RESOURCE MATERIAL SERIES No. 56
UNAFEI Fuchu, Tokyo, Japan December 2000
1 Mikinao Kitada Director
Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI)
1-26, Harumi-cho, Fuchu, Tokyo 183-0057, Japan
2 CONTENTS
INTRODUCTORY NOTE ...... vii
PART ONE
WORK PRODUCT OF THE 112TH INTERNATIONAL TRAINING COURSE
“PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE CRIMNAL JUSTICE”
Visiting Experts’ Papers •Private Participation in the Treatment of Offenders: Contracting Private Operators in Criminal Justice by John Brian Griffin (Australia) ...... 3
•Innovations in Correctional Services : An Excursion Through the Changing Prisons Culture of Victoria by John Brian Griffin (Australia) ...... 16
•Participation of the Public and Victims in Criminal Justice Administration by John Brian Griffin (Australia) ...... 28
•Victim Assistance in Canada by Ezzat A. Fattah (Canada) ...... 48
•Victimology Today: Recent Theoretical and Applied Developments by Ezzat A. Fattah (Canada) ...... 60
•The Vital Role of Victimology in the Rehabilitation of Offenders and their Reintegration into Society by Ezzat A. Fattah (Canada) ...... 71
•Victim Redress and Victim-Offender Reconciliation in Theory and Practice: Some Personal Reflections by Ezzat A. Fattah (Canada) ...... 87
•Ancillary (Adhesion) Proceedings in Germany as Shaped by the First Victim Protection Law: An Attempt to Take Stock by Eberhard Siegismund (Germany) ...... 102
•The Function of Honorary Judges in Criminal Proceedings in Germany by Eberhard Siegismund (Germany) ...... 114
iii •Community Policing in the Context of Singapore by Jarmal Singh (Singapore) ...... 126
•Crime Prevention: The Singapore Approach by Jarmal Singh (Singapore) ...... 140
•Criminal Victimisation Across the Globe by Ugljesa Zvekic (UNICRI) ...... 151
•Citizens’ Experience with Crime Prevention by Ugljesa Zvekic (UNICRI) ...... 163
•Citizens’ Appraisal of Security and Criminal Justice: An International Perspective by Ugljesa Zvekic (UNICRI) ...... 176
•Including Victims in the American Criminal Justice Process by Heather Cartwright (United States) ...... 190
Participants’ Papers •The Framework and Current Situation of China’s Crime Prevention by Wang Ping (China) ...... 204
•Community Involvement in Corrections in Hong Kong by Tai Kin-man (Hong Kong) ...... 215
•Participation of the Public and Victims for More Fair and Effective Criminal Justice Administration by Ghazali bin Hj. Md. Amin (Malaysia) ...... 224
•Participation of the Public and Victims for More Fair and Effective Criminal Justice Administration in the Philippines by Donna Lynn A. Caparas (Philippines) ...... 241
Reports of the Course •Victim Assistance: Public Participation for More Effective Crime Prevention and Law Enforcement by Group 1 ...... 259
•Participation of the Public and Victims for More Effective Administration in Prosecution and the Judiciary by Group 2 ...... 283
iv •Participation of the Public and Victims for More Effective Administration in the Treatment of Offenders by Group 3 ...... 300
PART TWO
WORK PRODUCT OF THE 113TH INTERNATIONAL TRAINING COURSE
“THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS”
Visiting Experts’ Papers •International Anti-Corruption Initiatives by Donald K. Piragoff (Canada)...... 327
•Good Governance: A Mere Motto or a Pragmatic Endeavour for a Realistic Strategy? (The French Example of an Anti-Corruption Agency) by Laurence Giovacchini (French Republic) ...... 343
•Corruption Prevention: The Hong Kong Experience by Thomas Chan (Hong Kong) ...... 365
•Recent Innovations in Tackling Corruption in the Civil Services in India by R. K. Raghavan (India)...... 378
•Strengthening Integrity: The Importance of Transparency and Accountability in Economic Sustainability by Tunku Abdul Aziz (Malaysia) ...... 386
•International Case Study: Stamping out Corruption in Malaysia by Tunku Abdul Aziz (Malaysia) ...... 393
•Current Problems in the Fight Against Corruption and Some Possible Solutions : US Perspective by Anthony Didrick Castberg (United States of America) ..... 400
•Campaign Financing and Corruption in the US by Anthony Didrick Castberg (United States of America) ..... 412
•Illegal Drugs: the Challenge to Law Enforcement by Anthony Didrick Castberg (United States of America) ..... 421
v •Corruption in Japan and the US by Anthony Didrick Castberg (United States of America) ..... 435
•Prevention and Repression of Corruption within a Law Enforcement Agency by Michael A. DeFeo (United States of America) ...... 440
•Prevention and Repression of Corruption in Non-Law Enforcement Agencies by Michael A. DeFeo (United States of America) ...... 455
Participants’ Papers •Investigation of Corruption in Japan by Tamotsu Hasegawa (Japan) ...... 469
•The Effective Administration of Criminal Justice for the Prevention of Corrupt Activities by Public Officials: the Nigerian Position by Onuoha Emmanuel Ifeanyi (Nigeria)...... 476
•The Effective Administration of Criminal Justice for the Prevention of Corrupt Activities by Public Officials by Sadar Muhammad Raza (Pakistan) ...... 482
•The Effective Administration of Criminal Justice for the Prevention of Corrupt Activities by Public Officials by Roderick Kamburi (Papua New Guinea) ...... 492
•Graft and Corruption: The Philippines Experience by Nelson Nogot Moratalla (Philippines) ...... 501
Reports of the Course •Current Situation of and Recent Trends in the Corrupt Activities of Public Officials, and Criminal Legislation against Corruption by Group1 ...... 524
•Current Problems in Responding to the Corrupt Activities of Public Officials at the Investigation and Trial Stages, and Solutions for Them by Group2 ...... 546
•General Preventive Measures against the Corrupt Activities of Public Officials by Group3 ...... 563
APPENDIX ...... 581 vi INTRODUCTORY NOTE
It is with pride that the Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (UNAFEI) offers to the international community the Resource Material Series No. 56.
This volume contains the work produced in two UNAFEI international training programmes: the 112th International Training Course (conducted from 12 April to 2 July 1999) and the 113th International Training Course (conducted from 30 August to 18 November 1999). The main themes of these courses were “Participation of the Public and Victims for More Fair and Effective Criminal Justice Administration”, and “The Effective Administration of Criminal Justice for the Prevention of Corrupt Activities by Public Officials”, respectively.
As an affiliated regional institute of the United Nations, UNAFEI has paid utmost attention to the priority themes identified by the UN Commission on Crime Prevention and Criminal Justice. Moreover, UNAFEI has been taking up these issues as the main themes and topics for its training courses and seminars. The above-mentioned themes of the 112th and 113th International Training Courses were decided under such a consideration. Community involvement in crime prevention, as well as accountability and fairness for offenders and victims in the criminal justice process, were substantive agenda items and workshop topics at the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which was held in Vienna from 10 to 17 April 2000. The 112th UNAFEI Course explored measures to enhance the participation of the public and victims for more fair and effective criminal justice administration in the participating countries. Similarly, combating corruption was also one of the workshop topics at the Tenth United Nations Congress. In light of the fact that corruption is becoming transnational in character, and it is a primary tool of organized crime, participants of the 113th Course introduced their countries’ experiences regarding corruption, analyzed the causes and dynamics of corruption, and sought concrete measures for its eradication.
In this issue, papers contributed by visiting experts, selected individual presentation papers from among Course participants, and reports of each
vii Course are published. I regret that not all the papers submitted by Course participants could be published. Also, I must request the understanding of the selected authors for not having sufficient time to refer the manuscripts back to them before publication.
I would like to pay tribute to the contributions of the Government of Japan, particularly the Ministry of Justice and the Japan International Cooperation Agency, and to the Asia Crime Prevention Foundation for providing indispensable and unwavering support to the UNAFEI international training programmes.
Finally, I would like to express my heartfelt gratitude to all who so unselfishly assisted in the publication of this series, in particular, the editors of Resource Material Series No. 56, Mr. Hiroshi Iitsuka (Chief of Training Division) and Ms. Rebecca Findlay-Debeck (Linguistic Adviser), who so tirelessly dedicated themselves to this series.
March 2000
Mikinao Kitada Director of UNAFEI
viii MAIN ACTIVITIES
PART ONE
RESOURCE MATERIAL SERIES No. 56
Work Product of the 112th International Training Course
“PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE CRIMINAL JUSTICE”
UNAFEI
1
112TH VISITING INTERNATIONAL EXPERTS’ TRAINING PAPERS COURSE VISITING EXPERTS’ PAPERS
PRIVATE PARTICIPATION IN THE TREATMENT OF OFFENDERS: CONTRACTING PRIVATE OPERATORS IN CRIMINAL JUSTICE
John Brian Griffin*
ABSTRACT are but some of the contemporary business concepts that are now the hallmark of Over the past decade, governments have modern government administration. Past been forced to critically review the way they practice no longer provides an adequate manage their economies in the face of basis to ensure the future viability of the growing international competition. Debt public sector. reduction and taxation imperatives, coupled with raised community expectation A special edition of “The Economist” in of value of money from its public sector, has September 1997 entitled “The Future of the underscored profound changes in the form State”, succinctly summarised these and nature of government worldwide. changes in quite dramatic terms: In Victoria, the Kennett Government “... the State is in retreat. At the turn since 1992 has pursued a significant of the millennium, it is argued, government reform agenda. Reforms governments are confronted by two old within the criminal justice system have enemies, stronger now than ever been an important part of this ‘change’ before: technology and ideology. The agenda. Contractualism and privatisation State is proving unequal to the are now integral elements in the oparation challenge. Its power to rule is fading. of Victoria’s justice system, especially the key aspects of policing and correctional A new industrial revolution is under management. While the signs are positive, way. Advances in computing and the changes have required a fundamental telecommunications press relentlessly policy rethink in such areas as contracting on, eroding national boundaries and out, accountability, risk management, enlarging the domain of the global regulation and performance monitoring. economy. Increasingly, these changes There is no doubt these issues will be the render governments mere servants of subject of on-going debate well into the next international markets.” millennium. In the face of international competition, I. INTRODUCTION governments have realised that a high debt Public administration worldwide has burden and high taxing regimes undermine been the subject of revolutionary change the country’s level of competitiveness. over the past decade. Privatisation, Increasingly, governments are wrestling corporatisation, outsourcing, outcome/ with the paradox that voters want lower output budgeting and accrual accounting taxes but want more public spending. This has required governments to examine the * Chief Exective Officer, Core-the Public Correctional breadth of responsibilities they have Enterprise, Department of Justice, Australia. accumulated over the years, to shed more peripheral functions and to ensure residual
3 RESOURCE MATERIAL SERIES No. 56 functions operate efficiently. Over the past 7. Concentrating on earning not just decade, there has been a greater spending. questioning of the efficacy of big 8. Investing in prevention not just cure. government and critical comment about 9. Decentralising authority. public monopolies which, being free from 10. Solving problems by leveraging the pressures to innovate or become more market place, rather than simply efficient, have been shown not to offer value creating public programs. for money to the communities they serve. “Reinventing Government” became the II. REFORM OF GOVERNMENT required reading of politicians and bureaucrats alike following the book’s In the 1980s, there was recognition in publication. The sentiments of the book the UK and Europe that the high level of hit a chord with many in government and government spending could not be in communities around the world. sustained. The Thatcher Government in the UK introduced radical reforms in a bid Within Australia, various Federal and to reduce public spending, which in 1980 State Commissions of Audit Report’s comprised 43% of GDP. Similar programs recommendations echoed the book’s major were pursued to a lesser extent in France thrust. In 1995, the Council of Australia (55%), Italy (52%) and Belgium (54%). Governments (COAG) endorsed the Government’s transferred the delivery of National Competition Policy (NCP) Report services to the private seczWr {B withdrew of the Independent Committee of Inquiry from service delivery altogether. (the Hilmer Committee) set up in 1993. The NCP established consistent principles In the USA, where big government had governing pro-competitive reform of not been a feature of the American political government enterprise and of government landscape, there was nevertheless ongoing regulation. It was agreed that all voter pressure to minimise taxation and Commonwealth and State legislation increase the responsiveness of the public would be reviewed to ensure it did not sector. In 1992, the seminal work of David unnecessarily restrict competition. Osborne and Ted Gaebler titled “Reinventing Government” took the world The NCP Independent Committee of by storm. Osborne and Gaebler identified Inquiry summarised the merits of ten principles around which competition in the following way: entrepreneurial public organisations are built: “Competition provides the spur for businesses to improve their 1. Steering more than rowing. performance, develop new products 2. Enpower communities rather than and respond to changing simply deliver services. circumstances. Competition offers the 3. Encouraging competition rather than promise of lower prices and improved monopoly. choice for consumers and greater 4. Being mission driven rather than efficiency, higher economic growth rule driven. and increased employment 5. Funding outcomes rather than opportunities for the economy as a inputs. whole”. 6. Meeting the needs of the customer not the bureaucracy. The Hilmer Committee was at pains to
4 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS stress, however, that it did not support through its identification of the key totally unfettered competition and principles for public sector reform: indicated there were bona fide reasons where governments would need to • a preference for market mechanisms; intervene in specific markets with the • empowered consumers; intention of protecting the public interest • minimised government regulation; or for generating other benefits for the • clear accountability for results; and community as a whole or from particular • professional and buisiness-like sectors of the community. The committee management of public agencies. commented: The “steering not rowing” metaphor soon “Competition policy is not about the translated to a notion of “purchaser/ pursuit of competition per se. Rather provider split” whereby the purchaser of it seeks to facilitate effective the service would not also be the provider competition to promote efficiency and of the service. In a market context with economic growth while multiple suppliers, governments were seen accommodating situations where to be able to maximise public benefit in the competition does not achieve efficiency purchase of services and avoid the or conflicts with other social downsides of departments as single service objectives. These accomodations are providers. reflected in the content and breadth of application of pro-competitive The privatisation of government services policies, as well as the sanctioning of in Victoria over the last six years has been anti-competitive arrangements on significant and has touched all Ministerial public benefit grounds”. portfolios. Major changes have occurred in the following areas: Implementation of the NCP was underwritten by the Federal Government • utilities; through the allocation of substantial funds • communications; to States/Territories to address transitional • roads; costs and negative revenue implications • trains, trams and buses; arising from the adoption of the NCP. • regulation and inspection; • welfare services; Following the Victorian State elections • educational and training services; in October 1992, the Kennett Liberal/ • health services. National Coalition Government proceeded swiftly with major reform of the public In addition, there has been signficant sector. In the face of a $32billion State debt, privatisation and contracting out within significant budget cuts were made to the Justice portfolio in such areas as: government departments, programs were reduced or axed, services were outsourced, • corporate services (payroll, human many statutory authorities were services, audit, building corporatised and there was a concerted maintenance, fleet management); effort to privatise electricity generation and • the police airwing; supply, and gas retailing. • computer aided dispatch of emergency vehicles; In 1993, the Victorian Commission of • staff training; Audit set the tone for subsequent change • prisoner transportation;
5 RESOURCE MATERIAL SERIES No. 56
• the operation of police traffic cameras III. THE PRIVATISATION OF and the administrarion of the VICTORIAN PRISONS enforcement of on-the-spot fines; Before the Kennett Government’s • the management of police custody election in 1992, the Victorian prison centres; system was the responsibility of the Office • building, owning and operating three of Corrections. The previous Cain/ Kirner of the State’s thirteen prisons; Labour Government had made major • building, owning and operating the investments in the construction of four new proposed new County Court complex. prisons at a total cost exceeding $170million. Notwithstanding this The results of the overall Government investment, the large bulk of prisoners still reform program have been impressive. The resided in accommodation built in the last State debt has been reduced from century. $32billion to $11billion, Victoria has moved from being the highest taxing State, The general productivity of the prison unemployment has fallen below the system was poor. Sick leave rorting by national average and there is growing prison officers was rampant (average 28 confidence in the business community (both days annual sick leave per prison officer locally and internationally) that Victoria at Pentridge Prison in 1992). The level of is a good place in which to invest. prison staffing was the subject of on-going tension between management and the The Productivity Commission’s 1999 unions. report to COAG on the benchmarking of government services confirms the pre- Interestingly, the concept of contracting eminence of Victoria in many of the key out was not new to the prison system. performance indicators (in relation to the Private contractors provided many of the benchmarking of a broad range of prison support services; health services government services). were provided by the Health Department; and education provided by the TAFE The reforms however have not been Division of the Education Department. A without their critics. The speed and separate statutory body (VicPIC) was breadth of change, the quantum of the responsible for prison industries and the budget cuts, the apparent primacy of delivery of many prisoner programs economic imperatives driving so much involved both paid staff and volunteers change, and the extent of privatisation drawn from the wider community. have been the subject of much community debate. A key element of the Liberal/National Coalition party policy platform was the Perhaps one of the most controversial privatisation of elements of the prison reforms has been the Kennett system. It was envisaged that privatisation Government’s prison privatisation would reduce the annual unit cost per program. It is a program worthy of further prisoner, provide comparative benchmarks analysis, as in many ways the issues with against which to evaluate the performance private prisons resonate in character with of public prisons and, no doubt, break the other reforms within the Justice portfolio. stranglehold of union influence on the system. In addition, through the adoption of a build, own, operate (BOO) philosophy,
6 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS the Government was able to construct three • prisoner access to programs which new prisons which, given the size of the address issues related to their debt burden, would be unlikely to have offending behaviour; been built for a considerable time. The • prisoner access to personal BOO approach enabled the Government to development and life skills programs; transfer the construction and ownership • provision of health care services risk onto the private sector. The issue of which meet community standards; inadequate asset maintenance provision • prisoner access to adequate fitness, has long been a sore point with public sport and recreational activities; sector managers. BOO projects eliminated • prisoners being given opportunities these difficulties, as well as avoidnig any to develop the skills for employment increase in State borrowings which was a after their release through access to key priority of the new Government. both work experience in prison industries and education and So how does the new Victorian prisons training programs. system now work? The Commissioner enforces a rigorous The amended Corrections Act 1986 gives monitoring regime built around: the State direct authority for the security, safety and welfare of prisoners; and for the • clear specification of requirements of maintenance of standards, in both public providers; and private correctional services. In 1995 • monitoring providers from on-site the Office of the Correctional Services observation and the analysis of Commissioner (OCSC) was established to performance date; oversee the corrections system. The • validation of provider reports; Commissioner is responsible for: • provision of formal feedback to providers. • strategic planning; • developing and setting state-wide The Minister for Corrections, as the policy and standards; purchaser of services, has assigned the task • the management of prisoner of Contract Administrator to the Deputy sentences, including prisoner Secretary, Justice Operations within the assessment, classification and Department of Justice. This position is placement; supported by a separate Corrections • monitoring the delivery of Contracts Branch. The role of the Contract correctional services by both public Administrator is to: and private providers; • adviding the Minister (the purchaser) • identify the correctional services to about each provider’s performance be purchased by the State; and level of compliance with • establish appropriate contractual contractual obligations; arrangements; • providing overall leadership to the • administer the contracts on behalf of Victorian corrections system. the Minister for Corrections.
Specific prisoner health and welfare The Contract Administrator regularly standards developed by the reviews reports from the Correctional Commissioner’s Offive include: Services Commissioner concerning service providers’ performance and levels of
7 RESOURCE MATERIAL SERIES No. 56 compliance with their contracts. The Victorian correctional model has been very deliberately designed to separate The correctional providers within the the roles of the purchaser and providers, Victorian correctional system are a mix of with the OCSC playing the key system public and private providers. The public leadership role of policy, standard setting, provider - the public Correctional performance monitoring and sentence Enterprise (CORE) - operates ten prisons management. The key responsibilities of and manages the State’s community the Commissioner (as outlined in Section correctional services. 8A of the Corrections Act 1986), requires the Commissioner to exercise these In addition, there are three private responsibilities impartially between all providers of prisons: providers. In allocating to the Contract Administrator the responsibility for • Metropolitan Women’s Correctional managing the commercial and financial Centre (125 beds) - Corrections interests of the Government in the Corporation of Australia (opened contracts, the integrity of the August 1996); Commissioner’s role in addressing the safe • Fulham Correctional Centre (600 custody and welfare of prisoners is beds) - Australasian Correctional effectively preserved. Management (opened April 1997); • Port Phillip Correctional Centre While there have been many calls for (600beds) - Group 4 Correction independent monitoring of prison Services (opened September 1997). performance, no other jurisdiction had implemented a model as definitive as that A preliminary observation of the multi- in Victoria, separating responsibility for provider system relates to the impact that safe prisoner custody and welfare from the privatisation has had on CORE - The responsibility for financial or budgetary Public Correctional Enterprise. It is a great targets for the system. credit to the management and staff of CORE that they have responded to the The contracts with the private challenge (or threat) in a very constructive correctional providers are built around a and effective way. Many would not have number of commercial principles: anticipated how effective this response would be. • the Government purchases a comprehensive package of Institutionalised work and staffing accommodation and correctional practices have been reformed, facilities and services from the provider over set services improved, staff attitudes and contract periods for a defined motivation improved and costs have been prisoner population; reduced substantially. These reforms could • the private provider owns the prison hardly have been contemplated in the through an equity investment in the traditionl monopoly system. These reforms facility and the acceptance of design, give confidence to the notion that the public construction, ownership and provision of prison services can continue management risks; in a multi-provider environment, where • the private provider supplies new performance in terms of service quality and prison facilities and is responsible for cost will be the bottom line. their on-going maintenance; • the private provider provides
8 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
correctional services, as well as processes. Specific service delivery health and prisoner programs, which outcomes are specified which must be maintain or enhance the standard of achieved to justify, for instance, the those available in public prisons; payment of the performance linked fee. • the private provider assumes the risks related to the development, Both the ASC and CSF payments are ownership and operation of the affected by sub-standard provider physical plant and service delivery. performance. For example, non- availability of part of the accommodation Each successful private provider could result in ASC and PLF payment consortium therefore owns the prison reductions. While failure to comply with which has been built on crown land, leased any of the forty-two prison management to the provider by the Government. In specifications for correctional services could these cases, the Government has result in CSF payment reductions. contracted with the provider to supply both facilities and services. The provider is To achieve full payment of the PLF, required to develop, maintain and operate providers must achieve specified outcomes the prison, including providing sevices and for accommodation and correctional programs, which meet the Government’s services, as well as meet specified corrections policy objectives in relation to benchmarks in five key correctional prison safety and security, accommodation, services: and rehabilitation of prisoner standards. • prison operations; Contract payments to private • education and training; correctional providers are divided into • prison industries; three categories: • health; • other prisoner programs (e.g, drug • Accommodation Service Charge education programs). (ASC) is a monthly payment for the provision of correctional facilities to As a last resort, where the payment a Government specified standard - it regime to a provider has apparently not is in effect a debt servicing and worked, the prison contracts provide a facility charge; default regime. The default process is most • Correctional Service Fee (CSF) is a appropriately applied where there are monthly payment for the operation significant and continuing issues that need of the prison and the provision of to be remedied by the provider within a pre- correctional services, education, determined timeframe. If the provider fails traning, health, and other programs; to address the issues within the stipulated • Performance Linked Fee (PLF) is an period, a range of legal remedies are annual payment based on the available to the Minister, including seeking achievement of specified outcomes for damages, “step-in” provisions and contract both prison facilities and services - it termination. is in effect a return on investment payment. In addition to the Minister’s ability to reduce payments, a wide range of A fundamental feature of the contracts incentives and safeguards have been put is the focus on outputs and outcomes rather in place to ensure private providers deliver than the traditional focus on inputs and the appropriate standard of correctional
9 RESOURCE MATERIAL SERIES No. 56 facilities and services: summary of the key issues of debate on privatisation. At the start of her paper she • the Government retains the right to states: re-tender the contract for correctional services after the initial 5 year period “Much of the debate in Australia of the contract and every 3 years around contractualism has concerned thereafter; human services. However, those • overall responsibility for prisoners opposing privatisation in justice remains with the State; argue that justice is different from • Government representatives have other policy areas in that part of the unfettered access to all aspects of the work of justice departments involves operation of a prison; the use of delegated sovereign power • all prisons are open to public scrutiny with the potential to discipline, through the Official Visitors Scheme, punish and use force. They object to FOI, the Ombudsman and visits by the principal (sic) of delegating the prisoner visitors, clergy, TAFE State’s power to punish to private for teachers, medical staff and various - profit corporations”. other community representatives; • rigorous probity processes ensures Hancock subsequently outlines the that high standards apply to prison counter-argument: contractors, sub-contractors and all staff employed in prisons; “Others adopt the view that • the Minister has clear “step-in right” delegating the State’s powers to to maintain the security of the private interests is acceptable, system, and can, in the event of a provided adequate accountability and serious breakdown, take over the regulatory structures are put in place. management of a prison; This view would dismiss arguments • in defined adverse circumstances, the about an integral role for the State Minister can require the contracting and actions of non-delegatable powers consortium to remove the operator (i.e, to punish) as unfounded.” and appoint a new operator. In concluding her article, Hancock gives A number of commentators and the impression she believes that the jury academics have challenged the efficacy of is still out on the privatisation reforms in the private prisons “social experiment” in justice, especially in relation to key issues Victoria. This is often done, it seems, of “accountability, quality of service without any appreciation of the safeguards delivery, service gaps, balancing civil rights of the Victorian Model, in particular the and budget efficiencies, ethical issues and powers and status of the Commissioner in issues of democratic governance”. relation to the safe custody and welfare of prisoners. It is worth briefly pondering these issues, as they tend to recur through many Linda Hancock, University of of the contemporary writings about private Melbourne, in her paper “Contractualism, prisons. Privatisation and Justice : Citizenship, the State and Managing Risk” (Australian A. Accountability Journal of Public Aadministration - Prior to the advent of private prisons, December 1998) provides a useful the accountability for the prison system
10 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS was vested with the Minister for systems. Corrections and the Director-General of Corrections. The Director-General issued The various other accountability Director-General Rules which processes that existed previously in the operationalised elements of the Corrections public prison system have also been Act and set guidelines for the general retained. One suspects the Government operation of prisons. They were procedural understood the potential political risks of in nature and contained few quantifiable privatising prison management and performance measures. developed a “belt and braces” approach to the issue of accountability. It would be A separate inspectorial unit would difficult to conceive how prisons could have conduct an intensive inspection of each been subjected to more accountabiliy. prison over a two to three year cycle. Prisons were required to report incidents There appears to be a misconception that as they occurred but there was no Government has abrogated its requirement for monthly performance responsibility for prisoners once they are reports. Prisoner regimes were left largely placed in a privately operated prison. This to the discretion of the Governor and out is clearly not the case. The Commissioner’s of cell hours were very much determined responsibility for the sentence by the prevailing staff levels. management function encompasses ongoing responsibility for the classification The onset of private prisons introduced and placement review, as well as a discipline that had previously not been monitoring prisoner welfare through on- present. Because of the contractual nature site monitoring and other review processes of the relationship between the State and outlined earlier. The Commissioner private prison providers, greater specificity maintains an ongoing oversight and was needed in relation to all aspects interest in the progress of every prisoner relating to prison design, facilities and throughout the sentence to ensure proper prisoner services. No longer could the placements are made in each case and correctional system rely on informal and outcomes delivered. ill-defined prison specific arrangements. Contractors wanted to know what outputs A good deal has been written and said and standards were required before they in the Victorian media about the would commit on price. performance of the three private prisons in Victoria. It is necessary to make a A much tougher and specific prison number of observations about this media monitoring framework was established coverage. requiring detailed monthly reporting by contractors, on-site monitoring and service The first observation is that the validation audits by both the progressive commissioning of three private Commissioner and the health authorities prisons, representing 45% of the prison in relation to health services. system, over the period from August 1996 to December 1997 was always going to be It is interesting to note that the private a significant challenge. The fact that it was prison providers comment that the breadth done quite deliberately, with staff that were and depth of reporting and monitoring in new to prison work in order to minimise Victoria are more intense and demanding the transfer of the “old culture”, did not than in other States or in overseas prison make the task any easier.
11 RESOURCE MATERIAL SERIES No. 56
Secondly, the media and interest groups A visit to any prison in Victoria, public pre-occupation with private prisons or private, would challenge the objective certainly highlighted the incidents that did observer to discern material differences in occur. It is apparent that the first year or the quality of the services between the two so of commissioning new prisons was clealy categories of providers. a difficult time, as was illustrated by the commissioning of the Silverwater publicly C. Service Gaps operated facility in New South Wales. The The Government made a major final judgement about public versus private investment in planning and policy prison performance cannot be realistically development to underpin the privatisation made on the basis of the performance in of nearly half of its prison system. Every the year of commissioning, but rather on aspect of a prison’s operations were the sustained performance over at least two identified, analysed, specified and to five years. Those claiming otherwise are standards defined. Forty-two prison either exposing an ideological bias or are management specifications were defined unwilling to accept change. and standards set. Each private prison was required to develop an Operating Manual Thirdly, the evidence in Victoria is that around these management specifications a multi-provider environment is now and this Manual is, in part, the basis for delivering real and sustainable benefits in the evaluation of each prison’s service and cost terms. performance.
