Ma. Glenda S. Lopez Wui
Introduction
In December 2003, the United Nations Convention against Corruption (UNCAC) was signed by several States in
UNCAC’s highlights can be categorized into the four areas of prevention, criminalization, international cooperation, and asset recovery. An entire chapter of the Convention is allotted to prevention, specifying measures directed to the private and public sectors. The measures include “model preventive policies, such as the establishment of anti-corruption bodies and enhanced transparency in the financing of election campaigns and political parties.” As the prevention of corruption should involve all sectors of society, the Convention urges all “countries to promote actively the involvement of non-governmental and community-based organizations, as well as other elements of civil society, and to raise public awareness of corruption and what can be done about it.”[1]
Moreover, the Convention requires all States to criminalize wide-ranging forms of corruption if these are not yet recognized as such by their domestic laws. The Convention criminalizes “not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and laundering of the proceeds of corruption.” Also listed as offence are acts committed in support of corruption such as money laundering and obstructing justice. The Convention likewise dealt with private sector corruption.
The Convention also provides that countries assist each other in all aspects of the fight against corruption such as prevention, investigation and the prosecution of offenders. The Convention requires that countries “render specific forms of mutual legal assistance in gathering and transferring evidence for use in court, to extradite offenders… as well as undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.”
Major breakthrough of the Convention is its provision on asset recovery. This chapter also involved intensive negotiations, “as the needs of countries seeking the illicit assets had to be reconciled with the legal and procedural safeguards of the countries whose assistance is sought.” The provisions on asset recovery spell out the “return of confiscated property to the requesting state, to the return of such property to the prior legitimate owners or to compensation of the victims.” The provisions “support the efforts of countries to redress the worst effects of corruption while sending at the same time, a message to corrupt officials that there will be no place to hide their illicit assets.”[2]
Benefits of the Convention
Aside from the assistance afforded at the international level, the Convention also presents statutes that will strengthen the anti-corruption efforts of public and private sectors in the country. Although there are already a number of local policies and laws concurring with the provisions of the Convention, our legal statutes can still benefit from some of its principles such as Article 12 on Private sector corruption, which has not been dealt with extensively by our laws. Others are Article 16 presenting the criminalization of bribery of foreign public officials and officials of public international organizations, and Article 20 urging the criminalization of illicit enrichment, which occurs when there is a “significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.” The latter will certainly enhance the Lifestyle Check initiative of the Office of the Ombudsman.[3] The provisions on Article 21 providing the criminalization of bribery in the private sector, and the “concealment or continued retention of property when the person involved knows that such property is the result” of corruption as stipulated in Article 24 will also be very helpful to us. In addition, Article 7 urging transparency in the funding of candidacies of public officials and political parties will certainly help enhance our laws in this regard.
The Convention also urges that states take appropriate measures to promote the active participation of civil society, non-government organizations, and community-based organizations in the prevention of and fight against corruption and to “raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption” (Article 13). Aside from providing technical know-how, the Convention more importantly envisions the cultivation of a culture intolerant of corruption with its imprimatur to involve the non-government sector and the larger society in the battle against the scourge.
Urgent Ratification of the Convention
In view of the benefits the Convention offers, it is therefore imperative for the Senate to hasten its ratification so that policies and laws that will give force to UNCAC will be put in place. Although President Gloria Arroyo signed the Convention for transmittal to the Senate of the
Approval of the UNCAC will send the signal to the international community that combating corruption is a government priority. The presidency should therefore urge the Senate to move for immediate ratification. Moreover, not only will the Convention enhance the government’s campaign but also that of the private sector’s. Aside from the fact that the Convention’s implementation can be part of the platform of reform-minded politicians, this can also serve as benchmark for civil society organizations by which to engage government.
Civil society groups, notably the Transparency and Accountability Network (TAN), have embarked on activities to ensure the Convention’s ratification. Members of TAN have been meeting with senators to convince the latter to move for immediate approval. Aside from this, TAN has conducted information dissemination sessions with members of civil society groups and media about the Convention.[5] These sessions are also conducted to help TAN in its lobby work in the Senate. With more clamor coming from the media and civil society, the Senate might be prodded to step up ratification.
What to Do After Ratification
After the initial step of ratification, the next important move is the implementation of the provisions of the Convention and the enactment or amendment of domestic laws that "would give expression to the letter as well as to the spirit of the Convention." The realization of UNCAC in the country requires the efforts of actors from government as well as the private sector. The following recommended actions addressed to these sectors are steps in this direction.
Conduct information dissemination campaign about the Convention
Information dissemination campaign about the Convention targeting government officials, civil society groups and the general public should be conducted. Feeding information about the Convention to civil society groups and government officials would educate them about what specific advocacies to take in relation to corruption. Regarding government officials, legislators are particularly important targets of the campaign not only for them to learn the details of the Convention but also to understand the implications of the latter on the national legal system. Their education will also pave the way for their development of domestic laws that will give force to the Convention.
Implementation of legislative measures to realize provisions of the Convention
The transformation into national laws of the Convention's provisions is the first step toward implementation. In line with this, it would be instructive to conduct a systematic inventory of existing laws to identify legislative measures that need to be instituted or revised. This can be an activity of civil society groups to map out their lobby efforts in Congress. Reform-minded legislators can also engage in such activity to lay down their agenda in Congress.
Several provisions of the Convention already have corresponding laws in the country, especially those pertaining to the conduct of public officials and members of judiciary, and public procurement and management of public finances. Likewise, the provisions on the need to put up preventive anti-corruption bodies and to some extent transparency in public administration are already spelled out in the country's legal statutes.
