24/7 customer support
Professional writers
No plagiarism
Privacy guarantee
Affordable prices
94% of return customers
Free title page
Free bibliography
Free formatting
Free of plagiarism
Free delivery
| Home |
| Order form |
| Contact us |
| Blog |
| The law, expectation, and reality in the marketplace: the problems of and responses to corruption |
|
by Nancy Zucker Boswell
It is an honor to be here among many colleagues with whom Transparency International (TI) has cooperated in promoting anti-corruption reform measures in this hemisphere. In just the past few years, we have made great progress in raising public awareness of the costs of corruption, in setting standards for transparency and accountability, and in achieving agreement on needed legal reforms. I would like to briefly review this progress and then turn to the troubling dilemma raised in the title to this panel, The Law, Expectation and Reality in the Marketplace, for it is clear that in Latin America there is profound skepticism about whether, in reality, legal reform will meet our expectation of curbing illicit practices. We must, of course, continue to press for legal reform so that there is an adequate legal base with which to prevent, root out, or sanction corruption. However, we must also address the widely-held public belief that, despite a plethora of anti-bribery and anti-corruption laws already on the books, little has changed to date. Complementary reforms will be required, including reforms in the judiciary, the civil service, and the media, and the opportunity for participation by civil society in policy formulation and decision-making must be greatly increased. I. LAYING THE FOUNDATION FOR AN ANTI-CORRUPTION FRAMEWORK These legal and non-legal anti-corruption reforms first received the imprimatur of the top leadership of this hemisphere at the Summit of the Americas in 1994. This was a watershed event, breaking the historical taboo against open discussion of the issue, its consequences, and the need for reform. Until that time, there had been little support, if not outright resistance, within governments, international institutions, and the private sector to even admit to the problem of corruption, let alone to become involved in finding solutions. Reluctance to place blame, fear of impinging on sovereignty, concern for overriding geopolitical or commercial objectives, and a myriad of other reasons were used to support the status quo. Since then, several factors converged, compelling us to set a new course. A wave of corruption scandals and severe economic crises took corruption out of the purely "political" or "ethical" realm and focused attention on its economic impact. They made clear the corrosive nature of corruption: corruption distorts market forces, undermines the rule of law, erodes public trust, and, ultimately, threatens political stability. Moreover, the destructive impact was not confined within territorial borders. Failures of governance in one country reached beyond national boundaries to capital markets, international institutions, and the individual consumer or mutual fund-owner half-way around the world. Leadership in setting a new course in the fight against corruption came first from within this hemisphere. Since 1994, the Clinton Administration has made fighting corruption a top foreign policy objective. It has actively pursued anti-bribery agreements and supported governance programs around the world. But, it is important to note that this has not been solely an American initiative. At the 1994 Miami Summit of the Americas, leaders from across this hemisphere recognized that corruption was undermining progress in reaching their objectives of establishing competitive markets, equitable development, and democratic reform. They called for action. Raising the issue at the highest political level set the stage for reaching agreement on regional anti-corruption standards. I was delighted to participate in this event on behalf of TI and encouraged by the breakthrough it represented. For those who know our organization solely from the TI Corruption Perception Index, TI had been launched only the year before at a conference in Ecuador. Since then, national chapters have taken root in over 60 countries, including 15 in this hemisphere. These chapters bring together business and political leaders, lawyers, academics, development experts, and other representatives of civil society from across political parties and across national boundaries, united in their commitment to promote transparency and systemic anti-corruption reform. In fact, four former presidents serve on our advisory council including Oscar Arias, of Costa Rica, Richard von Weizacker of Germany, General Obasanjo of Nigeria, and Jimmy Carter, here in the United States. At our 5th Annual General Meeting a few weeks ago, 180 representatives from TI national chapters, international organizations, academic institutions, and the private sector in over 60 countries came together to share their perspectives and experience in fighting bribery and corruption. The size of the gathering, the participation of international organizations, and the determination of all concerned vividly illustrated the gathering force of this movement. But in 1994, when TI was breaking new ground, few governments or institutions would openly confront the issue of corruption. II. SECURING AGREEMENT ON STANDARDS OF LEGAL AND NON-LEGAL REFORM It was in this atmosphere