B. Quality of Service Delivery The prison operator specifies the “how The quality of service delivery in prisons to” in terms of inputs and processes, is monitored by both individual prison whereas the Government specifies the management and by the Correctional outputs and outcomes required. The Services Commissioner. Health service operator has ‘ownership’ of the inputs and quality is scrutinised by the Department processes and carries the related risks. of Human Services. D. Balancing Civil Rights and The experience in dealing with private Budget Efficiencies operators in Victoria belies this fear that The Corrections Act specifies not only many have. A well developed contract, the legislative parameters for the Victorian combined with thorough and well prison system but also defines prisoner structured monitoring, has shown that the rights (Victoria was the first State to focus now being made on quality far legislate prisoner rights in the mid-1980s). exceeds the assurance that was ever available in this regard under traditional The Corrections Act makes no distinction monopoly provider systems. Monitoring between public and private prisons on the needs to be well targeted to key issues and issue of prisoner treatment. In agreeing based on an open approach that rewards on a contract price for a private prison, the sustained good performance. The incentive Government has needed to satisfy itself for providers to maintain quality services that the provider had the appropriate is a multi-provider business environment capability to deliver the services required. that is subject to thorough monitoring are The capacity of the bidder to provide a self evident, and the cynical view that the service at the price quoted was an first priority of private providers is to cut important consideration in contract costs is not well founded. evaluation.
12 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
Again, the argument that the profit between prisons, as well as visitors to motive will result in a diminution of prisoners. There is no evidence that ethical prisoner rights in private prisons has not standards are being compromised. The proven to be the case. There is considerable ethical standards of the operators is evidence that the quality of prison something in which they place great environments, for instance, in terms of emphasis given their active ongoing hours out of cells and access to training involvement in tending for new business programs has considerably improved. The around the world. Unfavourable publicity consequences of non-compliance with about their ethical standards would, legislative requirements would simply not without doubt, hamper their chances in any be risked by the operator. Empirical future bidding process. evidence would suggest that the profit motive is acting as a key focus on private F. Democratic Governance prison operators to pay close attention to In large part the issue of democratic causal factors of tensions within the prison governance relates to the issue raised by and to adopt management and early Hancock in her paper over the capacity of intervention regimes to prevent more the State to delegate its power to punish untoward prisoner behaviour that impact private for-profit organisations. on prison operations. This is a fundamental issue. This is why E. Ethical Issues in the Victorian model the role of the The issue of ethics may arise in two Commissioner in managing the sentence significant ways in relation to private given to the prisoner by the Court is prisons. critical. It is the Commissioner who acts to ensure that the sentence of the Court is Firstly, the ethical standards that apply properly implemented, not the prison in the management of contact dealings operator. It is also the Commissioner who when tenders are let for private prison decides the placement of the prisoner and consortiums. In Victoria, a rigorous probity periodically reviews this placement. The process saw a high quality approach to the “delegation” to the operator of the prison letting, evaluation and selection of is defined by the provisions of the successful tenderers. This probity review Corrections Act, publicly available service is ongoing and any change in ownership or standards and operating manuals, and is key personnel is subjected to critical review. the subject of substantial accountability Failing to notify such changes has serious and monitoring regimes. contractual consequences. Perhaps the most controversial issue Secondly, there is the ethics that that arises with privatising in government operators of prison of bring to the way relates to the conflicting ideals of the prisons are managed. Neither the people’s right to know, the public interest, Commissioner’s Office, Official Visitors, the and “commercial confidentiality” of the Ombudsman nor Chaplains have reported private prison contacts. In Victoria, the ethical breaches in the conduct of any of bulk of the private contact details and the State’s private prisons. Contrary to the related documents have been released to perception created by interest groups and the public, however, provisions dealing the media, a wide range of groups visit with security matters and specific prisons on a regular basis. In addition, commercial details have not been released. there is a constant movement of prisoners There is no answer to this conundrum that
13 RESOURCE MATERIAL SERIES No. 56 will be acceptable to everyone. Commercial difficult decisions to reduce debt and contractors when bidding for government minimise taxes. As a result, the role of the services do so in the full expectation that public sector has changed remarkably. certain details of their bid remain confidential. The community equally needs In Victoria, the public sector has been to be assured that the Government is at the cutting edge of reform over the last achieving value for money when entering six years. The Government has pursued a into contracts with the private sector. significant program aimed at increasing the productivity of the public sector. A There has been no complaint that the major part of the reform program has been “product” specified in the project briefs for to privatise significant aspects of Victoria’s private prisons was inadequate. government services, including a range of Indeed, there is more information in the services within the Justice portfolio. public arena about what prisoner services should be provided then has ever The privatisation of around 45% of the previously been the case. State’s adult prisoner capacity has been the focus of many debates. The advent of three The issue seems to be how to engender new private prison operators since 1996 public confidence that what should be done has required the development of more is, in fact, being done. This is not a new rigorous and transparent design and issue, as it has also existed in relation to operational standards for prisons, the traditional monopoly provision of introduced new and additional prison services. The introduction of private accountability mechanisms, and provided providers has, it seems, brought a an imperative for the public prison system heightened level of suspicion, at least in to become more efficient, responsive and some quarters. innovative.
Perhaps there is a middle path where While the transition to a new multi- an independent broker, such as the provider system has not been without its Auditor-General, can validate the overall problems, overall results to date would efficacy of private prison contracts, without indicate that the prison privatisation revealing the commercial details of the “social experiment” in Victoria is bringing contract. It is important that the substantial benefits in terms of service community has confidence in the quality, innovation, responsiveness and privatising of services while private reduced costs. contractors can confidently bid for government work on the understanding REFERENCES that competitors are not privy to their pricing details. The Economist, A Survey of the World Economy, “The Future of the State”, 20 IV. SUMMARY September 1997. Public administration has been the Osborne D & Gaebler T, 1992, subject of rapid and substantial change “Reinventing Government”. over the past decade. Governments have been confronted with the full force of Beazley R & De Silva D, 1998, globalisation. To remain competitive, “Outsourcing Democracy and Public Governments worldwide have taken Accountability”. Conference Paper,
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Biennial Conference of the International Bar Association, Canada.
Beazley R, 1998, “Government Outsourcing and the Preservation of Legal Remedies”, Conference Paper, Biennial Conference of the International Bar Association, Canada.
Davies J, 1998, “The Effect of Prison Privatisation on the Legal Position of Prisoners”, Australian Journal of Administrative Law, Vol. 6, November.
Hancock L, 1998, “Contractualism, Privatisation and Justice: Citizenship, the State and Managing Risk”, Australian Journal of Administrative Law, Vol. 57, No. 4, December.
Weller P, 1998, “Prisons, the Private Sector and the Market: Some Queensland Lessons”, Australian Journal of Administration, Vol. 57, No. 4, December.
Department of Justice, 1997, “The Victorian Adult Corrections System”, Brochure.
15 RESOURCE MATERIAL SERIES No. 56
INNOVATIONS IN CORRECTIONAL SERVICES AN EXCURSION THROUGH THE CHANGING PRISONS CULTURE OF VICTORIA
John Brian Griffin*
ABSTRACT “Pain is an enduring feature of the correctional enterprise. We must Victorian prisons have witnessed accept this hard reality, and quite significant changes over the past decade: explicitly attempt to promote growth from 1988 when there were a multitude of through adversity. This is a genuine inquiries into prisoner incidents, deaths correctional agenda. For men who and corruption, through the turbulent cope maturely with prison, I will beginnings of unit and individual prisoner argue, are men who have grown as management, to the creation of statewide human beings and been rehabilitated Drug, Violence and Sex Offender Strategies in the process.” and the contracting out of key services- culminating in the privitisation of 45% of (Johnson, 1996, p.97) the prisoner population and the closure of old prison stock. I. INTRODUCTION For CORE- the Public Correctional The tendency to use imprisonment as a Enterprise, Victoria’s public corrections punishment for crime has risen and fallen agency, the journey has been one of over the years, depending on the attitude significant organisational and cultural of the courts, and the public’s tolerance of change, and progression to a learning crime. Despite the differing views and organisation. This is clearly reflected in opinions people hold of imprisonment, it the way we manage prisoners. “Just gaols” will remain an important feature of have at their foundation, professional staff- sentencing in the foreseeable future. prisoner relationships and the Rightly or wrongly, in Australia, the empowerment of staff and prisoners. They community still sees imprisonment as the welcome scrutiny and challenges to old most effective way of protecting itself from practices. fears. Nevertheless, to the community, imprisonment is a double edge sword: on Marked changes in culture and prisoner the one side it offers protection, through management mean that prisoners have a deterrence and incapacitation; and on the greater opportunity to return to the other, it is expensive and damaging to the community with more skills. The challenge community, possibly causing an escalation ahead however is to achieve the rhetoric of in crime among many individuals who are rehabilitation and demonstrate to the eventually released. community that we have a system that ‘works’. Imprisonment emerged as a major form of punishment for crimes during the late * Chief Executive Officer, Core-the Public eighteenth and early nineteenth centuries, Correctional Enterprise, Department of Justice, coinciding with the period of Australia. “Enlightenment” in Europe and the
16 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS industrial revolution, replaced earlier few and isolated exceptions, the forms of punishment that took their toll rehabilitative efforts that have been upon physical pain and social reported so far have no appreciable effect embarrassment. on recidivism”.
The early aim of imprisonment was to Secondly, after a series of incidents and achieve the “moral salvation” of the enquiries (such as the Jenkinson Inquiry offender through the provision of harsh, in 1972) there was a general recognition deterrent and retributive justice. Prison that prisoners were citizens with legally programs, such as they were, facilitated enforceable rights. There was a time when this aim by providing hard labour and a prison conviction often meant “civil religious indoctrination. death”, a cruel form of punishment expressly acknowledging a prisoner’s By the mid 20th century, the aims of permanent removal from free society. It is reformation and rehabilitation had come now argued that prisoners should be to be given equal status to those of entitled to the same rights as a free citizen, deterrence and retribution. In the 1950s except where the nature of the confinement and 1960s the belief that the purpose of necessarily requires modification. imprisonment included the “treatment and training” of prisoners had become fully These two developments led to the established and accepted by the wider “justice model” of punishment and to the community. notion of the purpose of imprisonment as being “humane containment”. This view Under this “treatment model”, programs has been sustained since the 1980s and is in the State of Victoria multiplied and there still current today. There was during this was a general feeling that prisons could “justice model” era an increasing emphasis succeed in rehabilitating offenders. on physical security and a growing Psychiatric services were introduced in the concentration on prisoners’ rights, rather early 1950s. Parole was introduced in 1955 than their needs. The rhetoric of treatment in order to allow “rehabilitated” prisoners and training had had its day. Programs the benefit of early (conditional) release. were provided for prisoners to access only Training prisons were identified based on if they wished. Correctional agencies did the theory that a strong work ethic in the not perceive that they had any prison system would produce rehabilitated responsibility for encouraging prisoners to offenders. The classification system was undertake programs. The belief was that adopted by Victoria as a means of only properly motivated prisoners would differentiating prisoners according to their benefit from participation in prion different treatment needs. programs.
In the mid 1970s the feeling of optimism It is clear that prison programs in an began to change for two reasons. Firstly, historical sense through the “justice model” the publication of a report by Lipton, have focused on the “rehabilitation” of the Martinson and Wilkes (1975) which offender; ensuring the prisoner does not seriously questioned the efficacy of the reoffend after release. Even during the treatment models. After examining the humane containment era, prison programs evaluation reports of 231 correctional were conceived of as being related to the programs in the US, dating from 1945 to prisoner’s capacity to cease reoffending. 1967, the researchers concluded that “with They were viewed cynically by the majority
17 RESOURCE MATERIAL SERIES No. 56 of correctional practitioners for this very failing to provide adequate supervision reason. The evidence suggested that or the means for prisoners to be safe or programs could not succeed in to protect their personal belongings; rehabilitating offenders. Prison programs • promote sub-cultural norms by failing were offered only if prisoners sought them to provide adequate supervision or the out and expressed a desire to participate. means for prisoners to be safe or to The rhetoric of the time identified it as the protect their personal belongings; prisoner’s responsibility to rehabilitate • promote continued poverty by failing to themselves. provide prosocial leadership and by allowing gangs to be maintained in Another purpose of prison programs is prisons; only just now emerging. Rather than • reinforce patriarchal social norms by focussing solely on the goal of rehabilitation having a majority of male staff and and therefore “outwards” and into the prisoners with no active consideration future, prison programs are increasingly of the needs of female staff or prisoners; focussing “inwards” and upon the present and and upon the goal of providing positive and • promote undesirable outcomes of effective custodial management. This is deinstitutionalisation by failing to what is termed as “positive custody”. involve relevant agencies in the supervision of the psychiatrically ill or Building upon the humane containment intellectually disabled. era, the “positive custody” model recognises that imprisonment can be “criminogenic” In order to achieve positive custody, or can increase the likelihood of future prisons should emulate within their walls crime and can promote immature coping the society that is not “criminogenic”. To behaviours by prisoners. Prison programs do so, prisons must adopt community as part of the “positive custody” can standards as a base but at the same time enhance the safe and secure management be less alienating, more empowering, more of prisons and promote the development of constructive and more egalitarian. mature coping skills which are equally relevant within and on release from prison. Managing people within prisons is a complex affair. Complex, because Achieving Positive Custody-Prison invariably it involves the need to balance systems can intensify the social conditions a number of conflicting needs and aims. that lead to offending behaviour. For Stakeholder analysis has shown my instance prisons have the potential to: organisation, CORE-the Public • Alienate prisoners by failing to give Correctional Enterprise, that these needs them any say in the management of and aims are described as: their lives and by removing them from their normal environment; “custody, safety, crime prevention, • disempower prisoners by failing to deterrence, reform, containment, provide adequate and accessible control, incapacitation, punishment, information about the system and the retribution, restraint, rehabilitation, way that it works; constructive activity, justness, therapy • bore prisoners by failing to provide and training”. activities that effectively occupy their time; Johnson (1996) argues strongly that a • provide opportunities for crime by traditional hierarchal system of prison
18 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS management “conditions” those associated to take you on a brief journey through the with it, that includes both staff and significant events in Victorian prisons over prisoners, to cope “immaturely”. He goes the past 10 years that have shaped the on to say that modern prison systems management of prisons to go beyond “just should be re-structured in such a way as gaols”. I believe we now have to talk about to encourage what he calls “mature coping”. the challenges ahead and deliver on rehabilitation and harm minimisation Certainly to become more effective, strategies. imprisonment must continue to offer the protection of incapacitation and deterrence Probably the blackest day in Victoria’s but at the same time it must lessen the prison history was the death of five harmful effects of the experience. Biles prisoners in October 1987 in a fire at Jika (1992) argues that the totality of the Jika, a high security, management unit in experience of the prisoner must be Pentridge Prison. On the heels of this considered when developing a regime to tragedy were numerous internal and manage the offender whilst challenging external inquiries into incidents, deaths, (and changing) antisocial or criminal drugs, accountability, corruption and mal- behaviour. I strongly believe that good administration within the then Office of management and leadership can only Corrections. It was a demanding time for achieve this. me to take on the responsibilities as the then Director of Prisons, because it was at In terms of management, this means this time that changes to the way we that prison staff must provide prisoners manage prisoners in Victoria really began with the opportunity to develop or maintain in earnest. We are entering the era of skills that will enhance their chances of humane containment going beyond the leading a law-abiding lifestyle after their concept of “just gaols”. In the early 1990s release. Skills that lead the individual to CORE (the then Office of Corrections) accept greater responsibility, self reliance developed a framework to encompass all and self discipline. In terms of leadership aspects of the prison environment, it means that prison staff- all prison staff - including regimes, programs and prison must serve as strong examples of honesty, “culture” and worked to establish, develop fairness, tolerance, patience and and exploit the synergistic links between understanding. In essence, good each in order to maximise the potential for management and leadership are the successful rehabilitation of Victorian essential features of prison work and are prisoners. our prime collective responsibility. To fail that responsibility is to fail ourselves and What is “rehabilitation”? Complete loss to fail to provide the community with of freedom is the maximum punishment protection beyond the prisoner’s term of our law permits. The length of time that imprisonment and prisons remain “just freedom is lost depends on many factors; gaols”. the crime, the circumstances, the intention of the offender, prior history, displays of How does CORE- the Public Correctional remorse and the plea. The court will also Enterprise respond to this challenge? The weigh the need for: retribution; specific greatest single endeavour of public deterrence; general deterrence; corrections in Victoria over the past decade rehabilitation and parsimony. In balancing has been to change the culture of our these considerations, no two cases are prisons and CORE as a whole. I would like exactly the same.
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Whilst rehabilitation often implies the promoting humane and effective restoration of a previous level of management strategies; the successful functioning, for example learning to walk adoption of unit management, and again after a physical injury, this is not a promoting the input of the programs team useful definition when talking about the into management approaches is crucial to “rehabilitation” of offenders. Their level achieving the goal of “positive custody”. of functioning before entering the prison system may not have been conducive to the The potential contribution of prison ultimate goal of prosocial and lawful programs to achieving these objectives can behaviour. For example, a prisoner may be summarised under the following have had poor living and vocational skills headings: prior to incarceration. Thus rehabilitation in the first instance must refer to equipping (i) programs which create an prisoners for making a living or integrating environment conductive to into the community in a prosocial and rehabilitation: lawful manner, and will in many instances • programs which provide basic involve a gradual process of acquiring new standards of care; skills and challenging offence related • programs which seek to create a behaviours. rehabilitative environment; (ii)programs which prepare prisoners to Successful rehabilitation is generally re-enter society: taken to mean that a prisoner will not re- • programs which provide prisoners offend after release. This may not always with integration skills; be a realistic goal given that most offenders • programs which seek to reduce will need to make substantial attitudinal offending behaviour. personality and behavioural changes and develop educational, vocational, social and Programs which provide basic standards living skills in order to increase the of care and which seek to create a likelihood that they can successfully rehabilitative environment should receive maintain themselves in the community. It the highest priority. Both contribute to the may therefore be more useful to measure goal of developing a prosocial prison the effectiveness of rehabilitation in terms environment, which is conductive to change of altered offending patterns, such as and to the development of mature coping reduced seriousness of offending, or skills. Programs which prepare prisoners increased time periods of re-offending. to re-enter society, including those directed towards reducing specific offending A. The Purpose of Prison Programs behaviour, tend to be more successful A rehabilitative environment within a rehabilitative environment. encompasses all aspects of the prison environment, including regimes, programs These program categories apply equally and prison “culture”, and synergistic links to male and female prisoners, as well as to between these different facets must be special groups within the prison population established and exploited in order to (such as Aboriginal prisoners and young maximise the potential for successful adults). The different needs of groups of rehabilitation. Thus, while programs can prisoners will be relevant to the design of make a strong contribution to the programs rather than modifying their achievement of a rehabilitative overall purpose. environment, a broader strategy including:
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II. PROGRAMS WHICH CREATE AN must provide a pro-social environment ENVIRONMENT CONDUCTIVE TO which: REHABILITATION • is conducive to change; Rehabilitation and education of • challenges rather than supports or offenders is a priority. However, programs accepts offending behaviour; targeted towards reducing offending • provides pro-social modelling; behaviour are best provided in an • minimises harm; environment that actively encourages • promotes self-esteem; prisoners to use their time constructively, • maximises prisoners’ self-control and and provides basic standards of care. sense of control over their environment and their future; A. Programs Which Provide Basic • encourages prisoners to take Standards of Care responsibility for their actions; The first and most important duty of • promotes mature coping skills. prison administrators must be to provide basic standards of care for prisoners, and Programs which seek to contribute to a such programs must receive the highest rehabilitative environment can reduce the priority. opportunity for crime to occur within a prison, and can provide a forum in which Programs, which fit into this category, staff can provide pro-social leadership. include: Such programs seek to occupy the time of prisoners and so reduce the boredom that • Primary medical and psychiatric care may lead to management problems within (addressing the physical and mental the prison. These programs may also problems of prisoners). provide the potential for the acquisition of • Crisis intervention (addressing the basic skills and interests that may assist immediate needs of distressed or prisoners to undertake more constructive suicidal prisoners). activities and leisure pursuits on their • Classification programs (achieving release from prison. safety and security for all prisoners by differentiating between groups of Programs which assist to create a prisoners based on their risk and rehabilitative environment include: needs). • Legal aid (providing prisoners with • Reception and orientation programs- adequate access to legal reception into custody (providing representation). prisoners with information about the prison system and allowing them to B. Programs Which Seek to Create a learn how to deal positively with the Rehabilitative Environment here and now of their imprisonment). Creating a positive, rehabilitative • Reception and orientation programs- environment within the prison system is transfer between prisons (providing essential if prisons are to cease being prisoners with information about the criminogenic in nature, and if the prison prison system, and options for conditions are to be conducive to program participation). rehabilitation. Prisons should not intensify • Drug and infectious disease the social conditions that have lead to education programs (providing criminal behaviour in the first place, but prisoners with information about
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drug and alcohol use and infectious provision of rewarding and useful diseases). work). • Recreation (reducing boredom and • Education and Training (promoting promoting productive use of leisure skills acquisition relevant to the time by providing interesting and labour market by providing pleasurable sporting and hobby accredited training and basic activities). education for prisoners). • Contact visits (promoting the • Release preparation (providing a maintenance of essential links with range of life skills programs that family and friends). assist the prisoner’s return to the • Spirituality (allowing prisoners to community). receive the support of their faith). • Custodial Community Permit • General welfare and counselling Program (allowing long-term (addressing the welfare needs and prisoners the opportunity to problems of prisoners). gradually re-establish family ties and readjust to life in the community III. PROGRAMS WHICH PREPARE prior to their release). PRISONERS TO RE-ENTER • Community Integration Program SOCIETY (providing prisoners due for release with practical and essential Rehabilitation, education and reform are information to assist their an integral part of the prison system, and reintegration into the community). preparing prisoners for constructive and • Integration Programs (increasing non-violent participation in community life prisoners’ practical living skills upon their release must be a priority. The necessary to re-enter the prison system must provide opportunities community). for prisoners to participate in programs, • Personal development programs which reduce offending behaviours and (increasing prisoners’ personal and encourage citizenship, and must actively social skills through programs support and encourage such participation. including adventure-based challenge Programs which prepare prisoners to re- programs, communication skills, enter society include programs which social skills, etc). provide prisoners with basic skills to facilitate integration, and programs B. Programs Which Seek to Reduce targeted at offending behaviour. Offending Behaviour Programs which seek to reduce offending A. Programs Which Provide behaviour will either be related directly to Prisoners with Integration Skills offence types or to underlying problems Programs targeted at assisting within the individual that have caused the prisoners’ reintegration into the offending behaviour. Treatment programs community provide the potential for the and programs targeted at offence-related acquisition of skills that may assist behaviour include; prisoners to pursue education, find employment or use their time in a more • Drug and alcohol treatment constructive manner on their release from programs. prison. Such programs may include; • Sex offender treatment or management programs. • Prison industries (promoting work • Violent offender Treatment skills and habits through the
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Programs. • Drink-drive programs. Unit management provided the framework for achieving a positive In 1988 F Division, previously a prisoner custodial environment. In a unit managed accommodation unit at Pentridge prison in prison, prisoners have the opportunity to Melbourne, was developed into a state-wide have a say in the management and reception and assessment program centre organisation of their lives through the for all newly received male prisoners development of individual management entering the Victorian prison system. For plans in tandem with their supervising the first time, remandees and sentenced prison officer and through unit meetings. prisoners were given a comprehensive They are therefore potentially less induction into the prison system that alienated by the justice system. included medical assessments, screening for risk and providing information about The opportunity to have input into the the prison system and options for program development of individual management participation. In the five years prior to the plans and the capacity for prisoners to get creation of the reception and assessment to know their supervising prison officers program, there had been twenty-six also provides a means for prisoners to have suicides in Victorian prisons. In the five access to information about the way a years following the introduction of this prison system works. program, six prisoners committed suicide. Under unit management, prisoners are In 1989 and 1990 three new 250 bed managed in small groups by staff who know prisons were commissioned in Victoria to them. They receive closer scrutiny and replace old facilities. They were the surveillance which leads to increased Melbourne Remand Centre, Barwon and security, feelings of safety, less opportunity Loddon, each with single self-contained cell for crime and lessened potential for gang accommodation. CORE, the Public formation and maintenance. Barriers Correctional Enterprise, manages each of between staff and prisoners are broken these prisons. Moves to change the down in unit managed prisons so that staff infrastructure of our other facilities also have the capacity to provide prosocial began and our large, old divisions where leadership to prisoners. we previously ‘warehoused’ prisoners were re-furbished into smaller, more The Individual Management Plan (IMP) manageable and livable units. Sanitation was also created as part of Unit was provided to all prisons, cells re- Management. This is a file in which all furbished and large dormitories were information pertaining to the prisoner’s replaced by smaller rooms with a sentence, management and participation maximum of four prisoners. in industry, education and programs was detailed. Prison officers are trained to This was also the time that unit broaden their traditional roles to include management was borne in Victoria, prisoner assessment and orientation, wherein prisoners were managed in individual management planning, general smaller groups, with high levels of welfare and counseling, and recreational interaction between staff and prisoners and planning. the requirement for prisoners to take greater accountability for their lives in All of these initiatives helped prison (Griffin, 1995). tremendously in our endeavour to work
23 RESOURCE MATERIAL SERIES No. 56 towards a safe, secure, humane and just is much improved and they resort to unsafe environment for both prisoners and staff. injecting practices. Prisoners began to feel more empowered. They could make decisions affecting their The way CORE has re-developed own lives. They could choose when to Bendigo prison in country Victoria is shower, they had a greater choice of exemplary as far as progressive prisoner canteen items, in many locations they could management is concerned. Bendigo prison cook their own meals, they could apply for accommodates up to 80 medium security positions in industry, they were educated male prisoners for whom drugs and related through the external educational TAFE harmful behaviours have contributed to campuses at each location, rather than by their incarceration. The prison offers a primary school teachers, they could range of treatment options to substance commence and complete programs abusers within a “community prison” regardless of which prison they were environment. CORE has contracted with housed in, and they had a choice of a range a provider of specialist offender of programs and activities directed at psychological services and a well-respected integration and rehabilitation. They began community drug and alcohol agency. to talk to officers about what they wanted Prisoners are assessed and matched to and expected from the prison system to programs of varying intensity and ensure that the Individual Management duration. An essential element of the Plan recorded their working toward their success of the program is the positive release. environment; created by prisoners and prison and treatment staff that reinforces The use of Individual Management personal accountability, mutual respect Plans (IMPS) meant prisoners were and a commitment to model community required to be more accountable for their values. actions and were required to take greater personal responsibility than they had However these approaches only went under previous regimes. part way to dealing with the problem. Breaking open the ‘closed rank mentality’ In the mid 1990s, CORE developed and challenging the way prison officers Strategies relating to Drugs, Violence and related to prisoners brought about the real Sex Offenders, which provided clear difference to prisoner management in direction for the management of such Victoria. In the words of Vivien Stern: offenders within the prison and methods of addressing their offending behaviour. “The prison officer is at the centre of For example, in regard to drugs, from the the system. And the prison officer’s outset the results of the Drug Strategy job is crucial to a humane and were promising. Results indicated civilised system. This is where reform decreased drug use and a reduction in the has to start” number of violent incidents and (Stern, 1975, p.94) standovers. However one of the unfortunate paradoxes of this detection, In 1991, in a move unprecedented in deterrence and treatment paradigm is that Victorian prison history, six officers were those who elect to continue to use drugs in charged with assault for the violence that prison tend to do so now more unsafely was perpetrated on a prisoner who was because our ability to find injecting being transferred between divisions. To be equipment and associated paraphernalia brutalised by the relationships one has in
24 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS prison is a most damaging experience for antagonistically with the unions and have persons whose histories are typically been successful in pushing through many marked by pain and abuse, for whom this changes as a result. pain and abuse is a factor in their offending behaviour and who will one day be released In a move that in hindsight advanced from prison into the community. the public corrections reform agenda by creating a sense of urgency, the Victorian In 1996, CORE implemented one of the Government called for expressions of most important elements of its Strategy for interest from the private sector to build, Violence Prevention, namely conflict own and operate two X 600 bed facilities resolution training of all prison staff. This for males and one X 125 bed female facility. training, rolled out by trained prison These prisons were to replace existing officers, further empowered staff by public sector prisons and lead to the offering them skills to manage themselves decommissioning of five old Victorian era and their relationships with prisoners. An public prisons and the retrenchment of just interesting outcome of the training was over 600 staff. CORE then had the that staff feedback also told us that the opportunity to assist staff moves who either training impacted on their home lives in a did not have the skill mix or the wish to positive way. enter into a new era in corrections.
