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CPI 2023: Corruption and (in)justice - News [1]

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Date: 2024-01 

The importance of the justice system and its contribution to anti-corruption is embedded in Article 11 of the United Nations Convention against Corruption (UNCAC). This article recognises the importance of the independence of the judiciary and the prosecution services and requires states to strengthen the integrity of those institutions. The United Nations General Assembly has also recognized the important contribution of effective and independent justice systems in its 2021 political declaration on combatting corruption. Other relevant frameworks that stress the importance of the integrity and independence of justice systems include the Bangalore Principles of Judicial Conduct, the International Association of Prosecutors standards of professional responsibility, as well as the United Nations’ Basic Principles on the Independence of the Judiciary. After all, justice can only be effectively administered when attorneys, prosecutors or judges can perform their functions impartially and independently.

The independence of the justice system thus helps protect it against attempts by political authorities to exert control over it. Operational autonomy provides courts, prosecutors, and other relevant actors within the justice system the space they need to ensure that nobody, regardless of their rank, position or status in government or society, is beyond the law. The independence of the judiciary, specifically the court system responsible for adjudicating legal disputes, interpreting the law, and applying it in legal cases, has been particularly associated with better control of corruption. Countries with more substantial judicial constraints on the powers of the executive and higher levels of judicial independence typically score better on the CPI. Furthermore, our analysis shows that around 40 per cent, or 11 of the 28 countries, that have significantly improved their CPI scores since 2012 have also strengthened judicial constraints on the executive, as measured by V-DEM, over the same period.

A good example of this is Moldova (42), one of the countries that has made the most progress in the CPI over the past few years. Key to Moldova’s success has been strengthening the independence and effectiveness of the judiciary and the steps it has taken to reduce interference – including by politicians – with the judiciary. While there is still room for improvement and this area of reform is still an ongoing battleground the country’s leaders seem committed to progress. On the other end of the spectrum, when the independence of the judiciary is missing, the law and anti-corruption efforts can be weaponised to silence critics, crack down on opposition or strengthen loyalty towards the regime. Recent crack-downs in countries like China (42) and Saudi Arabia (52) illustrate this point.

Many anti-corruption strategies developed over the past three decades rest on the assumed presence of effective justice systems that can successfully enforce the law, objectively investigate, settle disputes, and enact the appropriate sanctions when the law is breached. Unfortunately, as shown by the World Justice Project’s data, this picture does not apply to most countries. Law enforcement and justice institutions often lack the resources, capacity or simply the will to fulfil their mandates. The inability of formal or state-run justice institutions to deliver justice means that people often rely on informal ways of settling disputes and protecting their rights. According to estimates published by the United Nations, over 80 per cent of disputes in some countries are resolved through informal justice systems, which tend to be more accessible for the poor and disadvantaged groups. The World Bank also estimates that over 70 per cent of people in fragile and conflict-affected areas rely on traditional or religious leaders to help them resolve disputes.

This is profoundly worrying for global efforts to tackle corruption. Weak, dysfunctional or corrupt justice systems are ineffective in deterring and sanctioning misconduct, including corruption, regardless of how comprehensive and well-designed legal and institutional anti-corruption frameworks are. Furthermore, the functioning and independence of the justice system affects the performance of anti-corruption institutions and the impact of any legislation designed to target corruption. After all, the expected deterrent effect of any anti-corruption reform depends, to an extent, on the likelihood that it will be enforced appropriately and that individuals who break the law are duly prosecuted and punished.

In settings with severe governance challenges or where justice systems are unable (or perhaps unwilling) to apply the law systematically, the intended effects of legal anti-corruption reforms rarely materialise, and legislation loses its deterrent effect as those breaking the law do not see risks of punishment, while victims may refrain from reporting based on their expectation that nothing will be done. This helps explain why, despite stricter anti-corruption regulations and specialised institutions, progress remains limited: only 28 out of the 180 countries included in the CPI have made significant progress in controlling public sector corruption.

Not accounting for the state's capacity and the functioning of its justice system when designing anti-corruption interventions, can lead to serious unintended consequences and even higher levels of corruption. Unfortunately, many anti-corruption reforms have widened the gap between legal frameworks and on-the-ground realities. Increasing traditional sanctions or attempting to introduce additional layers of oversight and accountability in contexts with weak justice systems can increase, rather than reduce, public sector corruption. In such cases, the new rules can be manipulated by corrupt actors to expand corrupt networks or be turned into opportunities to profit from shielding new groups or individuals from the law. Furthermore, such reforms can contribute to increased frustration among citizens as the mismatch between the promises and expectations embedded in the law and the realities on the ground grow further apart.

Addressing the structural and organisational issues that impede justice systems around the world from fulfilling their mandate is thus essential to unleashing the potential of past and future efforts against corruption.

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[1] Url: https://www.transparency.org/en/news/cpi-2023-corruption-and-injustice

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