However, our legal statutes can still benefit from the principles of the Convention. For example, we can get ideas from the provisions on private sector corruption and mutual legal assistance among states to enhance our laws in these areas. The Convention also provides opportunity for the examination of pending bills in Congress that are in congruence with its provisions. One such pending bill is on the Right to Information aiming to further transparency in government transactions (in relation to Article 10 among others) and the protection of persons reporting about corruption (in relation to Article 33).[6]
Networking at the international level
Local civil society groups should network with NGOs abroad in order to pressure foreign governments to ratify the Convention and the implementation of domestic laws that will give force to its provisions. Several provisions of the Convention cannot be realized without the cooperation of another country especially in the case of asset recovery. Also, the transfer of evidence for use in court of another country as well as the extradition of offenders cannot be put in place without the cooperation of governments abroad.
The Philippine government (after the Senate’s ratification) can also work with member states in regional organizations in which it is a part of to map out plans on to how to convince other states to ratify and implement domestic laws related to the Convention. Joining efforts with other countries will strengthen the Philippine position in the negotiations.
Anti-corruption legislators can also tap their membership in international organizations to campaign for other State Parties to ratify the Convention. A number of Philippine legislators are members of the South East Asian Parliamentarians against Corruption (SEAPAC) which is a member of the Global Organization against Corruption (GOPAC). The latter is an “international network of parliamentarians dedicated to good governance and combating corruption throughout the world.”[7]
Monitor implementation of the Convention and strategizing against corruption
Monitoring the implementation of the Convention is a task that should be undertaken by both government and civil society organizations. On the part of government, it could consider the possibility of putting up a body mainly concerned with monitoring the implementation of UNCAC. The body can also do the important task of coordinating the efforts of various anti-corruption agencies so as to achieve better compliance.[8] Some of the agencies presently involved in anti-corruption are: the Department of Justice, Office of the Ombudsman and Presidential Anti-Graft Commission (investigation and prosecution), courts (prosecution); police (investigation and enforcement); Securities and Exchange Commission, and Department of Trade and Industry (regulation of corporations); Central Bank of the Philippines (regulation of banks); Department of Foreign Affairs (extradition and mutual assistance); Presidential Anti-Graft Commission (recovery of ill-gotten wealth of former president Marcos, his family and associates); and Commission on Elections (regulation of elections).
Civil society can also play crucial role in monitoring the implementation of the Convention as well as in the prevention of corruption. Although civil society groups in the country have put into action several campaigns to curb corruption, they have yet to systematically implement their programs in some areas, such as in monitoring and verifying government expenditure. Also, they have yet to put in place effective mechanisms to monitor the financial assets of political candidates and government officials, as well as election finances of candidates and political parties.
Civil society groups as well as government anti-corruption bodies should partner with media in anti-corruption campaigns. Media's role in the fight against corruption is particularly significant in identifying and exposing mismanagement and corruption in the public sector. Media's surveillance can also help in the promotion of a culture of intolerance of corruption (United Nations 2004).
In addition, the vigilance and cooperation of the private sector is important especially in light of the Convention's provision on corruption in this sector. After domestic laws aimed at curbing private sector corruption are instituted, there should be cooperation between law enforcement agencies and private sector entities for the statutes’ implementation. Professional associations (especially in the case of lawyers and accountants) can play "crucial oversight role in promoting and monitoring their members' compliance" (United Nations 2004).
References
Cerna, Toix, Project Coordinator, Transparency and Accountability Network. Telephone interview,
Chua, Yvonne T. 2003. The
Global Organization against Corruption website. http://www.gopacnetwork.org/main_en.htm, accessed on
United Nations Office on Drugs and Crime website. http://www.unodc.org/unodc/crime_convention_corruption.html, accessed on
United Nations. 2004. Global action against corruption: The Merida papers.
[1] http://www.unodc.org/unodc/crime_convention_corruption.html. Accessed on
[2] http://www.unodc.org/unodc/crime_convention_corruption.html. Accessed on
[3] The “Lifestyle Check System” is a character test for public officials of whether they are consistently upright in the way they perform their duties and earn a living. When lavish lifestyles seem irreconcilable with the modest ways in which public office is served and conducted, then this warrants scrutiny. The system therefore checks whether the ways by which government officials live are consistent with their incomes. The officials’ statements of assets and liabilities, income tax returns, and visible determinants of extravagance (e.g., luxurious properties) are checked against their official salaries.
[4] Out of 140 signatories including the
http://www.unodc.org/unodc/crime_signatures_corruption.html
[5] Telephone interview with Toix Cerna, Project Coordinator, Transparency and Accountability Network,
[6] The proposed bill, which was put together primarily through the efforts of a coalition of NGOs called the Access to Information Network (ATIN), “seeks to put in place a uniform, simple, and speedy procedure in enforcing the right to information and provide clear penalties for the unlawful denial of access to official information and unlawful destruction of records. At present, erring public officials face only administrative sanctions.” The proposed bill also seeks the “creation of an independent body whose job is to hear appeals from citizens who have been denied access to information and introduce mechanisms to compel government bodies to actively inform the public on matters of public concern.” It also provides protection to whistleblowers. Yvonne T. Chua. 2003. The
[7] Global Organization against Corruption website. http://www.gopacnetwork.org/main_en.htm, accessed on
[8] As pointed out by Dr. Prospero de Vera in his review of this paper, the ratification of UN conventions paved the way for the organization of offices mainly concerned with monitoring their implementation. For example, the ratification of the UN Convention on the Rights of the Child paved the way for the creation of the Council for the Welfare of Children to monitor Philippine compliance.
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