West vs East: Approaches to fighting corruption

Corruption – the improper mixing of public and private interest – is one of the scourges of contemporary society. How should we go about fighting it?

The Western approach: Rule of law

The Western way is the rule of law: legislation defines what corruption is, and an independent judiciary pursues those breaking the law – first indicted, first tried. Separation and independence are the hallmarks. The devil is, of course, in the detail. Let us elaborate.

1. Corruption that is nestled in the law: A corrupt political system will cleverly hide corruption in the very words (and woolly wordings) of the law.¹ Relabelled as ‘business incentives’ and ‘sponsoring’, culpable favours become legitimate ways of ‘creating a favourable business climate’. There are other, subtler methods: culpable omissions (in the legislative texts, but also in the implementation process). Lack of transparency in state-enterprise relations – under cover of ‘protecting business secrets’ – can also be very effective (in India, memorandums of understanding between mining firms and the state governments are not in the public domain; see Broken Republic by Arundhati Roy). It is remarkable that transparency applies to state-to-state agreements but not to state-to-firm transactions). The matter is not made easier by the privatisation drive, which has outsourced many sovereign functions without corresponding safeguards. The most flagrant situation is the outsourcing of many non-combatant tasks of sovereign military activities to the private sector. Given the fog of war, oversight is often impossible.

2. Power is the new currency of corruption: Our understanding of corruption is tied to the individual act and the monetary transaction – personal graft in brown bags is the cliché. But this form of corruption has a passé feeling about it. Money begets political power, and political power begets money. When corruption becomes a system and a caste culture emerges, culpable intent is no longer traceable. Power is a currency leaving no trace in a bank account. Corporate donations to political parties are often viewed as legitimate business expenses.² Corporations bringing jobs to politicians’ constituencies in return for legislative favours have created the corporate-congressional complex. The legal system has great difficulties in proving misbehaviour: when networks of favours eventuate, the law is no longer able to trace the specific quid pro quo (see Chi comanda Firenze. La metamorfosi dei poteri e i suoi retroscena attraverso la figura di Matteo Renzi by Duccio Tronci).

3. When property is protected absolutely, the past is ‘grandfathered’: Past injustice is forgotten, whitewashed, and perpetuated in the name of ‘precedent’ and ‘consistency’.

4. Corruption evolves alongside the law: Once passed, a law becomes a tool for ‘law-avoidance’: clever lawyers will find ways to skirt it. Implementing rules and jockeying with budget allocations can be used to gut the intent of the law. It is a slow yet relentless process of erosion.

5. Incompetence as the ultimate bastion of corruption: No bureaucrat has been punished simply for being stupid or for being taken for a ride. Staffing the administration with incompetent people is a sure way for partisan power to get its way. A variation on this theme is the current fad of contrasting the rule of law with the ‘overarching’ quest for ‘efficiency’. The rule of law is painted as fetters (which it sometimes is) and cursorily applied. Italy’s Silvio Berlusconi turned ‘emergency measures’ into an art of circumventing corruption probes. Most public works were declared ‘emergency measures’ and freed of the usual anti-corruption procedures.

6. ‘Best practice’ at its worst: Not satisfied with prosecuting corruption, the current trend is towards preventing it. The trend is to establish ‘best practice’ destined to stop straying from the path of virtue. Like cookbooks, such guidelines easily become unwieldy. By trying to cover all bases, best practices tend to impose documentation costs beyond what is reasonable or appropriate to the context. (Road traffic would quickly come to a standstill if we all needed to document our safe driving, rather than face punishment when we don’t.) In addition, ‘best practice’ may become regulation by stealth, discretionary in verification, or easily encrusted with less-than-transparent ‘consultants’.³

The flipside to the ‘rule of law’ is the independence of the judiciary. It is viewed as the main defence against corruption. We may want to revisit this view:

1. Procedural fetters hinder justice: Due process is a fundamental right. Intended to protect the weak (and the innocent), it often shields the perpetrator who, particularly in economic litigation like corruption, has the means to wage unending procedural battles, which tie up or overwhelm judicial resources. This can lead to justice delayed, or even denied.⁴

2. When ‘everyone does it, no one does it’: Administering the ‘rule of law’ presumes a high level of voluntary compliance. When corruption is systemic and chronic, repression becomes difficult, and only long-term changes in mentality are likely to yield a turnaround.

3. From judicial autonomy to autocracy: The executive is one of the main targets of corruption probes. Independence of the judiciary is a precondition for fearless prosecution of the executive. Though necessary, independence can lead to a lack of accountability and, in some cases, to autocracy. Self-regulation is a weak management instrument, particularly when key posts are awarded by co-optation. Self-regulation does not establish priorities, leading to a ‘first come, first served’ rather than a strategic approach to fighting corruption. Moreover, the judiciary is not above being partisan itself.⁵

Autonomy, coupled with delays and budgetary restrictions, can lead to judicial fragmentation when the higher courts no longer ensure convergence of jurisprudence. ‘Venue shopping’ and, alternatively, jurisdictional disputes may ensue.

A novel phenomenon is ‘court pro-activism’. In a procedure redolent of medieval appeals to the benevolence of the sovereign, citizens may address the courts directly for redress, bypassing all political, legislative, and administrative processes. This is done in the name of the immediate implementation of constitutional rights when these are denied by culpable delays or omissions.⁶

Arguing that corruption is akin to an iceberg is close to cliché. What can be observed, traced, and prosecuted tends to be the personal violation of anti-corruption rules. The other shades of political interaction between the public and the private sector fade into ‘favours’ and even achieve legitimacy as being ‘pro-business’. Much of today’s cynicism about the political caste reflects the effective lack of accountability.

