implies that its legal machinery also not be under control of the police. It must be completely independent from policing and able to maintain strict confidentiality, as it will also be called upon to investigate police officers themselves, including higher-ranking officers. If information is leaked about such investigations, these officers will take precautions to erase evidence, intimidate witnesses and engage in other activities to subvert investigations. They may also take various measures to hide wealth that they may have obtained, except through their legitimate earnings. They may even leave the country. Thus, it is imperative that the anti-corruption agency, its staff and laws be fully independent from the country’s normal policing apparatus.

The recruitment of staff and training for anti-corruption agencies must ensure that they have the possibility of acting independently in all their professional activities. This also implies that the officers engaged on behalf of the agency must be able to rely on it for their protection and that all possibilities of betrayal from within should be avoided. Persons with requisite modern criminal investigative skills, such as in forensic science, should be recruited, or promising candidates without such skills rigorously trained. The competence of all staff should be constantly improved through training. Internal regulations regarding acceptance of gifts or anything other than legally-entitled remuneration should be clearly established in order to avoid any possibilities of enrichment due to engagement with the anti-corruption agency. All assets of employees at all ranks should be exposed to scrutiny and any unexplained enrichment should be presumed to have been earned illegally. Declarations of indebtedness should be made at short intervals, such as quarterly, and should be scrutinized by superior officers.

The successful establishment of an effective corruption control agency depends on adequate investment. The failure to provide adequate resources for the running of an institution which is expected to eliminate corruption amounts to deception. Thus, budgetary allocations to the agency should be under constant pubic scrutiny. It is futile to criticize an inadequately-resourced institution for its failure to carry out its functions.

Equipped with laws, personnel and money, an effective corruption control agency should be organised into the following components:

  • An operational component to deal with investigations;
  • A training component for staff;
  • A policy research component to study and make recommendations to eliminate corruption;
  • A legal component to advise the agency on all issues relating to law arising from its work and educate its staff; 
  • An advocacy component to inform the public constantly on all matters relating to the elimination of corruption; and,
  • A research and development component, which constantly updates the quality of work and materials.

All these components should be independent but coordinated. There should be no overlap of functions within the institution itself.

The success of an effective anti-corruption agency also depends very much on the integrity of the justice department or ministry and prosecution branch of government. It must be able to trust that in all circumstances the prosecution will act with professional integrity and competence. In many countries this trust is absent. Some defects also arise from the absence of sufficient staff in the prosecuting branch or the absence of competence of its officers, sometimes leading to leakages of information when preparing indictments and prosecuting. Thus defective prosecution agencies may defeat all the efforts made by an anti-corruption unit and even endanger the lives of its staff.

Models

The participants spent almost two days interacting with senior officers of the Independent Commission Against Corruption (ICAC) in Hong Kong, getting clarifications on how it has worked to turn a place where corruption was a way of life a few decades back into a place where the major obstacles have been overcome and people can go about their ordinary lives without being burdened with its weight.

They also examined the Right to Information Act of India. This act emerged from the work of organisations and dedicated persons in civil society who have consistently worked to see a sensible law brought in regarding the right to information, which can be used across India and adapted to other countries.

Lokayukta, a form of ombudsman used in India, can also under certain circumstances contribute to the prevention of corruption. Lokayukta involves the services of retired judges to deal with certain issues against the executive.

The need to meticulously document experiences with corruption

Documentation of experiences with corruption should come from direct and constant interviews with ordinary people, the recording of such interviews, transmission of oral records into writing and its dissemination to large audiences through the use of modern technology. Good documentation can be constantly analyzed for the purpose of understanding what enables corruption and also finding ways to fight against it. A whole new discourse needs to be created on the basis of factual information which is constantly gathered, maintained and shared with all those who are engaged in fighting against corruption.

The defense of those who fight against corruption

The participants also recognised that those who pursue complaints against corruption as well as those supporting such persons are often exposed to great dangers. One of the glaring weaknesses of the criminal justice systems in most Asian countries is the absence of credible witness protection programmes. As a result, complainants and victims are exposed to enormous risks at the hands of the perpetrators, including some law-enforcement officers. Identifying the costs and benefits of establishing a credible witness protection programme managed by competent persons and resourced properly is an important strategy to fight corruption.

Special concerns over judicial corruption

The participants felt that assigning judges who are already overloaded with work to engage in enquiries into corruption allegations against their colleagues is not effective. If some senior judges are appointed to enquire into allegations of corruption of other judges, such as lower-ranking judges, then those assigned this task should be left to do it alone for the period of time needed.

It is also essential that all allegations of corruption against judges be dealt with promptly. Corrupt senior judges may sometimes intimidate lower-ranking ones by abusing the judicial process. If inquiries are not conducted quickly, their unscrupulous manipulations may seriously demoralize the entire judiciary.

Once a judicial panel decides that there is a prima facie case of corruption against a judge the actual criminal investigation should be handed over to criminal investigators who have the skills and capacity to investigate. The lack of a proper criminal inquiry can be one reason for the lack of proof of allegations about judicial corruption. Without credible outside inquiries doubts will remain over the credibility of the judicial process. Other methods to address judicial corruption alone, such as simple transfers of judges, will not inspire public trust that allegations of corruption in the courts will be addressed properly, thus hampering prospects for complaints and perhaps leading to some of the alternative methods for dispute settlement mentioned above, including through syndicated criminal gangs.

The need for a new movement

The participants agreed to develop various methodologies for the purpose of better understanding, communicating and working to fight against corruption by addressing the issues mentioned above. They agreed to make themselves into an informal grouping with a view to taking these ideas to their respective countries and audiences, which henceforth will be called the Network for Monitoring Corruption.



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