Lateral entry across all levels in Through these changes CORE-the Corrections and new paradigms of Public Correctional Enterprise has correctional management challenged the accepted the challenge of a competitive decade-old mentality that the only way one business environment and is developing could be appointed as a prison governor into a learning organisation. We have was by coming up through the ranks. We adopted the Business Excellence now recognise that to manage a prison, one framework of the Australian Quality needs to be a good general manager, a Council; we’re surveying offenders, leader and an enabler, not necessarily a prisoners, staff, and other stakeholders on good custodian. CORE has invested a great their expectations of our performance. We deal of resources in ensuring our senior have developed our own identity and managers receive diverse leadership and clearly articulated our mission, vision, management training. We have also values and behaviours to our staff. invested heavily in succession planning. We are moving from being “just gaols” One example of CORE’s commitment to in the sense of “simply” or “only” prisons, staff training is its strong support and to “just gaols” or “fair” prisons and beyond leadership role in developing National that of a correctional organisation that Competency Standards for all Officers strives to offer a range of products working in Corrections. Under unit (placement options, services and programs management the base grade officer has for prisoners) in a competitive environment been empowered to make decisions in a in an attempt to match the individual significant number of areas; a marked needs of the prisoner. departure from the traditional hierarchical structure where even the most mundane I believe we have come a long way, and of decisions required the manager’s action. from structured feedback mechanisms (Griffin, 1995). To enable these changes to know that the majority of prisoners occur, we attempted to work differently, less perceive the prison system as fair and
25 RESOURCE MATERIAL SERIES No. 56 generally safe. It no longer offers the development influenced by the outcomes of excesses it did previously. In the event of controlled evaluation studies. We must disciplinary action and sanctions being continue to promote professional staff- necessary, they are anticipated and do not prisoner interactions - wherein prison staff constitute a flagrant abuse of power and serve as strong examples of honesty, position. In a system that is fair and fairness, tolerance, patience and without excesses, and where prisoners can understanding (Griffin, 1995). From this question why things are done a certain way will develop a prison experience that is - where there is fundamentally a sense of empowering for both prisoners and prison justice, then prisoners are less damaged by staff, rather than defeating. their experience and more easy to manage. Programs in the late 1990’s are integral But the bar needs to be set even higher. to the purposes of imprisonment. Where All prisons have the capacity to challenge once the purpose of imprisonment was the immature and destructive ways nothing more than humane containment prisoners deal with their imprisonment (and the priority task related to security experience and the other elements of their and custody), the purpose of imprisonment lives. Robert Johnson’s concept of “mature now includes a requirement that there be coping” has application here. It means: active attempts to rehabilitate prisoners, and it is acknowledged that this can only • dealing with life’s problems like a occur within an environment that is responsive and responsible human conducive to such rehabilitation. This must being; be achieved through a combining of unit • seeking autonomy without violating management and effective prison programs the rights of others (the premise here and prison security. In the past, prison being that prisoners with a sense of security has been used as an excuse for not control over their lives adjust better providing effective prison programs. to prison and to life on the outside); Prison security will be maintained in such • security without resort to deception a system through closer surveillance, staff or violence and relatedness to others personal knowledge of prisoners and as the fullest expression of human through effective occupation of prisoners’ identity (wherein trust replaces time. Security is part of the process of power as a mode of problem solving). creating a rehabilitative environment, not excluded from it. This new humane Mature problem solving builds self- containment model, will be achieved esteem, which in turn produces confidence through a combining of the many facets of and resilience in the individual and often the prison system such as programs, makes failure manageable. Our challenge management approach and security in as providers of correctional services is to order to achieve a meaningful environment offer prisoners an environment in which for prisoners which promotes pro-social this growth can occur, wherein mature behaviour and prepares prisoners to coping is modelled by our staff. effectively reintegrate into society.
We must continue to offer high quality And, remembering the words of Johnson programs to assist prisoners’ maturation that I started with, that pain is the harsh and skill development, but also start asking reality of imprisonment, we must make the hard questions about “what works” and concerted efforts to establish a greater being prepared to have our program range of diversion programs that offer
26 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS reparative value to the community whilst Catching and Keeping, p.117-129, Centre allowing the offender to maintain family for Police and Justice Studies, Monash and social supports and access to University. community treatment resources. King D., Goss E., Haas I. (1993), The The notion that staff and inmates can Purpose of Programs in Prisons: Working share a constructive agenda- that they Towards Rehabilitation, Correctional might work together in service of a Services Division, Department of Justice, prison community that promotes Victoria, Australia. mature coping and responsible citizenship- looms as a distinct Johnson R. (1996), Hard time: possibility for perhaps the first time understanding and reforming the prison, in prison history Wadsworth, USA, second edition.
Johnson, 1996, p.89 Latessa, Edward & Allen, Harry (1997), Corrections in the Community, Cincinnati, Prisoners must cope maturely with USA. the demands of prison life; if they do not, the prison experience will simply Lipton D., Martinson R., and Wilks add to their catalogue of failure and (1975), The Effectiveness of Correctional defeat. Mature coping, in fact, does Treatment, New York, NY Praeger, USA. more than prevent one’s prison life from becoming yet another series of Report of the Board of Inquiry into personal setbacks. It is at the core of Allegations of Brutality and Ill-Treatment what we mean by correction or of Prisoners at HM Prison Pentridge (The rehabilitation, and thus creates the Jenkinson Inquiry), Parliamentary Papers possibility of a more constructive life (Vic.), Australia. after release from prison Stern V. (1987), Bricks of Shame: Johnson, 1996, p.98 Britain’s Prisons, Penguin, England.
REFERENCES Biles D., Offenders and their Treatment: An Australian Perspective, 3rd Conference of Commonwealth Correctional Administrators, Harare 9-15 May, 1992. Australian Institute of Criminology, Canberra.
CORE (Correctional Services Division), Department of Justice, Victoria, Australia, Prison Programs-Achieving Positive Custody, Policy Document 1992.
Griffin J. (1995), Modern Prison Management. In Ellem, B.(Ed.), Beyond
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PARTICIPATION OF THE PUBLIC AND VICTIMS IN CRIMINAL JUSTICE ADMINISTRATION
John Brian Griffin*
I. COMMUNITY SAFETY AND In order to place Australia’s crime CRIME PREVENTION - prevention and community safety EVERYONE’S RESPONSIBILITY approaches into context, it is useful to examine the broader international Developing and maintaining a safe environment. community is vital to improving the living conditions of all citizens. It makes our II. UNITED KINGDOM communities a better place in which to live, raise a family, to invest and do business. A. Crime and Disorder Act: Placing Achieving a safe community is more than Crime Prevention Within a solving and reducing crime, it is reducing Statutory Framework the public’s fear of crime. It is about In 1998 the United Kingdom introduced encouraging all sections of the community the Crime and Disorder Act. This Act that they can participate in a diverse range places a legal obligation upon the police and of business and recreational activities at local authorities (eg, housing, health, and all times of the day and night, and be safe. educational authorities), to work together to develop and implement a strategy for In the past, crime prevention strategies, reducing crime and disorder in their throughout the world, have tended to be: communities.
• Narrowly focused The overall aim of the Crime and • Fragmented Disorder Act is to empower local • Program driven communities to address crime problems. • Funding dependent; and In formulating and implementing a • Short term strategy, police and local authorities have to: Economically and socially, new crime prevention strategies are required which: (i) Conduct and publish an audit of local crime and disorder problems: • Are innovative (ii) Consult locally in conducting a crime • Are outcome orientated audit, seeking the views of • Provide a more coordinated community groups; government and community (iii)Set and publish objectives and approach targets of their strategy arising from • Build on local and international the auditing process (short and long- experiences term performance targets have to be • Involve the wider community and formulated). private sector (iv) Identify and stipulate the various responsibilities of the agencies that * Chief Executive Officer, Core-the Public will be involved in implementing the Correctional Enterprise, Department of Justice, strategy. Australia. (v) Monitor outcomes and outputs.
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The Crime and Disorder Act aims to commercial settings. Hence ensure that a partnership, multi-agency situational approaches like physical approach is adopted in addressing local security measures have dominated. crime and disorder problems. The Act does not prescribe what the agenda for local • A number of successful partnerships should be, nor the structures “demonstration projects” have shown that will be needed to deliver that agenda. that while situational measures may Rather these have to be tailored to local work independently, a comprehensive community contexts. approach involving socially orientated initiatives (eg, educational B. Safer Cities Program: The Need and publicity campaigns, support for to Combine Situational and “at risk” families and young people) Social Approaches ensures that all possible predictors Also in the United Kingdom is the Safer of crime and disorder are addressed. Cities program, which aims to reduce crime and fear of crime. It forms part of the C. Repeat Victimisation: Focusing Government’s Regeneration Program, that Crime Prevention where it is aims to address the social, physical and Most Needed economic problems of disadvantaged urban The United Kingdom Home Office areas - particularly council housing estates. Research and the Safer Cities program illustrated there are some places and The program provides funding for people that are prone to multiple criminal individual projects, with the UK Home victimisations, by the same or different Office and Audit Commission responsible crime over time. This is termed ‘repeat for monitoring and evaluating Safer Cities. victimisation’. The program takes a partnership or multi- agency approach. Elements include: Research shows that places and people, who are revictimised, account for a large • Voluntary bodies and the private percentage of criminal victimisations. sector have been important in the Repeat victimisation has become a key design and delivery of Safer Cities focus of UK crime prevention initiatives. initiatives. Programs to prevent repeat victimisation have addressed residential and commercial • Projects have tackled a range of crime burglary, car theft, domestic violence and problems (eg, domestic and racial attacks. commercial burglary, domestic violence, vehicle crime, shop theft, Reducing repeat victimisation is crime against small business) and increasingly used by UK police as a key disorder issues (eg, graffiti and performance indicator. Experts argue that vandalism). focusing on repeat victimisation as a crime prevention strategy ensures: • Decreased fear of crime has been regarded as a consequence of (i) Crime prevention is focused upon successfully reducing crime per se. those people and places in highest need of intervention. • The dominant focus of Safer Cities (ii) Scarce crime prevention resources has been upon the reduction of are more strategically focused. burglary, both in domestic and
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D. Social Exclusion: The (i) “Get tough” retributive measures, Interdependency of Crime, Social exemplified by “three strikes” and Economic Issues legislation, boot camps, and zero In 1998, the Blair government made a tolerance policing. commitment to address the problem of (ii) Measures concerned with early social exclusion by establishing the Social childhood development, opportunities Exclusion Unit. The United Kingdom for young people, improving government regards social exclusion as a residential neighbourhoods and combination of linked problems that proactive problem orientated individuals or areas can suffer. These policing. include unemployment, poor skills, low incomes, poor housing, high crime B. Developmental Prevention: environments, bad health and family Addressing Risk and Protective breakdown. Factors A key concern of US initiatives has been A variety of strategies have emerged with reducing risk factors associated with under the banner of addressing social juvenile delinquency (eg, availability of exclusion. These include work and training drugs and firearms, economic deprivation, programs, reform to welfare benefits and family dysfunction and conflict, poor school entitlements, family tax credits, income performance, early problem behaviour, and support, improving numeracy and literacy gang membership) and strengthening skills of the young, capital support for protective factors (eg, family attachment housing improvement, a national drugs and stability, consistent parenting, strategy and local crime reduction economic opportunity, high academic partnerships, economic regeneration of achievement and pro-social role models). poor neighbourhoods, and initiatives to address physical and mental health. The US Congress has recently legislated for the development and funding of Due to the multi-faceted and delinquency prevention programs (eg, interdependent nature of the problem, one juvenile mentoring). A “Comunities That of the central roles of the Social Exclusion Cares” model has guided US initiatives Unit is to promote cooperation between that address risk and protective factors at government departments, local authorities the local level. This model involves: and community agencies, and to improve mechanisms to integrate their work in (i) Mobilisation of key authorities (eg, addressing social exclusion. educational officials, political and business leaders and police) to agree III. UNITED STATES OF AMERICA to a program and pledge their commitment. A. The US Crime Control Model: A (ii) Establishment of a Community Dual Track System Board consisting of various agencies The US approach to crime control is (eg, schools, police, health, probation, working, because crime rates overall have parents, youth groups, business, been decreasing. Despite this, its juvenile churches and the media), who crime rate has not followed a similar trend. conduct a community assessment, with technical assistance, to identify America adopts two contrasting the main local risk factors that need approaches - a dual track system: to be addressed.
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(iii) A number of high priority risk factors D. Problem Orientated Policing: arising from the community Improving Police Crime assessment are identified (ie, factors Prevention Efforts that are typically above the national The New York approach of zero tolerance average). policing is not indicative of reforms to police (iv) Empirical evidence about effective practices in the rest of the US. The most methods that tackle these priority significant national reform has been the risk factors is collected. adoption of Problem Orientated Policing (v) The Community Board develops a (POP). preventative plan based upon addressing identified risk and The idea of Problem Orientated Policing protective factors, and stipulating (POP) is that police should be solving the how the plan will be implemented. underlying problems that come to their attention in the communities they serve, C. Place Specific Crime Prevention: rather than simply reacting to them. Neighbourhood Environments Problem Orientated Policing (POP) and Crime involves police attempting to understand Place specific crime prevention focuses local crime patterns, and address their upon changing the physical environment proximate causes through pro-active and improving property management. measures. This approach addresses the connection between the physical features of One method by which crime patterns neighbourhoods (eg, signs of crime like have been understood is through crime vandalism or poorly designed housing), mapping and analysis, identifying where crime and fear of crime. It entails five crime and disorder is clustered in time and approaches: space. Addressing crime “hot spots” (ie, locations that continue to demand police (i) Improved housing design to address attention) has shown to maximise the effect security features. of a problem orientated approach. (ii) Changing land use and circulation patterns to reduce exposure to Problem Orientated Policing (POP) has potential crime targets. been used to address illicit drug markets, (iii) Develop “territoriality” so residents gang and handgun violence. Establishing become more vigilant against crime partnerships with community groups and and disorder. local agencies is a key focus of Problem (iv) Address physical deterioration to Orientated Policing (POP). In order for reduce signs of crime and improve Problem Orientated Policing (POP) to residential perceptions. work, US police departments have (v) Improve formal and informal devolved increasing authority to beat management practices within officers, empowering them with the neighbourhoods to ensure changes autonomy to address local crime problems. are sustained over the long term. E. Civil Remedies: The Legal This approach has been mainly Enforcement of Crime implemented in highly disadvantaged and Prevention deprived US neighbourhoods. Civil remedies involve legal action to prevent behaviours or situations from becoming a problem, or to reduce or
31 RESOURCE MATERIAL SERIES No. 56 eliminate problems that already exist. Program: aims to increase awareness of, and provide information on, Community groups and police in the US, community crime prevention. utilise civil remedies to address local crime (iii) Partnerships with the Private Sector: and disorder problems. Civil remedy facilitates and encourages the private approaches to crime prevention include sector to support and implement such measures as enforced clean-up and crime prevention activities. up-keep of deteriorated housing, eviction of problem tenants, youth curfews, Programs have involved the following injunctions against gangs and the carrying measures: of weapons, enforcement of health and safety violations, and restrictions on the (i) Providing stress management, selling of alcohol, cigarettes or spray paint parenting skills, and support to to youths. young parents. (ii) Supporting “at risk” youth eg, those IV. CANADA of single parents, or children living in poverty. A. The Canadian National Strategy: (iii) Improving the literacy skills of Strengthening Community disadvantaged youth. Institutions (iv) Addressing child maltreatment. The Canadian National Strategy (v) Providing knowledge about aspects of comprises of two phases. the law to aboriginal youth. (vi) Assisting in the integration of (i) Phase One: the establishment of the refugees and migrants into Canadian Canadian Crime Prevention Council, neighbourhoods. whose role is to provide the federal framework for national crime B. Problem Orientated Analysis: A prevention initiatives. Systematic Approach to (ii) Phase Two: launched in 1998, Preventing Crime provides a $32 million investment to The Canadian strategy stipulates develop community-based responses communities should utilise a problem- to crime. orientated approach in addressing crime and safety problems. This involves the The Canadian National Strategy adopts following steps: a social developmental framework, addressing crime and safety issues 1. Identifying and analysing local involving children, youth, women, community problems using aboriginal people, and families. Canada’s appropriate data sources. national strategy incorporates the 2. Identifying from this auditing process following key initiatives: key priority problems. 3. Investigating these key priority (i) Safer Communities Initiative: assists problems in greater detail (eg, local communities in developing and identifying victim or offender sustaining programs, funds characteristics, patterns and trends, demonstration projects, and provides methods of offending, location of the support to non-government and problem, involvement of alcohol or voluntary organisations. drugs). (ii) Promotion and Public Education 4. Develop an action plan and
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determine the level of intervention B. Crime Prevention Initiatives (eg, at the neighbourhood or across the Commonwealth individual level). Government 5. Identify those who need to be The Government has recognised a whole involved in planning and government approach to preventing crime implementation. is needed. An indication of some of the 6. Identify avenues for resources, initiatives and programs is set out below. particularly in poor areas or communities. C. Attorney- General’s Department 7. Identify and select appropriate (i) Firearms Control-coordinating the strategies. national implementation of the 8. Set goals and objectives to be met. firearms control and firearms buy- 9. Prepare an action plan stipulating back program. the duties and tasks of agencies and (ii) Fraud Control - work is currently groups to be involved. being undertaken to revise the 10. Design an implementation timetable. Government’s Fraud Control Policy, 11. Obtain community and agency which will form the basis of fraud support for the action plan. management programs across all 12. Implement and monitor the strategy Commonwealth agencies and to ensure it is sustained over time. organisations. 13. Evaluate the impact of the (iii) National Crime Authority - has interventions by referring to the data received additional money for sources used in step one to three. initiatives which target complex money laundering and tax evasion V. AUSTRALIA schemes. (iv) National Register of Convicted A. The National Anti-Crime Strategy Paedophiles - Police Ministers from The National Anti-Crime Strategy was all Australian States and Territories established by the Premiers and Chief have agreed to the establishment of Ministers from all Australian States and a national register which can be Territories in November, 1994. The used by education and community Strategy recognised the value of cross- service agencies to carry out checks jurisdictional cooperation and a multi- for prospective employees. disciplinary approach to of crime (v) Aboriginal Deaths in Custody - in prevention. conjunction with the Aboriginal and Torres Strait Islander Commission Crime prevention in Australia is (ATSIC), the Attorney General’s primarily the responsibility of the six Department has organised a States and two Territories. On 28 June Ministerial summit. 1995, the Commonwealth, State and (vi) Classification Guidelines for Films Territory Ministers endorsed a National and Video Tapes - were reviewed Anti-Crime Strategy paper containing the and amended to restrict films agreed principles of crime prevention and containing excessive high level community safety within jurisdictions, violence from public release or sale principles and a structure for cooperation in Australia. between jurisdictions. (vii) Family Violence and Intervention Projects - being conducted by Legal Aid and Family Services, examining
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models for effective intervention in Statistics - providing confirmation family domestic violence situations. that violence against women is still (viii)M arriage and Relationship a significant crime and social issue. Education Programs - to develop (iii) National Ministerial Summit on best practice approaches and early Domestic Violence. identification of risks and prevention of violence in F. Department of Health and Family relationships involving young Services women. (i) Strengthening Families Strategy - (ix) Domestic Violence Database - incorporating a range of family agreement has been obtained support programs including between States and Territories to parenting education, child abuse develop a database to better prevention and emergency relief facilitate the sharing of data from programs. family law, firearms registry and (ii) “Good Beginnings” National domestic violence protection order Parenting Project - home visiting sources. projects focusing on child abuse (x) Model of Domestic Violence prevention and parenting Legislation - the Standing education. Committee of Attorney-Generals (iii) National Youth Suicide Prevention has agreed to a model of domestic Strategy - supporting research, violence legislation to ensure a education and training for uniform approach across all States professionals, and increased access and Territories. to counselling and telephone (xi) Changes to the Family Law Act - in support services. 1996, to ensure family violence is (iv) Youth Homelessness Pilot Program taken into account by the Court - piloting a program to test when considering arrangements for innovative early intervention children following parental strategies to assist young people at separation. risk of homelessness to re-engage in family, work, education and training D. Department of Communication and life in the community. and the Arts (v) Supported Accommodation and (i) Report of the Committee of Assistance Program - providing Ministers on the Portrayal of better monitoring of transitional Violence in the Electronic Media. supported accommodation and (ii) Government response to the report associated services provided to on the Select Committee on youth, homeless persons, domestic Community Standards Relevant to violence victims and children. the Supply of Services Utilising (vi) Rural and Remote Domestic Electronic Technologies - Portrayal Violence Initiative - trialing a of Violence. number of different information and referral models, including services E. Office of the Status of Women for Aboriginal women and women (i) National Forum on Domestic from non-English speaking Violence (1996). backgrounds in remote and rural (ii) A National Women’s Safety Survey areas of Australia. was undertaken by the Bureau of
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G. Department of Employment, sport which, among other things, Education, Training and Youth constantly promotes the importance Affairs on non-violence in sport. (i) Research Initiatives - together with (iii) Give Racism the Boot - an initiative the States and Territories research which is being developed to combat has been completed on Transitional racist behaviour and attitudes at all Arrangements for Post Release levels of sport involvement. Young Offenders; Early School Leaving; and Youth Homelessness. K. Aboriginal and Torres Strait Islander Commissioner (ATSIC) H. Department of Immigration and (i) Aboriginal Legal Services Program Multicultural Affairs - includes a component of (i) Work is being undertaken, in counselling, assistance and referral cooperation with the law of young indigenous people who are enforcement agencies, to improve at risk of coming into contact with the systems for ensuring that there the criminal justice system. is effective exchange of information (ii) ATSIC is piloting a program for on undesirable persons entering young offenders, initiated by the Australia. Prime Minister, called the Improved Integration of Young Offenders into I. Primary Industries and Energy Employment, Education, Training (i) Firearms Safety - training materials and Community Life. to primary users (farmers, graziers (iii) Funding for Night Patrols - where and rural workers) on how to use members of the local indigenous firearms safely. communities provide transport (ii) Integrated Rural Strategy - general home to young people in an attempt support for rural communities. to divert them from anti-social (iii) First National Rural Public Health activity when they congregate in Forum - to address particular groups. concerns in relation to domestic violence, firearms, and men’s health VI. THE STATE OF VICTORIA issues (particularly in relation to road and work accidents and alcohol A. Crime Prevention Initiatives abuse) in the rural sector. Across The State of Victoria - VicSafe - Partnerships Against J. Sport, Territories and Local Crime Government - Australian Sports Promotes highly focused community Commission consultation on community safety and (i) Young Persons Sport and Recreation crime prevention concerns and proposals. Development Program - provides The Safer Cities and Shires program will funding to States and Territories to help develop and maintain a safer facilitate the involvement of community. Creating a safer community indigenous young people in sport as includes: a means of providing structured recreational activities to relieve (i) Addressing the safety and crime boredom. issues of most concern to the local (ii) Aussie Sport - a program to promote community. the involvement of children in junior (ii) F o c u s s i n g o n cost-effective outcomes.
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(iii) Improving social and physical (iii) Setting realistic, achievable targets environments. to gain significant and sustainable (iv) Minimising the public’s fear of crime reductions in particular forms of and violence. crime and violence. (v) Achieving a high level of public (iv) Using performance indicators and order that enables all people to go measures to accurately and safely about their lawful pursuits, objectively assess the outputs and and to participate fully in outcomes of this work. community and public life, (v) Developing and implementing anywhere, anytime. innovative, best practice strategies to tackle safety and crime issues in Many, if not most, community safety and local communities. crime prevention problems call for local (vi) Creating partnerships and project community solutions: teams at the local level to implement these strategies. (i) These solutions need the support and participation of the whole 1. Strategies community working in partnership Innovative and outcome oriented with police, corrections and other strategies are required to provide a more agencies. coordinated and integrated government (ii) A safer community is thus a and community approach to safety and community responsibility and not crime issues. New approaches need to the sole responsibility of police, build on local and international experience, corrections nor any other criminal and involve the wider community and justice agency. private sector. (iii) Local community safety work brings police closer to the community they Safety and crime issues are complex, serve, and includes greater interdependent, and embrace the activities accountability to local communities. of all government agencies at national, state and local levels, and the private Local Governments are being asked to sector. These activities are most likely to take the lead in coordinating initiatives to be effective if they are focussed on outcomes address the safety and crime issues of most rather than inputs, guided by best practice concern to their local communities. The benchmarks, and have the capacity to be State Government, through the mainstreamed into core government, Department of Justice, is offering seeding business and community responsibilities. funding to cities and shires over the next three years to put strategies in place that 2. Why Local Government? will address these concerns. Local councils are well placed to engage government and non- government Safer Cities and Shires will emphasise: agencies, the private sector, educational institutions, and community groups in (i) Addressing community safety and partnerships to improve community safety. crime prevention issues through a strategic, planned whole of Local government is best placed to audit government approach. the vast input of resources. It can bring a (ii) Preventing problems before they blend of services to meet local communities emerge. safety needs. Resources can be aligned with
36 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS those practical initiatives that produce the planning and delivery of major best outcomes for the least costs. Local components of the statewide, governments provide the setting, community safety and crime infrastructure, and policy framework to prevention framework. develop, implement and sustain (iii) O versee the multi-agency community-based programs that address collaboration necessary to ensure community safety and crime issues. It is that State and Local Government best placed to develop a real sense of agencies effectively incorporate and community ownership of strategies to achieve appropriate community improve community safety and safety and crime prevention involvement in determining which safety outcomes within their business and crime issues have priority. planning processes. (iv) Ensure ongoing evaluation of the The role of local government now community safety and crime encompasses social and community prevention framework, and ensure planning, urban design, the provision of that it achieves visible and tangible human services, environmental outputs and outcomes of direct management, education and training, and benefit to the Victorian community. economic development. These changes, (v) Establish, foster and maintain which have taken local government beyond strategic links with private, not for its historical and traditional role of profit agencies, religious and providing physical infrastructure and academic sectors in identifying, services to property, have significant promoting integrating and implications for community safety and resourcing community safety and crime prevention. crime prevention best practice throughout the Victorian 3. Community Safety and Crime community. Prevention Board The Victorian State Government B. Safer Cities and Shires - established the Community Safety and Strategic Directions: Crime Prevention Board with the Heads Implementing Safer Cities and Shires of Government Departments (Premiers, involves Local Government performing a Education, Health, Justice and Local strategic leadership role in developing Government) together with significant comprehensive local community safety and community leaders and representatives of crime prevention policies and actions. Local Government to coordinate the Safer Cities and Shires identifies five implementation of the VicSafe Strategy. strategic directions: The functions of the Board are to: (i) Direction 1: Build on Local (i) Actively promote and champion the Government’s strength as a catalyst concept of crime prevention as a in creating comprehensive, local community initiative, and provide community safety plans conducive advice to the Minister for Police and to the sustainable, long term Emergency Services on community development of safer cities and safety and crime prevention policy, shires. strategies and issues of concern to (ii) Direction 2: Build on the local the community. government’s strength as a (ii) Provide strategic leadership in the facilitator to bring about a blend of
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services to meet a local community’s impact on community wellbeing. safety needs and to ensure the cost- (iv) Identify end detail locally based effective and coordinated use of community safety and crime resources to produce the best prevention initiatives that address outcomes for the least costs. the needs of the local community. (iii) Direction 3: Develop a whole of (v) Be based upon shared information government and whole of council between agencies, interagency approach to community safety and protocols and compatible data enable local Government to obtain systems. added value from existing programs (vi) Use integrated safety, crime, health, and expenditure by building and quality of life profiles in the community safety and crime local communities. prevention strategies into their (vii) Develop baseline information and mainstream operations. performance indicators against (iv) Direction 4: Develop comprehensive which future progress can be needs analyses to create measured. sophisticated, integrated and (viii)Be revised annually to ensure its objective safety, crime and health relevance. profiles in local communities. (v) Direction 5: Create a Safer Cities 2. A senior management team in each and Shires performance municipality that can: measurement framework, consisting of precise performance (i) Guide and coordinate the measures and indicators and State development and implementation of benchmarks for best practice that the community safety plan and its can be publicised and emulated in regular review. other areas. (ii) Include high level representatives from the community, Local C. Three Principal Outputs of Safer Government, police, corrections, Cities and Shires are: private sector, non-government 1. A comprehensive local community agencies and Commonwealth and safety plan in each municipality that State Government Departments. can: 3. A process of community consultation (i) Identify clear, short and long-term and involvement through, for example, outcomes within specified key customer surveys, needs analysis of results areas that are formulated local community safety and crime around agreed local priorities. issues, and the circulation of the draft (ii) Detailed strategies to achieve these community safety and crime outcomes based on sustainable prevention plan to the community for resource input available to and comment to encourage community within the local community through ownership of the issues and the the government and private sectors. solutions. (iii) Complement and support municipal public health plans, municipal 4. A whole of government approach emergency management plans, involving the Department of Premier environment improvement plans, and Cabinet, Victoria Police, and the and other business plans that Government Responsibilities for
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Education, Health and Human VIII. GROUPS WITH SPECIAL Services, Justice, Corrections, NEEDS Infrastructure, Local Government, A. Women - Sexual Assault and Treasury, State Development, and Domestic Violence Natural Resources and Environment: Many women in our society suffer violence; both from strangers and from (i) Core business approach. people they know, including family (ii) Strategic partnerships with the members, friends or workmates. This community. violence includes sexual assault such as (iii) A clear focus on outcomes. rape, physical abuse (including hitting or (iv) Development of quality data. beating), verbal abuse and threats. (v) Identifying and mainstreaming best Because this violence occurs often within practice. the home, many women suffer in silence (vi) Achieving cost effectiveness. because they feel isolated and ashamed. VII. WHO IS A VICTIM OF CRIME? B. Child Abuse A victim of crime is a person who has Child abuse is not usually a single suffered harm because of a criminal act. incident, but takes place over time, often That harm can be physical injury, at the hands of parents, their friends or emotional trauma or financial loss. For other members of the family, rather than example, a person who is injured in a at the hands of a stranger. Child abuse violent attack, or someone who has can take many forms. It includes physical experience a sexual assault or robbery is a abuse such as hitting or shoving, sexual victim of crime. Family members of a abuse including unwanted fondling or person killed or injured because of a crime incest; emotional abuse such as regularly may also be victims. It is common for people threatening or frightening a child; and to witness a crime to suffer emotional neglect, which is failing to properly provide trauma. These are victims even though such basic needs as food and shelter. they may not have been physically harmed. C. Men - Violent Crime Being a victim of crime effects people in Crime statistics show that men aged 17- different ways. It is not unusual for people 25 years form the largest victim group in who have experienced serious crime, such the community. Men also need support and as robbery or assault, to feel immediately assistance in coping with the effects of shocked, fearful or angry. Later it is quite crime. normal for some victims to experience depression or even to feel guilty. These D. Aboriginal Victims reactions are natural and part of the It is important for Aboriginal process of dealing with a traumatic event. Australians to recognise that there are In the majority of cases they are also support services available to help temporary. With support from family, Aboriginal people affected by violent crime. friends, and colleagues, most people recover from the effects of the incident E. Elderly Victims within a few months. For other people the The likelihood of an elderly person recovery process is more difficult. The becoming a victim of a crime in Australia harm may have occurred over a long period is extremely low. However, when a crime of time, or a crime may have been especially does occur it usually has a greater effect traumatic. on an older person. An elderly person is
39 RESOURCE MATERIAL SERIES No. 56 physically less able to fight back or flee, IX. RIGHTS OF VICTIMS OF CRIME and can find it harder to recover physically Victims of crime have rights and or emotionally if injured. The elderly are responsibilities in the criminal justice often alone and may not have the support system. Victims have the right to be to help them through the personal suffering treated with courtesy, compassion and with caused by violence. Programs funded respect for their dignity and privacy. They recognise these issues and can help elderly have the right to receive information about victims to recover their independence and their case, the progress of the investigation confidence. and details of any court proceedings. Victims also have a right to welfare, F. People with Disability counseling and medical assistance. They People with disability, whether it be an have a responsibility to assist police in their intellectual disability, psychiatric illness or investigations and to participate in any physical disability, may find court case that may follow. communication difficult. This can be a disadvantage when seeking help. If The main steps in the criminal justice someone suspects that a person with a system are when: disability is being harmed in any way they should contact the police or the Office of (i) A victim reports a crime to the the Public Advocate. police; (ii) The police investigates the crime; G. Ethnic Communities (iii) The police charge a person with a People from different cultural or ethnic crime; backgrounds who become victims of crime (iv) A court decides whether the person may need to contact someone they know is innocent or guilty; and trust for support. However, they may (v) The Court sentences a person who be afraid of contacting anyone in their own is found guilty, which may include community because of fear of a goal sentence. embarrassment or gossip. They may also be isolated from their community and need A. Background to find out how to make the first contact. The establishment of the Victims Many migrants and refugees may not Referral Assistance Scheme (VRAS) was understand or trust the Australian legal announced by the Attorney General in system or the police. November 1996 following an inquiry undertaken in 1994/ 95 by the Victims Task H. Families of Homicide Victims Force of the Victorian Community Council The death of a loved one at the hands of Against Violence into services available for another person is not easily overcome. It victims of crime. is especially hard if families are faced with lengthy trials or unwelcome publicity. The terms of reference for the inquiry Special services, including the Victorian were wide, and the VCCAV reported on the Police Victims Advisory Unit and the current circumstances of assistance for Homicide Victims Support Group of victims of crime. The VCCAV found that Victoria, offer support to the families of Victorian services for victims of crime had victims of homicide. developed in an ad hoc manner. There was a lack of co-ordination between services and the absence of a co-ordinated strategy to respond to the needs of victims.
