This comment aims to highlight certain practices that may be suspected of corruption and to raise the awareness against it.
Corruption is all these unlawful misconducts that are
practiced by certain people in positions
of authority, who take advantage of their office and the power entrusted
to them, for the benefit of their own or of others and to the damage of the
public or private interests that rely on the integrity of these officers or employees.
Corruption is criminally significant by definition. But while personal corruption of
the common type in the forms of bribery, blackmail, embezzlement, conflict of
interest etc. is relatively easy to come across with and to be recognized,
institutional corruption is more obscure, therefore difficult to comprehend and
to penalize.
The term ‘institutional corruption’ may be used in
relation to either the person who performs the corruption or to the way the
corruption is performed.
In respect of the person who performs the corruption,
institutional corruption may be considered as corruption by officials who are
entitled with institutional duties and offices - even with duties and offices
that are supposed to fight corruption, such as in the judicial system and the
police! Their institutional duty or office is an aggravating circumstance of
personal corruption of common type and results in criminal consequences for the
wrongdoers.
In respect of the ways of institutional corruption, we
mean systemic impediments, hidden in the dark side of the rule of law, feeding
themselves by systemic fails. This kind of corruption can be disguised and
hidden behind legitimate practices; therefore it is hard to be recognized, even
harder to be penalized and thus considered to be “legal corruption” [Daniel Kaufmann and Pedro C. Vicente, "Legal Corruption"].
It is obvious that “legitimate” is not necessarily “legal” or "lawful", but we will come again
to this issue in a forthcoming commentary. Since we mentioned the rule of law, we consider
appropriate to begin with the legislative.
Institutional corruption in Legislation
A bill can be a lifesaver for those that can benefit
from it and a lethal weapon of mass destruction for others. Therefore,
legislation is a power that may, intentionally or unintentionally, permit or
feed corruption. The usual (but not so evident) ways may include some of the
following:
(b) Temporary legislation i.e. legislation with specific (usually short) time span that is usually dealing with urgent circumstances, may pass without scrutiny of the case regulated, gain time and create legal precedents that may favor some and abort others.
(c) Short deadlines. The law may provide for rights subjected to short deadlines. Deadlines that are hard or impossible to be met, inhibit the genuine exercise of the rights granted and should be suspected for institutional corruption.
(d) Legislation with retroactive effects that gives no time at all to plan and avoid, except if some knew beforehand that such legislation will be effected, should also be suspected of corruption.
(b) Leaving issues unregulated: Changes and newcomers may annoy status quo interests. No matter whether it is about granting a professional accreditation, regulating the use of hydroplanes in a sea country or intergalactic transactions, it is up to the legislature to determine what shall be regulated and what shall be left unregulated, even if regulation is needed. We can all think of proposals, initiatives and investments that went nowhere, because the law needed additions or amendments that did not take place.
(c) Leaving issues misregulated may favor misconducts: While writing these lines, Athens is tortured by repeated 24h strikes by the Union of the employees of the subway (Athens Metro) because of cuts in their wages. Upon legal recourse by the State, Court of Law decided that the strike is illegal and unjustified. The Union declared strike again for a different reason. A new decision came with the same verdict. The Union declared a further new strike for a further new reason! With all due respect to labor rights, we do not really know whether we should laugh or cry with the law that permits this ridiculous situation!
(d) Enacting inequalities and discriminations. The law shall treat equal situations in an equal way. This principle, despite its simplicity, may give way to misunderstandings and misuses that may feed corruption. It is up to the Courts of Law to correct inequalities of law, by applying superior laws and principles that derive from the Constitution and / or International Treaties such as the European Convention on Human Rights and the UN Declaration of Human Rights.
(e) Creating monopolies or oligopolies. It used to be one of the major manifestations of legislative corruption. The contribution of EU legislation and authorities to the avoidance of such misconducts is immense.