Just as precarious, it would seem to me, is the judicial side. Growing complexity in litigation, combined with an insistence on autonomy bordering on a lack of accountability, appears to overwhelm the judicial system and leave it rudderless, unable to focus coherently on the problem and set priorities. Now clueless, now imperious – or imperious because clueless – the courts too are growing distant from the citizens’ concerns.

China’s approach: Confucian ethics and swift enforcement

A different approach to corruption is found in China. China never had a tradition of an independent judiciary: the state acted both as prosecutor and judge. The Censorate, which was part of the imperial administration, monitored the conduct of officials and emperors alike. ‘Their purpose was to ensure that the constitution not be undermined or compromised’ (see The Troubled Empire: China in the Yuan and Ming Dynasties by Timothy Brook), but their powers depended on whether the Emperor invested any serious authority in them. More fundamentally, it depended on the doctrine of moral reciprocity between superiors and inferiors that animated Confucian ethics. If this ethic went missing, the system became autocratic.

In such a vertical system of responsibility and accountability, the principal has great difficulty in verifying the behaviour of his agents. Competing control/spy networks were employed, soon leading to terror (see Le tyran de Nankin: Empereur des Ming by Wu Han). In any case, the quality of the checks depended on the proactive stance of the principal – the Emperor. His attention often flagged. Rebellions leading to a loss of the ‘mandate of heaven’ were all based on the perception of justice denied.

The separation of the executive and the judiciary is currently being implemented at the local (and up to the provincial) level in China. Experimentation is foregrounded, which has led to criticism of ‘opaqueness.’ This need not be the case; with complex reforms, it may be more effective to experiment before proceeding with wholesale planning. Corruption, however, remains one of the CCP’s major political concerns, as its legitimacy, in the absence of a democratic electoral system, critically depends on addressing it. Corruption is treated as both a violation of party rules and a crime. Party investigations take precedence, and these are swift, often involving not only the accused individual but also their entourage.

The system is swift and fearless: General Xu Caihou, former deputy chairman of the CCP’s Central Military Commission, and thus among the highest-ranking military men, was expelled from the Party for ‘taking money and property in exchange for promotions and other favours.’ I interpret the term ‘promotions’ to indicate that many lesser military men will suffer the consequences. Comments in the paper point to Xu being part of a losing Party faction.

A 360° inspection of both state firms and authorities is a proactive way to address the problem. Up to 200,000 party members may have been dismissed in the current anti-corruption drive.

‘The ferocity of the crackdown under the current government has been unprecedented in recent times. Although supported by most Chinese, the campaign has its doubters nonetheless. Some say cleaning up government is good, but only up to a point, as it risks damaging the image of the Communist Party and government. Others voice fears that a sustained crackdown will hurt economic development’ (see Curbing Corruption Requires More than Just Politics and an article on inventory of ‘bagged tigers’).

China’s system is opaque, but this does not mean it is ineffective. What is evident is the clear political will to address the problem rather than waiting for culpable behaviour to become obvious. Such a relentless battle is unheard of in the West – and not for lack of corruption. Regrettably, it is hardly acknowledged.

The limitations of anti-corruption measures

A world without corruption is utopia. Best efforts and ‘good enough measures’ are what one can hope for. In the West, the ‘legalist’ approach has been taken, which focuses on transparency. China’s way is more akin to the ‘Confucian’ approach, emphasising an inner attitude. The CCP verifies this ‘attitude’ by inspections and anti-corruption drives (albeit often ruthless and callous). Neither approach is perfect, of course: a categorical discussion on the superiority of either method is futile.

In fact, I would argue that it is counterproductive. Corruption is an attack by individuals against the community and a form of parasitism. Only a combination of the rule of law at the micro-level and political will at the macro-level can lead to sustainable progress. The imminent danger lies in the creation of self-referential and self-serving oligarchies. Neither system is immune to this threat (see La maschera democratica dell’oligarchia by Luciano Canfora and Gustavo Zagrebelsky), nor will a less-than-holistic approach effectively address the problem.

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1. It has been estimated that special interest legislation in favour of the corporate sector in the USA amounts to about 500 billion US dollars. Corruption can be absconded deep out of sight in the political system: my favourite, but not the only, example is the pervasiveness of gerrymandering in the USA. Another would be FPP democracy in India, guaranteed to deny minorities a voice in Parliament. The US Supreme Court doctrine that money in politics deserves the protections accorded to speech would be another example.

2. In India, e.g., in 2006, there was a backlog of 27 million judicial cases, or 300 years’ worth of litigation (In Spite of the Gods. The Strange Rise of Modern India by Edward Luce). In the USA, the right to a speedy trial leads to over 90% of cases being settled out of court – a form of ‘justice at a discount.’ Few, if any, corporations have received criminal convictions, though some have paid hefty fines while denying wrongdoing.

3. Silvio Berlusconi, Italy’s ‘great corruptor,’ has often complained that the ‘left-leaning’ co-op system of the country is just as corrupt as he is – yet, on the whole, these structures have escaped prosecution (see Chi comanda Firenze. La metamorfosi dei poteri e i suoi retroscena attraverso la figura di Matteo Renzi by Duccio Tronci and La casta. Così i politici italiani sono diventati intoccabili by Sergio Rizzo and Gian Antonio Stella).

4. In India, the Supreme Court will directly hear ‘public interest litigation’ and often decide weighty matters on the spot. Thus, its chief justice in 2002 ordered the India-wide linking of rivers within 15 years (he qualified it belatedly as a ‘suggestion’). Without entering into the wisdom of building a system of big dams in the country, the autocratic way the matter was decided without any proper hearing leads to questioning the wisdom of such a ‘fast track’ approach (see An Ordinary Person’s Guide to Empire by Arundhati Roy; it does not help that ‘contempt of court’ rules shield the chief justice from accountability).

The post was first published on DeepDip.

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