that the Summit leaders openly acknowledged that corruption had to be addressed if their broader objectives of economic growth and equitable development were to be met. The 1994 Summit Plan of Action went even further, setting out the fundamental changes that would be necessary to defeat corruption, including: reforming government operations to make them transparent and accountable; strengthening procurement; increasing public access to information; and establishing effective conflict of interest systems for public employees. It also called for a hemispheric agreement against corruption. Since that groundbreaking Plan of Action was proposed, some progress has been made in translating the commitments into binding legal norms. In 1996, the Inter-American Convention Against Corruption was negotiated and signed by most Organization of American States (OAS) members. The Convention is a notable achievement, both in its rapid conclusion and in its scope. It requires mutual legal and judicial assistance and criminalization of transnational bribery and illicit enrichment. By 1998, with less than a dozen ratifications, leaders at the Santiago Summit called for broader ratification of the Convention and an OAS Symposium to promote its implementation. They renewed the Miami commitments to codes of conduct for public officials, legislation to require disclosure of assets, and increased public participation. They endorsed the San Jose Business Forum recommendation to launch negotiations of a Free Trade Area of the Americas (FTAA) agreement on transparency in procurement. Santiago also achieved agreement on the other elements of a comprehensive attack on corruption. The Plan of Action called for important complementary measures to increase transparency in campaign finance, to enhance the independence of the judiciary, to support a free press and to promote education programs on integrity and ethics. Progress on this mixture of legal and non-legal reform measures will be essential to meaningful anti-corruption reform, but it has been mixed. TI has been monitoring implementation of these commitments, and while there is some evidence that at a national level first steps are being taken in some of these areas, much remains to be done. For example, the government of Chile has introduced procurement reform legislation and is nearing completion of an on-line procurement system that promises to enhance transparency by making information accessible on-line to all bidders and suppliers. Nonetheless, progress on securing support for early implementation of an FTAA Agreement on Transparency in Procurement is meeting stiff resistance. The government of Bolivia has launched an anti-corruption program, working with EDI [Economic Development Institute] and TI representatives that is to include measures to strengthen the judiciary and require disclosure of assets. Costa Rica has adopted a code of conduct for high level executive branch officials and Ecuador has created a new Anti-Corruption Commission with investigatory powers within its constitution. Argentina, with the assistance of the U.S. Office of Government Ethics, is establishing an Office of Government Ethics that plans to require disclosure of assets of government officials. Apparently, it is also moving to strengthen the judicial system, which is widely criticized. A council, drawn from a wide range of public and private ector representatives, will oversee merit-based selection of judges. Despite these institutional changes, there has of yet been little hard evidence to dispel the notion that they will not result in any meaningful change. There is a deep-seated suspicion that each new administration comes to power promising reform, but that politics and vested interests triumph over reform. An important element in overcoming this suspicion and securing needed public support for institutional reform is greater transparency and inclusion of civil society in reform efforts. Again, we have some experience indicating movement in the right direction. For example, the government of Panama invited TI to participate in the oversight of the privatization of the state-owned telecommunications system. The City of Buenos Aires has agreed to work with TI in providing civil society oversight of the contracting for construction of an extension of the subway system. But, there is still inadequate inclusion of civil society on a regular basis in government processes of policy formulation and decision-making. There is still inadequate access to information on a timely basis. The OAS has played an important role in promoting greater public participation. They have made a place at the table for civil society at many of their meetings and workshops that will hopefully encourage similar inclusiveness of civil society in the discussion and design of national anti-corruption programs at the country level. The OAS has also promoted implementation of the OAS Anti-Corruption Convention through national workshops. These workshops are useful first steps in raising public awareness about the Convention and providing expertise. Unfortunately, there is no OAS institutional mechanism to ensure continuity, and to follow-up on a regular basis, of how countries are proceeding with implementation. The Inter-American Development Bank (IDB) has also made a significant contribution by adopting revised procurement guidelines with strong anti-corruption elements. It has also agreed to permit