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:
- 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 ...
2013/01, George Sabalos, Esq. (Hellenic Supreme Court)/ Med. / Arb. (CEDR)