(f) Creating legal loopholes by exceptions and ambiguities. Such loopholes may come in the same bill or in different ones. They may be covered up in a set of provisions that regulate other issues, either as direct additions or amendments of the law already enacted or as indirect amendments that may apply to the same law or may not. Vague and generic terms enhance ambiguities. The result, especially if combined with other misconducts, may be tricky, even for legal professionals!
(g) Using too many laws and/or too many amendments to regulate an issue. This may come in combination with the other ways, as above. The plethora of provisions that come and go, establishes legal uncertainty which prevents transparency and permits to seek and hide, for corruption.
(h) Using omnibus bills. Such bills regulate many subject matters in one bill, either in whole or in tiny parts of the subject matters. As in other cases in this list, parliamentary discussion is not enough to disclose what is newly regulated and/or amended.
(i) Extraordinary legislation such as legislation by ordinances or by acts of legislative content, which do not follow the ordinary (i.e. though the Parliaments), legislative way, may give way to corruption.
(j) Legislative authorization. It is quite common for a law to authorize the Government (usually a Minister) to deal with technical and other details of an issue. The authorization should be direct, straightforward, precise and limited by the law providing for it. A vague and wide authorization can be a backdoor left open to abuse.
(k) Absence of legal remedy: Art. 8 of the UN Declaration of Human Rights provides that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Here is an eloquent example in the Greek urban planning legislation: According to the Greek Law, in cases of city expansions or new city plans, the Government (i.e. Ministry of Environment and Climate Change) is the competent authority to consider for the city environment by determining the road plans, the appropriate uses of land etc. The decisions should be driven by public interest. In case the city plan provides that a privately owned plot of land becomes public place (such as park etc), the owners do not have a legal remedy to accelerate the administrative procedure for the city plan to be effected and to claim their compensation. The owners do not lose their ownership as long as they are not fully compensated, so they bear taxation and responsibilities that follow their ownership, while they cannot enjoy their ownership since, as long as the provision of the city plan for their land is to become public place, they cannot build nor can they sell (except in a devaluated price), since no one would like to invest in such a dubious piece of property. The owners can do nothing but wait for some 5 years or more of inaction to elapse and then, claim by the administrative Courts of Law to order the Government to alter the city plan; and then they have to wait for more and may be much more ...
- The element of time as a factor of potential legislative corruption
(a) Good timing is crucial. By choosing the ‘appropriate’ time to pass a new bill, legislators may cover up traces of corruption, surprise the opponents and control or even eliminate public reaction.(b) Temporary legislation i.e. legislation with specific (usually short) time span that is usually dealing with urgent circumstances, may pass without scrutiny of the case regulated, gain time and create legal precedents that may favor some and abort others.
(c) Short deadlines. The law may provide for rights subjected to short deadlines. Deadlines that are hard or impossible to be met, inhibit the genuine exercise of the rights granted and should be suspected for institutional corruption.
(d) Legislation with retroactive effects that gives no time at all to plan and avoid, except if some knew beforehand that such legislation will be effected, should also be suspected of corruption.
- The content of legislation as a factor of potential legislative corruption
(a) Picturing specific individuals: Since photographic bills that are addressed to specific individuals are forbidden by most constitutions and legal systems, legislators have mastered their ways to reach similar results in a legitimate way. The usual method is by describing in detail, qualities and requirements that suit the favored who, although they are not invited by name in the bill, they know that the requirements and qualities are addressed to them by driving the competition, away.(b) Leaving issues unregulated: Changes and newcomers may annoy status quo interests. No matter whether it is about granting a professional accreditation, regulating the use of hydroplanes in a sea country or intergalactic transactions, it is up to the legislature to determine what shall be regulated and what shall be left unregulated, even if regulation is needed. We can all think of proposals, initiatives and investments that went nowhere, because the law needed additions or amendments that did not take place.
