Corruption-The Sharp End of Governance!
| Author | Barry A.K. Rider |
| Profession | Professor |
| Pages | 1-45 |
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CORRUPTION – THE SHARP END
OF GOVERNANCE!
Barry A.K. RiderAn Ancient Truth
At the heart of governance is the notion of stewardship. In essence
this means the proper custody and care of other people’s wealth. In
framing and delivering the ‘New Deal’ legislation in the USA at the
end of the Great Depression, President Roosevelt stated ‘what we
seek is a clearer understanding of the ancient truth that those who
manage banks, corporations, and other agencies handling or using
other people’s money are trustees acting for others’. e thrust of this
fundamentally important legislative package was good stewardship. Of
course, no set of laws can ensure this for all time and the history of
the US capital markets, despite a level of regulation and commitment
second to none, chronicles many a lapse from these principles. Indeed,
some of the more dramatic and recent scandals have exhibited a
degree of corruption and agrant disregard for duciary obligations
reminiscent of the prelude to the Great Crash. While those concerned
with governance today are keen to recognise the legitimate interests
and expectations of a somewhat wider constituency than traditional
owners – the notion of stewardship remains paramount. is concern
for virtue in the handling of other people’s wealth is manifest across the
spectrum and includes, perhaps with even greater force, public wealth.
When vast sums and indeed, the very resources of the state are in issue,
the risks deepen into the fabric of society and stability. Consequently,
today there is a widespread and wholly proper concern for inhibiting
RISKY BUSINESS: Perspectives on Corporate Misconduct
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that most basic manifestation of greed – corruption. In this paper we
will examine merely an aspect of this, namely the new strategies that are
being developed to address serious – ‘grand’ corruption, particularly at
the international level.
e Assets of Corruption
e concept of corruption is protean and can and has meant
dierent things at dierent times in dierent societies. While most of
us have a deep understanding of what is corrupt, rather as the ‘inner
voice’ as St Paul would have it, when it comes down to articulating
and controlling such conduct through the law and institutions of
the traditional justice system, real problems of denition, scope and
proportionality arise. While history and our religions, record and
condemn instances and practices of corruption, in practical terms
we have only attempted to address the issue at an international level
relatively recently. Still our institutions of justice nd it dicult to
descend to addressing corruption in the context of purely commercial
and private sector transactions. Perhaps this is not surprising given the
dominance of the notion of ‘unfairness’ as justifying intervention and
our uncertainty to utilise this concept as a source of obligation in our
general legal and business dealings. It is only when our dedication to
promoting good stewardship combines with our concern to promote
fairness that we seem willing and able to intervene.
National governments have been slow to address the problems
thrown up by corruption otherwise than through the mechanisms of
the traditional criminal justice system. While history contains many
early examples of attempts to penalise self-dealing and other forms of
corruption, particularly where a clearly dened state or public interest
is at risk, history records fewer examples of where such laws have
apparently been enforced with due eect. It is axiomatic that almost
by denition in public sector corruption one is dealing with ‘crimes’
of the powerful and while individuals remain in positions of authority
it is extremely dicult for the ordinary legal system and its agents to
intervene successfully. When someone ceases to hold authority, they
may not be worth pursuing in a moral or political sense, or in the
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Corruption – e Sharp End of Governance!
nature of things be beyond the reach of their state. Corruption is
also, in common with other economic crimes, notoriously dicult
to successfully prosecute. At the international level, concern about
corruption has tended to manifest itself in the desire of dominant
economically powerful countries to ensure fair competition, at least for
their own businesses. Until very recently there was little real concern in
governments and for that matter, inter-governmental organisations to
address, at an international level, the problems and issues of corruption
in the context of sustainable development and stability.
is is not the place to enter into an account, let alone appraisal, of all
the various eorts that have taken place in recent years both at national
and inter-governmental levels, to articulate standards of behaviour
and establish procedures that are designed to impede corruption,
particularly by senior political gures and those in positions of inuence
in the private sector. Suce it to say that while attention has rightly
been focused on the eorts of institutions such as the OECD, Council
of Europe and United Nations, many other organisations, particularly
at a regional level, have made a signicant contribution. e work
of the Commonwealth, since 1980, has received little recognition.
Furthermore without the work of organisations such as Transparency
International we would not be where we are today. Looking forward, we
now have the United Nations Convention Against Corruption, which
when taken with the various initiatives that it has spawned and the
other United Nations sponsored programmes against serious crime and
in particular money laundering, is a major step forward in promoting
integrity. While the Convention contains much of what one would
expect to nd in such an international instrument, there are some very
important and novel provisions. In this paper, we will address just one
of these – the issue of asset recovery.
Before we do so, however, it is important to appreciate that
focussing on the desirability of depriving corrupt ocials, and in
particular those guilty of looting their economies, of their ill-gotten
gains is important, it is not entirely new. While it is true that specic
legal provisions, other than those in general anti-money laundering
and proceeds of crime statutes are relatively rare, over the last 20 or so
years a number of civil actions have been brought in the courts of many
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