What’s wrong with bribery? How the law should deal with it?

20 July 2020 03:20 am - 1     - {{hitsCtrl.values.hits}}

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A subsistence-level carpenter contemplating suicide in rural Sri Lanka and a multi million-dollar power plant bribery scandal cannot possibly be connected. Or could they? 

Supposedly to eliminate the need to impose power outages during drought in hydro-power dependent Sri Lanka, construction of the Norochcholai coal power plant commenced in 2006, amidst many credible allegations of bribery, illegal commissions, and violation of environmental laws. These allegations were proven correct when in 2019 power outages were imposed nationwide even during working hours, as the defective Norochcholai plant was unable to take up a drought driven shortfall in hydro-power generation. Implementation of dishonestly motivated projects are inimical to the greater national good and leads to situations that place many people’s livelihoods at risk. With no electricity to power their tools, no work, and mounting debt, devoid of other recourse, many like the carpenter contemplate, and some do indeed adopt, drastic measures to overcome these burdens – oftentimes suicide being one.  


Bribery – the commonest form of corruption – is defined by the Organisation for Economic Cooperation and Development (OECD) as “the offering, promising or giving of something in order to influence an official in the execution of his/her official duties”. From Ancient Chinese “Kitchen Gods” to the German conglomerate Siemens AG, bribery has been a corrosive constant in society, undermining fair and just rule, and by extension, individual liberty and equality. It’s important for this issue to be dealt with both on the national, and international level, within public and private sectors.   


This essay seeks to deal with the effects of bribery on governments, citizens, corporations, and employees, and how the law should, and could deal with it. In doing so, I propose a two-fold solution: (1) strengthening existing laws and institutions, and (2) formally recognising the legal nexus between human rights and anti-corruption – fields that have “traditionally operated as separate communities of practice”.  

"Bribery – the commonest form of corruption – is defined by the OECD as “the offering, promising or giving of something in order to influence an official in the execution of his/her official duties”


Bribery and corrupt deals are mostly undisclosed and undocumented, making it difficult to quantify the global cost of corruption, but by most estimates, it’s in the trillions. The World Bank estimates between US$600 billion and US$1.5 trillion was paid in bribes in 2000-2001, and the World Economic Forum estimates the global cost of corruption to be at least US$2.6 trillion – 5% of global GDP. The fundamental issue with bribery is that it is so deeply ingrained in the operating fabric of most countries and companies – with 1 in 4 people in a recent worldwide survey saying they’ve paid a bribe in the past 12 months. Such being the norm, there is little or no effective opposition to these malpractices. Though traditionally considered a ‘victimless’ crime, bribery clearly is not. ‘Disqualified’ competitors who have every right to a contract but did not win it because officials were bribed to award it to another, are indeed victims.So is the ordinary citizen coerced into bribery to obtain basic facilities - arguably a violation of human rights.  


One of the most pervasive and damaging effects of bribery is the devastation wrought on economies and people’s livelihoods by the misallocation of resources. Where prioritisation of budget allocation should be to the most pressing and viable development and investment projects, governments and public officials are bribed into signing off on the most personally profitable project or programme, leaving citizens with sub par infrastructure, ineffective healthcare, and subsequently, a much diminished quality of life. Health and education sectors are comparatively under-developed in many corrupt countries as it is believed to be more difficult to ‘cook’ crooked deals in these sectors, resulting in less incentive for public officials to develop them. Though some argue that bribes increase extraneous incentive for facilitating development, the attraction to spoils of bribery in fact jeopardises good governance through officials placing personal greed above national need.  


Possibly the worst consequence of bribery is its direct impact on widening the disparity between the rich and poor, the corollary of which is escalating poverty. In sectors such as healthcare and education, the affluent are able to pay for and avail themselves of services they require from the private sector while the poor, due to lack of resources,often must obtain theirs from state institutions and facilities, making them more likely to be exploited for bribes. Even with services for which both the rich and poor are dependent on the state, the rich are able to pay bribes while the poor have less capacity to do so. This is reflected in many studies showing the significant impact of bribery and corruption on income inequality and income growth of the poorest 20% of a country.   


Aside from the effect on the individual, bribery results in stunted economic growth, lower investment, inflation, and currency depreciation. Public trust in government is eroded, which, when facts come to light as in Brazil’s Petrobras scandal, ultimately de-legitimises the state, or causes its collapse as evidenced in Venezuela.  
While bribery is extremely harmful to the state and citizens, it is highly profitable for firms. A study showed that “Firms asserting that it is necessary for enterprises […] to give gifts or payments to public officials in order to get things done have 13.9% higher average annual sales growth rates and 48% higher annual productivity growth rates”. Bribery also provides corporations unfair advantage through stifled competition resulting in the increase of their revenue. However, many surveys find that while businesses benefit once a bribe is paid, “transnational business people identify bribe requests as one of the primary challenges they face in creating business relationships”.  