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The inquiry identified the needs of (i) Victims rights; victims of crime, services, currently (ii) Complete rehabilitation; and available, gaps in services provided, (iii) Community responsibility. funding criteria, and presented a model for a co-ordinated and integrated strategy to B. Victims Referral and Assistance restore victims of crime. Service The Victim Referral and Assistance The inquiry found that although some Service is the primary focus of the victims were able to access a variety of Government’s new Victim Assistance important services, gaps and overlaps Strategy introduced in July, 1997. The existed in service delivery. There was a service focus is upon an integrated and co- lack of knowledge amongst professionals ordinated system, which is restorative in and victim support agencies about services its approach and assists victims of crime available and needed. A lack of co- in a holistic, responsive and caring manner. ordination existed between central and local services throughout Victoria. The A victim of crime is a person who has overwhelming view expressed by the suffered harm because of a criminal act. VCCAV was that there was a real need for Harm can mean physical injury, emotional victim assistance to be grounded within the trauma or financial loss. The crime may context of a strategic approach and based be reported to the police or not. The on a number of guiding principles, which mission of the VRAS is to “assist victims of would provide a framework within which crime to overcome the negative effects of practical, comprehensive and efficient their experiences resulting from crime.” Its reform could be undertaken. functions are to:
An integrated victim assistance regime (i) Refer victims to appropriate support was needed with professional and agencies in an attempt to restore community interfaces developed between them, in so far as it is possible, to the wide variety of people who can impact their former state; upon victims of crime. Such an integrated (ii) Administer the Victim’s Counseling strategy would focus upon: Scheme which will enable victims to access immediate short term (i) A central referral service; counselling; (ii) The information needs and rights of (iii) Manage researching of funding of victims, service providers and policy additional assistance to victims makers; through the Victims Assistance (iii) A responsiveness and sensitivity of Program working with community the criminal justice system; agencies. (iv) Real service and rehabilitation needs and rights of victims of crime; Where required, VRAS will assist eligible and victims access the Victims of Crime (v) The accountability of services Assistance Tribunal. funded by Government to provide these Services. These functions are delivered through the central referral and advice systems, The guiding principles in an integrated which enables the most appropriate and victim support strategy would include: relevant assistance to be provided immediately upon contact with the VRAS.
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Local community assistance is provided information about a wide range of other throughout Victoria by a funded assistance which is available. Sometimes community network, which can meet needs a caller simply needs to talk through an locally and in a specialised way. Special issue and needs no further referral. Each research and other projects assist the case is individual and is given individual VRAS to develop policies and practices attention. which continue to meet needs as they are identified. The needs of each particular caller are assessed and a large and extensive data The establishment of these new services base provides access to suitable referrals within the Department of Justice is including Government agencies, service providing for the first time a systematic providers and community agencies. The and integrated approach to meeting the database contains over 11,000 entries needs of victims of crime. It provides an describing services which may be relevant acknowledgment of victim needs and to a particular circumstance. More than rights, a pathway to rehabilitation and an 33,000 people have called the hotline since involvement of Government and it opened in July 1997. Around 11 percent community in responsibility for assisting of those are victims of homicide; families victims of crime. In this way, victims are of the dead or witnesses to the killing. treated with respect and dignity, so important for their well being and In addition to the psychologists who restoration. provide counselling though the Victims Counselling Scheme, VRAS staff can assess C. The Help Line and refer a caller to agencies which provide VRAS operates a centralised referral information and assistance about housing, service to provide victims of crime with financial, legal, community health and referral to appropriate counsellors and/or support services and groups. VRAS staff government and community based speak a number of community languages networks and agencies. and an interpreter service is available. A comprehensive and detailed listing of VRAS operates a Helpline staffed by support services and counsellors from non- trained professional advisers who can English speaking backgrounds is readily inform callers about the steps they can take available. Assistance for those with a to manage the effects of a crime. The crime disability can be arranged through carers may be reported or unreported, and may or facilitators, as requested. have occurred in the past or very recently. The crime may range from a burglary to D. Administering the Victims “bag snatching”, sexual assault or Counseling Scheme homicide. It may be regarded by some as VRAS administers a Victims Counseling a minor incident but may have a significant Scheme which provides immediate access impact upon an individual caller. Callers to short term counselling. Counselling can sometimes ring on behalf of others. help victims of crime manage the effects of crime on their lives. Counselling is The VRAS Helpline is available for all provided by trained professionals and those who wish to call and seek assistance. involves assisting or guiding a person to The Helpline can refer victims to resolve some of the personal, social or community organisations for help, explain psychological effects of a crime. how to access counselling and provide
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Those eligible for five free counselling directly or with the assistance of a sessions with a registered psychologists or referral from the VRAS), a doctor or an approved counsellor include: community agency or other person.
(i) Primary and secondary victims of a Where counselling is required beyond violent crime which occurred in the tenth session, the victim may be eligible Victoria and has been reported to for financial assistance from the Victims the police; of Crime Assistance Tribunal. (ii) Families of homicide victims; and (iii) Victims of domestic violence, E. Regional Agencies Funded by the stalking or assault who have applied VRAS for an intervention order. To meet the needs of victims throughout Victoria, VRAS provides funding to a About 20 percent of the 33,000 callers network of services to operate in country take up the offer of five free counselling regions and the metropolitan area. This is sessions with psychologists of their choice, called the Victims Assistance Program. to the cost of $110 per session. An Qualified professional staff in these additional 5 sessions are granted if the agencies have the knowledge and skills to victims say that they need it. The scheme deliver services and to recruit, train and has paid out $3,630,000 to psychologists. co-ordinate a network of volunteers able to Claim forms for the scheme are available provide an immediate response to victims at the time the crime is reported to police, of crime in their particular regions. or from Registrars of Courts when an intervention order is applied for. These agencies provide the following range of services to victims: 1. How the Scheme Works (i) Immediate crisis response to victims 1. The police officer attending the scene of crime, both by telephone of a crime (at the crime scene or at counselling and outreach services; the police station when a report is (ii) Where appropriate, refer victims to made) gives a Notice to Victim Form other services which may be best to the victim. able to meet their specific needs; 2. The police officer will indicate (by (iii) Practical support of victims of crime ticking a ‘yes or no box’) whether or (eg shopping, arranging improved not the person named in the form has security, contacting relatives, reported a crime against the person. friends or an employer, writing The reverse side contains the letters or assisting to complete Counselling Claim Form. forms). 3. Some victims who do not receive a (iv) Establishment and conduct of claim form may obtain one from the specialist support groups for victims VRAS. of crime and/or people suffering 4. A victim who applies for an through a crime committed against intervention order will receive the a close relative or friend. form from the Registrar of the Court, (v) Where no such service is available, who will validate it. provide support to victims or 5. The victim seeking counselling from witnesses to a crime who are a registered psychologist in private required to attend court; practice of his or her choice (either (vi) Develop the mechanisms through
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which the views of clients are (i) Armed robbery elicited and considered in the (ii) Aggravated burglary; planning and delivery of future (iii) Sexual assault; services, including the development (iv) Homicides; of a grievance or complaints (v) Assaults; procedure. (vi) Threat to kill; (vii) Culpable driving; The agencies undertake community (viii)Assault and robbery. education activities to promote community awareness of issues facing victims of crime For the Tribunal to consider a victim’s and the availability of the funded service. application, the crime must have been They also have networks with other committed in Victoria. Claim forms may agencies and professionals providing be obtained from the Victims of Crime services to victims of crime including police, Assistance Tribunal, through the lawyers, court staff, medical and human Magistrates’ Courts, a police station or service providers to enhance the through a solicitor. The claim form has a effectiveness of the service and ensure that Statutory Declaration and should be it complements, rather than duplicates, carefully completed. If unsure, the those services. applicants are encouraged to see a solicitor for assistance. F. Victims of Crime Assistance Tribunal The amount of financial assistance A major avenue for victims is through depends on the circumstances of each case. the Victims of Crime Tribunal, whose The maximum total financial assistance function is to consider applications for awarded by the Tribunal is $60,000 for a financial assistance by victims of violent primary victim; $50,000 for a secondary crime. A primary, secondary or related victim or related victim. These totals may victim of crime can make a claim for include medical, counselling or funeral financial assistance. In summary, people expenses and in exceptional circumstances, who are injured or die as a direct result of some other expenses, or a combination of a crime are regarded as primary victims. each. It is important to note that the People who witness a crime but are not maximum cumulative amount available to directly involved are secondary victims. all related victims of any one primary Related victims may be a dependent, close victim is $100,000, less any amount family member or a person who had a close awarded for funeral expenses. personal relationship with a primary victim who has died. The Tribunal will give priority to requests for payment for counselling. It People may not be paid financial can grant these requests without a hearing. assistance if they are assisted from other However an application should be made as sources. These could include a successful quickly as possible. The Tribunal may still civil suit against the offender, insurance assist an applicant even if no person is policies or other schemes such as workcover found guilty, or if the offender is not found. or TAC. All payments of financial assistance are made by the Victorian Government. The crimes where assistance can be sought from the Tribunal include: In most cases the Tribunal will require an applicant to provide evidence from their
44 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS treating doctor or hospital to prove that person can provide details to the they had been injured. The applicant is Government indicating that the offender also expected to provide proof of loss of has assets or income which he or she can earnings and any expenses incurred as a pay to the court, and that it is likely that result of the crime. The Tribunal will the amount the offender may have to pay collect the evidence, including evidence is more than the legal costs of taking the from the police, to make a decision about action. the victim’s application. A criminal court may make a Hearings usually take about half an compensation order for pain and suffering hour, before specially appointed and for damage to property where an Magistrates who hear applications offender is found guilty and the court has throughout Victoria. Applicants can attend appropriate evidence before it to make an alone or with a lawyer or a friend. In some order if the victim requests that this be cases, decisions can be made about done. compensation without a hearing. After the hearing the Tribunal may decide any of the H. Support Program for the following: Families of Persons Charges with a Major Crime and VACRO (i) To give assistance; Support Program for the (ii) Not to give assistance; Families of Persons Charged with (iii) To put off the hearing until another Sex Offences date (this could happen if the These programs offer counselling and Tribunal needs more evidence, or if support to family members of persons its decision depends on the outcome charged with major crimes including of another court case). homicide, and to those persons charged with sex offences. Contact can be short or If a victim believes that the award is too long term, with face to face and telephone small, or if their claim is refused, they can counselling and home visits. The major appeal the Tribunal’s decision to the crime program assists families to work Administrative Appeals Tribunal. through trauma, grief and coming to terms with the enforced changes to their lives. G. Restitution By law, people can seek damages for any The program assisting families of harm another person or organisation has persons charged with sex offences has a caused them. This means a victim of crime similar emphasis, with an educative can hire a lawyer and sue an offender. In component reinforcing the principles of the Victoria, the State Government can sue specific programs offered to sex offenders offenders for damages on behalf of the in prisons. It offers support to sex victim. If the Government agrees to do so, offenders’ families without colluding with victims will usually receive any money either the offenders’ behaviour or their recovered additional to the assistance the denial of it. The social worker is involved Government has already provided. This in co-facilitating with CORE, one of the could include compensation for pain and management and intervention programs, suffering. which is a twenty-six week, offence-specific program for sex offenders in the TheVictorian Government will only sue community. on a victim’s behalf if the victim or another
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X. CONCLUSION (x) Programs need to have in-built evaluation measures that monitor From this review of crime prevention outputs and outcomes. practices in the United Kingdom, America, Canada and Australia, and particular I strongly believe that people who live reference to the State of Victoria, a number and work in communities are best placed of general trends can be identified: to solve local crime and safety issues. As a consequence, all criminal justice agencies (i) Communities and agencies need to must work in partnership with each other be empowered in their efforts to and their local communities, in their efforts address crime and safety problems. to reduce crime and improve community (ii) Strategies to reduce crime and safety. improve community safety should be based upon researched evidence REFERENCES of what works. (iii) Strategies to reduce crime and Benyon J., (1995), Policing and the improve community safety must be Community - the UK Experience, In Ellem tailored to local conditions and B. (Ed.), Beyond Catching and Keeping, problems. Centre for Police and Justice Studies, (iv) A problem-orientated approach to Monash University, Clayton, Victoria, crime prevention ensures that key Australia. crime problems are addressed, and appropriate strategies Polewski-Koziell K., Community implemented. Participation in Corrections in Biles, David (v) Communities, families, schools, (ed) (1989), Current International Trends labour markets, welfare groups, in Corrections, Federation Press, Sydney, voluntary organisations, Australia. businesses, government departments, police and agencies of Brown Malcolm (ed) (1995), Australian the criminal justice system all have Crime, The Book Company International, a role to play in crime prevention Sydney, Australia. and community safety. (vi) Crime prevention strategies must Chappel, Duncan & Wilson, Paul (1986), be comprehensive and multi- The Australian Criminal Justice System, faceted, addressing social, Butterworths, Sydney, Ausralia. developmental, and situational issues. Latessa, Edward & Allen, Harry (1997), (vii) No single agency can reduce or is Corrections in the Community, Andersen expected to reduce crime, or improve Publishing Co., Cincinnati, USA. community safety. (viii)For crime prevention to work, National Campaign Against Violence governments must show political and Crime Unit in the Attorney General’s commitment, eg, giving it a Department - Best Practice in Crime statutory footing. Prevention - Project Summary Document, (ix) Strategies to reduce crime and Canberra (1997), Australia. improve community safety should be based upon research of what National Campaign Against Violence works; and Crime Unit in the Attorney General’s
46 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
Department - Crime Prevention Initiatives across the Commonwealth Government - Policy Document, Canberra (1997), Australia.
National Campaign Against Violence and Crime Unit in the Attorney General’s Department - Fear of Crime - General Fact Sheet, Canberra (1997), Australia.
National Campaign Against Violence and Crime Unit in the Attorney General’s Department - Improving Crime Prevention - General Fact Sheet 2 Canberra (1997), Australia.
Police and Strategic Development Unit, Department of Justice, Victoria, Australia, - Safer Cities and Shires - A Guide to Developing Strategic Partnerships - Policy Document (1999), Melbourne, Australia.
Victims Referral & Assistance Service, Department of Justice, Information for Victims of Crime, General Information Booklet (1999), Melbourne, Australia.
Whitehouse Gazette Newspaper article 3 March, 1999 “Take the First Step to Stop the Effects of Crime”, USA.
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VICTIM ASSISTANCE IN CANADA
Ezzat A. Fattah*
I. INTRODUCTION Canadian Mounted Police or the RCMP. The two largest provinces in Canada; Canada is a beautiful and lovely country. Ontario and Quebec, each has its own It is consistently rated as one of the best provincial police force in addition to many places in the world to live. Canada is a municipal police forces. But they are the confederation of ten provinces and two only ones that have such a provincial force. territories. As a confederation, Canada has Each city or municipality in Canada could a complex political and government system. have its own municipal police force and There are actually three levels of large cities usually do. But even smaller government in Canada: federal, provincial, municipalities can have their own police and municipal. The federal government force consisting of seven, eight or ten has sole jurisdiction in some areas, for constables. In the greater Vancouver area, example, the criminal code. This is why, this is the case of municipalities such as in contrast to the United States where each West Vancouver or Port Moody. In state in the union has its own criminal Montreal, many years ago, all municipal code, in Canada there is one federal police forces were amalgamated into one criminal code that applies to the entire force called the “Montreal Urban land. The provinces and the territories Community” police force. have sole jurisdiction in some matters, for example, education. Through a contract signed between the federal government and the provinces, The administration of justice is a mixed municipalities that do not want, or cannot jurisdiction. There are federal courts and afford, to have their own police forces could provincial courts. Some judges are have their territory policed by the RCMP. appointed by the federal government and They can have an RCMP detachment others by the provincial government. servicing the municipality. There are provincial prisons and federal prisons called penitentiaries. To some This division of jurisdiction has an extent, policing is a shared responsibility. enormous bearing on victim assistance in There are three main types of police forces Canada. This is because there are no truly in Canada. I say main types, because in national standards or unified sets of rules addition to these three, there are that govern victim services. As a result, specialized or localized police forces such these services are more developed in as harbour police which operate in ports certain areas than in others, and in some such as the Port of Vancouver. places they are virtually non-existent. Even in an area such as government The three main types of police forces are compensation to victims of crime, because federal, provincial, and municipal. The each province has its own Compensation largest police force in Canada is obviously Act or law, the rules and amounts of the federal police, known as the Royal compensation can show substantial variation. Naturally, this is a far from ideal * Professor Emeritus, School of Criminology, Simon situation, though it is not very different Fraser University, Canada. from what exists in other federalist states,
48 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS such as the United States, Switzerland or Hawaii. Australia. These difference make it impossible to offer a general picture of In Canada, the lead was taken by the victim assistance in Canada or to present Province of Saskatchewan in 1967, followed a general synopsis of the state of victim by Ontario (1968), Alberta and New services in such a huge and diverse country. Foundland (1969), Manitoba and New Brunswick (1971), British Columbia and II. VICTIM ASSISTANCE IN Quebec (1972). Today, all Canadian CANADA: A BRIEF HISTORY provinces have compensation programs for the victims of certain offences. Although Until the 1960’s, the situation of crime crime victims compensation is victims in Canada was no different from administered exclusively by each province their situation in other western countries. or territory, it is financed on a cost-share Not only were they the forgotten persons basis with the federal government. Later in the criminal justice system, but they on, we will see to what extent these were also the orphans of social justice. programs have been successful in They had no legal status, no rights, and no financially assisting crime victims. one seemed to pay any attention to their plight. They were a disenfranchised group Financial assistance was thus the first with few supporters and even fewer sign of society assuming some defenders! Until now I can hardly responsibility for crime victims. Victim understand how or why it is that in well- services were yet to wait for some more developed welfare states, in the aftermath years before being offered to the victims. of the second world war, where the state And this was not even a government came to the help and rescue of the weak, initiative but a grass roots one. The the poor, the unemployed, the feminist movement should be given credit underprivileged, the dispossessed, nothing for recognizing the suffering of female was done to improve the victims’ lot or to victims of sexual assault and of domestic alleviate their plight. It is simply violence, and for setting up privately run incomprehensible that at a time when rape crisis centres and shelters for battered social solidarity and social assistance were women, where victims not only could seek buzz words, the cause of crime victims was refuge, but also could get counselling and totally ignored. assistance of varying kinds. Things began to change in the early The ideological roots of rape crisis 1960’s. Thanks to the laudable efforts of a centres and shelters for victims of domestic British magistrate, Margery Fry, and violence have remained largely unchanged others, voices were heard on both sides of and explain why it is that their clientele is the Atlantic calling for state compensation exclusively women (and in some cases their to victims of crime. But it was New Zealand children). This is so, although research in which was to become, in 1963, the first the US suggests that men are as often country to establish a state compensation victims of family violence as women are program for crime victims, only to be (Steinmetz, 1978; Straus, Gelles and followed the year after by Great Britain. Steinmetz, 1980) and it is by now a well- In the United States, the first initiative was known fact that rape and sexual assaults that of the State of California, which began are not exclusively a male/female a compensation scheme in 1966, to be phenomenon. In fact, in one of the early followed a year later by New York and shelters in Vancouver (Ridington, 1978)
49 RESOURCE MATERIAL SERIES No. 56 there were only three rules: no liquor, no Department in Ottawa. The document drugs, no men. One of the reasons why makes no secret of the fact that the male companions of the residents are not objective of the programme “is to develop a allowed is the fear that they might cause good working relationship with victims of trouble, and this is why the locations of the crime in order to encourage their future shelters are kept secret and strict cooperation with the police in crime precautions are taken to keep them that prevention”. This statement tells a great way (Peltoniemi, 1989, p335). deal about the victim service programmes which were set up by various police The creation of rape crisis centres and departments in Canada, as in other battered women shelters highlighted the countries. It explains the distinct lack of services available to crime victims preference for having these programmes and their dire need for some help and housed in police departments or public assistance to find their way through the prosecutors’ offices, rather than in the maze of the criminal justice system, to cope community. with the traumatic effects of victimization, and to avoid future victimization. III. MODELS OF VICTIM ASSISTANCE The police, ever anxious to improve their Victim assistance programs do not follow image and to strengthen their contacts and the same model. The choice of one model relationships with the community they rather than another is dependent upon a serve, quickly realized that there were large number of variables. Since evaluative several administrative benefits to be research analysing and comparing the gained from establishing victim assistance different models is lacking, it is impossible programs. It is sad to say, but in Canada to tell whether a certain model is better at least, the impetus for victim assistance and more effective than the others, or to programs was not a genuine concern for judge which model works best for which the plight of crime victims but the victims. The setting for the program, that administrative goals of the police agencies. is, whether it is housed in a police station, Compensation programs were actually the prosecutor’s office, or the community; designed to encourage victim reporting to the program’s personnel, whether the police and to improve victim professionals, para-professionals, or cooperation with the criminal justice volunteers; the type of assistance the system. The primary benefits were seen programme offers: referrals, counselling, as enhancing victim participation and emotional support, etc; the type and length collaboration, thus increasing the efficiency of follow up on program’s clients; are all and effectiveness of the system. factors that are bound to affect the program’s performance and its The same can be said of victim assistance effectiveness. As does the ideology programmes. The major guiding influence underlying the program or the service. was not compassionate or humanitarian consideration for victims, but the Studying women shelters, Peltoniemi administrative goals of the agency. The (1989, p334) identified two shelter Calgary Victim Services Programme, one ideologies: the feminisit shelter ideology of the first of its kind in Canada (started and the family-oriented shelter ideology. in 1977), is just one example of many. The According to Peltoniemi, the most programme is described in a document important feature of the feminist shelter published by the Solicitor General’s
50 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS ideology is its emphasis on a non- IV. PROGRAM SETTING AND hierarchial system. He points out that in PERSONNEL such shelters there are no specified work The most appropriate setting for victim roles and those staying at the shelter are assistance programs, as well as the most called women, not clients or anything else. appropriate background for victim helpers, The whole ideology is based on one have been the subject of many heated explanatory theory of family violence: the debates. Should victim assistance structual theory saying that family violence programs be housed in police departments is caused by a patriarchal society. The and be run directly, or under close feminist ideology also emphasizes the supervision by the police? There is no clear- criminal nature of family violence and the cut answer to this question, and there are preponderant role of the court system in valid arguments on both sides of the issue. controlling and preventing it. Peltoniemi The major argument in favour of this model explains that the family-oriented shelter is rather a practical one. It is claimed that ideology is the exact opposite of the feminist placing the program in the police station ideology. Family violence is seen as is the surest way of having the largest violence that is not directed exclusively at number of victims take advantage of the women but towards many different victims service. The first encounter of crime within the family. He adds: victims with the criminal justice system, in the vast majority of cases, is their contact Several reasons for violence are with the police. Once a complaint is filed, suggested, and it is considered that the police get the victim’s address (and the entire family needs help, not only telephone number), and refer the victim women. The shelters are organized immediately to the victim service, or in a more traditional way and provide the program with the necessary cooperate closely with social care infomation to get in touch with her/him. agencies (1989, p335). It is argued that programs located in the community will be much less successful in In Canada, victim assistance programs knowing who the victims are and in housed in police departments and operated locating them. by the police agencies are generally organized according to popular models. Those who argue in favour of placing There is usually one coordinator, in most victim assistance programs within the cases a civilian (not a member of the force) community are generally apprehensive who is hired and paid by the police. The because of the strong temptation to use the major responsibility for this coordinator is services for victims as a means to ensure to recruit, train, and supervise a number victims’ continued cooperation with the of volunteers, to assign their duties, police. They also point to the great determine their case load, and to coordinate reluctance of many victim groups: their activities. The coordinator is also minorities, immigrants, deviants, expected to liaise with the community, to homosexuals, prostitutes, etc, to take publicize the existence of the program and advantage of a service offered and to ensure its acceptance and support by the controlled by the police. They insist that community. rape-crisis centres and battered women shelters would have had little chance of getting clients if they were located in and operated by the police. They also argue
51 RESOURCE MATERIAL SERIES No. 56 that community programs are likely to be of victim assistance has some advantages more neutral, more impartial, to take a but also significant drawbacks. The more objective approach to the needs and overwhelming advantage is obviously wishes of the victims, and not to subscribe economical. Programs using volunteers are to police stereotypes of certain naturally much less costly than those using unconventional victims. Should victim professionals, be it psychologists, assistance programs use volunteers as criminologists, social workers, or others. It their main service providers or should the is also suggested that volunteers, delivery of services be done, as in particularly those with similar corrections, by professionals and para- victimization experiences, can relate better professionals? to the victims and can better understand their pain and suffering, the traumatic The practical considerations that effects of the crime, and the impact it has dictated that victim assistance programs on their lives, than do professionals. be housed in police stations or police Volunteers therefore might have more departments are similar to those that sympathy and empathy than those whose resulted in victims assistance being daily activities over the years are meeting delivered mainly by volunteers. The victims and listening to their tragic or sad decision to use volunteers was not based stories. Volunteers also tend to treat the on valid, scientific evidence that they can victims they are dealing with as human perform this task better than paid beings, as fellow citizens, rather than professionals or para-professionals. It was ‘clients’ or ‘recipients of services’. not based on a sound judgement showing that volunteers are better service providers Be this as it may, the most important than others. Financial considerations were dimension on which the models should be the primary reason for the adoption of the assessed and judged is the quality of volunteer model. services to crime victims. Do volunteers provide better and more effective services Governments, as reluctant as they were, to the victims than professionals or para- to provide decent budgets to state professionals? This is questionable. In compensation schemes for crime victims, Canada, the training that recruited were even more reluctant to allocate volunteers receive before working in victim financial resources to victim services. They services is very crude and very elementary. wanted the programs because they were There is therefore a danger that the service popular with the general public, and thus they provide might not be effective, and a politically beneficial, but they wanted to real danger that the intervention, though commit only token amounts to their done with the best of intentions, will in operation. It should also be kept in mind some cases do the victims more harm than that victim assistance is a very new field good (that is, prolonging or even and to my knowledge there are no college magnifying the trauma, delaying the or university programs offering training, natural healing process and so forth). courses, diplomas and degrees in victim Volunteers tend to be more emotional than services. In fact, our knowledge of this field professional, they tend to side with the remains so rudimentary that no viable person they are trying help. And while this programs could be mounted at present to might provide temporary comfort to a train professionals in this area. number of victims, it might not be in their best interest in the long run. This is Like other models, the volunteer model particularly true in cases where the most
52 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS appropriate advice the victim needs is V. THE NEEDS OF CRIME VICTIMS sound, objective, candid and non-partisan Victims of crime constitute a very advice. heterogeneous population. And while certain needs might be common to all those In the field of corrections, the who suffer some form of criminal rehabilitation of offenders, the issue of victimization or another, there are several professionalization and of specialized groups of victims who might have special training for those who deliver the services, and rather specific needs and therefore that is, the treatment and rehabilitation might have to receive special and programs, was settled several decades ago. individualized services. In the field of It would be unthinkable at the present time corrections, the principle of individualized in the industrialized world to return to the penal measures and of individualized volunteer model of corrections that was treatment, has been recognized for many spearheaded last century in the US by the decades. There is a long-held view that Quakers, and in the State of Massachusetts offenders respond differently to by John Augustus, who initiated the rehabilitation and treatment programs, practice of probation. that certain programs are totally ineffective for certain types of offenders, In Canada, the delivery of victim while other programs are more effective for assistance is done predominantly by some than for others. volunteers. As the volunteers have no training or expertise in psychology or The diversity of the victim population counselling, they are instructed to refrain and the enormous variety of the types of from acting as psychologists or counsellors. criminal victimization from which they They might be able to provide some could suffer, suggests that the principle of practical assistance to the victim: driving, individualization is as important and as cleaning, shopping, baby-sitting, helping valid in interventions with victims as it is with the children and so forth, but in most with offenders. Few examples could cases the only thing they do provide is illustrate well what is meant by emotional support. individualized intervention. The needs of victims of sexual offences are different from This should not be interpreted as an those of victims of property crimes, or even endorsement of counselling for crime victims of common assault. But even for victims, as there is no evidence showing those who are sexually victimized, the that counselling is effective. Davis and needs may vary greatly from one group of Henley (1990) reviewed research findings victims to another, and even from one and found little indication that counselling victim to another. The needs will vary not of any sort is effective in reducing post- only in the function of socio-demographic crime trauma. They regretted the fact that variables such as age, gender, social class, much money is being spent on crisis level of education, race, etc, but will also intervention services for victims in the vary according to the type of offence absence of knowledge as to which forms of committed (rape, sexual touching, treatment work and which do not. There molestation, indecent exposure, anal are also reasons to believe that penetration, and so forth), the amount of intervention, if not done properly, can delay violence or coercion used, the relationship rather than accelerate the natural healing between the offender and the victim (total process and can prolong rather than stranger, acquaintance, close friend, pro- shorten the trauma of victimization.
