International comparative analysis of anti-corruption legislation

International comparative analysis of anti-corruption legislation
Name:International comparative analysis of anti-corruption legislation

Lessons on sanctioning and enforcement mechanisms for Viet Nam

This policy research paper undertakes a comparative analysis of the legal frameworks of anti-corruption (AC) laws  and sanctioning and enforcement practices in five jurisdictions (Australia, Hong Kong, Indonesia, Singapore and South Africa). The purpose is to identify lessons that Viet Nam can learn in reforming its AC laws (ACLs).

Most jurisdictions that have adopted a special-purpose ACL  have included in it details of the nature of the crimes, penalties for those crimes and special measures to  recover the proceeds of corruption. Three of the five jurisdictions  in this study  have adopted harsh and extraordinary measures to facilitate recovery of  ‘illicit assets’. These have been applied with good effect. Close coordination between criminal investigations and disciplining of public officials is a feature of the successful jurisdictions, with strict codes-of-conduct rigorously applied providing an important supplement to the criminal proceedings.

Establishment of a powerful, stand-alone ACA with extraordinary powers  for criminal investigations is the practice in all but one of the jurisdictions. Whether or not the enforcement machinery is focused on a stand-alone ACA, independence and impartiality of the enforcement and sanctioning processes are critical features.

The underlying purpose of independence – impartial and fearless pursuit of corruption – rests on a much wider, more generalized set of political norms and conventions about noninterference by the political executive in law enforcement and judicial affairs more broadly. Transparency of the process enhances the adherence to these norms.Viet Nam’s ACL deals in large measure with preventive and administrative matters. It is limited in scope and purpose and does not cover the main issues that need addressing in order to resolve problems in AC sanctioning and enforcement.

The  definition and coverage  of corruption in the ACL 2005 and in the Criminal Code makes it limited to the public sector only. Moreover, the definition of corruption  limits to acts committed by only the position holders, so excluding such act as giving a bribe out of the concept. The element of ‘consequense’ and ‘quantifiable value’ in most offences creates unnecessary difficulties for application. The fact that  ‘illicit enrichment’ has not been criminalized as crime and special measures for recovery of illicit assets are not paid attention. Santions (criminal and disciplinary) for corruption is not set out in the ACL. The enforcement system in Viet Nam is fragmented and poorly coordinated. There are multiple agencies sharing overlapping responsabilities. Criminal investigation and administrative inspection get in each other’s way. Political intervention and obstruction at all levels are commonly reported. The laws and regulation on AC investigation and prosecution in Viet Nam have not sought to ensure ‘independence’ in the sense that was observed in the overseas cases.

In short, the  analysis  of the possible lessons for Vietnam  focuses on the amendement of Viet Nam’s AC  legal framework, but the conclusions look beyond this process to recommend wider institutional and legal reforms.

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