Jindal Global Law Review

NEW GOVERNANCE STRATEGIES FOR PREVENTING CORRUPTION: LAW, THEORY AND PRACTICE

VOLUME 9, ISSUE 1, 2018

Issue Editors: Gerry Ferguson, Suvrajyoti Gupta, Alexandra Oriova, Poonam Puri

Editor's Introduction: Introduction to the JGLR special issue on New Governance Strategies for Preventing Corruption: Law, Theory and Practice Anver Saloojee (PDF)

ARTICLES

1. Informal networks of corruption: Assessing the challenges for public sector whistleblowing in Nigeria

    Olabisi D. Akinkugbe
    Article (PDF) | Abstract


Recently, the Nigerian government adopted its first National Anti-Corruption Strategy—the first since its independence in 1960. While the strategy captures varying forms of corruption, whistleblowing is seen as one of the key strategies identified to confront anti-corruption in the public sector. The adoption of the whistleblowing policy and its on-going implementation however occurs without a legislative framework to protect whistleblowers. This article situates the whistleblower program in the wider socio-political context of anti-corruption in Nigeria, and public governance. The paper critically examines the implications of the legislative gaps for the long-term sustenance of the whistleblower protection program. This paper argues that the whistleblowing program is embedded in the wider socio-political and informal social norms that have historically privileged corruption in Nigeria. To enhance the overall effectiveness and institutionalization of the whistleblowing program in Nigeria, this paper contends that the urgent adoption of a comprehensive legislative protection framework is a minimum requirement. Significant practical steps must be taken to address the complex background of informal social networks of corruption, power dynamics, and social norms that are peculiar to the Nigerian economic and political context.
Akinkugbe, O.D. Jindal Global Law Review (2018) 9: 11. https://doi.org/10.1007/s41020-018-0055-5.


2. Why Russian anti-corruption policies fail? Examination of corruption in the civil service and the business community
       Pavel A. Merkulov and Maria V. Shedij
       Article (PDF) | Abstract


Corruption is an entrenched phenomenon in Russian society. This article examines factors contributing to corruption in Russian civil service, such as low salaries, non-competitive hiring and promotion process, widespread nepotism and the culture of corruption. It also looks at corruption when it comes to Russian business enterprises and how it has been impacted by the history of questionable privatization deals in the 1990’s as well as the current relationship between business entities and state officials. The article concludes that while combatting corruption is not an easy task, it is not an entirely hopeless undertaking. Reform is still possible despite of multiple problems that currently exist and prevent the effective carrying out of the anti-corruption agenda in Russia. These reforms will depend upon a true partnership being developed between government and various civil society organizations, development of solid opposition parties that can hold government responsible for following through on its anti-corruption agenda and encouraging mechanisms for developing a general intolerance of corrupt practices.
Merkulov, P.A. & Shedij, M.V. Jindal Global Law Review (2018) 9: 29. https://doi.org/10.1007/s41020-018-0061-7.

 

3. Exclusion and rehabilitation: How multilateral development banks addresses corrupt behaviour
      Eugenia A. Pyntikova
      Article (PDF) | Abstract


This article considers administrative sanctions used by multilateral development banks in response to corruption in development projects. The paper covers the backgrounds, purposes, and current practices of these similar but non-identical systems, and searches for lessons to be learned as the MDBs continue to tackle the problem of corruption through sanctions of private companies and individuals. A particular focus is the institutions’ balanced approach to risk management that uses both exclusion and tools of rehabilitation with respect to culpable companies and individuals.
Pyntikova, E.A. Jindal Global Law Review (2018) 9: 43. https://doi.org/10.1007/s41020-018-0064-4.


4. Asset recovery in the fight against corruption in Vietnam: Problems and perspective
      Do Thu Huyen and Vu Cong Giao
      Article (PDF) | Abstract


The paper analyses legal provisions and results of asset recovery in Vietnam in the recent years. By using official Government figures and comparing them with requirements under United Nations Convention against Corruption (UNCAC), this paper demonstrates the shortcomings of the legal processes and procedures for recovery of stolen assets in Vietnam. The problems faced by Vietnam in this area mainly resulted from the fact that although the country has numerous substantive and procedural laws on anti-corruption, an appropriate strategy for anti-corruption has been wrongly identified by Vietnamese law makers and practitioners. Accordingly, not much thought has been given to asset recovery, which has been globally recognized as the most effective way to deter corruption. Besides, law enforcement in Vietnam is also another big concern. Therefore, there is no significant progress in asset recovery in Vietnam in the short-term, though the country is revising the law against corruption in a comprehensive manner.
Huyen, D.T. & Giao, V.C. Jindal Global Law Review (2018) 9: 57. https://doi.org/10.1007/s41020-018-0057-3.