As the first of two solutions proposed earlier, strengthening existing institutions and laws through increasing penalties for bribery are essential. On a national level, penalties must be severe enough to alter the cost-benefit factor such that it becomes unprofitable and nonviable for businesses to engage in bribery. Britain’s 2010 Bribery Act, placing “strict liability upon companies for failure to prevent bribes being given (active bribery)” and incentivising companies themselves to take a stand against active bribery is a good example. Right-to-information laws too must be given greater weight, and access to information simplified to optimise transparency - and consequently accountability - within government.   

"One of the most pervasive and damaging effects of bribery is the devastation wrought on economies and people’s livelihoods by the misallocation of resources"


Given technology’s expanding role in society, it must become the platform for transparency, through government officials being mandated to upload all information– excluding those that are ‘sensitive’, or matters of national security – regarding transactions or projects to a universally accessible online database. Greater protection for whistle-blowers must be established, thus encouraging them to speak up openly more often, as complaints filed or evidence provided anonymously are not accepted in many countries.  
Less Economically-Developed Countries (LEDCs) generally have higher rates of bribery and corruption, and often don’t have an effective separation of powers. Corruption corrodes justice systems and distorts due process – making it essential therefore that every nation implements an Independent Commission Against Corruption (ICAC) as seen in countries like Hong Kong. The approach of most ICACs are (1) law enforcement, (2) prevention and (3) education. The oft ignored aspects of education and awareness enable citizens, from a grassroots level up, to identify and expose day-to-day bribery.  


The second solution proposed - possibly the most interesting yet relatively new approach taken by a number of legal scholars-stems from a human rights perspective. Though the subject of some debate, it certainly warrants further exploration and evaluation. Proponents of “an interpretation of all criminal offences relating to corruption in a way that takes into account the human rights of victims” highlight many typical cases of bribery, and argue that these can be dealt with as violations of human rights.   


From bribery within the healthcare system being considered a violation of the right of everyone to the highest attainable standard of health, to the surge in human trafficking facilitated by border guards bribed to look the other way being a violation of the right to protection from slavery and servitude, many bribery related wrongdoings can be classified as violations of human rights. In so doing, bribery would be brought under the larger umbrella of important, current and effective human rights laws. The link between bribery and violation of human rights would also add greater weight to the oft downplayed criminality of bribery as “the human rights approach requires states to exonerate themselves before the treaty bodies when accused of deficient anti-corruption measures”, while bribery charges (sans the ‘human rights’ element) afford the accused the presumption of innocence.  


To prosecute grand corruption as a human rights violation, it is important that there exists a cross-border judicial mechanism. A court, similar to the International Criminal Court and the International Court of Justice, which deals specifically with cases of bribery must be established. This court would be what hears and decides on penalties not only against nations, but against Multi-National Corporations (MNCs), and officials (in both public and private sectors), thus providing LEDCs greater strength even in dealing with exploitation by powerful MNCs, as well as citizens in their transactions with corrupt government officials. Currently, there exists only the “United Nations Convention Against Corruption (UNCAC) which does more harm than good because it focuses more on whether anti-corruption laws are put in place in accordance with international standards, rather than whether those standards are enforced”.  For example, despite it being a kleptocracy, Russia continues to be a member of the UNCAC simply by having in her statute books all laws that comply with the Convention.  


Although many laws exist and new ones are proposed to curb the incidence of bribery, it is unrealistic to expect it to be eradicated. What is therefore required now is to bring bribery offences under the umbrella of human rights laws and prosecute such offences in an international court set up anew for this purpose.The result would indeed bring about a more productive, fair world and break the vicious cycle of poverty, corruption, inequality, and exploitation.   
In such a world, the carpenter’s future would not be as bleak.  

  Serika’s essay among the top ten of Robert Walker Prize for Essays in Law   

Seventeen-year-old Serika Siriwardhana’s essay titled “What is wrong with bribery? How, if at all, should the law deal with it?” was among the top ten High Commendation category of the Robert Walker Prize for Essays in Law, an international Essay Competition hosted by Trinity College, Cambridge. 


Launched in 2013, the Robert Walker Prize for Essays in Law is named after an Honorary Fellow of the College, Lord Walker of Gestingthorpe, a retired Justice of the Supreme Court and former law student at Trinity. Among the main objectives of the Robert Walker Prize are to encourage students with an interest in Law to explore that interest by researching, considering and developing an argument about a legal topic of importance to modern society and to recognise the achievements of high-calibre students, from whatever background they may come. 
A student at Elizabeth Moir School  in Colombo, Serika, who is keen to do her higher studies in law, is already a part-time intern at chambers of a leading President’s Counsel. 


At a time when teenagers like Greta Thunberg, internationally renowned Swedish environmental activist who is influencing global leaders and fighting against effects climate change, Daily Mirror in its coming weeks will make room for writings of Serika, a 17-year- old’s thoughts on human rights, legal issues and global affairs that are directly topical to Sri Lanka. Following is her essay which topped Robert Walker Prize for Essays in Law-2019.

 

 

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  Comments - 1

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  • Brian Felthman Monday, 20 July 2020 06:29 PM

    Brilliant.


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