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Anti-corruption agencies: between empowerment and irrelevance

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Abstract

The anti-corruption activity of the 1990s is characterized by the rise of new players, such as specialized anti-corruption bodies. Anti-corruption agencies (ACAs) are public bodies of a durable nature, with a specific mission to fight corruption and reducing the opportunity structures propitious for its occurrence in society through preventive and/or repressive measures. Independently of their format and powers, ACAs encounter various constraints to their mandate, which explains the meagre results obtained by some of them. This introductory paper tries to understand the rise, future, and implications of this new kind of “integrity warrior” and to locate them in the evolving doctrine of corruption control. The objective of this edited volume is to re-launch the debate on ACAs as the most innovative feature of the anti-corruption movement of the last two decades.

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Notes

  1. The Corrupt Practices Investigation Bureau was formed in Singapore in October 1952, and was followed by the establishment of the Anti-Corruption Agency in Malaysia in October 1967, and the Independent Commission Against Corruption in Hong Kong in February 1974.

  2. The Copenhagen criteria suggest reforms related to the operation of the political sphere and the judiciary as a pre-condition to accession.

  3. The best example of this approach is Wraith and Simpkins (1963).

  4. See for example, Leff (1964).

  5. Some are legislative (such as the adoption of political financing or asset disclosure laws), other procedural (such as the introduction of debit-card payments in public departments exposed to dyadic corruption), structural (such as the introduction of competition rules in a given sector of activity) or even institutional (such as the creation of specialised anti-corruption bodies).

  6. There has been an increasing effort, from domestic governments, IGOs and INGOs, to harmonize legal frameworks in order to facilitate international judicial cooperation. In practice, however, most legislative initiatives in this domain arise as attempts to clean the Augean Stables and end up as “toothless lions”, i.e. rules with strong normative provisions but no effective means of enforcing them (such as white-collar crime, conflicts of interest or political funding) or simply as cosmetic laws whose principles are not reflected by the instruments required to implement them.

  7. Entry into force on 1 July 2002.

  8. Entry into force on 6 March 1997.

  9. Entry into force on 6 July 2005.

  10. Entry into force on 14 December 2005.

  11. Article 36 of the Merida Convention of 31 October 2003: “Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out their tasks.”

  12. Not all ACAs have been successful in establishing a relationship with the media and other civil society actors that play a fundamental role in unveiling and reporting corruption allegations/occurrences.

  13. Some of the special investigative/coercive powers attributed to these agencies are, for example, the capacity: to obtain information, documents and other things from a public authority or official; to enter public premises; to require a public official to produce a statement of information or a document or other thing; to hold hearings in public and private, without the rules of evidence applying; to require a witness to answer any question, regardless of the possibility of self-incrimination; to issue a warrant for arrest of a person failing to answer a summons, or likely to fail to answer a summons; to obtain a warrant for a telecommunications intercept or listening device; to conduct a controlled operation; to use an assumed identity and to access tax records. Not all multi-purpose anti-corruption agencies display such an ample selection of special powers. The accountability and reporting mechanisms for their use varies considerably across agencies. For more information on the competences/powers allocated to the various agencies, see the National Assessment Survey on ACAs: www.ancorage-net.org.

  14. These are essentially evaluations of various sectors of the public administration that are more vulnerable to corruption and similar illicit practices.

  15. For an overview of the ECJ decisions empowering OLAF, see Case C–11/00 Commission v European Central Bank, [2003] ECR I–7147, Case C–15/00 Commission v European Investment Bank, [2003] ECR I–7281 and Case C-167/02 Willi Rothley and Others v European Parliament, [2004] ECR I–000. Judgment of 30 March 2004.

  16. The offence of improper use of company goods or money for ends contrary to its market success or to favour another company where the wrongdoer detains a direct or indirect interest (hereafter abus de biens sociaux) was created by decree-law in 1935 following the Staviski affair. The offence was reintroduced under the Loi 66-537 of 24 July (sur les sociétés inscrits au code du commerce) as an important instrument to fight white collar crime, but it would later evolve and assume an application that was not foreseen at the time of its creation.

  17. Following mounting pressure, externally, from international bodies and networks devoted to the fight against corruption, such as the Council of Europe, Group of States Against Corruption or the OECD, Anti-Bribery unit and internally, from the opposition and the public opinion at large, Mt Berlusconi reviewed his position and the High Commissioner has now been reissued and relocated. It displays a more limited range of powers and it is located under the supervision of the Ministry of Public Works. This decision does not come as surprising since public works are one of the sensitive areas that the High Commissioner is expected to inquiry.

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Authors and Affiliations

  1. Gulbenkian Fellow, RSCAS / European University Institute, Florence, Italy

    Luís de Sousa

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  1. Luís de Sousa
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Correspondence to Luís de Sousa.

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Most of the contributions in this special issue derive from papers presented by a stimulating group of younger scholars and established authorities in the field of anti-corruption studies who participated at the Second ANCORAGE-NET meeting entitled ‘Defying Institutional Failure and Empowering Anti-Corruption Agencies in the Fight Against Corruption and the Protection of the Community’s Financial Interests’, organised by Luís de Sousa with the support from the Hercule Grant Programme of the European Antifraud Office (OLAF, Brussels) in Lisbon, 14–16 May 2008 . A special thanks to the Robert Schuman Centre for Advanced Studies (European University Institute, Florence), for giving me the opportunity to work on this research project during my stay as a Gulbenkian Fellow (2008–09).

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de Sousa, L. Anti-corruption agencies: between empowerment and irrelevance. Crime Law Soc Change 53, 5–22 (2010). https://doi.org/10.1007/s10611-009-9211-3

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