borrowers to require anti-bribery undertakings in bank-financed projects and it is supporting a wide range of in-country programs to improve governance. III. RECOMMENDATIONS FOR MATCHING EXPECTATIONS TO REALITY This overview of some of the reforms that are underway reflects the considerable progress that has been made in just a few years, particularly for those who have viewed corruption as too pervasive and entrenched to overcome. But, there are those who continue to doubt the effectiveness of legal remedies to change entrenched practices and vested interests. There must be hard evidence of meaningful reform in the short-term and, as Mack McLarty put it, "sustained engagement" so that by the Canada Summit in 2001 we have aligned expectations with reality--or reality to expectations. I would like to conclude with a few recommendations as to next steps to help reach that goal. First, OAS members, including the United States, should commit to ratify the Anti-Corruption Convention by December 31, 1999. To date, only twelve countries have ratified. OAS members should also agree to participate in an on-going institutional mechanism with the political clout and financial resources to promote progress on implementation and to provide technical assistance. The OAS should continue its recent practice of including civil society in country workshops. Public participation is key to building confidence in public institutions and processes. The OAS is planning to host, with the Government of Chile, a meeting of national ethics authorities in November in Santiago. In light of the number of conferences that have taken place recently, it is important that this gathering reach agreement on action plans calling for concrete steps on a determined timetable. The important work of the OAS Juridical Committee setting out the elements of model legislation on transnational bribery should be on the agenda for this meeting. Clearly, an effective anti-bribery system must discipline both the demand and supply side. Both the OAS and the Organization for Economic Cooperation and Development (OECD) Anti-bribery Convention, signed last December by six OAS members, can help stem the flow of illicit funds into countries that are struggling to reform domestic systems. The Juridical Committee's work can help promote implementation. The SIRG should request that the "responsible coordinators" report to its February 1999 meeting on progress toward implementing the broad range of commitments made at the 1994 and 1998 Summits. To ensure a substantive outcome, consideration should be given to distributing a questionnaire at the November Santiago meeting of National Ethics Authorities so that responses could be discussed in February. Public access to information and channels for the exchange of views between civil society and the public sector are key to accountability and sustainable reform. National and local governments must do more in this area. The FTAA Committee of Government Representatives on the Participation of Civil Society should complement and encourage, not supplant national government mechanisms. It should be quickly constituted and its mandate should be interpreted to provide an on-going function at least through the next Summit in 2001. The IDB should consider holding in-country workshops with government procurement officials and bidders and suppliers to expand awareness of the revised IDB procurement rules and to encourage the adoption of domestic rules on transparency in procurement. The IDB and other multilateral lenders should consider the use of uniform rules and documents of the highest standards and the IDB should incorporate its procurement rules by reference into the documents. The IDB should also consider requiring bidders on bank-financed projects to have anti-bribery codes and programs. Bribery of public officials has long been a criminal offense and, with the entry into force of the OAS and OECD Conventions, bribery of foreign public officials will also be criminalized. The IDB can encourage adoption of voluntary private sector codes by making them a requirement for bidders. A regional agreement on transparency in procurement should be concluded and implemented by the year 2000. The FTAA working group developed principles of transparency that can be the foundation for such an agreement. The private sector, meeting at the Americas Business Forum this year in Costa Rica, also reached consensus on the elements of transparency in procurement. Transparency in the disposition of public funds is a fundamental principle of good governance and accountability and is widely supported by the private sector, multilateral lending institutions, and donors. It is foremost in the interest of each country to ensure that procurement is based on fair competition in order to attract the best suppliers. Finally, the private sector must also play a constructive role. Lawyers, accountants, and business professionals can each make an important contribution to bringing these reforms to life. These steps can work together toward creating a marketplace in which expectations and reality converge. They are achievable goals to which we can all subscribe and from which we will all benefit. NANCY ZUCKER BOSWELL, Managing Director, Transparency International, USA. |
| < Prev | Next > |
|---|
24/7 customer support
Written from scratch papers only
Any citation style
Fully referenced
Never resold papers
275 words per page Courier New font