The human right to corruption-free service - some constitutional and international perspectives.
IN his book Taking Rights Seriously Ronald Dworkin argued: "The institution of rights against the government is not a gift of God, or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the government's job of securing the general benefit more difficult and more expensive, and it would be a frivolous and wrongful practice unless it served some point. Anyone who professes to take rights seriously, and who praises our government for respecting them, must have some sense of what that point is. He must accept, at the minimum, one or both of two important ideas. The first is the vague but powerful idea of human dignity. The second is the more familiar idea of political equality." Thus, his argument is that a person has a fundamental right against the government only if that right is necessary to protect his or her dignity or standing as one who is equally entitled to concern and respect.
In India, corruption attacks the fundamental values of human dignity and political equality of the people and hence there is a pressing need to formulate a fundamental human right to corruption-free service. The development of a fundamental human right to a corruption-free society will be observed initially from an international perspective so as to elevate the violation of this right to the status of an international crime. This would provide the comparative basis to elevate the right to corruption-free service to the status of a fundamental right within the framework of the Indian Constitution.
One of the definitions of the term corruption is "giving something to someone with power so that he will abuse his power and act favouring the giver". Another definition is "the offering, giving, soliciting or acceptance of an inducement or reward, which may influence the action of any person". It includes bribery and extortion which involve at least two parties, and other types of malfeasance that a public official can commit alone, including fraud and embezzlement. The appropriation of public assets for private use and the embezzlement of public funds by politicians and bureaucrats have such clear and direct adverse impact on India's economic development that their costs do not warrant any complex economic analysis.
Corruption and its impact on governance in India
Corruption affects India at all levels of governmental decision-making and in the distribution of state largesse. India is ranked 72nd out of 91 countries in the Corruption Perception Index, 2001, prepared by Transparency International (TI). Corruption in India not only poses a significant danger to the quality of governance, but also threatens in an accelerated manner the very foundations of its democracy and statehood. The recent revelations of corrupt practices in defence purchases and related contracts not only tend to undermine the security of the Indian state, but also fundamentally shake the people's trust and belief in the Government of India and its institutions.
The mid-1960s are perceived to be the great divide in the history of governance administration in India. It paved the way for the blurring of the Gandhian and Nehruvian era of principled politics and the emergence of a new system of politics that began to tolerate and even encourage dishonesty and corruption. The scams and scandals of the 1990s revealed that among the persons accused of corruption were former Prime Ministers, Chief Ministers, Governors and even members of the judiciary. India's experience with corruption has shown that laws, rules, regulations, procedures and methods of transaction of government business, however sound and excellent they are, cannot by themselves ensure effective and transparent administration if the political and administrative leadership that is entrusted with their enforcement fails to do so and abuses its powers for personal gain (Sunil Sondhi, 2000).
Gunnar Myrdal has described Indian society as a "soft society". According to him, a soft society is one that does not have the political will to enact laws that are necessary for its progress and development and/or does not possess the political will to implement the laws, even when made, and one where there is no discipline. He has stressed that if there is no discipline in society, no real or meaningful development or progress is possible. Corruption and indiscipline survive on each other's willingness to accommodate, tolerate and provide encouragement. Corruption affects governance in a significant manner and it is anti-poor. For instance, a substantial portion of foodgrains, sugar and kerosene meant for the public distribution system (PDS) and for welfare schemes for the poor, including the Scheduled Castes (S.C.s) and the Scheduled Tribes (S.T.s), goes into the black market. Hardly 16 per cent of the funds meant for the S.T.s and the S.C.s reach them (Consultation Paper on Probity in Governance, National Commission to Review the Working of the Constitution, 2001). The rest are misappropriated by members of the political and official classes and unscrupulous dealers and businessmen.
Like other social evils, the problem of corruption brings out numerous responses. As a lawyer, my response would inevitably involve changes in the laws and in this case an amendment to the Constitution. While I propose this amendment, I am mindful of the inherent weaknesses of any law or legal response if the enforcement mechanism is weak - that would only amount to paying lip service to the law. This may be the case with several other laws, mostly criminal laws that are already in place to punish the corrupt, or for that matter the case of anti-terrorism laws, which are available in plenty even as the present government enacted the Prevention of Terrorism Act. Corruption has flourished in India because of the drawbacks of the criminal justice system. We see more and more examples of acquittals in corruption cases. Several corruption-related cases filed in India in the recent past were poorly founded upon, were backed by incomplete and inefficient investigation, and were followed by delayed trials that resulted in morally ill-deserved but legally inevitable acquittals.