53 RESOURCE MATERIAL SERIES No. 56 genitor, etc), the age and race differentials that would satisfy the specific needs of each between the offender and victim, and so crime victim, or of a specific victim group. forth. VI. THE TYPES OF SERVICES Lurigio and Resick (1990) insist that Crime victims, regardless of the type of because reactions to crime and other victimization they suffer, need different deleterious experiences are often quite types of support and varying kinds of varied, it is essential to study individual assistance. They need practical services differences in response to criminal such as fixing the lock, replacing the victimization. They state that variability window, or driving the kids to school. They in victim recovery can be a function of need information and advice, particularly victim characteristics and predispositions, advice on how to avoid future victimization. the nature of the incident, victims’ They might need referral to other services perceptions and interpretation of the or legal assistance. They need a great deal occurrence, and events that occur in the of emotional support. All these types of aftermath of the crime. Lurigio and Resick services are not problematic and the more (1990) place a high emphasis on the of them available to the victim after the individual correlates of post-crime distress event, the better it is. It is the other kind and recovery. But socio-cultural factors and of well-intentioned support: counselling, attitudes can be of great importance as therapy, and treatment that can pose real well, and plays a significant role in problems. speeding up or delaying the recovery process. In our society, there is a tendency One common need, spelled out by the to stress, even overblow, the negative vast majority of victims, is the need for effects of victimization, whereas in others information about the progress of their only the positive effects are emphasized. case. They felt frustrated that nobody cared to tell them what is happening, Even physical injuries resulting from whether the case will proceed or not, and victimization do not carry the same weight if so, on what date. Once the case is before everywhere, and their impact, therefore, is the court, they want to be informed of the bound to be greater or lesser according to outcome, whether the Crown will launch a host of variables. It is undeniable that an appeal, and the final disposition in any psychological wounds heal faster and appeal by the defendant or the Crown. If better in some cultures than in others. All the offender is sentenced to a prison term, this is to say that victim assistance is a lot they want to know the eligibility dates for more than just a charitable or the various types of early release, the dates humanitarian endeavour. If done properly of the hearings, the decision by the parole and effectively, victim assistance is not a board. They want to be notified when the simple, easy or a mere common sense task. offender is released. In response to this In other words, it is not something that expressed need for information, guidelines could be delivered in a hasty or ad hoc have been developed in many provinces in manner unless it consists of nothing more Canada in order to ensure that the victims than moral support, tea and sympathy. are not kept in the dark, that they are being kept informed of the progress of the case To my knowledge, no victim assistance at the various stages of the justice process. program in Canada, or for that matter, This simple and rather inexpensive service elsewhere, is able at the present time to has gone a long way towards alleviating provide the kind of individualized services
54 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS victims’ dissatisfaction with the justice Schemes also differ in terms of the upper system. (and lower) limits the set for lump sum awards and for periodic payments. Another need that many victims have is the need for some legal assistance and legal Financial assistance to crime victims in advice. They are frustrated that free legal Canada, as in most other countries that aid is usually available for those offenders have created similar schemes, is largely who do not have the means to hire private inadequate and is subject to various legal counsel, but the victims have to pay restrictions and limitations. This has led if they needed to consult a lawyer. In many many researchers to claim that state provinces in Canada and elsewhere, there compensation is essentially a symbolic act are now provisions that make it possible by governments to show their concern for for victims to get some basic legal advice victims, but with little real intention of without pay. Sometimes it is the prosecutor following it through with hard cash (Miers, who provides this advice, other times it is 1983, p19990; Maguire and Shapland, by a paralegal. But everywhere this 1997, p218). As if to add insult to injury, remains a process separate and many governments, including the independent from the office of the public Canadian government, decided in recent defender or that of legal aid. years to transfer the financial burden of victim compensation to offenders through VII. FINANCIAL ASSISTANCE TO a levy called ‘a victim fine surcharge’ CRIME VICTIMS IN CANADA imposed on those who are sentenced to a penal fine, even if the sentence is for a so- Although crime victim compensation, or called ‘victimless crime’ (section 727.9 of the criminal injuries compensation, as it is Canadian Criminal Code). usually called, is administered exclusively by each province (or territory), it is financed The major problem with Canadian on a cost-share basis with the federal compensation schemes, as with others, is government. The federal government that they exclude the vast majority of assists in program funding to ensure the victims from the realm of compensation. establishment of uniform, minimum For the very few who are eligible for standards. There are approximately forty compensation and who ultimately get it, it crimes of violence that are covered by these is, for budgetary reasons, too little, and federal/provincial agreements. because of bureaucratic procedures, too late. While provincial (and territorial) compensation schemes in Canada share In Canadian schemes, as in others, many similarities and have several victims of non-violent property crimes who common characteristics, there are still constitute the bulk of crime victims, are some notable differences. For example, the totally excluded from compensation. Sadly, nature and structure of the compensating most of these victims do not have and agency vary from one province to the other. cannot afford private insurance. In four In Ontario, Saskatchewan, Newfoundland, out of five of these property crimes, the and Alberta, it is a separately established culprit is neither identified nor caught. board. In Quebec, Manitoba and British And the few who are arrested, charged and Columbia, it is part of the already existing convicted are, more often than not, poor or Workman’s Compensation apparatus, still insolvent and nothing could be obtained in others it may be a provincial judge. from them through a civil judgement even
55 RESOURCE MATERIAL SERIES No. 56 if the victim had the means to obtain one. usually end up receiving ridiculously low amounts as compensation for their Victims of violence for whom the victimization. It is easy to understand, schemes are designed do not fare much therefore, why it is that in some countries better. The conditions of eligibility for state there is a deliberate attempt not to compensation are such that only a small publicize these state compensation fraction do qualify. In almost all systems, schemes. eligibility is contingent upon reporting the offence to the police and the victim’s VIII. OFFENDER RESTITUTION willingness to cooperate with the criminal Restitution by the offender to the victim justice system. Many have a means test is one of the earliest forms of redress to ensuring that compensation is given only those who suffer injury or harm through to the poorest of the poor. Most exclude the actions or negligence of another. This violence among family members, whereas was the composition or wergeld paid to the a good part of all violence occurs in victim or the victim’s kin. domestic settings. Most also exclude (or drastically reduce the awards to) victims Since state compensation programs are who provoked or otherwise contributed to often strictly limited to victims of violence, their own victimization. One sure way of restitution by the offender has re-emerged making the majority of victims of violence as a means of redress in property offences ineligible for state compensation is to set a as well as in violent crimes. The problem high minimum limit for compensation is that the vast majority of offenders are below which victims do not qualify. (In the either unemployed or do not have the UK, for example, the lower limit was set financial means that would make it at £1,000 despite the recommendations possible for victims to collect restitution. made by victims groups to remove it). The Added to this problem is the fact that in burden of proof is upon the victim and it is many countries the collection of the penal easy to imagine how difficult it can be to fine takes priority over restitution orders. prove that the injury resulted from a criminal attack when the attacker has run Provisions on restitution by the offender away and there were no witnesses. With to the victim are a relatively recent the exception of sexual victimization, most addition to the Canadian Criminal Code schemes do not provide funds to (CCC). Thus section 725 of the CCC compensate the victim’s emotional pain and stipulates that: suffering. Where an offender is convicted or It is not surprising that many victims discharged under section 736 of an are deterred from applying by the lengthy offence, the court imposing sentence bureaucratic procedures and the on or discharging the offender shall, investigative process. More distressing on application of the Attorney General still is that many victims are simply or on its own motion, in addition to unaware of the existence of the schemes. any other punishment imposed on the As in many jurisdictions, the budget is offender, if it is applicable and determined in advance and cannot be appropriate in the circumstances, exceeded, the more applications the order that the offender shall, on such program receives, the lower are the awards. terms and conditions as the court may And as the schemes are poorly funded in fix, make restitution to another the first place, successful applicants person.....
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Section 737 pertaining to the placement Advocates of restorative justice pointed out of offenders on probation, cites a number that in addition to its devastating effects of conditions that could be attached to a on offenders, their families and the larger probation order. One of the conditions (737/ society, the system of punishment acts to 2/e) is to ‘make restitution or reparation to intensify the conflict rather than solving any person aggrieved or injured by the it. Instead of bringing the feuding parties commission of the offence for the actual loss closer to one another, it widens the gap that or damage sustained by that person as a separares them (Fattah, 1997, p259). result thereof’’. Spearheaded by the Mennonite Church, Section 737.8 contains various victim-offender reconciliation programs provisions on how payment of restitution were set up in Canada and the United or part of it could result in a reduction of States in the mid 1970s and then spread imprisonment. to many other countries. Writing in 1983, Dittenhoffer and Ericson (1983, 1992) IX. VICTIM-OFFENDER noted that the notion of VORP rapidly grew RECONCILIATION AND VICTIM- in popularity. They pointed out that at the OFFENDER MEDIATION time, in Ontario alone, there were 24 VORP PROGRAMS centres operating, as were other centres across Canada with similar programs. The Another important development in early programs have now been in existence recent years has been the rediscovery of for over twenty years and the restorative restorative justice. Restorative justice, justice movement is expanding at a fast which is widely practised in small, pace. Outside of North America it has agrarian, rural societies, has a long and established strongholds in Germany, the rich history in the aboriginal communities United Kingdom, Belgium, and France in Australia, among Canada’s First Nation among others. Three years ago, the Council and the Inuit communities of the Canadian of Europe in Strasbourg set up the Expert North. The quasi-universal Committee on Mediation in Penal Matters. disenchantment with the punitive/ The Committee has been meeting twice a retributive justice system was bound to year and is due to release its report and force those calling for justice reform to seek make its recommendations by the end of alternatives to the current system of this year. punishment. A turning point was the publication of a seminal article by Nils Despite the appeal and popularity of the Christie in 1977 entitled “Conflicts as notion of victim-offender reconciliation, the Property”. In it, Christie explained that goal of ‘reconciliation’ proved to be difficult the root problem of the system is that to achieve in practice. In many programs, conflicts were stolen from their legitimate the foremost objective is to ensure owners, the victims, and became the restitution by the offender to the victim and property of professionals rather than to see to it that the offender fulfills the people. Christie’s ideas provided a strong obligations agreed upon in the mediation impetus to those who were calling for the agreement. The programs were thus replacement of the destructive, inclined to changed their names from unproductive and ineffective system of victim-offender reconciliation to mediation punishment with the constructive practices programs. of dispute settlement, conflict resolution, mediation, reconciliation and reparation. Attempts to exploit the cause of crime
57 RESOURCE MATERIAL SERIES No. 56 victims for political ends and to sell the and activating any positive emotions the policies of law and order, under the pretext offender might have lying beneath a cruel of doing justice to victims, often required and indifferent fecade. Emotions such as the portrayal of victims as vengeful, pity, sympathy, empathy, compassion, vindictive, retributive and even commiseration, can all be brought to the bloodthirsty. Those claiming to represent surface and reinforced. and speak on behalf of victims gave the impression that concern for crime victims On the side of the victim, the mediation invariably requires a harsh, punitive situation can also have salutary effects. justice policy. While the distress of some The feared, stong, cruel and unemotional victims might be so overwhelming that victimizer is bared to a weak and often they will demand the harshest possible helpless being, a being that evokes more penalty for their victimizer, this could pity than fear, more compassion than hardly be said of the majority of victims. anger. Distorted but long held stereotypes Healing, recovery, redress, and prevention disappear when checked against the real of future victimization are the primary offender. Both parties end up by gaining a objectives of most crime victims. realistic view of one another and reconciliation becomes possible (Fattah, If the primary purpose of social 1995, p312). intervention is to restore the peace, redress the harm, heal the injury, and stop the Thus in the long run, the interests of repetiton of the offence, then it is easy to crime victims and of society at large are understand how and why the restorative best served by humanity, empathy and system (based on mediation, reconciliation, compassion, by tolerance and forgiveness, restitution, and compensation) succeeds by the development of conciliatory and where the punishment system fails. forgiving communities rather than hostile Mediation and reconciliation bring the two and vengeful ones (Fattah, 1986, p13). parties together, face-to-face, and ensure Constructive healing, not destructive that they see each other as human beings punishment, should be the primary and in a state of distress. When faced with the foremost goal of both victim policy and victim, it becomes impossible for the victim services. victimizer to deny the victim’s existence or the injury or harms s/he has caused. S/he X. CONCLUSION can no longer de-personalize, de- Hopefully, this bird’s eye view of victim individuate, objectify or reify the victim. S/ services and victim assistance programs in he can no longer avoid post-victimization Canada has provided you with some idea cognitive dissonance. The confrontation of recent developments in this field. between the offender and the victim in a Naturally, it is rather difficult to mediation situation is the surest and most adequately present such a varied, effective means of sensitizing him/her to multifaceted and broad sector in a brief and the victim’s plight, of countering and rather hasty overview. As mentioned at the reversing the mental process of de- outset, the task is made more difficult by sensitization that s/he has gone through in the complexity of the Canadian system of order to avoid guilt feelings or bad government, and the enormous diversity conscience (Fattah,1991a). of the Canadian provinces and territories. As you probably have noticed, it was not The mediation process, when done my intention nor is it my habit to present properly, can be very effective in awakening
58 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS a rosy picture of the services or the programs involved. I tried to present things the way they are, and might have been overly critical at times. But whatever criticism I have made is meant to be constructive, and is intended to highlight the problems, the weaknesses, the inadequacies, the shortcomings, so that something may be done to correct them. After all, the plight of crime victims has been ignored for far too long. They surely deserve much more and much better than what they got in the past or are getting at present. Their cause is dear to my heart and it has pained me greatly over the years to see their cause being exploited by unscrupulous right wing politicians, and to witness their use as pawns in law and order campaigns. The time has come in Canada and elsewhere to hold politicians to task and to require them to live up to their promises and their rhetoric by matching commitments in financial and human resources. Although the situation of crime victims now is undoubtedly better than it was twenty years ago, the road is still long and a great deal remains to be done to help and assist those who are forced to suffer as a result of unfair social structures and failing social institutions.
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VICTIMOLOGY TODAY RECENT THEORETICAL AND APPLIED DEVELOPMENTS
Ezzat A. Fattah*
I. INTRODUCTION would help them cope with, and recover from, the harmful and traumatic effects of Criminology today is very different from victimization. The paper also made an criminology at the end of the 19th century attempt to explain the reasons for this or the first half of the 20th century. And transformation and the forces that played victimology is very different from a vital role in bringing about the change. victimology in the 1950’s or the 1960’s. Scientific disciplines undergo constant So what has happened in victimology evolution, though the pace of change may since that scientific meeting twenty years vary from one discipline to the other. ago? The decades of the 1980’s and 1990’s Victimology has undergone not only a could easily be described as a period of rapid, but also rather fundamental, consolidation, data gathering theorization, evolution in the last two decades. new legislation, victim compensation, redress and mediation, assistance and Twenty years ago, in 1978 at the support. International Congress of Criminology held in Lisbon, Portugal, I presented a paper II. CONSOLIDATION entitled “Some Recent Theoretical Developments in Victimology”. The paper In the last few years, the discipline of was published in the only victimological victimology firmly established itself on the journal available at the time (Victimology: academic scene. There was a substantial An International Journal, Vol.4, no.2, increase in the number of universities and pp.198-213). In the paper, I pointed to the colleges offering courses in victimology and discipline’s transformation from a related subjects. A large number of books ‘victimology of the act’ to a ‘victimology of and articles were published in different action’. I explained how in its beginning, languages, and in addition to several victimology was essentially the victimology periodicals published in local languages, an of specific crimes: victimology of violent International Review of Victimology, in crimes, i.e, homicide; victimology of sexual English, was put out by AB Academic offences, i.e, rape; victimology of property Publishers in Britain. A number of national crimes, i.e, burglary and fraud. These and regional societies of victimology were pioneer theoretical studies of early established. Japan has been one of the victimology were soon overshadowed by leaders in this respect, thanks to the major developments in the applied field, tireless efforts of Professor Koichi well-intentioned and persistent Miyazawa, the world renowned endeavours aimed at alleviating the plight victimologist, and a dynamic group of his of crime victims, and at providing them students and followers. with the services, aid and assistance that The World Society of Victimology continued to hold its international * Professor Emeritus, School of Criminology, Simon symposia once every three years. The last Fraser University, Canada. one, the ninth in the series, was held in
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Amsterdam in August 1997, and drew a Survey and the National Crime Survey in record number of participants. All in all, the United States. Each of these surveys victimology is no longer a subject of yields a wealth of information on crime bewilderment or curiosity but is slowly victims. Both of them allow a thorough becoming a household name. This is being analysis of the temporal and spatial facilitated by the extensive coverage crime patterns and trends in various types of news and victim issues are receiving in the victimization. The original goal of these mass media; by the wide publicity victims’ surveys, namely counting victimization, programs are getting and by the has been largely expanded and several new proliferation of victim services and victim questions were added in recent years to the assistance programs in many countries. instrument to explore various areas such as the levels of fear of crime, the levels of The last twenty years saw the creation satisfaction with police action, the reasons and extremely rapid expansion of victim for not reporting the incident to the police, services. Victim assistance programs, the consequences of victimization, etc. totally non-existent a couple of decades ago, have mushroomed all over the globe from Another area that was examined was the Australia to Europe, from South America measures taken by the respondents to to Asia, and from the large Islands of Japan prevent certain types of offences, or to to the relatively small Canary Islands. minimize the chances of future victimization. Some surveys tried to One of the most important developments establish whatever link may exist between in the field of victimology in the last twenty offending and victimization by including years was the formal approval by the questions requesting respondents to self- General Assembly of the United Nations report acts of delinquency they might have on November 11, 1985 of the “UN committed. These latter questions led to Declaration of Basic Principles of Justice some very interesting findings. for Victims of Crime and Abuse of Power”. In adopting it, the General Assembly stated In their London (England) survey, that it was “Cognizant that millions of Sparks, Genn, and Dodd (1977) found people throughout the world suffer harm victims of violent crime to be significantly as a result of crime and abuse of power, and more likely than non-victims to self-report that the rights of these victims have not been the commission of violent crimes. adequately recognized”. Gottfredson (1984) analysed the 1982 British Crime Survey data and was struck III. DATA GATHERING AND by the relatively strong inter-relationship THEORY FORMULATION between offending and victimization. For persons with at least one self-reported One of the primary tasks of theoretical violence offence, the likelihood of victimology is to collect empirical data on victimization was 42 percent, or seven crime victims. The main instrument used times the likelihood of personal at present to collect this information is victimization for persons reporting no self- victimization surveys. They are conducted reported violent offences. The British at the local, regional, national and Crime Survey of Scotland (Chambers and international level. Notable among these Tombs, 1984), revealed that 40 percent of surveys are the ones that are carried out respondents admitting an assault were on a regular basis, at regular intervals, in themselves assault victims during that England and the US: the British Crime period.
