U4 Helpdesk Query

U4 helpdesk reply

The query is answered in three parts. Section three

1. Part one provides general insight into anti-corruption legislation as a means to curb corruption and lists examples of national laws that are deemed to be comprehensive and effective
   
2. Part two provides some preliminary comments on the draft anti-corruption law of Vietnam
   
3. Part three lists recommended papers that provide detailed guidance and recommendations for drafting and implementing effective anti-corruption legislation
   

[top]

Part 1: Anti-Corruption Law and Enforcement

It is widely recognised that the prevention of corruption should be at the forefront of reform efforts. Effective detection and punishment through relevant anti-corruption laws and proceedings, however, is just as important. The two aspects serve to mutually reinforce each other.

Domestic Law Elements

Effective laws will not only help bring the guilty to the justice system but can also act as deterrents. When discussing possible anti-corruption laws, it is important to note that a range of legislative avenues can be followed, including:

* Civil and/or criminal law provisions: These regulate specific bribery and corruption offences and provide for sanctions in cases of guilt. It is important that corruption be regulated as an offence both in its active and passive forms and that both public and private sector corruption is covered. Offences falling under criminal law jurisdiction should be accompanied by adequate criminal procedure provisions regulating the detection, investigation and prosecution of cases. This first category is most commonly found in a country's civil/criminal code.

* Specific anti-corruption laws: These are increasingly being adopted worldwide, but particularly in transition countries, where legislation is often being revisited as a whole and where new laws are being introduced to replace obsolete regulations. These laws can provide a framework for a range of prevention and enforcement aspects, as well as for the establishment of special anti-corruption institutions and agencies. International comparative expertise on such legislation is gradually emerging and should be consulted before and during the drafting process.

* Other legislative pieces: These are laws regulating such issues as access to information, conflict of interest, whistleblower protection, freedom of expression and media freedom. Such legislation is almost, if not equally, as important as the laws directly regulating corruption offences. If effective, they can act both as an important deterrent to corruption and contribute to an environment in which further remedies can be developed.

* Complete legal framework: In summary, for individual laws to be effective they need to be considered in terms of an entire legislative package. Their sum total should reach beyond traditional criminal law provisions and lay the legal framework for prevention, punishment and cure of corruption.

Good Practice Examples:

Prevention and Combating of Corrupt Activities Act
(South Africa, 2004)

This act is viewed by many analysts as a piece of legislation with both the teeth and innovation required to combat graft in South Africa. The act is the result of an 18-month long legal drafting and public consultation process, and is based on international good practice. It is being used by the UK House of Commons as a model law on which its new anti-corruption legislation will be based.

The act is designed to work hand-in-glove with South Africa's other legislative instruments such as the Public Finance Management Act, the Promotion of Access to Information Act and the Protected Disclosures Act. The act covers both public and private sector corruption, with very extensive coverage of the public sector. The implications for South African business are far-reaching and best brought home by the fact that the maximum penalty for accepting, offering to accept, and giving or offering to give a gratification in order to corrupt, by either a public or private sector representative, is life imprisonment. Similar penalties apply to corrupt activities relating to contracts as well as offences relating to the procuring and withdrawal of tenders. Another novel approach taken by the act is a clause outlawing the bribery of foreign public officials. The act also provides numerous other important provisions, such as protection of witnesses and incentives for whistle-blowing. The private funding of political parties, a glaring gap in the legislation, is the one major unregulated area that a newly elected parliament will have to grapple with.

Within the Asia and Pacific region, the legislative frameworks of Singapore and Hong Kong are deemed to have been effective.

In Singapore, extensive prevention provisions are complemented by harsh punishment. Any person who offers, accepts or obtains a bribe can be fined up to $100,000 or sentenced up to five years' imprisonment or both. In addition, the court can impose a penalty equivalent to the amount of bribes accepted. The same applies to persons who offer or accept a bribe on behalf of another person.

For detailed provisions on Singapore's legal framework please see the page on law and enforcement on the website of the Corrupt Practices Investigation Bureau.

Hong Kong, through its three-pronged approach to combating corruption (prevention, education and punishment) and its effective independent commission against corruption (ICAC) is another example. The legislative framework of Hong Kong can be found on the ICAC homepage (under "Anti-bribery Legislation").

International Law Elements

Accession to relevant regional and international treaties is an important aspect of anti-corruption efforts and should be provided for in a country's national strategy. Treaties create additional legal commitments for governments to implement via domestic anti-corruption measures. For example, the Council of Europe Conventions prescribe effective and far-reaching domestic criminal and civil law provisions. In addition, due to its often transnational character, there are aspects of corruption that can only be regulated at the international level.

* Additional legal commitments: In this regard, success depends on the effectiveness of provisions contained in the treaty that provide for monitoring of its implementation at the national level, including reporting and evaluation mechanisms.