Human right to a corruption-free society under international law
It has been argued that the struggle to promote human rights and the campaign against corruption share a great deal of common ground. A corrupt government that rejects both transparency and accountability is not likely to respect human rights. Therefore, the campaign to contain corruption and the movement to protect and promote human rights are not disparate processes. They are inextricably linked and interdependent and both the elimination of corruption and the strengthening of human rights require a strong integrity system (Laurence Cockcroft, TI Working Paper, 1998).
Having said that, it needs to be borne in mind that this generalised system of linkage need not be applicable in all situations. Hence it should not be presumed that the fight against corruption is synonymous with the struggle to enforce human rights. For example, in the Corruption Perception Index for the year 2000, Singapore was considered to be the eighth least corrupt country. This was largely the result of systematic anti-corruption measures initiated from the top tier of the administration. At the same time, Singapore is hardly known for its progressive position on human rights. On the other hand, there is evidence to suggest that whilst the human rights situation in Central America and many parts of Latin America and certainly India has been improving steadily, the incidence of corruption has also been increasing.
It may be argued that there is sufficient state practice to support a claim for an international customary law to prohibit corruption in all societies. That is, a case can be made for the right to a corruption-free society as a fundamental human right; a right that should be recognised as a component part of the right to economic self-determination and the right to development (Ndiva Kofele-Kale, 2000). To start with, it will be useful to examine the present international regime and the legal framework that has been developed to fight corruption.
An international legal regime to combat corruption
There has been a burgeoning field of law-making at both the national and international levels on the subject of corruption. The leading global and regional organisations spearheading this movement, including the United Nations, the World Bank, the International Monetary Fund (IMF), the Council of Europe, the European Union (E.U.), the Organisation of American States (OAS), the Organisation for Economic Co-operation and Development (OECD), the Global Coalition for Africa (GCA), and the International Chamber of Commerce, have articulated anti-corruption policies and strategies. The concerted drive at the multilateral level to confront the problem of corruption has given birth to a number of anti-corruption legal instruments, which together constitute the current international legal regime to combat corruption. Such enthusiastic law-making activity began with the 1995 European Union Convention on the Protection of the European Communities' Financial Interests and its two additional protocols. This was followed by the 1996 Inter-American Convention Against Corruption and the 1997 OECD Convention on Bribery of Foreign Public Officials in International Business Transactions, and ended with the 1999 Council of Europe Criminal Law Convention on Corruption. Ironically, while the E.U. is the flag-bearer in law-making activities, it is worth noting that Francois Mitterrand, Helmut Kohl, Jacques Chirac and even Tony Blair are all under the cloud of graft allegations and inquiries. Indeed, these developments have resulted in countries across the world focussing on corruption and making some attempts to attack it nationally. However, these legal instruments have not gone far enough to deal with the global problem of corruption to the extent one would like them to. It is under these circumstances that a fundamental human right to a corruption-free society is being proposed, and concomitantly it is being argued that a breach of this right is a crime under international law.
Corruption and its relevance for human rights and human development
Human rights have indeed acquired a special position in the contemporary world because of the increasing tendency of national governments to include these rights in their respective constitutions as well as laws. This has resulted in several judiciaries around the world interpreting different human rights as a part of their own national laws or for that matter as a part of the International Law, which their respective country has been a signatory to, through treaties and other conventions. Thus the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have acquired greater legitimacy in the last few decades as more and more nations have realised the importance of these human rights as instruments for better governance. Probity in governance is a sine qua non for an efficient system of governance and for socio-economic development. An important requirement for ensuring probity in governance is the absence of corruption. The other requirements may be effective laws, rules and regulations that govern every aspect of public life coupled with effective law enforcement and criminal justice systems.
The right to a society free of corruption is inherently a basic human right because the right to life, dignity, equality and other important human rights and values depend significantly upon this right. That is, it is a right without which these essential rights lose their meaning, let alone be realised. As a fundamental right, the right to a corruption-free society cannot be discarded easily "even for the good of the greatest number, even for the greatest good of all" (Louis Henkin, The Age of Rights, 1990). It may be argued that the right to a corruption-free society originates and flows from the right of a people to exercise permanent sovereignty over their natural resources and wealth, that is, their right to economic self-determination, recognised in the common article of the ICPR and the ICESCR (Ndiva Kofele-Kale, 2000). Hence it may be argued that the state is in violation of the right to economic self-determination if it transfers in a corrupt manner the ownership of national wealth to select power-holders who happen to be influential in a society at a particular point of time. This violation by the state also results in a situation where people are denied individually and collectively their right to use freely, exploit and dispose of their national wealth in a manner that advances their development.