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Despite the methodological and practical roles are not necessarily antagonistic but problems of victimization surveys and are frequently complementary and despite their limitations, they have allowed interchangeable (Fattah, 1994d). researchers to collect a huge amount of data on victims of crime that is extremely This situation is particularly true of rich in variety and detail. Thanks to brawls, quarrels, disputes, and victimization surveys we now know that altercations. In many instances, criminality and victimization are clustered dangerousness and vulnerability may be within certain groups and certain areas, regarded as the two sides of the same coin. and that there is much greater affinity They often coexist since many of the factors between offenders and victims than is that contribute to dangerousness may commonly believed. This is not to say that create or enhance a state of vulnerability. all victims of crime share the attributes of One such factor is alcohol consumption, their victimizers. It is only to stress that which may act simultaneously as a the two populations have several common criminogenic and as a victimogenic factor, characteristics. Whether in Europe, the enhancing the potentiality of violent US, Canada or Australia, research showed behaviour in one party and of violent that offenders involved in the types of victimization in the other (see Fattah and crimes covered by victimization surveys are Raic, 1970). disproportionately male, young, urban residents, of lower socio-economic status, An important step on the road to unemployed (and not in school), unmarried, comparative victimology was achieved with and in the US, black. Victimization surveys the conducting of International Crime revealed that victims disproportionately Surveys. The surveys are a useful attempt share these characteristics and that the to collect standardized victimization data demographic profiles of crime victims and from a number of countries using the same of convicted criminals are strikingly similar questionnaire in each country. The main (Gottfredson, 1984). purpose was to avoid the problems of comparing data collected by means of Several researchers ( Hindelang et al., different instruments, using different 1978; Singer, 1981) discovered that, methodologies. Field data for this particularly in crimes of assault, victims international crime survey were gathered and offenders were related in their in January 1989 and published in 1990 demographic characteristics and in terms (Van Dijk, Mayhew and Killias, 1990) . The of certain shared responses to perceived size of each nationally representative situations of physical or psychological sample varied between 1000 and 2000, threat. It is understandable that the though most participating countries opted frequency with which some individuals for the larger size sample; the Federal become involved in violence-prone Republic of Germany even chose 5000 situations will affect both their chances of interviews. using violence and of being recipients of violence, of attacking and being attacked, Telephone interviewing was chosen of injuring and being injured, of killing and because of its relatively modest costs, and being killed. Who will end up being the it was decided to use the computer-assisted victim and who will be legally considered telephone interviewing method (CATI the offender depends quite often on chance method), which allows for much tighter factors rather than deliberate action, standardization of questionnaire planning, or intent. Thus, victim/offender administration. Respondents were asked
62 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS about their victimization experience with victimization? The titles ‘crime survey’ and nine types of crimes over the previous five ‘victimization survey’ continue to be used years, though victimization in 1988 was interchangeably (Fattah, 1997). highlighted to give up-to-date annual risks. The nine crimes covered were theft of motor Rape is good case in point because of the vehicles (cars, motorcycles and mopeds); enormous gap that may exist between the theft from motor vehicles; vandalism to legal definition and the subjective motor vehicles; burglary and attempted experience of the female. Also because the burglary; robbery and attempted robbery; sexual act can be experienced in very other thefts of personal property; sexual different ways by different women. assault (women only); and assault. Victims were then asked short questions about the A. Theoretical Models nature and material consequences of crime; The wealth of data collected mainly whether the police were involved (and if through victimization surveys has led to not, why not?) ; and their satisfaction with various theoretical formulations. Models the police response and any victim were developed to offer plausible assistance given. explanations for the variations in victimization risks, for the clustering of A second round of the International victimization in certain areas and certain Crime Survey was carried out in 1992. groups, and to unravel the intriguing Some of the countries that participated in phenomenon of repeat victimization. The the first survey such as Switzerland, different models are presented and Norway and Northern Ireland did not take summarized in my introductory part in the second one. But the survey victimology book entitled ‘Understanding included some countries from Eastern Criminal Victimization’ (Prentice Hall, Europe which did not participate in the 1991). first one, such as Poland and the former Czechoslovakia (see Del Frate et al., 1993). One of the first and more important models explaining the differential risks of Despite the proliferation of victimization victimization is the Lifestyle Model surveys and their unquestionable utility, developed by Hindelang, Gottfredson and it is not yet clear what exactly they do Garofalo (1978). To develop this measure and what are their long term explanatory model, the authors used objectives. Victimization is a personal empirical data gathered from an eight-city subjective and relative experience. The survey conducted by the United States feeling of being victimized does not always Bureau of Census in the cities of Atlanta, coincide with the legal definition of Baltimore, Cleveland, Dallas, Denver, victimization. So what exactly are Newark, Portland (Oregon) and St. Louis victimization surveys trying to measure? in 1972. Hindelang et al. (1978) It is far from clear whether their objective synthesized the findings and put forth is to measure those criminal victimizations some propositions to account for variations that meet the criteria set by the criminal in risk and consequences of personal code, or whether they are meant to victimization. Their model posits that the measure the subjective victimizations likelihood an individual will suffer a experienced by the respondents. These, personal victimization depends heavily on needless to say, are two different realities. the concept of lifestyle. Or to put it bluntly, are the surveys designed to measure crime or
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Using lifestyle to explain variations in is the outcome of the conference in space risk is neither a novel nor a unique and time of three minimal elements: approach. It has been known for a long motivated offenders, suitable targets, and time that the probability of accidental absence of capable guardians. The central death or injury is, in many respects, related factors underlying the routine activity to people’s lifestyle and the kind of approach are opportunity, proximity/ activities in which they are involved. exposure, and facilitating factors. For Physicians have repeatedly stressed the example, the abundance of goods that can close link between lifestyle and routine be stolen leads to higher rates of property activities, and the risk of suffering certain victimization (opportunity). The dispersion diseases such as cancer, high blood of routine activities in the United States pressure, and cardiovascular ailments. As since the end of World War II has led to a a matter of fact, the lifestyle concept substantial increase in predatory crime. permeates the explanations of a higher or This shift of routine activities away from lower susceptibility to a wide variety of the home, and the greater interaction diseases. We refer to lifestyle when we between people who are not members of the maintain that those who smoke have a same household results in greater exposure higher risk of lung cancer than those who of people to potential offenders outside the do not; that those who expose themselves, home, and thus, increases the risk of direct- unprotected, to the sun have a greater contact predatory crime (proximity/ probability of skin cancer; that those who exposure). Concomitantly, the increasing drink heavily have a greater susceptibility absence from home leaves the residences to liver disease. Lifestyle is also the central insufficiently protected and renders them concept in explanations linking dietary suitable and easy targets for common types habits, the lack of exercise and a sedentary of household victimization (facilitating way of life, to heart disease. More recently, factors : the absence of capable guardians). lifestyle has been identified as a major risk factor in contracting Aids. The belief that These are by no means the only models. lifestyle can influence the probability of There is also the Opportunity Model victimization by increasing or decreasing (Cohen, Kluegel and Land, 1981) and the people’s chances of becoming victims of Dutch Model (Steinmetz). The opportunity certain crimes may be seen as a simple, and model incorporates elements from both the in many ways logical, extension of the lifestyle and routine activity perspectives concept to the social sphere. and posits that the risk of criminal victimization depends largely on people’s Another explanatory model is the lifestyle and routine activities that bring Routine Activity Approach developed by them and/or their property into direct Cohen and Felson (1979). The focus in contact with potential offenders in the Cohen and Felson’s approach is on “ direct- absence of capable guardians. The Dutch contact predatory violations,” which are model was developed by Van Dijk and those “involving direct physical contact Steinmetz who identified three main between at least one offender and at least factors: proximity, attractiveness and one person or object which that offender exposure, as important determinants of attempts to take or damage” (Cohen and differential victimization risks. Felson, 1979, p.589). In an attempt to integrate the various Cohen and Felson (1979) argue that the models into a comprehensive scheme I used occurrence of these types of victimization ten different components. There are :
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(1) Opportunities: which are closely or at home. linked to the characteristics of (7) Dangerous behaviors: this is potential targets (persons, because certain behaviors, such households, businesses) and to as provocation, increase the risk the activities and behavior of of violent victimization while those targets. other behaviors such as (2) Risk factors: particularly those negligence and carelessness related to socio-demographic enhance the chances of property characteristics such as age and victimization. There are other gender, area of residence, dangerous behaviors that place absence of guardianship. those engaging in them in Presence of alcohol and so forth. dangerous situations where (3) Motivated offenders: this is their ability to defend and because offenders, even non- protect themselves against professional ones, do not choose attacks is greatly reduced. their victim/targets at random (8) High-risk activities: also but select their victims/targets increase the potential for according to specific criteria. victimization. Among such (4) Exposure: this is because activities is the mutual pursuit exposure to potential offenders of fun, as well as deviant and and to high-risk situations and illegal activities. It is also well environments enhances the risk known that certain occupations of criminal victimization. such as prostitution carry with (5) Associations: the homogeneity them a higher than average of the victim and offender potential for criminal populations suggests that victimization. differential association is as (9) Defensive/avoidance behaviors: important to criminal as many risks of criminal victimization as it is to crime victimization could be easily and delinquency. Thus avoided, people’s attitudes to individuals who are in close those risks can influence their personal, social or professional chance of being victimized. It contact with potential goes without saying that risk- delinquents and criminals run takers are bound to be a greater chance of being victimized more often than risk- victimized than those who are avoiders. It also means that fear not. of crime is an important factor (6) Dangerous times and dangerous in reducing victimization, since places: the risks of criminal those who are fearful take more victimization are not evenly precautions against crime, even distributed in time or space - curtailing their day and night there are dangerous times such time activities, thus reducing as evenings, early night hours their exposure and vulnerability and on weekends. There are to victimization. also dangerous places such as (10) Structural/cultural proneness: places of public entertainment there is a positive correlation where the risks of becoming a between powerlessness, victim are higher than at work deprivation and the frequency of
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criminal victimization. Cultural While legislative initiatives and/or stigmatization and changes acknowledging victims rights were marginalization also enhances generally well received and encountered the risk of criminal victimization little or no opposition in parliaments and by designating certain groups as legislative assemblies, they are not without ‘fair game’ or as culturally critics. In a seminal article entitled ‘The legitimate victims. Wrongs of Victim’s Rights’ Lynn Henderson (1985, 1992) outlined many of the IV. NEW LEGISLATION weaknesses inherent in the notion of victim’s rights and many of the dangers of There has been a flurry of victim victim’s rights legislation. legislation in recent years in a large number of countries. Following the One particular initiative that has adoption of the UN Declaration of Basic received a great deal of criticism is ‘victim Principles of Justice for Victims, so-called impact statements’. VIS, designed to allow Victims’ Charter of Rights or Victims’ Bills victims some input in the court’s decision of Rights were passed by the legislative in their case (by providing a statement of bodies in various societies. the impact the victimization has had on their lives and their families), was singled In the United States there was an out for particular criticism and attempt by the victim lobby to bring about encountered a lot of resistance from some a change to the Sixth Amendment of the quarters. In Australia, for example, after US Constitution to provide a legal basis for reviewing the arguments for and against protecting the rights of crime victims, but victim impact statements, and after noting it did not succeed. However, as Karmen that many victims do not wish to be (1995, p339) reports, since 1980, in almost involved by giving evidence on the impact every American state, legislatures passed of offences on their lives, the Victorian various statutes acknowledging basic Sentencing Committee concluded that the rights for victims: to be notified about and case against the introduction of VIS was to participate in judicial proceedings, to more compelling than the case for them. promptly get back stolen property that was Consequently, the Committee (1988) recovered, to be protected from recommended that VIS not be adopted in intimidation and harassment, and to Victoria (p.545) (Fattah, 1992, p416; see receive restitution or compensation. also Kelly and Erez, 1997, p236-7). Similar legislation was passed in In the US, the Supreme Court barred Canada, Australia, Britain and some other victim impact testimony in capital cases as European countries. Also in Europe, violating the Eight Amendment of the victims received a considerable boost from American Constitution (Booth v. Maryland, a number of important initiatives in the 1987, and South Carolina v. Gathers, 1989) mid-1980s, including a Convention and two and then in Payne v. Tennessee (1991) the important Recommendations by the court upheld the use of victim impact Council of Europe in 1983, 1985 and 1987 testimony at the sentencing stage of a (on, respectively, state compensation, the capital case (Kelly and Erez, 1997, p235- position of the victim in the criminal justice 6). system, and assistance to victims) (Maguire and Shapland, 1997, p212).
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V. VICTIM COMPENSATION schemes, do not have and cannot afford private insurance. In four out of five cases Redress to crime victims in the form of in these property crimes, the culprit is monetary compensation by the state is the neither identified nor caught. And the few first attempt in recent history to alleviate who are arrested, charged and convicted the plight of victims and to improve their are, more often than not, poor or insolvent, lot. In the 1960s, a British magistrate, so that nothing could be obtained from Margery Fry, and others called for State them through a civil judgement. And to compensation to crime victims, and their add insult to injury, in most countries the pleas led to the creation of government collection of criminal fines continues to indemnification programs in New Zealand, have priority over the payment of civil the United Kingdom, North America, damages or of restitution/compensation Europe and elsewhere. These programs orders. have been operating for more than a quarter of a century and many have been In recent years, several governments the subject of varying kinds of assessments decided to transfer the financial burden of and evaluation (Burns, 1980; Miers, 1978; victim compensation to offenders through Doerner, 1978; Elias, 1983). a levy called ‘a victim fine surcharge’ imposed on those who are sentenced to a This is without doubt an area where fine even if the sentence is for so-called action has not matched the political victimless crime (Fattah, 1997). rhetoric. Economic hardships and budgetary restraints have greatly limited VI. OFFENDER RESTITUTION the scope of compensation and the number of victims who receive it. The evaluations Restitution by the offender to the victim suggest that the amounts victims get from is one of the earliest forms of redress to the schemes are, for the most part, token those who suffer injury or harm through amounts, and that the programs in reality the actions or negligence of another. This fulfill no more than a symbolic function. A was the composition or wergeld paid to the very tiny proportion of victims end up victim or the victim’s kin. Parker (1977, receiving any compensation, and for those p28) describes the historical development who do, it is, more often than not, too little that led to the emergence of the criminal and too late. Ironically, researchers (Elias, law: 1983a, 1983b) found that victims who apply for and go through the process of At this stage of legal development compensation, even those who end up there was no differentiation between receiving some funds, are less satisfied what we know as crime or criminal than those who do not apply. In England, law and tort or civil liability for David Miers (1983, 1990), quoted by damage inflicted. All injuries to Maguire and Shapland (1997, p218) argued persons or property were considered that state compensation is essentially a as ‘wrongs’. The seriousness of the symbolic act by governments to show their wrong depended upon the disruption concern for victims, but with little real caused to the community or the actual intention of following it through with hard or perceived affront to the injured cash. parties. Slowly, a distinction emerged between wrongs which were private Most victims of property crime, who are disputes and required payment to the excluded from state compensation injured party or his kin and wrongs
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which had a public quality and terms of the flow of criminal justice required compensation to the whole cases overall. The dominant model group. is still prosecution, or some form of discontinuance (such as a formal Since state compensation programs are caution in England and Wales), often strictly limited to victims of violence, sometimes accompanied by work with restitution by the offender has reemerged the offender - but rarely involving the as a means of redress in property offences victim. as well as in violent crimes. The problem is that the vast majority of offenders are VII. VICTIM SERVICES either unemployed or do not have the The last twenty years have witnessed an financial means that would make it unprecedented development in the field of possible for victims to collect restitution. victim services. Victim services have been Added to this problem is the fact that in called the growth industry of the decade. many countries the collection of the penal The expansion of service programs for fine takes priority over restitution orders. victims of crime in the United States, Canada, the United Kingdom and many There are different models of restitution. other countries has been nothing short of Maguire and Shapland (1997, p219) outline phenomenal. During the 1980s and the three models that are common in Europe: 1990s, legislation was passed, services were created, and programs were set up, The ‘partie civile’ procedure, the all aimed at helping crime victims and award of a compensation order as improving their often unhappy lot (Fattah, part of a sentence against the offender, 1992, p260). In the UK, it is considered and restitution made informally or as the fastest developing voluntary movement part of a diversion arrangement by the (see National Association of Victims prosecution. The first two models Support Schemes, 1984). In 1990, Davis have tended to be seen as mutually and Henley estimated the number of victim exclusive in jurisprudential terms, so service programs in the United States to that one country has favoured one and be in excess of 5,000, whereas 20 years another, though the Netherlands is earlier there had been none (p157). currently considering introducing compensation orders while retaining Most assistance programs, particularly the possibility of using ‘partie civil’. those housed in police departments, refer victims, according to their needs, to Citing the results of evaluation of a existing services within the community. number of local schemes conducted in Some, in addition, provide victims with different countries, Maguire and Shapland urgently needed help: replacing the broken (1997, p221) write: window, the damaged lock, fixing the vandalised car, driving, cleaning, shopping, The conclusions seem universal. helping with the children and so forth. Financial restitution figures in only There are also various programs that a small proportion of the cases sent provide special assistance to certain for mediation (the majority ending categories of victims, for example, victims with an apology or in some contract of rape, child victims of sexual assault, concerning the offender’s behavior). victims of family violence, etc. Rape crisis Mediation cases themselves remain centres and shelters for battered women very much a minority disposal in
68 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS are currently operating in many places. More progress has even been achieved Overall, however, the two most important at the applied level. The victim movement services provided to crime victims by has been very successful in sensitizing victims assistance programs are politicians, policy makers, the criminal information and moral support. justice system and the general public to the plight of crime victims. This has resulted Despite enormous strides, a great deal in a flurry of legislation aimed at improving remains to be done. Maguire and Pointing the sad lot of crime victims and at (1988, p37) note that victim support recognizing and implementing some basic remains essentially a ‘grassroots’, low rights for crime victims. Many steps have budget enterprise which relies upon the been taken to increase victim participation good will and hard work of volunteers. in criminal justice proceedings, to improve Shapland, Willmore and Duff (1985, p178) the treatment of victims by criminal justice maintain that the major projects aimed at personnel, and to allow the victims some fulfilling victims’ needs were set up without input in criminal justice decisions. regard to, or even investigation of, victims’ expressed needs. Rock (1990, p408) insists There have been many other that victims’ interests were never the developments at the applied level. In many motivating or mobilizing force behind the countries, state programs to compensate new initiatives to help victims. Mawby and crime victims were set up. Restitution by Gill (1987, p228) detected a right wing, law the offender is being ordered in a growing and order focus among victim support number of cases, particularly in cases of scheme volunteers. They expressed economic crimes, white collar crime, and concerns that crime victims might become property victimization. A paradigm shift ‘the victims of political expediency’. While is slowly shaping up in criminal justice and Elias (1993, p120) affirms that victims’ the growing realization of the futility of services really serve official needs, not punitive/retributive justice is facilitating victims’ needs. the acceptance of the new paradigm of restorative justice. Restitution by the IX. CONCLUSION offender (to the victim) is increasingly becoming one of the primary conditions of I have tried to present a bird’s eye view diversion and of probation, both in the of recent developments in victimology, both juvenile and adult systems. theoretical and applied. Victimology has made enormous strides in the past twenty Programs for victim-offender mediation years. As a result of ongoing studies and both in serious as well as in minor offences research, we now possess a better have been established in many countries knowledge than ever before of the and in most cases, making amends by phenomenon of victimization and of those repairing the harm done to the victim is who are occasionally, frequently or one of the primary conditions of successful repeatedly victimized. We have adequate resolution of the conflict. knowledge of the distribution of victimization in time and space, of the Victim services, practically non-existent dynamics of victimization, of the process two decades ago, are becoming widespread of victim/target selection, and we have not only in the wealthy countries of the several theoretical models that are meant industrialized world, but also in many to explain the variations in victimization developing countries. Assistance, in risks. various forms, though mostly by well-
69 RESOURCE MATERIAL SERIES No. 56 intentioned volunteers, is being offered to victims who desire it. Special assistance to certain categories of victims, such as victims of rape, child victims of sexual assault, and victims of family violence is now available in many places. Shelters for battered women and children have been opened to help victims avoid the repetition of victimization. Special counselling programs are also made available to the families of victims of homicide.
It can thus be concluded that the achievements have been many and in some instances nothing short of spectacular. But the road remains long and paved with obstacles. A great deal remains to be done in order to meet the challenge to victim services in the next millennium.
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THE VITAL ROLE OF VICTIMOLOGY IN THE REHABILITATION OF OFFENDERS AND THEIR REINTEGRATION INTO SOCIETY
Ezzat A. Fattah*
I. INTRODUCTION alike for factual and systematic information about crime victims. It goes This paper is about a relatively new and without saying that the study and the not very well known discipline called understanding of the phenomenon of crime victimology. The logical starting point is will never be complete unless the victims to see what victimology is all about, to are included in the explanatory models. No briefly trace its beginnings, its historical valid theory of criminal behaviour can evolution, and its present state. I will afford to ignore the victim. To try to do so address three major questions that are would be an attempt to explain a dynamic highly relevant to the subject-matter of this and interactionist form of human training course. These are: behaviour in a unilateral, uni-dimensional and static manner. This is why the study (1) Why is a good knowledge of of the victim is, and will always remain, victimology indispensable for an integral part of criminology. better understanding the offender and the offence? II. WHAT IS VICTIMOLOGY? (2) Why is a good knowledge of victimology absolutely essential If criminology is the science of crime and for positively changing offenders’ criminal behaviour then, for the sake of attitudes and behaviour? simplification, we can say that victimology (3) What new and exciting is the science of victims and victimization. possibilities does victimology Theoretical victimology is the study of offer for the rehabilitation of crime victims, their characteristics, their offenders and their successful relationship to, and their interactions, with reintegration into society? their victimizers, their role, and their actual contribution to the genesis of the Victimology is a very young discipline, crime. It is also the study of the impact of much younger than its parent discipline: crime on victims, in particular, the criminology. Victimology is only fifty years traumatic effects of victimization, victims’ old but it is neither a fad nor a fashion, it response to victimization, and the coping is a scientific reality that has imposed and mechanisms they use for healing and affirmed itself. Its impact on, and its recovery. Applied victimology is the contribution to, criminology have been application of knowledge acquired from the significant. Victimological research fills an study and research on victims and enormous gap in our knowledge about the victimization in practice to help and assist phenomenon of crime. It satisfies a need those victimized by crime and prevent deeply felt by researchers and practitioners victimization.
* Professor Emeritus, School of Criminology, Simon Fraser University, Canada.
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III. A BRIEF HISTORY OF undesirable result is designated as the VICTIMOLOGY criminal act, and the actor as the responsible criminal. The various Early victimological notions were degrees and levels of stimulation or developed not by criminologist or response, the intricate play of sociologist but by poets, writers and interacting forces, is scarcely taken novelists. The first systematic treatment into consideration in our legal of victims of crime appeared in 1948 in distinctions, which must be simple Hans von Hentig’s book ‘The Criminal and and workable. His Victim’. In the fourth part of the book, under the provocative title ‘the Victim’s Elsewhere von Hentig points out that: Contribution to the Genesis of the Crime,’ von Henting criticized the static The law considers certain results and unidimensional study of the offender which the final moves which lead to them. had dominated criminology and suggested Here it makes a clear-cut distinction in its place a new dynamic and dyadic between the one who does, and the one approach that pays equal attention to the who suffers. Looking into the genesis criminal and the victim. Von Hentig had of the situation, in a considerable earlier treated the topic in a paper number of cases, we meet a victim who published in the Journal of Criminal Law consents tacitly, co-operates, conspires and Criminology in 1940. In it, he noted or provokes. The victim is one of the that: causative elements. (p.436) It is true, there are many criminal Von Hentig insisted that many crime deeds with little or no contribution on victims contribute to their own the part of the injured individual. victimization, be it by inciting or provoking ...On the other hand, we can the criminal or by creating or fostering a frequently observe a real mutuality in situation likely to lead to the commission the connection of perpetrator and of the crime. Other pioneers in victimology, victim, killer and killed, duper and who firmly believed that victims may duped. Although this reciprocal consciously or unconsciously play a casual operation is one of the most curious role, outlined many of the forms this phenomena of criminal life, it has contribution can take: negligence, escaped the attention of socio- carelessness, recklessness, imprudence, pathology. and so forth. They pointed out that the victim’s role could be a motivational one In his book, von Hentig (1948:438) is (attracting, arousing, inducing, inciting) or critical of the legal distinction between a functional one (provoking, precipitating, offenders and victims and the criteria used triggering, facilitating, participating) by the criminal law to make such (Fattah, 1991). attributions: Von Hentig’s book was followed by a Most crimes are directed against a number of theoretical studies that dealt specific individual, his life or with victim types, victim-offender property, his sexual self- relationships, and the role victims play in determination. For practical reasons, certain kinds of crime. The book also the final open manifestation of human provided an impetus for several empirical motor force which precedes a socially studies that devoted special attention to the
72 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS victims of specific offences. probably have been evident all along. Such omissions occur continually. The term victimology was coined in 1949 They are an ineluctable part of any by an American psychiatrist, Frederick discipline, a consequence of the truth Wertham, who used it for the first time in marked by Burke when he said that his book ‘The Show of Violence’. Wertham ‘a way of seeing is always a way of wrote: not seeing.’ The price of organizing, specializing and accumulating The murder victim is the forgotten knowledge about any area is a man. With sensational discussions on systematic neglect of the other matters the abnormal psychology of the thrown out of focus and beyond the murderer, we have failed to emphasize margins. Precisely because the unprotectedness of the victim and criminology is an empirically-driven the complacency of the authorities. discipline, it has tended to ignore One cannot understand the those things that do not bear the name psychology of the murderer if one does of crime, criminals and criminal not understand the sociology of the justice. victim. What we need is a science victimology. (p.259) IV. WHY VICTIMOLOGY Since the dawn of scientific criminology, During the early years of victimology, criminologists have tried to find out why literature on crime victims remained some individuals become criminals while relatively small when compared to that on others do not. They conducted countless criminology. During the 1980’s, however, studies to discover whether criminals are a great spate of important books and different in any respect from non-criminals. articles marked the coming of age of An equally interesting and thought- victimology (Rock, 1994). At present, it is provoking question is ‘Why do some fair to maintain that the study of crime individuals become victims of crime while victims has become an integral part of others do not?’. Is criminal victimization a criminology. random occurrence? Is it due simply to chance factors, misfortune, or bad luck? Do The need for criminology to thoroughly victims of crime constitute a representative study the victims of crime may today sample, an unbiased cross-section of the appear obvious and axiomatic. And it may general population? Do victims of crime seem rather surprising that such obvious differ in any way from non-victims? How need has escaped the attention of do offenders select their targets; how do criminologists for over a century. But it is they pick their victims? There are many not rare for social scientists to miss the- other questions for which research is obvious. This point is well made by Rock seeking answers. The following are just a (1994, pxi) who points out: few examples: Even criminology and the sociology of (1) Why are certain individuals or deviance - disciplines concentrated groups of individuals more most squarely on the analysis of frequently victimized than crime, criminals and criminal justice others? Why are certain targets - tended somehow to obliterate the (individuals, households, victim for a very long while, failing businesses, etc) repeatedly to see what, in retrospect, should
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victimized? How can the entirety and in all its complexity, equal differential risks and rates of attention has to be paid to the criminal and victimization be explained? their victim. There are several reasons that render the study of crime victims (2) Are certain persons (or targets) essential, indeed, indispensable, for a more prone and more vulnerable better understanding of the phenomenon to victimization than others, and of crime (Fattah, 1991): if so, why? What is the nature of this proneness; what are the (1) Motives for criminal behaviour do elements of this vulnerability? not develop in a vacuum (von Hentig, 1948). They come into (3) Are there born victims, being through drives and predestined victims, predisposed responses, reactions and victims? Are there recidivist interactions, attitudes and victims? Are there victim counter attitudes. In many cases, stereotypes just as there are the victim is involved consciously criminal stereotypes? or unconsciously in the motivational process, as well as (4) Are there specific characteristics in the process, of mental or specific behaviours that reasoning or rationalization that enhance the risks and chances of the criminal engages in prior to criminal victimization, that are the commission of the crime responsible for, or conducive to, (Fattah, 1976). In some becoming a victim? And if so, instances, the motives for the what are these characteristics criminal act develop around a and these behaviours? specific victim. An examination of the place the victim occupies (5) Is there such a thing as victim- or the role the victim plays in invited, victim-induced, victim- these processes is necessary to precipitated, victim-facilitated understand why the crime was criminality? Do some victims committed and why a particular promote, provoke, or trigger their target was chosen. own victimization? Do potential victims emit non-verbal signals, (2) The commission of a crime is the signalling their vulnerability to outcome of a process where many would-be assailants through factors are at work. In most gestures, posture and cases, crime is not an action but movements? a reaction (or an overreaction) to external and environmental These questions and many others raise stimuli. Some of these stimuli a number of issues and research topics that emanate from the victim. The are quite different from those that have victim is an important element of been the focus of mainstream criminology. the environment and of the Although the scientific study of the criminogenic situation. criminal is more than a century old, the systematic study of the victim is still in its (3) Often, the criminal act is not an infancy. And yet, it seems axiomatic that isolated gesture but the to analyse the crime phenomenon in its denouement of a long or brief