(c) Leaving issues misregulated may favor misconducts: While writing these lines, Athens is tortured by repeated 24h strikes by the Union of the employees of the subway (Athens Metro) because of cuts in their wages. Upon legal recourse by the State, Court of Law decided that the strike is illegal and unjustified. The Union declared strike again for a different reason. A new decision came with the same verdict. The Union declared a further new strike for a further new reason! With all due respect to labor rights, we do not really know whether we should laugh or cry with the law that permits this ridiculous situation!
(d) Enacting inequalities and discriminations. The law shall treat equal situations in an equal way. This principle, despite its simplicity, may give way to misunderstandings and misuses that may feed corruption. It is up to the Courts of Law to correct inequalities of law, by applying superior laws and principles that derive from the Constitution and / or International Treaties such as the European Convention on Human Rights and the UN Declaration of Human Rights.
(e) Creating monopolies or oligopolies. It used to be one of the major manifestations of legislative corruption. The contribution of EU legislation and authorities to the avoidance of such misconducts is immense.
(f) Creating legal loopholes by exceptions and ambiguities. Such loopholes may come in the same bill or in different ones. They may be covered up in a set of provisions that regulate other issues, either as direct additions or amendments of the law already enacted or as indirect amendments that may apply to the same law or may not. Vague and generic terms enhance ambiguities. The result, especially if combined with other misconducts, may be tricky, even for legal professionals!
(g) Using too many laws and/or too many amendments to regulate an issue. This may come in combination with the other ways, as above. The plethora of provisions that come and go, establishes legal uncertainty which prevents transparency and permits to seek and hide, for corruption.
(h) Using omnibus bills. Such bills regulate many subject matters in one bill, either in whole or in tiny parts of the subject matters. As in other cases in this list, parliamentary discussion is not enough to disclose what is newly regulated and/or amended.
(i) Extraordinary legislation such as legislation by ordinances or by acts of legislative content, which do not follow the ordinary (i.e. though the Parliaments), legislative way, may give way to corruption.
(j) Legislative authorization. It is quite common for a law to authorize the Government (usually a Minister) to deal with technical and other details of an issue. The authorization should be direct, straightforward, precise and limited by the law providing for it. A vague and wide authorization can be a backdoor left open to abuse.
(k) Absence of legal remedy: Art. 8 of the UN Declaration of Human Rights provides that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Here is an eloquent example in the Greek urban planning legislation: According to the Greek Law, in cases of city expansions or new city plans, the Government (i.e. Ministry of Environment and Climate Change) is the competent authority to consider for the city environment by determining the road plans, the appropriate uses of land etc. The decisions should be driven by public interest. In case the city plan provides that a privately owned plot of land becomes public place (such as park etc), the owners do not have a legal remedy to accelerate the administrative procedure for the city plan to be effected and to claim their compensation. The owners do not lose their ownership as long as they are not fully compensated, so they bear taxation and responsibilities that follow their ownership, while they cannot enjoy their ownership since, as long as the provision of the city plan for their land is to become public place, they cannot build nor can they sell (except in a devaluated price), since no one would like to invest in such a dubious piece of property. The owners can do nothing but wait for some 5 years or more of inaction to elapse and then, claim by the administrative Courts of Law to order the Government to alter the city plan; and then they have to wait for more and may be much more ...
As long as (a) the Legislative power is exercised upon
initiative by the Government and (b) the Government holds parliamentary
majority and (c) the MPs depend on the political parties through which they
become elected, the institutional independence of the Legislative is neither
full nor substantial.
Legal and political frameworks contain defects, deficits and blank points that may feed corruption. It is upon us, to speak up and put these defects to the light and upon the Courts of Law to fix them by applying the law, if there is one ...
Legal and political frameworks contain defects, deficits and blank points that may feed corruption. It is upon us, to speak up and put these defects to the light and upon the Courts of Law to fix them by applying the law, if there is one ...
2013/01, George Sabalos, Esq. (Hellenic Supreme Court)/ Med. / Arb. (CEDR)
Δεν υπάρχουν σχόλια:
Δημοσίευση σχολίου