The Declaration on the Right to Development, which stated unequivocally that the right to development is a human right, was adopted by the U.N. in 1986 by an overwhelming majority, with the United States casting the single dissenting vote. The Declaration has four main propositions: 1. The right to development is a human right; 2. The human right to development is a right to a particular process of development in which all human rights and fundamental freedoms can be fully realised, which means that the right to development combines all the rights enshrined in both the covenants and that each of the rights has to be exercised with freedom; 3. The meaning of exercising these rights consistently with freedom implies free, effective, and full participation of all the individuals concerned in decision-making and in the implementation of the process, and therefore the process must be transparent and accountable, and individuals must have equal opportunity of access to the resources for development and receive a fair distribution of the benefits of development (and income); and finally, 4. The right confers an unequivocal obligation on duty-holders - individuals within the community, states at the national level, and states at the international level. Nation states have the responsibility to help realise the process of development by initiating appropriate development policies. Other states and international agencies have the obligation to cooperate with the nation states to facilitate the realisation of the process of development. It is in this context that the fundamental right to a corruption-free society adds a new and necessary dimension to the right to development. No development process will have any meaning and relevance if corruption as an institutionalised process interferes with people's struggles to realise their right to development.
Corruption as a universally recognised international crime
Universal crimes are those crimes that a "state may participate in their repression even though they were not committed in its territory, were not committed by one of its nationals, or were not otherwise within its jurisdiction to proscribe and enforce". A crime of universal interest, that is, a crime under international law, can be characterised as such irrespective of its designation under domestic law (Principles of International Law Recognised in the Charter of the Nuremberg Trial and the Judgment of the Tribunal, Principle 1, 1950). This is what is meant by the principle of the supremacy of international law over national law, reaffirmed in the Draft Code of Crimes Against the Peace and Security of Mankind in Article 2.
Additionally, action taken with respect to crimes of universal interest must come with adequate safeguards to protect the rights of the accused; for instance, the prohibition against double jeopardy and non-retroactivity. Where the principle of double jeopardy seeks to safeguard the accused from arbitrary judicial treatment under the criminal justice system, the doctrine of retroactivity seeks to uphold the fundamental objective of criminal law, which is to prohibit and punish and to deter the conduct of what is considered sufficiently serious in nature to justify characterisation as a crime. An international crime must satisfy the principle of aut dedere aut judicare, which places any state in whose territory the alleged accused is present under an obligation to extradite or prosecute him or her. The basic purpose of this principle, which is found in all anti-bribery conventions, is "to ensure that individuals who are responsible for particularly serious crimes are brought to justice by providing for the effective prosecution and punishment of such individuals by a competent jurisdiction".
But the question remains as to whether the term corruption as used in this article meets the exacting standards of an international crime as laid down in the Nuremberg Charter and the Draft Code of Crimes, which entails individual responsibility. Under the Draft Code of Crimes, a prohibited conduct qualifies as a crime if it is of such a character as to threaten international peace and security. That is, it must be seen as a crime of exceptional gravity or extraordinary magnitude and of sufficient seriousness to justify the concern of the international community (Ndiva Kofele-Kale, 2000). The plethora of efforts made by international institutions at various levels to curb corruption prove that there is a consensus all over the world that in the developing countries corruption hinders economic growth and scuttles development in a direct and tangible manner. At the most, it may be argued that there is a lack of political will to engage, and suggest innovative and effective solutions to attack, the problem of corruption so that changes are seen in the not-so-distant future.
It may be useful to refer to the fact that corruption has long been prohibited by the laws and constitutions of most states - in the old democracies of Western Europe and North America, the new democracies of Central and Eastern Europe, Asia, and Africa. Interestingly, it is expressly prohibited in the constitutions of Haiti, Nigeria, Paraguay, Peru, the Philippines and Sierra Leone, to mention a few. The gravity of the problem may be understood by examining the work of various special tribunals and commissions of inquiry that have been set up in several countries to probe into and try cases of corruption by public officials. These developments worldwide undoubtedly provide enough arguments for the international community to develop a consensus to treat corruption as a crime punishable under international law.
C. Raj Kumar is a visiting research fellow at the Faculty of Law, Meiji Gakuin University, Tokyo. He has been a Rhodes Scholar at the University of Oxford and a Landon H. Gammon Fellow at the Harvard Law School.