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interaction with the victim. In The traits approach either such cases, it is not possible to ignores or deliberately minimizes understand the act fully without the importance of situational analysing the chain of factors in actualizing or interactions that led to its triggering criminal behaviour. perpetration. It is scientifically The study of victims offers great unsound to examine and analyse promise for transforming the offender’s act in isolation from etiological criminology from the dynamic forces that have static, one-sided study of the prepared, influenced, qualities and attributes of the conditioned, or determined it, or offender into a dynamic, to dissociate it from the situational approach that views motivational and situational criminal behaviour not as a processes that led to its unilateral action but as the commission. outcome of dynamic processes of interaction. (4) Current theories of criminal and deviant behaviour, whether (6) As Anttila (1974) points out, the attempting to explain causation study of the victim has a general or association, offer only static informational value. It provides explanations. Since criminal information on the frequency and behaviour, like other forms of patterns of victimization, thus human behaviour, is dynamic, it making possible the can be explained only through a measurement of risk probabilities dynamic approach, where the and the establishment of risk offender, the act, and the victim categories (high, low, medium). It are inseparable elements of a also provides valuable total situation that conditions the information on proneness to dialectic of the victimizing victimization, fear of behaviour (Fattah, 1976). victimization, response to victimization, consequences and (5) The traits approach, seeking the impact of victimization. Such genesis of criminal behaviour in knowledge is essential for the the characteristics and attributes formulation of a rational criminal of the offender, is simplistic. policy, for the evaluation of crime Theories of offenders’ attributes, prevention strategies, and for personalities, or social taking social action aimed at background do not explain why protecting vulnerable targets, other individuals who have the increasing safety, and improving same traits or personality type or the quality of life. who grow up in identical or very similar conditions do not commit (7) The victim has a strong impact crimes or do not persist in a on criminal justice decisions, criminal career. They fail to particularly those of the police explain why the offender and the courts. In most cases, it committed the crime in a is the victim who decides whether particular situation, at a given or not to mobilize the criminal moment, against a specific victim. justice system by reporting or not
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reporting the offence. (9) Modern criminology is paying Furthermore, the characteristics, more attention to the concept attitude and behaviour of the opportunity (see Mayhew et al., victims, and their relationship to 1976). The commission of many the offender, have a significant crimes is believed to be largely a bearing upon the decision of the function of the opportunities to police to proceed in a formal or commit those crimes. an informal way (see Black, Opportunities, in turn, are 1970). In the latter case, victim- viewed as being greatly related factors can greatly affect influenced by the behaviour of the final outcome. The study of potential victims. The collective the victim leads not only to a behaviour of potential crime better understanding of the victims may have a strong impact functioning of the criminal justice on crime rates, and variations in system, but also to improving the those rates may be explained, at decision-making process. least partially, through Enhancing victims’ involvement differences or changes in victim in the process and establishing behaviour. For this reason, a the modalities of such better understanding of the involvement require a better attitudes and behaviour of understanding of the role victims victims holds great promise for currently play in criminal justice. crime prevention. Victim-based prevention strategies have (8) To better fulfil society’s several advantages over offender- obligations to the victims of crime based ones. The former aims at - in order to help, assist, and hardening the targets, making make the victim whole again - it the commission of crimes more is necessary to gain a thorough difficult and less profitable. The knowledge of the consequences role potential victims are called and impact of the crime on those upon to play in this who are victimized. Moreover, an environmental/situational adequate knowledge of the approach is a primary one. various needs of victims of different types of crime is a (10) The medieval paradigm of prerequisite for setting up ‘retributive justice’ seems to have efficient victim services, victim reached its terminal phase and assistance, and compensation attempts are already underway to programs. A better have it replaced by another understanding of victims’ paradigm of ‘restorative justice.’ perceptions of, and attitudes to, Restorative justice is based on the the criminal justice system, their principles of mediation, reasons for not reporting conciliation, restitution and victimization and refusal or compensation. Its primary aim unwillingness to co-operate with is healing, not punishment. In a the system, are essential to restorative justice system, the improving attitudes and victim ceases to be a secondary enhancing co-operation. or peripheral player and assumes an active role. He/she becomes a
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full party in the process. The escalate (Felson and Steadman, study of the impact of pp.59-60); victimization on the victim, the attitudes and the needs of the (b) A non-negligible part of violence and victim are thus essential to a homicide is victim precipitated system of restorative justice (Wolfgang, 1958). In such cases, the (Fattah, 1995). violent response is more a function of the precipitating behaviour of the V. THE INADEQUACY OF THE victim and the “situational DISPOSITIONAL THEORIES OF determinants” (Felson and CRIMINALITY Steadman, 1983) than it is a function of the characteristics and the Criminological theories that stress background of the respondent. individual traits or offender pathology fail miserably when the task at hand is to Another shortcoming of the “positivist” explain the temporal and spatial patterns approach is the static way in which it views of crime, regional, provincial, intercity and the personality traits and character intracity variations in crime rates, or the attributes believed to be responsible for changes in those rates over time. Theories criminal behaviour. Traits such as seeking the genesis of criminal behaviour aggressiveness, callousness, and in the abnormality or the psychopathology dishonesty are neither constant nor of the offender ignore the dynamic forces absolute and, thus alone have very little, that determine, condition, shape or if any, explanatory value. Some individuals influence the offender’s behaviour in a become aggressive only when under given situation. Not only do they fail to extreme stress, have consumed alcohol, or explain why many of those who share when provoked. Others may use violence offenders’ abnormal or pathological only when they are humiliated or hurt in characteristics do not engage in criminal their vanity. Some men become violent in behaviour, but they also fail to explain why situations where they feel the need to it is that most of those who commit incest assert their maleness. Some people may or family violence (to give just one example) be shy and withdrawn without peer confine their sexual coercion or aggression support, only to become extremely mean strictly within the family and rarely, if ever, when in the presence of, and under are violent or sexually preying against pressure from, their peer group. People others outside the home. The theories do may be scrupulously honest in one not fare any better when it comes to situation and shamelessly dishonest in explaining retaliatory behaviour another. Many “honest” people, whose committed as a reaction to prior moral scruples would never allow them to victimization or in response to provocation cheat or steal from a friend or neighbour, a or precipitation. This is a serious work partner, or in general another human shortcoming because: being, become totally unscrupulous when it is a matter of cheating the government, (a) Retaliation is a key principle in a large corporation, or the general public. violence (Felson and Steadman, 1983, They could be today without inhibitions or p.60; Singer, 1986, pp.61-62) and compunction when it comes to committing because violence is, in many cases, a white collar crime, such as tax or custom situationally determined. In other duty evasion, insurance fraud, price fixing, words, it is the result of events and and so forth (Fattah, 1991). circumstances that cause a conflict to
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An individual’s attitudes to other are not our socialization process and basic indiscriminate. Clifford Olson, a serial institutions to accept doctrines of killer found guilty of slaying eleven individual guilt, sin, culpability, and children in British Columbia, and whom failure, as well as to accept the cult of the the police suspect of having slain even ego, the strength of character, and the more, was proven to be a loving husband stability of personality. According to and affectionate father. Yet he had no Zimbardo, contemporary social psychology sympathy or empathy for the several young maintains that we all overestimate the victims he brutally killed to satisfy his extent to which behaviour - be it evil, good, sexual desires. or neutral - is dispositionally controlled, while at the same time we systematically In view of all these serious problems and underestimate the degree to which it is shortcomings, one might wonder why it is situationally controlled (p.159). that theories of criminals’ psychopathology have maintained their popularity for over The manifest and generally a hundred years. The answer is rather acknowledged failure of criminological simple. The attractiveness of the traits/ theories (see above) points to the need for attributes approach lies in its central a new, dynamic approach that shifts the (though faulty) premise that criminal and focus from predisposing factors to delinquents are different from the rest of environmental, situational, triggering, and us. Propagating the view that some catalytic factors; from the notion of individuals are “bad”, “evil”, or in some way propensities and inclinations to the concept abnormal, allows the average citizen to of opportunity. Such a dynamic situational perceive offenders as distinct individuals, approach pays great attention to the as different beings capable of committing contexts in which violent confrontations the terrible crimes that we cannot conceive occur and analyses these confrontations as of ourselves as capable of perpetrating. It situated transactions (Luckenbill, 1977). It is a self-assuring approach that allows the maintains that many crimes are situation- dichotomization of people into the good and specific, context-specific, and target- the bad, the normal and the abnormal, specific. In contrast to the dispositional those who are criminally inclined and those perspective which postulates that the not so inclined. impulses for crime come from within the individual and are manifestations of the VI. THE SHIFT FROM psychopathology of the offender, the DISPOSITIONAL THEORIES TO situational approach looks upon criminal SITUATIONAL THEORIES behaviour as a response to environmental stimuli, stimuli that ineluctably include the Fifty years ago, Sutherland (1947) characteristics and the behaviour of the suggested that explanations deviance and potential victim (Fattah, 1991). crime are either situational or dispositional, and that of the two, The situational approach also pays great situational explanations might be the more attention to victim-offender interactions. important. Extensive research on violence, As Felson and Steadman(1983, pp.59-60) vandalism, and other forms of antisocial point out: behaviour led Zimbardo (1978, p157) to Outcomes of an aggressive interaction challenge the prevailing stereotypes which are not determined by either the locate the source of evil in people. He characteristics or the initial goals of insists that we have been programmed by the participants; rather, they are at
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least party a function of events that exchanges between the participants prior occur during the incident. In other to the use of physical force. words, violence is in part, situationally determined - the result The situational approach also pays great of events and circumstances that attention to the problems of communication cause a conflict to escalate. in confrontational encounters, such as rape and robbery situations. It analyses the The situational approach posits that subjective definitions and interpretations many crimes of personal violence, of the participants and see this as a key to particularly spontaneous, impulsive, understanding and explaining their actions unplanned, and unpremeditated ones, are and their responses. It also examines how outcomes of long or brief interactions victims respond to face-to-face between two or more individuals. As such, victimization and the impact of the these crimes cannot be adequately response on the final outcome of the explained by static theories of criminal victimization event (Fattah, 1984; 1991). behaviour that focus on offender The finding of this type of research could characteristics but give no consideration to be used to provide potential victims with the dynamic forces unique to each some guidelines on how to behave in situation. It is these dynamic forces that specific victimization situations to determine, condition, shape or influence minimize the chances of physical injury the offender’s behaviour in that particular and of the crime being completed. situation. The situational approach highlights the inherent weaknesses of VII. THE ROLE VICTIMIZATION dispositional theories of criminal behaviour PLAYS IN OFFENDING: by showing that everyone is capable of INTERCHANGEABLE ROLES OF committing a crime in certain situations, VICTIM AND VICTIMIZER when under certain pressures, in the Those among you who are in daily presence of certain triggering factors. contact with offenders have surely noticed that a large number of them feel and By their very nature, dispositional behave like a victim. They suffer from theories (whether of the biological, heightened and acute feelings of injustice. consitutional, psychological, or sociological These feelings of injustice, this firm variety) dissociate criminal behaviour from conviction that they are victims, whether the dynamic situational forces that trigger, the victimization is real (as it is in many provoke, determine, condition, shape that cases) or perceived, there seems to be little behaviour, or in other ways contribute to doubt that it plays a significant role in its occurrence. Violent behaviour, for offending. example, could hardly be understood without a thorough analysis of the The transformation of victims into transaction that occurs between the victimizers is an intriguing, though largely participants prior to the perpetration of ignored phenomenon. Examples of the violence (Hepburn, 1973). Although this passage from the state of victim to the state might seem axiomatic and despite the of offender abound. Among the most obvious dynamic and interactionist nature obvious are cases of vendetta, vengeance, of violent crime, criminological research, reprisal, retalitation, getting even, paying with only a few exceptions, has focused on back, setting of accounts, as well as cases the perpetrator’s characteristics and of self-defence, vigilante action, auto-justice background, and has ignored the verbal
79 RESOURCE MATERIAL SERIES No. 56 or taking the law into one’s own hands, to or even simultaneously, from one mention but a few. In all these examples, role to the other. the victimization is a direct contributor to the ensuing aggression, the sine qua non VIII. VICTIMIZAION AS for it. Although this phenomenon is as old ANTECEDENT TO VIOLENT as the human race itself, it is only recently BEHAVIOUR that it has attracted some attention, A. From Victim to Offender particularly in cases of battered wives who The importance of victimization as a kill their battering husbands, of abusive causal factor in violent offending becomes parents who were themselves abused as all too evident when keeping in mind the children, of rapists and other sexual fact that retaliations is a key ingredient in predators who had been sexually molested violence (Felson and Steadman, 1983), that or assaulted during their childhood. New revenge is the most prevalent motive for terms such as “the cycle of violence”, the use of force. Gratuitous violence is the “intergenerational abuse” were coined to exception rather than the rule. Violence describe this curious tendency of human in most instances is an expression of a beings to subject others the same pain and grievance, a response to an attack, injury, anguish to which they had been personally or provocation. As Black (1983) points out, subjected or to inflict upon others the same violence is a mode of conflict management victimizations they had suffered. resembling the modes used in traditional societies which have little or no formal law. The phenomenon of role reversal raises three important issues: Homicide, for example, is rarely predatory in nature. Relatively few (1) There is a close link between homicides are committed for gain or sexual victimization and offending gratification. In the vast majority of cases behaviour; they are the two sides the killing is a reaction (or rather an of the same coin. Hence it is overreaction) to some from of victimization: impossible to gain a true the lover reacting to being cheated on or understanding of one if we ignore abandoned, the victim of adultery avenging the other. the offended honour, the drug dealer retaliating against the police informer, the (2) The victim and offender hot-blooded young male stabbing the friend populations are not, as commonly who got his sister pregnant, the landowner believed, two distinct and shooting the trespasser, the double-crossed mutually exclusive populations. gang member applying his own brand of They are homogeneous and justice, the rape victim attempting to overlap to a large extent. incapacitate the attacker, the drunk Yesterday’s victims are often responding to an insult, threat or physical today’s offenders, and today’s assault. offenders are frequently the victims of tomorrow. When aggression is met with aggression, when violence is countered with violence, (3) The roles of victim and victimizer the roles are simply reversed. The initial are not fixed, assigned, or static. aggressor becomes the victim and the They are dynamic, mutable, and initial victim ends up being the victimizer. interchangeable. The same Labels are applied not on the basis of the individual can move successively,
80 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS original role but on the final outcome. The a collection of firearms, one of which was violent response, though defined as ‘crime’ stolen from him. Sometime later , he broke by the law, is perfectly legitimate in the into a firearms shop and stole some eyes of the perpetrator who perceives their firearms. His mother, breaking down in retaliation as a justiciary act, as a rightful tears over her son’s conduct, could not reprisal. understand how such an honest boy, who was from a well-to-do family, working, and The observed link between victimization well considered by everyone, could do such and offending is not the least surprising. a thing. The sense of being victim, whether the victimization is real or perceived, whether In addition to concrete feelings of direct or vicarious, whether personal or victimization resulting from a specific collective, provides not only the incident or incidents in which the person motivations and justifications for was actually victimized, individuals or offending, but also the necessary groups may have sentiments of injustice rationalizations and neutralization that and a vague sense of victimization make it possible for the potential unrelated to any specific event(s). In many delinquent to overcome whatever formal offenses against property, resentment over and informal controls may stand in the way economic exploitation and social injustices of the offending behaviour, including the serves as a means of auto-legitimation. delinquent’s moral inhibitions, religious Many thieves, professional and occasional, convictions, the threat of punishment and tend to justify their delinquent behaviour so forth. These motivations and by citing social injustices and by justifications are capable of transforming contrasting the scandalous wealth of the the victim into a ruthless victimizer. Cases upper social-classes with their own misery of store or house owners who, once and poverty. White-collar tax evaders victimized, sit waiting with a firearm in convince themselves that the tax system hand for the next robber, burglar, or thief, is unfair as it victimized and penalized the in order to welcome the victimizer with a hard-working, like themselves, while hail of bullets, have occurred with allowing many others to pay less or no increasing frequency in the past few years. taxes. Cressey (1953) discovered that But these are just the extreme examples perceived injustice and the sense of being of this transformation. In schools, it is a victimized play an important role in the common experience to find children whose cases of embezzlement, trust violations, books, articles, or supplies have been stolen and one may add corruption. This may by other children taking revenge by take the form of feeling underpaid or stealing the same or similar things from overworked, or of feeling unfairly treated their school mates. Some youthful and in some other way involving finances. adult car owners who have had some piece Cressey points out that it is not the fact of or part, such as a hubcap or mirror, stolen, being maltreated that is important, if such do not report their victimization to the a fact can be established. Rather, it is the police, but instead, “help themselves” to the fact that the individual feels maltreated, same part from a similar car. In doing so while, at the same time, for some reason, they feel they are only righting the wrong feeling obligated to continue in the service done to them. of the organization.
Debuyst and Joos (1971) relate the story Feelings of injustice and of victimization of a seventeen-year-old boy, Raoul, who had play a crucial role in the acts of political
81 RESOURCE MATERIAL SERIES No. 56 terrorists and of other minority groups who risk of victimization (p.120,126). They have been historically the targets of further found that offence activity - violence, maltreatment, and exploitation. whether of a violent or a minor deviance, It is true that offending is, in many such as drinking or drug use - directly instances, a reaction to, or a consequence increases the risk of personal victimization. of, victimization, then it is easy to understand why it is that punishment The inter-relationship between quite often fails in preventing the offending and victimization was reported repetition of the behaviour being punished. in many other studies. Singer (1981) found There can be no doubt that for those that cohort members who were shot or offenders who have been victimized, stabbed were involved more frequently in punishment can only be seen as an added official and self-reported criminal activity. victimization, it can only aggravate the His findings were corroborated by Savitz, problem that led to offending in the first Lalli, and Rosen (1977). The same pattern place. Expressions such as “getting even”, was observed in England by Sparks, Genn “taking it out on society” exemplify the deep and Dodd (1977). Gottfredson (1984) resentment and frustration felt by discovered that for persons with at least offenders who already perceive themselves, one self-reported violence offence, the rightly or wrongly, as victims, and who are likelihood of personal victimization was deprived of their liberty as a means of seven times the likelihood of personal punishment. victimization for persons reporting no self- reported violent offences. As mentioned earlier, offenders whose violence is a retaliation against some from Johnson et al. (1973) followed up all of victimization view their behaviour as victims of gunshot and stab wounds perfectly legitimate, and are bound admitted to the City of Austin Hospital in therefore to perceive their punishment as Texas during two years and found that 75% unjust and unwarranted. If victimization of the male victims had a criminal record, is an important factor in offending, and I and 54% had a jail record. Canadian strongly believe it is, then one very effective homicide statistics for 1991 (Juristat, 1992) way of preventing crime, particularly reveal that almost half of homicide victims violent crime, would be to reduce the (45%) have a criminal record. And in an incidence of victimization, exploitation and American study of gunshot victims, Paul discrimination. Friday (personal communication, March 1995) found that 71% of the victims had B. From Offender to Victim their own criminal histories. Not only is there a strong link between victimization and offending, but there is Of the 92 assault victims in the hospital- also a close link between offending and based sample interviewed by Cretney and victimization. Involvement in criminal, Davis (1995, p32), 24 (26%) told the illegal or deviant activity greatly enhances researchers that they themselves had a the chance of becoming a victim. Sampson criminal record, while 16 (17%) had at least and Lauristen (1990) found a significant one previous conviction for assault. Other relationship between the risk of offences committed by the sample of victimization and involvement in violence, ‘victims’ included: shoplifting; theft; vandalism, and theft offending. In other robbery with violence; and possession and words, persons who engage in criminal dealing in drugs. offending sharply increase their overall
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IX. OFFENDERS’ ATTITUDES TO property, are harmful actions. They cause THEIR VICTIMS AND HOW TO physical injury, material loss, psychological CHANGE THESE ATTITUDES trauma or a combination of all three. Feelings of guilt associated with Offenders’ attitudes to their victims is international victimizations are stronger an extremely important area of study in than those evoked by negligent criminology, victimology and penology. victimization. This is so because such attitudes often play a crucial role in the motivational processes Most international victimizations leading to the victimization, and a decisive involve the deliberate infliction of pain and role in the process of selecting the victim. suffering upon a fellow human being. For example, in the case of genocide, of While a small minority of victimizers may terrorist activities, of acts of war, the fit the psychiatric label of the heartless, potential targets are defined and perceived callous, unfeeling “psychopath”, the as the enemy that has to be attacked, majority are not completely insensitive, exterminated or annihilated. Enemies apathetic, or impassible and are not totally evoke no sympathy, pity or compassion. devoid of the human feelings of pity and empathy. Thus, unless the victimizer The same is equally true in conventional desensitizes themself in advance, the crimes. Rapists, for instance, have victimization is bound to create moral devalued images of women. They are sex tension and to elicit feelings of guilt, shame, objects, they are to be used for one’s remorse, reproach in the perpetrator. Since pleasure and then discarded or even killed. the source of these negative feelings is the In many other offences, the victim is seen pain and suffering the victimization will simply as a means to an end. Sutherland cause to the victim, negating this pain and (1937) insists that professional thieves suffering can be an effective means of have no consideration whatsoever towards desensitization. To do so, the victimizer the victims whose wealth they are trying can use one or more of several techniques to steal. They think of their victims like of desensitization. These include the fishermen think of a place to fish or hunters denial, reification, depersonalization of the of a place to hunt. victim, the denial of injury, blaming the victim, devaluating or denigrating the The slang words often used by offenders victim, and so forth. to describe their victims: whore, slut, faggot, sucker, etc, betray not only their The desensitization process in which the utter lack of respect, but also the victimizer engages themself prior to the contemptuous attitude they have vis a vis commission of the act explains better than the victim. The mental process by which “psychopathy”, “moral perversion” or the victim is denied, blamed, denigrated, “emotional indifference” why certain devalued, depersonalized may be referred offenders show no sense of guilt, remorse to as the desensitization process. or repentance after having committed brutal and cruel acts. It explains why A. The Desensitization Process certain killers, while exhibiting extreme One of the most important techniques cruelty, brutality and callousness toward of offender rehabilitation is to counter what their victim, show tender love and we call in victimology ‘the desensitization compassion for others, even for animals. In process’. Criminal victimizations, whether a case studied by the author (Fattah, 1971) directed at the victim’s person or his/her the murderer, after savagely killing his
83 RESOURCE MATERIAL SERIES No. 56 victim and robbing the house, took utmost is possible that a diminished care to feed the victim’s dog and cat, and awareness of the victim plays an even left them enough food for several days, important part in determining for fear that nobody would come to the whether or not this process is set in scene of the crime for some time. motion. (p.668)
There are various techniques that The idea of stealing from or cheating the offenders use to desensitize themselves to government or a large organization raises the harm, pain and suffering they are fewer moral scruples than the idea of inflicting on their victims. One of the most cheating a person or stealing from a family. common techniques of desensitization is to deny the victim, to mentally turn him/her A third technique is ‘blaming the victim’. into an object, or to try to depersonalize Once victimizers are able to convince and dehumanize the victim. themselves that the victim has done them wrong, that he or she is guilty of some Another technique of desensitization injustice, they can rid themselves entirely often used by victimizers in their attempt of any compassion for that victim and of to shield themselves against the victim’s any sense of personal culpability. By plight, to ease their conscience, and to free blaming the victim and transforming him themselves of any feeling of guilt, is the or her into a person deserving to suffer, denial of injury. It is a common technique victimizers are able to go ahead with the among rapists before and during the act. victimizaion without conceiving of But it is also common in property themselves as criminals and while victimization as well. Impersonal, non- shielding themselves against post- specific and intangible victims, such as the victimization dissonance. The government, large corporations, and establishment of the victim’s guilt organizations, are considered by many as beforehand, whether the guilt is real or appropriate targets for victimization. imagined, acts as an anaesthetic on the Victimizing them is subject to fewer (if any) conscience of the potential victimizers, moral restraints and arouses less guilt than enabling them to destroy or injure the victimization directed against a personal, victim without pity or empathy. identifiable victim. The impersonal and diffuse character of the victim and its Although blaming the victim is a intangibility evoke little moral resistance common and often-used technique of in the person contemplating the autolegitimation, neutralization and victimization. Sykes and Matza (1975) desensitization, it is not a process of wrote: international distortion. In most cases, victimizers are actually convinced of their Insofar as the victim is physically victim’s guilt. Nowhere is this more evident absent, unknown, or a vague than in crimes of passion, in political abstraction (as is often the case in crimes, and in the crimes of paranoiacs. delinquent acts committed against Crimes of passion are characterized almost property), the awareness of the invariably by a justiciary attitude on the victim’s existence is weakened. part of the offender. Internalized norms and anticipations of the reactions of others must Blaming the victim is also the dominant somehow be activated, if they are to feature of crimes motivated by revenge, the serve as guides for behaviour; and it typical example of which is the vendetta.
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Here the victimization is seen as a and the possibility of justifying the act are legitimate reprisal, a rightful form of undoubtedly important factors in the choice retaliation. The chain reactions resulting of the victim. from the use of this type of legimitation is the development or perpetuation of a In cases of property crime, the subculture of violence. dishonesty of the victim seems to be seen in the same way as the lifestyle of the Devaluation of the victim is yet another prostitute. The businessman is defined as technique of desensitization. In an attempt a “monopolistic miser,” or as a “dishonest to desensitize themselves to the victim’s merchant” who cheat customers and plight, victimizers often attribute inferior therefore deserves to be victimized, and the qualities to the victim. They may devalue, illegal act is defined as an act of normal denigrate and derogate the victim’s worth, indignation (Schwendinger and so that the victim appears blameworthy Schwendinger, 1967). The repugnance and deserving of the victimization because toward the victim overcomes any thought of a behaviour (he or she did something of the victim’s right. very bad) or because its their fate as a person (he or she is a bad person). This X. VICTIMOLOGICAL psychological process of devaluating the EXPLANATION OF REOFFENDING victim is not worked out in a logical, Victimological explanations of recidivism rational or conscious way (Ryan, 1971). and reoffending are quite simple and more common-sense than science. If The preparation of the criminal act at environmental conditions, if situational, the moral level is done, almost always, with triggering and actualizing factors play an reference to the attributes, personality, important role in offending (and there is attitude, behaviour, and conduct of the overwhelming empirical evidence showing victim. Certain attributes or qualities of that they do), then a released offender, the potential victim may be used to returned to these same conditions and discredit and devaluate him or her in an situations that led to the first offending, effort to present the victim as a legitimiate will have a very high chance of relapsing and deserving target, and to justify the and of committing new offences. The best delinquent act. Attacks on homosexuals treatment and rehabilitation programs in and on prostitutes are often so legitimized. custody cannot be successful unless the Redl and Wineman (1951) found that for environmental conditions to which the certain adolescents, stealing from offender is released have been changed, homosexuals is a perfectly justifiable and and unless the situational, triggering and legitimate act. Property crimes committed actualizing factors have been dealt with. against prostitutes are rationalized in a Changing the conditions, controlling the similar manner. Furthermore, the forcible factors, is generally a much easier and rape of a prostitute is also conceived of as more effective task than the difficult and a legitimate and guiltless act. Their style elusive task of changing the offender’s of life is interpreted as denying the right personality, attitudes or behaviour. After to dispose of their own body as s/he pleases; all, no one, not even the most violent of as if, because s/he sells their body to offenders, is dangerous all the time and whomever pays the price, s/he no longer towards everyone. has the right to protest when someone tries to possess them by force. In such cases, In the vast majority of cases, the attitude toward the potential victim dangerousness is episodical and specific. To
85 RESOURCE MATERIAL SERIES No. 56 effectively control it, one only needs to victimization plays in offending, the know the conditions and situations in phenomenon of role reversal, the which the person becomes dangerous, and interchangeable roles of victim and the person or persons against whom the victimizer, is bound to change the views violence or aggression will be directed. As and stereotypes of offenders, help explained earlier, many crimes are context understand the motives for their behaviour, specific, target/victim specific. Because of assist in establishing a rapport with them, this, the violence is usually strictly and thus the possibility of influencing their confined. For example, in most cases of attitudes and behaviour. family violence, the violence is strictly confined to the wife (or the children). In the case of incest, the father or grandfather’s sexual predations are strictly confined to their offspring. If the causes of the behaviour are endogenic (that is located in the individual himself), why is it that they manifest themselves or produce the violent or sexual behaviours only in these specific contexts, against these specific victims?
If the cause of criminal behaviour, as many criminologists claim, is lack of or weakened self-control, then how is it that the person is perfectly able to control their behaviour outside of these contexts and these targets. Good-sounding programs, such as ‘anger management’, simply ignore the fact that the individual has no problem controlling their anger outside of the home environment to which the violence is confined.
