LW305 Pacific Law Oz Assignments

LW305 Pacific Law Oz Assignments

LW305 Pacific Law Oz Assignments

Introduction

The reading by Hassall indicates that adherence to the rule of law is both a source and an indicator of legitimacy. Failure to adhere to the law suggests lack of respect for it. Corrupt organizational behaviour by political leaders is, perhaps, the clearest statement of lack of respect and/or legitimacy - even the people who are making the law do not see that they have to abide by it! Because corruption has both macro and micro dimensions anti-corruption law provides some interesting approaches for strengthening laws.

Objectives

By the end of this unit you should be able to:

1. Strengthen your and application of frameworks for strengthening the law that we have used so far
2. Distinguish between interventionist, managerialist and organizational integrity regulatory approaches for achieving desired outcomes
3. Apply a national integrity system framework to identifying institutions that may be involved in a law strengthening response
4. Consider the use of international best practice standards

What is corruption?

In normal everyday usage the term corruption is very broad indeed. It has many synonyms: decomposition, neology, foulness, disease, deterioration, imperfection, perversity, degeneration, improbity, fraud, deceit and vice. But whatever dictionary meaning the term has it is now predominantly associated with a failure in the performance of a public duty and this could be either by a politician or by an administrative official. Corruption also occurs in the private sector, and involves the misuse of position for illegitimate gain.

The definition we will use for the purposes of topic 11 is: “misuse of position for private gain”. What exactly does this mean though?

1. Are any of the following things corruption? Why/why not?
2. Are each of these behaviours harmful? Why/why not?
3. Have you ever done any of these things, or would you do any of these things? What reasons do you have for your behaviour?
4. Once you have completed this study task revise your definition of corruption, if you need to.
5. I do not keep my driver’s license up to date even though I drive.
6. I get waved through at the airport by the customs officer because he is family.
7. I only have to pay 500 vatu customs fee instead of 1000 vatu because the customs officer knows me.
8. I turn up late to work and do not take it as leave.
9. I use the work photocopier for my own personal photocopying.
10. I pay a ‘fine’ to a government official in order to keep my business operating.
11. I lease customary land as the head of the family and keep all the money for myself.
12. I accept the gift of 10,00 vatu and in return I give my vote to the politician who gave me the 10,000 vatus.
13. I accept the gift of water tanks for my village and in return I give my vote to the politician who bought the water tanks.
14. I use the internet at USP to look up soccer results and chat with friends, even though I know I only have access for academic related purposes.

The causes of corruption

The study task above should help you to think back to topic 9 – the psychological-social reasons that people obey or disobey laws.

The causes of corruption are many and complex. Maybe some people are just bad. Maybe some people do not understand what is or is not acceptable behaviour, or do not understand why it is important to follow the law. Maybe people will act in their own self interest when they think that they can get away with it. Some people may distinguish between petty and grand corruption. Some might argue that corruption is culturally relative, and defined by Western standards of behaviour. Some might even argue that the end justifies the means – and a bit of corruption for a greater public benefit is fine.

Imagine that investor status needs to be granted by the government before a hotel development could go ahead. The hotel development will be of major importance to the economic well-being of a section of the community in a small Island State should be undertaken. Many jobs will result if the work goes ahead. It will produce considerable revenue for the people of the Island State as a whole because it will increase the revenue of the country.

The bureaucracy in the country is renowned for its inefficiency and incompetence. It has had the development application for over a year and nothing has happened.

Would a small bribe by the developer to an official to get the job done be tolerable in the interests of the overall well being of the community concerned?

What harm is there in using a bribe in order to produce effective bureaucratic action?

Studies carried out by Transparency International on the National Integrity Systems of various Pacific countries in 2003-2004 suggested that one common theme running across different countries was that political leaders lack the will to change - they know that they are acting corruptly, but are too self-interested to stop. This is often referred to as lack of political will. Whilst custom or culture is sometimes used as an excuse or justification for corruption, a lot of the time leaders are quite well aware that the 'custom' excuse is flimsy.

Based on the approaches we have seen so far (topic 8: communicative action, strategic action, Interpeace approaches, use of traditional authority to bolster rational authority, use of charismatic authority to bolster rational authority; topic 9: Kohlberg’s stages of moral development, Evans’ checklist, Pound; topic 10: comparative approaches) if you could only do 3 things to address lack of political will to make anti-corruption changes, what would you do?

Identify as specifically as possible the thing you would do, the approach(es) from topic 8 - 10 that lend theoretical support to your proposed action, and explain why you have chosen this thing as a top priority action.