 

5. Control of public official’s assets and incomes in Vietnam
      Giao Cong Wu
      Article (PDF) | Abstract


This paper analyzes the current legal framework and the practice of control of assets and incomes of public officials in Vietnam. Vietnamese Government is unable to control assets and incomes of its civil servants which is primarily due to the existence of secret culture that heavily influences operations in the political system. The author opines that revision of laws against corruption will have limited effect or change in the control of assets and incomes of public officials. Further, there are institutional and cultural challenges in Vietnam which may invalidate attempts to control assets and incomes of public officials in the coming years.
Wu, G.C. Jindal Global Law Review (2018) 9: 75. https://doi.org/10.1007/s41020-018-0063-5.

 

6. Anti-corruption strategies versus public services and good governance in Albania
     Oriona Muçollari
     Article (PDF) | Abstract


Corruption occurs in all countries regardless of the level of social and economic development. There is a high correlation between corruption and absence of respect for human rights and between corruption and undemocratic practices. Corruption alienates citizens from their government. There is also a high correlation between anti-corruption, good governance and public services. This paper will discuss how corruption affects good governance and public services in Albania. The relationship between central and local governments in Albania has always been fragile. The delegation of the competences from the central to the local government should be seen as a general benefit. A partial delegation of competences or fake delegation of competencies will be a problem for both central and local units. A partial delegation will lead to scarce public services and will give space for corrupt practices. Decentralization of the competencies will only be successful if local authorities can engage in political dialogue with central governments to promote their interests and cooperate among themselves. Strong involvement by all local government units is essential for the success of this process. Cooperation and coordination between central and local governments has been problematic as it is largely directed by political affiliation and influence. Improving this relationship is necessary to achieve constructive dialogue and institutional cooperation between the central agencies and local governments units. Intergovernmental relations will be improved through the establishment of institutional mechanisms of dialogue as well as the adoption of relevant legislation. This paper will discuss various anti-corruption strategies adopted in Albania.
Muçollari, O. Jindal Global Law Review (2018) 9: 93. https://doi.org/10.1007/s41020-018-0062-6.


7. Everything under one roof: Canada’s evolving model of parliamentary ethics
     Ian Stedman
     Article (PDF) | Abstract


This paper begins with a brief overview of the various institutions and offices that contribute to the overall anti-corruption infrastructure of Parliament in Canada. It then examines the creation and evolving role, especially over the past two decades, of the offices of Canada’s federal and provincial parliamentary Ethics Commissioners. A trend has emerged whereby different parliamentary anti-corruption institutions and offices are now being combined “under one roof”, typically that of the Ethics Commissioner. This trend may be warranted, but there is unfortunately very little data being made publicly available by the individual commissioners that can help us understand why these institutions are evolving in this way. Ethics commissioners ought to collect and publish more data about how their offices actually function in order to allow for more meaningful public scrutiny into how these institutions are evolving.
Stedman, I. Jindal Global Law Review (2018) 9: 109. https://doi.org/10.1007/s41020-018-0058-2.

 

8. To bribe or not to bribe: Human rights issues that should factor into decision-making process
    Alan Franklin
    Article (PDF) | Abstract


Corruption is generally seen as a very negative and malevolent force in the world today; yet oftentimes, acts of corruption are heroically life-affirming and consistent with human rights. This article will examine this concept, suggesting that corruption should be a factor in business decision-making but must be balanced against other factors, particularly human rights considerations. The article looks at the “continuum” aspect of corruption, from that which is illegal as a result of domestic legislation, to that which may be illegal depending on circumstances, to that which is totally legal as it is either approved of directly by domestic legislation (such as licensing of lobbyists or political campaign contributions) or the act of corruption is exempt from the legislation (such as facilitation payments being legal under the FCPA). The “silo” effect often restricts discussion of these issues. Those in the “no corruption ever under any circumstances” silo refuse to engage with those in the silo of “human rights include freedom from corruption and therefore corruption has to be looked at within the context of human rights generally.” The issue of whether human rights are to be judged on the basis of short term or long-term basis is highlighted; while corruption may sustain dictatorial regime in the long run, human rights to development are short term rights. Canadian jurisprudence has engaged with this issue and seems to favour short term over long term regarding human rights. The article proposes that foreign investment decisions should therefore balance these often-conflicting principles, on the basis of whether the investment will likely result in highly improving human rights in the host state, moderately or negligibly and the probable effect of the act of corruption, and whether such act is legal or illegal.
Franklin, A. Jindal Global Law Review (2018) 9: 133. https://doi.org/10.1007/s41020-018-0056-4.