* Transnational crime: Provisions should be made for mutual legal assistance (through bilateral and multilateral arrangements) for dealing with extraditions, illicit transfers of assets and subsequent repatriation of the proceeds of corruption across borders. These are complex areas involving cross-jurisdictional law enforcement and litigation issues as well as international banking regulations and anti-money laundering provisions.

Good Practice Example:

UN Convention against Corruption
(UN, 2003)

As a global anti-corruption instrument, the UNCAC provides a unique opportunity to create public awareness and commitment to curbing corruption. While some of the provisions pursued by the anti-corruption community were left as optional or not included in the final text, the convention nonetheless has a number of strengths. For instance, it provides for an effective system of mutual legal assistance, raising hopes that funds transferred abroad by corrupt leaders can be repatriated to the countries from which they were originally looted. The convention has broken new ground by setting out processes for international cooperation in the recovery of such stolen assets. In addition, the convention establishes the right of people who have suffered from corruption to initiate legal proceedings against responsible parties.

[top]

Part 2: Vietnam's Draft Law

We had a quick look at proposed draft Vietnam law (which was available at our Asia Pacific department) and here are some initial thoughts.

There is substantial emphasis on promoting greater transparency, disclosure and reporting on the various aspects of government activity. This is a positive development. There is also a quite extensive list of what constitutes prohibited corrupt behaviour and the responsibilities of the government and other public bodies to prevent and detect corruption. While this is good, where the law lacks strength is in detailing corresponding sanctions for each of the prohibited corrupt acts and failures to fulfil the responsibilities for preventing and detecting corruption. The part on investigations and sanctions is present but is not extensive enough. More clarity will make enforcement easier, when the law is implemented.

The section on international cooperation does not appear to be in-depth enough. There, aspects such as mutual legal assistance in investigation, prosecution, asset recovery and repatriation should be provided in more details.

These are some preliminary thoughts. Given more time and upon request, we will be happy to conduct a more detailed review of the draft law.

We would also like to note that the UNODC provides technical assistance and expert reviews on draft anti-corruption laws, with the aim to assist countries that have signed the UN Convention against Corruption design and implement effective anti-corruption laws at the national level. Their contacts are:

Snail Mail:
Global Programme against Corruption
UN Office on Drugs and Crime
Vienna International Centre
P.O. Box 500, Room E1272
A-1400 Vienna
Austria
Fax: +43(1) 26060-5898
Phone: +43(1) 26060-4406
Web: http://www.unodc.org/unodc/en/corruption.html

[top]

Part 3: Recommended papers

Messick, Richard and Kleinfeld, Rachel (2001): Writing an Effective Anticorruption Law
The World Bank Prem Notes, 2001
Laws that publish bribery and other forms of corruption have proliferated throughout the developing world (Ofosu-Amaah, Soopramanien, and Uprety 1999). Yet while these new statutes represent a strong commitment to eradicating corruption, they often do not reflect the limitations of the institutions that enforce them - whether the police and public prosecution service or a non-criminal administrative agency. Many recent anticorruption initiatives have also overlooked complementary legal reforms that can prevent or expose corrupt acts.

Pope, Jeremy (2000): Laws to Fight Corruption
In: "Confronting Corruption: The Elements of a National Integrity System", Transparency International Source Book, 2000 (Chapter 27)
It is widely agreed that prevention of corruption should be at the forefront of reform efforts, however enforcement is just as important. In fact, the two reinforce each other. The chapter examines the legal framework necessary to prevent and supress corruption, including access to information, conflict of interest, public procurement, whistleblower protection and other relevant legislation. It then focuses on criminal law and civil remedies. The chapter also sets indicators for assessing the effectiveness of criminal and civil laws.

Sciaronni, Bretton (2001): Deterrence to Corruption: Requirements for a Legal Framework
Building a Coalition for Transparency Conference Paper, CSD, ADB, Phnom Penh, August 2001
Focusing on Cambodia, and speaking as a representative of the business community, Sciaroni sketches general requirements for a legal system that protects against corruption. Recognising the significance of recently drafted Anti-Corruption legislation and policy in Cambodia (i.e. the National Action Plan against Corruption and Governance Action Plan), he notes the gap between the existence and implementation of these policies. The speech is concluded by noting recent successes in the fight against corruption in Cambodia, namely, the establishment of the National Audit Authority and the increasing transparency in drafting and enactment of laws.

Van Tonder, Lionel and Goss, Peter (2001): Effective Use of Legal Remedies for Corruption: A South African Perspective
Paper presented at the 10th IACC, Prague, 2001
The paper is designed to give a practical South African investigative perspective on effective legal remedies that could aid in combating of corruption. As such it is also focused on giving a holistic approach to remedies in general which extends beyond the typical criminal justice approach. Such remedies include: recourse through the application of criminal law; remedies through civil law; administrative steps, for example application of labour law practices, resolution of issues through mutual agreement; and pro-active outputs, such as implementation of preventative and / or corrective measures.

[top]