The role of the law in anti-corruption

The area of corruption is particularly interesting because we can see different types of regulatory approaches being used:

The interventionist approach. This works on the idea of 'catching crooks'. It assumes the possibility of punishment deters corruption. This is the criminal law approach, and it does have a long legal history, however, there are problems with it:

1. 'Ambulance at the bottom of the cliff’;
2. Lots of corruption is not detected or reported;
3. Detected  corruption not punished or lightly punished (not investigated by police, or prosecuted, or court sentences are light);
4. It is resourced heavy to ‘force’ people to obey the law through fear of punishment; and
5. Offenders are not necessarily rational and may not fear punishment (or are rational and know that the likelihood of getting caught is very low).

The managerialist approach. This approach product development systems, procedures and protocols to deter corruption. It assumes that by creating rules you give people standards of behaviour to follow, which will improve behaviour. It also assumes that procedures can and should minimise opportunities for corruption. This essentially administrative approach sounds reasonable, but: 

People may not follow rules;

1. It may legitimise corrupt behaviour that is in accordance with the rules, even if it is not ethical;
2. It may legitimise inefficient practice if people go to great lengths to comply with the letter of the law whilst not acting ethically; and
3. It may lead to complacency, with governments feeling like once they have created the rules they have ‘combatted corruption’.

The organisational integrity approach is the least legalistic approach. It aims to establish social norms of ethical conduct. Whilst this can involve legal measures such as the promulgation of codes of conduct, it requires internal shifts in values. This sounds good, but: 

It is difficult to establish/change social norms.

A combination of interventionist and managerialist laws may change peoples’ external behaviour if they are well designed and are enforced. But will this contribute to organisational integrity/change peoples’ internal values? This is a difficult question, and one which is at the heart of the broader question of how to increase the legitimacy of the law. We will examine it more in the next topic.

The Pacifica Public Service wants to introduce rules to combat the taking of bribes by public servants. It is considering introducing the following approaches:

1. Every public servant caught taking a bribe will have their employment terminated and will be referred to the police.
2. Only authorised financial officers will be permitted to take money, and are required to issue written receipts of all money taken.
3. All public servants must submit an annual return explaining all income and the source of that income.
4. All public offices must display notices or posters about why bribery is bad for the country.
5. What sorts of approach does each reflect?
6. What are some of the pros and cons of each approach?

Anti-corruption institutions

Often we get focused on a single institution - an ombudsman, and independent commission against corruption, or a leadership tribunal - and/or a single type of law - a Leadership Code - in thinking about our responses to corruption. Whilst such institutions and laws are important parts of the legal response to corruption, maybe we need to broaden our conception of what changes are needed in response to corruption.

The National Integrity System (NIS) is an approach that has been developed by Transparency International, a global NGO, and applied in over 100 countries. This approach suggests that, in order to effectively respond to corruption, we have to look at the functioning of the country as a whole. There are a lot of different institutions that need to work correctly for the rule of law to maintain integrity. The specific institutions it considers are:

One of the useful things about the NIS approach is that in order to analyse why laws are weak or are not performing, rather than just looking at one individual law and institution, you need to look at how all the institutions as a whole relate to each other.

The NIS approach is another framework or tool to help you analyse reasons why laws are not performing, and therefore ways to strengthen the law. The approach of looking widely at institutions and their relationships can be applied generally across a number of areas, and not just anti-corruption law.

The Government of Pacifica has passed a law making it mandatory for all children to be vaccinated. If children are not vaccinated parents can be fined and/or jailed through criminal procedures. What institutions might need to be involved, or work together, in order to make this law operate successfully?

International best-practice standards

The NIS framework (and other material developed by Transparency International such as the Transparency International Sourcebook) can also be used as the source of best practice standards that countries should aim to conform to in responding to corruption. Another important source of international standards is the United Nations Convention Against Corruption (UNCAC). This quite broad and complex Convention covers the following broad matters:

1. Preventive measures.
2. Criminalization and law enforcement
3. International
cooperation.
4. Asset recovery
5. Technical assistance and information exchange
6. Mechanisms for implementation

Its implementing UN agency is the United Nations Office on Drugs and Crime. Perhaps because of this, it has an international money laundering dimension, as well as a domestic bribery dimension.

One of the reasons for highlighting UNCAC is that it is accompanied by a legislative guide and a technical guide. These two guides help states to implement UNCAC. The study task below helps you to see how these guides can be used as an aid. Many international Conventions are accompanied by similar documents – and it is always a good idea to see what sorts of “best practice guides” or “implementation guides” exist if you are looking at using international law as a comparative source.

Conclusion

This topic has reinforced some business law reform tools you have already used in other topics and introduced some new tools. By now you should have a broad range of approaches to help you think about strengthening law – although how you apply them, and which you use depend entirely on the particular issue you are facing.