XI. CONCLUSION Hopefully, this brief and hasty synopsis of victimology has given you an idea of how valuable victimological knowledge could be for those who are involved in corrections generally, or offender rehabilitation in particular. Victimological knowledge is not only essential for understanding the offender and the offence, for positively and successfully influencing the offender’s, attitude and behaviour, but also because it has direct implications and applications for the task of rehabilitation and resocialization. Understanding the role
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VICTIM REDRESS AND VICTIM-OFFENDER RECONCILIATION IN THEORY AND PRACTICE: SOME PERSONAL REFLECTIONS
Ezzat A. Fattah*
I. INTRODUCTION In an article I wrote few years ago for a Festschrift honouring Prof. Koichi For many centuries, redress to the victim Miyazawa, I tried to compare the two has been the primary, even the sole, paradigms and it was obvious at the end of objective of justice. Restorative justice the comparison that restorative justice is continues to be the dominant practice in the way of the future, because it is the small, rural, agrarian societies and in natural way of doing justice. cultures that have not been influenced by the religious principles of Judaism, I was converted to restorative justice Christianity and Islam. Anthropologists early in my academic career. In the early who studied the mechanisms of conflict 1970’s, I was a visiting professor at the resolution in non-state societies have University of Abidjan in the Ivory Coast observed a development that seems to be when I decided to do a comparative study universal. The primitive and rather of criminal homicide in Africa and North instinctive reactions of vengeance and America. Once I started examining the retaliation, which inevitably result in official statistics and started studying weakening the group and eternalizing the police files, I was intrigued by the finding feud, always gave way to the constructive that there were very few homicide cases in and reconciliatory practices of composition, rural and remote areas of the country. I restitution and compensation. In these wondered if they were peaceful societies, untouched by western thought communities, free from conflict? and practices, punishment for the sake of punishment, as a means of atonement and Unfortunately, this was not the case. It expiation, is totally unknown. Justice has turned out that there were two parallel utilitarian goals. systems of justice operating in the Ivory Coast: the formal punitive/retributive Indigenous populations in countries that system imposed by France (the colonial were colonized by the powers of western power) and the tribal/restorative system Europe : Australia, Africa, North and South that solved conflicts and settled disputes America, had a long tradition of restorative using the traditional, customary practices justice and continue to opt for healing of reparation, compensation and practices over punitive sanctions. Western reconciliation. The kinship of homicide societies are beginning to recognize the victims, getting no satisfaction from the superiority of restorative justice over retributive practices of execution and retributive justice, and it seems likely that incarceration, deliberately abstained from the paradigm shift in criminal justice will reporting the homicides to the police and occur quite early in the next millennium. preferred to have them dealt with within the tribe or the community. This was an * Professor Emeritus, School of Criminology, Simon eye opener that confirmed my long-held Fraser University, Canada. belief in the superiority of restorative
87 RESOURCE MATERIAL SERIES No. 56 justice over the destructive and futile A. Crime is Not Different From Tort system of punishment. Parker’s (1977, p28) account of the historical development that led to the II. FROM RESTITUTION TO emergence of criminal law shows that the RETRIBUTION AND FROM differentiation between crimes and torts is REDRESS TO PUNISHMENT: of relatively recent origin. Parker states: THE HISTORICAL EVOLUTION At this stage of legal development The origins of criminal law can be traced there was no differentiation between to the attempts by the kings and feudal what we know as crime or criminal lords to consolidate their authority, to law and tort or civil liability for enhance their powers and generate damage inflicted. All injuries to revenue for themselves and their estates, persons of property were considered by imposing fines and by seizing the lands as ‘wrongs.’ The seriousness of the and property of convicted persons. As the wrong depended upon the disruption common law developed, criminal law caused to the community or the actual became a distinct branch of law. Numerous or perceived affront to the injured antisocial acts were seen to be ‘offences parties. Slowly, a distinction emerged against the state’ or ‘crimes’ rather than between wrongs which were private personal wrongs or torts. This tendency to disputes and required payment to the characterize some wrongs as ‘crimes’ was injured party or his kin and wrongs encouraged by the practice under which the which had a public quality and lands and property of convicted persons required compensation to the whole were forfeited to the king or feudal lord; group. fines, as well, became payable to feudal lords and not to the victim. The natural This historical fact is often ignored by practice of compensating the victim or their those who claim that crime is a unique, relatives was discouraged by making it an exceptional or distinct category of harmful offence to conceal the commission of a behaviour. In the not too distant past, all felony or convert the crime into a source of harmful injurious behaviours were civil profit. In time, fines and property that torts treated in more or less the same would have gone in satisfaction of the manner. The emergence of the criminal law victim’s claims were diverted to the state. saw the creation of a new category of behaviour believed to be deserving of Compounding an offence (that is, punishment. The selection of behaviours accepting an economic benefit in to be brought under the realm of the satisfaction of the wrong done without the criminal law was guided by political, consent of the court or in a manner that is historical and religious considerations, and contrary to the public interest) still remains not by the unique qualities of the a crime under the Canadian Criminal Code behaviours that came to be defined as and discourages private settlement or crimes. As a result, the distinction between restitution. It would now seem that crime and tort, between the criminal and historical developments, however well the civil code, is both artificial and intentioned, effectively removed the victim arbitrary, and the demarcation line from sentencing policy and obscured the separating the two is blurred. Very view that crime was social conflict. frequently the same act is both a crime and a tort. And yet, as Morris and Hawkins (1969, p46) point out:
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No research projects have been conducted so popular that public executions drew to search for the primary cause of tort..., no huge crowds to the places where hanging one inquires what social or psychological or beheading took place. Killing a prison pathologies underlie the incidence of tort inmate trying to gain freedom or a hold-up in our society, [and] no one has suggested man attempting to escape is considered a that those who commit torts are biologically justifiable or excusable homicide in many inferior to their fellows. jurisdictions. But killing in most other circumstances is regarded as a very They add that a large part of criminal serious, perhaps the most serious, crime. behaviour is perfectly ‘normal,’ both in the The difference does not lie in the nature of statistical sense and in the sense that it the act itself. Killing is killing. But killing occurs naturally. is only defined as a crime if it is committed under certain conditions or against certain B. Criminal Behaviour is Not victims. Shooting and killing East Qualitatively Distinct Germans trying to flee to the West by Punitive /retributive justice is based on crossing the Berlin wall was a legal act an erroneous premise (that crime is a under the laws of the former German distinct or exceptional category of Democratic Republic. After the behaviour) and on a false dichotomy reunification in 1989, and the replacement between the so-called crimes and civil of the East German Code by the Criminal wrongs. This is a faulty premise because Code of the Federal Republic of Germany, a comparison of acts made illegal by the these killings are being prosecuted as criminal code or by statutes with similar murders, and the shooters are now charged behaviours that are unregulated by the with the deliberate taking of a human life. criminal law suggests that there is no qualitative difference between criminal Until a few years ago, the Canadian and non-criminal behaviour. Criminal Code and many others did not define forcible sexual intercourse with one’s For every behaviour defined as criminal own wife as a crime. But the same act and sanctioned by law, there are identical perpetrated on a woman who is not the or similar types of behaviour that are man’s wife did qualify as a serious crime neither illegal nor punishable. Even acts punishable by imprisonment for life. that may, at first glance, appear to be Although the behaviour in the two cases is morally heinous, socially harmful, and, identical, in one case it is criminal; in the therefore, condemnable are generally other, it is not. depending on whether the condoned in certain circumstances and are two parties are bound by marriage or not. required or encouraged in specific The same can be said of statutory rape, conditions. The act of killing is not where an arbitrarily determined age is the invariably criminal. Killing the enemy in deciding factor whether the behaviour is war is not a crime (in fact, refusal to do so criminal or not, is punishable or not. may be a criminal offence); it is an act of courage and heroism. The killers are not Not all types of violent, aggressive, or punished; they receive medals, decorations, assaultive behaviour are made criminal by awards and citations. Executing a the law. Many forms of violence are convicted murderer is considered by many condoned and tolerated to the extent that as an act of ‘justice’ or a ‘proper’ measure become culturally legitimate. Until of social protection. It enjoys the support recently, use of the strap in school for of a majority of the population and was once misconduct, using violence to discipline or
89 RESOURCE MATERIAL SERIES No. 56 control the behaviour of inmates in penal be done. The needed reform has to be institutions, and flogging offenders guilty sweeping and radical. The stage seems to of certain crimes were all seen as legitimate be set for a scientific revolution or a forms of violence, and those on whom such paradigm shift in the sense proposed by punishments were inflicted were seen as Thomas Kuhn (1970). This is because most deserving targets. Milder forms of violence of the current problems can be traced within the family are not criminal in most directly to the old paradigm. As Barnett jurisdictions. Children are considered (1977) points out, many, if not most, of the legitimate targets for the use of physical ills of the present system stem from errors force in the process of training and control, in the underlying paradigm. Thus any and for a long time, husband-wife violence attempt to correct these symptomatic was regarded as legitimate by both the debilities without a reexamination of the police and courts. theoretical underpinnings is doomed to frustration and failure (p.245). The absence of a qualitative difference between behaviour defined as criminal and The last fifty years have witnessed major behaviour that is not can also be observed changes in many branches of law: corporate in the areas of property and traffic offences, law, labour law, insurance law, etc, to keep where the line between what is legal and pace with the rapid changes that were what is illegal is often quite arbitrarily taking place in society. The same could not drawn. Offences like speeding and be said for penal or criminal law. It is one impaired driving are determined by speed branch of law that is least susceptible to limits and blood-alcohol levels set up in an change. As a result, penal law in most arbitrary fashion. And the line separating countries has not kept up with social the criminal offences of theft and fraud evolution, it is lagging behind the times. from what are normally referred to as It is in a state of crisis and is in urgent ‘sharp business practices’ is exceptionally need of reform and modernization. thin. The Canadian Criminal Code (enacted If crime is not qualitatively different in 1892), and many others, date back to the from civil torts or civil wrongs, then why is nineteenth century. The kindest thing that it that we accept redress to the injured or could be said about all these penal codes is harmed party in the latter but would not that they are historical documents that settle for anything less than criminal mirror the mentality of the era in which sanctions for the former? And why is it that they were enacted. The piecemeal changes in the case of civil torts the damages that they have undergone since they were ordered by the court go to the victim passed reflect various social and political whereas in criminal offences the penal fine circumstances occurring over a century. goes to the public treasury? The fact that these codes have neither been overhauled nor replaced by new modern C. The Crisis in Penal Law ones speaks eloquently to the criminal law’s The penal law in modern industrialized unmitigated resistance to change. That all societies is in a state of deep crisis. It is the fundamental principles, all the basic lagging behind the times. The malaise is notions of the criminal law of today, have felt by scholars and practitioners alike. The been borrowed from the philosophy and commissions of reform established in many theology of the 18th and 19th centuries is countries on a temporary or permanent hard to understand. Such are the notions basis are the proof that something must of evil, wickedness, malice, guilt,
90 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS culpability, retribution, expiation, corrections and to advocate a return to the atonement, to name but a few. harsh punitive policies of the past. Punishment, as a means of retribution and The time has come to ask whether as an instrument of deterrence, was being notions such as ‘free will’, ‘moral pushed to its absolute limit. In the 1980’s, responsibility’, ‘criminal intent’, ‘mens rea’, both traditionally repressive countries, ‘premeditation’, ‘malice aforethought’, as such as England and the US, as well as well as many others, do have a place in a traditionally progressive countries, such as modern, secular, socially oriented criminal Holland, have seen their prison law, like the one we would like to have in populations increase, sometimes to new the 21st century. It is time we ask whether records. And yet, none of the salutary legal concepts such as ‘insanity’, effects promised by right wing politicians ‘diminished responsibility’ etc, could materialized. The bankruptcy of these withstand the test of science or whether punitive and highly expensive policies can notions such as retribution, punishment, no longer be denied and has been at just deserts and so forth, have a place in a tremendous social, human and financial modern, scientific and secular criminal cost. policy. In addition to the manifest failure of D. The Crisis in Penal Policy present policies to curb crime or to reduce Early in the 20th century, the crime rates, there are several other philosophical notion that punishment is a realities that illustrate the inconsistencies means to pay a debt to society generated and deficiencies of the present system: by the offence, and the theological view of punishment as a means of inflicting pain • As a result of gross under reporting and suffering to atone for, or expiate, a most of the cases that the system is moral fault, were largely discredited and supposed to deal with are handled practically abandoned. Treatment and outside the system. rehabilitation of offenders, re-education, re- socialization and reintegration in society • As a result of ridiculously low became the key goals of penal policy. The clearance rates and of the attrition word corrections, used to designate the in the criminal justice process, only probation, prison and parole systems, was a tiny minority of all those who used everywhere to emphasize the non- commit criminal offences face charges punitive features and goals of the new before the courts and an even smaller policies. minority is punished. Estimates range between 5 and 10 percent. The liberal and progressive ideas of the 1960’s and 1970’s gradually lost ground and • As a result of the widespread practice were fiercely attacked by the new of plea bargaining (common in Anglo- conservatives who came to power in the Saxon countries) most of those who 1980’s: Margaret Thatcher in England, are punished are punished for Brian Mulrony in Canada, Ronald Reagan offences other than the ones they in the United States. The manifest failure have committed, or are offered a of treatment and rehabilitation programs lenient sentence in exchange for a to reduce crime or to prevent recidivism guilty plea. Ranish and Shichor’s provided right wing politicians with the (1985) estimate that 90% of criminal necessary ammunition to discredit cases in the US are disposed of
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thorough plea bargaining gives some of the welfare state, is the overwhelming idea of the magnitude of the problem. recourse to insurance (public and private) as a means of risk reduction and risk A criminal law system that uses ‘the coverage. Recent criminological literature ability to distinguish right from wrong’ as increasingly stresses the fact that the risk the prerequisite for criminal responsibility of criminal victimization is a ‘natural’ must rely on psychiatric evidence and calls hazard of modern life, of social interactions. upon the forensic psychiatrist to play an There is also a growing awareness of a important role in the judicial process. It is strange anomaly that currently exists: the psychiatrist who supposedly enlightens whereas most other risks are covered by the court on issues such as insanity, partial some insurance (public or private), the risk or diminished responsibility, mental of criminal victimization is not. Actually, disorder, psychiatric disability, one of the ironies of the present system is dangerousness, and so forth. Psychiatry, that those who face the greatest risks of however, is not an exact science and is, in criminal victimization are the ones who can fact, one of the least developed branches of least afford the insurance, and the ones medicine. most frequently denied coverage by private insurance companies. Joutsen (1987) With the 21st century fast approaching, deplores the fact that state insurance many countries are in the process of schemes are rarely designed to cover crime changing and modernizing their criminal risks. Instead, they generally cover losses law. While none of the new codes has or injuries incurred in certain risky fields abandoned the old paradigm (moral guilt/ of activity, regardless of the cause of this moral responsibility/ punishment/ loss or injury, the most notable example retribution) in favour of the new one (harm/ being mandatory traffic insurance social responsibility/ restitution/ schemes. The insurance covers risks compensation), they are deviating more caused not only by traffic offences per se and more from the old paradigm and but also by any traffic accident. Joutsen introducing more and more elements of the adds that there is usually a national fund new one. This is particularly evident in covering parties to a traffic accident who the way strict liability is replacing moral are not covered by insurance. responsibility. It is also visible in some areas where it was imperative to move from Slowly but surely, we are coming to a guilt orientation to a consequence realize that the distinctions that are made orientation, such as the areas of negligence between victimization by crime and other and endangerment. Not only is the time victimizations, between the risk of crime ripe for a paradigm shift in the criminal and other social risks, are not only law, but there are also specific political and meaningless but also unfair to those who social developments that are creating a are victimized by actions that happen to context conducive to a successful shift. Two be included in the criminal code. This developments in particular, are worth paves the way for a new paradigm whose noting: primary focus is restitution and compensation to the victim. 1. Overwhelming Recourse to Insurance as a Means of Risk Coverage 2. The Victim Movement One dominant feature of life in a modern, First espoused by the women’s industrial, technological, highly, movement and then by the politicians of mechanized society, and of the social policy the new right, the cause of victims of crime
92 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS has led to the emergence of a powerful it first calls for restitution as an option and pressure group, the victim lobby. Active in then states that this option should be “in many countries, including the US and addition to other criminal sanctions”. He Canada, the victim movement has focused also points out that, at present, few attention on the plight of crime victims and European countries provide for the demanded the re-examination of criminal possibility of restiution as the only sanction and penal policies to render them more in criminal cases, whereas most allow the responsive to the needs of the victims. courts to order the offender to pay Persistent efforts at the national and restitution in addition to the main criminal international level culminated in the sanction. United Nations Declaration on the Basic Principles of Justice for Victims of Crime Paragraph 10 of the Declaration and the Abuse of Power which was adopted recognizes the substantial harm that may by the General Assembly on 11 of December be caused by environmental offences and 1985. The Declaration contains 21 the primacy of restitution in cases of this paragraphs, at least 3 of which (8,9 and type. It stipulates that: 10), are devoted to restitution. The three paragraphs exemplify the growing In cases of substantial harm to the acceptance of at least two basic elements environment, restitution, if ordered, of the new paradigm: harm and restitution. should include as far as possible, Paragraph 8 addresses restitution from the restoration of the environment, offender or responsible third parties. It reconstruction of the infrastructure, declares that: replacement of community facilities and reimbursement of the expenses of Offenders or third parties responsible relocation, whenever such harm for their behaviour should, where results in the dislocation of a appropriate, make fair restitution to community. victims, their families or dependents. Such restitution should include the Joutsen (1987) explains that an return of property or payment for the environmental offence may be so serious harm or loss suffered, reimbursement that the community cannot continue to of expenses incurred as a result of the exist in the same place. The air or water victimization, the provision of services may be so polluted as to cause a danger to and the restoration of rights. health, or may seriously hamper the livelihood of the whole community. We Paragraph 9 of the Declaration might add that it is precisely these recommends the use of restitution as a extremely harmful, injurious actions sanction in its own right. It proposes that: (Bhopal, Chyrnoble, Exxon Valdez, etc) which very well illustrate the obsolescence Governments should review their of the old paradigm of the criminal law and practices, regulations and laws to the total inadequacy of conventional consider restitution as an available punishments (whether imprisonment or sentencing option in criminal cases, death ) as a social reaction or a criminal in addition to other criminal sanction to these behaviours. sanctions. Christie (1977) has observed that the key Joutsen (1987) draws attention to the element in a criminal proceeding is that confusing wording of this paragraph in that the proceeding is converted from something
93 RESOURCE MATERIAL SERIES No. 56 between the concrete parties into a conflict typifies criminal procedure. Rather than between one of the parties and the state. the black and white approach which He points out that in the modern trial two characterizes the rules of criminal important things have happened. First, procedure, the mediation approach allows the parties are being represented. a more far-ranging view of the broad Secondly, the one party that is represented circumstances underlying the alleged by the state, namely the victim, is so offence, on the side of both the victim and thoroughly represented that she or he, for the offender. He concludes that the trend most of the proceedings, is pushed towards private settlements will, in many completely out of the arena, reduced to the cases, provide an alternative form of trigger-off of the whole thing. The victim, conflict resolution that can be of more Christie argues, is a double loser; first vis assistance to the victim than can the a vis the offender, but secondly and often criminal justice system. in a more crippling manner, by being denied rights to full participation in what Since current criminal law is centered might have been one of the more important upon punishment and retribution, and rituals encountered in life. The victim has because of its avidity to extract revenue lost the case to the state. from the wrongdoers (in the form of fines), it naturally shuns any initiative for dispute The criminal law, which does not cease settlement or conflict resolution especially to broaden its mandate and extend its when it is done outside the system. As a boundaries, has declared a monopoly on result, the criminal justice system has every conflict or dispute falling under its missed a golden opportunity to reduce its jurisdiction. Joutsen (1987) cites many case load and to stop the repetition of factors which speak in favour of informal, certain offences through the reconciliation private settlements. These generally of the feuding parties. provide a quick decision at low cost. The individual features of the conflict can be Jobson (1977) asserts that the criminal studied to an extent not possible for the justice system has overextended itself into authorities of the criminal justice system, conflict situations that are not adequately and there is considerably more discretion solved by existing processes. He estimates in deciding on the proper solution. that almost fifty percent of crimes against persons and crimes against property Instead of the ‘all or nothing’ decision prosecuted in the courts are characterized that is often the only option for the criminal by an ongoing relationship between the justice system (and in which one party is offender and the victim. These crimes, usually held to be the guilty offender, the argues Jobson, are not committed by other, an innocent victim), informal strangers but by family members, settlement can seek a compromise decision neighbours, tenants or landlords, or within that fits the unique features of the case at a customer-seller relationship. hand and the parties to the conflict. Joutsen notes further that the parties can Barnett (1977, 1981) insists that the be directly involved in the search for the paradigm of punishment is in a “crisis proper outcome to an extent that is not period”. This, he believes, is as much possible in formal criminal proceedings. because of its practical drawbacks as the uncertainty of its moral status. He further Finally, he points out that private suggests that the alleged absolute justice settlements avoid the legal formalism that of repaying evil with evil is really an empty
94 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS sophism since Christian moralists have enormous. always preached that an evil is to be put (f) Crime would no longer pay. right only by doing good. Barnett concludes by admitting his inability to find any theory One big advantage of a system centered which justifies the deliberate, forceful upon restitution is that it would enjoy the imposition of punishment within or unqualified support of most victims. There without a system of criminal justice. To is, in fact, overwhelming empirical replace the punishment paradigm, Barnett evidence indicating that victims prefer offers the restitution paradigm. This new reparative sanctions (such as restitution) paradigm views crime as an offence by one to punitive sanctions such as imprisonment individual against the rights of another. or fines. The victim has suffered a loss and justice consists of the culpable offender making III. THE RESTORATIVE JUSTICE good the loss s/he has caused. This new PARADIGM paradigm, argues Barnett, calls for a Justice paradigms have to change with complete refocusing of our image of crime social evolutions in order to remain in along the lines of what Thomas Kuhn calls harmony with current belief systems and a “shift of world view”: to take stock of whatever advances and discoveries are made in the fields of Where we once saw an offence against criminology and penology. It seems rather society, we now see an offence against clear that the abstract goals of expiation an individual victim. In a way, it is and atonement are no longer in harmony a common sense view of crime. The with the realities of the secular, post- armed robber did not rob society: he industrial society of the 21st century that robbed the victim. His debt, therefore, is dawning upon us. In the modern, secular is not to society; it is to the victim societies of today, the notions of risk and (1981, p251). harm are gradually replacing those of evil, wickedness, malice, and are bound to Barnett proposes two types of become the central concepts in social and restitution: punitive restitution and pure criminal policy of the future. restitution. He also outlines six advantages that a restitution system has Future policies of crime control will be over a system of punishment. These are: largely based on risk assessment, risk management, risk coverage, risk reduction, (a) The first and most obvious advantage and risk prevention. The measurement of is the assistance provided to victims harm will become a central component of of crime. social reaction to crime, and the primary (b)The possibility of receiving aims of such a reaction will be redress, compensation would encourage reparation and compensation. My guess victims to report crimes and to appear is that the artificial distinction between at trial. crime and civil torts will disappear and that (c) Restitution would aid in the the artificial boundaries that have been rehabilitation of criminals because it erected over the years between criminal is something the offender does, not courts and civil courts will be removed. All something done for or to him/her. harmful actions will generate an obligation (d) Restitution is a self-determinative to redress, coupled with endeavours to sentence. prevent their future occurrence. This will (e) Savings to tax payers would be
95 RESOURCE MATERIAL SERIES No. 56 be the era of restorative justice. minds of most individuals. The idea of doing away with punishment altogether is It is not easy to define restorative justice. not even acceptable to most criminologists. It means different things to different In her presentation of a feminist vision of people. It is a leit-motiv for various policies justice, Kay Harris (1991, p94) questions and models which can be implemented in this unshakeable faith in the need for practice in many different ways and forms. punishment. She writes: To me personally, restorative justice offers a radically different (and rather refreshing) Indeed, we need to question and view of the criminal act. The act is no rethink the entire basis of the longer viewed as an offence against deity punishment system. Virtually all or divinity, nor an offence against the King discussion of change begins and ends or the Sovereign, not even as an offence with the premise that punishment against society. It is rather seen for what must take place. All of the existing it really is: harmful, injurious behaviour institutions and structures- the that causes death, injury, loss, pain and criminal law, the criminal processing suffering to the victim. Crime is regarded system, the prisons - are assumed. We as one of the many risks to which we are allow ourselves only to entertain daily exposed in the industrial, debates about re-arrangements and technological, mechanized and motorized re-allocations within those powerfully society in which we live. constraining givens... The sterility of the debates and the disturbing ways IV. IS PUNISHMENT NECESSARY? they are played out in practice underscore the need to explore If punishment has failed in achieving alternative visions. We need to step any of the utilitarian goals assigned to it, back to reconsider whether or not we and empirical research provides ample should punish, not just to argue about proof of this failure, the question is whether how to punish. punishment is necessary. The theological notions of expiation and atonement are V. DO CRIME VICTIMS WANT inculcated in the minds of children in their REVENGE? tender age: if you commit sin you will go to hell, if you misbehave you will be caned, if There is no evidence to support the claim you hit your sister you will spanked, if you that crime victims want revenge or that commit crime you will go to prison. Later nothing other than the punishment of the on it becomes extremely difficult to break offender will satisfy their thirst for justice. this strong association between crime and If anything the evidence clearly shows that punishment. It becomes almost impossible, victims are not as vindictive or as blood particularly for the average citizen, to thirsty as some victim groups would want conceive of a non-punitive society, a society us to believe. Healing, recovery, redress, without prisons, a community that does not and prevention of future victimization are respond to harmful actions by the infliction the foremost objectives of most crime of pain and suffering. Advocating and victims (Fattah, 1997, p270). Studies by gaining acceptance for an alternative, non- Boers, by Sessar, by Pfeiffer in Germany, punitive, justice paradigm becomes by Umbreit in the United States, and by extremely difficult because the notion of a many others, show that victims’ primary punishment that has to follow the fault, the concern is to have redress: to have the wrongdoing, is too deeply anchored in the stolen property returned, the broken
96 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS window fixed, the vandalized car repaired, system for the lives of their victimizers. the destroyed bike replaced. Their expectations and their demands are The fatal defect of the punishment realistic, not moralistic (Fattah, p265). But paradigm is that it responds to harm with what about victims of violence? One has to harm, to pain with pain, and its attempt keep in mind that a high percentage of to alleviate victims’ suffering by inflicting violent crime is committed between people yet more suffering on the offender. The who know each other or who are related flaw in this logic is best summarized in by some family or other personal Ghandi’s famous phrase: “an eye for an eye relationship. makes the whole world blind!”. Or as Martin Wright said “responding to harm Punitive justice ruptures social and with harm doubles the amount of harm in familial bonds and destroys the chance for society”. In punitive justice systems there reconciliation. It widens the gap that are at least two losers: the offender gets separates the doer and the sufferer, the punishment and the victim gets generates further animosity and nothing. antagonism, and engulfs the parties in bitter, never-ending hostilities. It also Punitive justice neither serves the forces others to take sides, thus interests of crime victims nor does it satisfy contributing to the widening and their most obvious needs. Todd Clear perpetuation of the conflict (Fattah, 1995, (1994) affirms that penal harm does not p307). This fact alone shows how essential actually help the victim. While it is to have a conflict-resolving mechanism punishment might be a public statement that settles the dispute and prevents that the victim deserved better, it does little further violence while maintaining those else. Clear insists that while penal harm vital relationships intact. Moreover, the cannot make the victim whole again, the punitive, stigmatizing, and ostracizing focus on getting even with the offender nature of criminal sanctions prevents many could in some ways divert the victim from victims from reporting their victimization his or her personal path of recovery. He to the police and from mobilizing a justice adds: system that will expropriate the conflict and take no account of the victim’s wishes. In this way, the emphasis on penal The result is that they continue to suffer harm may actually be a disservice to in silence and try to cope on their own. the victim, in that it promises that if the State is only able to impose a Even victims of the most serious and penalty severe enough, the victim will most heinous crimes of violence are not as be able to overcome the crime. The vengeful as they are usually portrayed in focus is placed on what happens to the the media or in the manifestos of right wing law violator, not what happens with parties. The powerful television the victims. The victim’s victory at documentary From Fury to Forgiveness, the sentencing is eventually exposed as a experiences of M. Umbreit in the United pyrrhic conquest, for the problem States and Ivo Aertsen in Belgium faced by the victim does not centre on demonstrate in a vivid and deeply moving the offender (1994, p173). fashion that even victims who lose their young children or close relatives to IX. CONCLUSION homicidal killers can show genuine Attempts to exploit the cause of crime forgiveness and can plead with the justice victims for political ends, and to sell the
97 RESOURCE MATERIAL SERIES No. 56 policies of law and order under the pretext offender might have lying beneath their of doing justice to victims, often required cruel and indifferent façade. Emotions the portrayal of victims as vengeful, such as pity, sympathy, empathy, vindictive, retributive, and even compassion, commiseration, can all be bloodthirsty. Those claiming to represent brought to the surface and reinforced. and speak on behalf of victims gave the impression that concern for crime victims On the side of the victim, the mediation invariably requires harsh, punitive justice situation can also have salutary effects. policies. While the distress of some victims The feared, strong, cruel and unemotional might be so overwhelming that they will victimizer is bared to their weak and often demand the harshest possible penalty for helpless being, a being that evokes more their victimizer, this could hardly be said pity than fear, more compassion than of the majority of victims. Healing, anger. Distorted but long held stereotypes recovery, redress, and prevention of future disappear when checked against the real victimization are the primary objectives of offender. Both parties end up by gaining a most crime victims. realistic view of one another and reconciliation becomes possible (Fattah, If the primary purpose of social 1995, p312) intervention is to restore the peace, redress the harm, heal the injury, and stop the Thus in the long run, the interests of repetition of the offence, then it is easy to crime victims and of society at large are understand how and why the restorative best served by humanity, empathy and system (based on mediation, reconciliation, compassion, by tolerance and forgiveness, restitution, and compensation) succeeds by the development of conciliatory and where the punishment system fails. forgiving communities rather than hostile and vengeful ones (Fattah, 1986, p13). Mediation and reconciliation bring the Constructive healing, not destructive two parties together, face-to-face, and punishment, should be the primary and ensure that they see each other as human foremost goal of both victim policies and beings in a state of distress. When faced victim services. with the victim, it becomes impossible for the victimizer to deny the victim’s existence or the injury or harm caused. They can no longer depersonalize, deindividuate, objectify or reify the victim. They can no longer avoid post-victimization cognitive dissonance. The confrontation between the offender and the victim in a mediation situation is the surest and most effective means of sensitizing them to the victim’s plight, of countering and reversing the mental process of desensitization that s/he has gone through in order to avoid guilt feelings or bad conscience (Fattah, 1991a).
The mediation process, when done properly, can be very effective in awakening and activating any positive emotions the
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REFERENCES (Ed.), Towards a Critical Victimology. London; Macmillan. Barnett, R.E. (1977), Restitution: A New Paradigm of Criminal Justice. Doerner, W. (1978), A Quasi- Ethics: An International Journal of Experimental Analysis of Selected Social, Political and Legal Philosophy. Victim Compensation Programs. Vol. 87, No.1, pp.279-301. Canadian Journal of Criminology. Vol.20, no.3, pp. 239-51. Barnett, R.E. (1981), Restitution: A New Paradigm of Criminal Justice. In Elias, R. (1983a), Victims of the System- Galaway B., and Hudson J., (eds.) Crime Victims and Compensation in Perspectives on Crime Victims. St. American Politics and Criminal Louis; The C.V. Mosby Co. pp. 245-261. Justice. New Brunswick; Transaction Books. Boers, K. and Sessar, K. (1991), Do People Really Want Punishment? On Elias, R. (1983b), The Symbolic Politics the Relationships Between Acceptance of Victim Compensation. Victimology. of Restitution, Needs for Punishment, Vol.8, no.1-2, pp.213-24. and Fear of Crime. In Sessar K., & Kerner H.J., (eds), Developments in Fattah, E.A. (1986), On Some Visible Crime and Crime Control Research. and Hidden Dangers of Victim N.Y.; Springer, pp. 126-149. Movements. In E.A. Fattah (ed.), From Crime Policy to Victim Policy. London; Burns, P. (1980), Criminal Injuries Macmillian. Compensation: Social Remedy or Political Palliative for Victims of Crime. Fattah, E.A. (1991), Understanding Toronto; Butterworths. Criminal Victimization. Scarborough, Ontario; Prentice Hall Canada. Christie, N. (1977), Conflicts as Property. British Journal of Fattah, E.A. (1992a), The United Criminology, Vol. 17, no.1, pp. 1-19. Nations Declaration of Basic Principles of Justice for Victims of Crime and Clear, T.R. (1994), Harm in American Abuse of Power: A Constructive Penology-Offenders, Victims, and Their Critique. In Fattah E.A., (ed.), Towards Communities. Albany; State University a Critical Victimology. London; of New York Press. Macmillian.
Dittenhoffer, T. and Ericson, R. (1993), Fattah, E.A. (1992b), Towards a The Victim/Offender Reconciliation Critical Victimology. London; Programme: A Message to the Macmillian, New York; St. Martins Correctional Reformers. University of Press. Toronto Law Journal, Vol.33, pp.315- 47. Fattah, E.A. (1992c), Beyond Metaphysics: The Need for a New Dittenhoffer, T. and Ericson, R. (1992), Paradigm. On Actual and Potential The Victim/Offender Reconciliation Contributions of Criminology and Programme: A Message to the Social Sciences to the Reform of the Correctional Reformers. In Fattah, E.A. Criminal Law. In Lahti R., and Nuotio
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K., (eds.), Criminal Law Theory in Kuhn, T. (1970), The Structure of Transition, Finnish and comparative Scientific Revolutions. 2nd Edition. Perspectives. Finnish Lawyers’ Publ. Chicago; University of Chicago Press. Company. Maguire, M. and Shapland, J. (1997), Fattah, E.A. (1993), From a Guilt Provisions for Victims in an Orientation to a Consequence International Context. In Davis R.C., Orientation: A Proposed New Paradigm Lurigio A.J., and Skogan W.G., (eds.), for the Criminal Law in the 21st Victims of Crime. Second Edition. Century. In Küper N., and Welp J., London; Sage Publications. (eds.), Beiträge zur Rechtswissenshaft. Heidelberg; C.F. Müller Juristischer Miers, D. (1983), Compensation to Verlag, pp.771-792. Victims of Crime. Victimology. Vol.8, pp.204-12. Fattah, E.A. (1995), Restorative and Retributive Justice Models: A Miers, D. (1990), Compensation for Comparison. In Kühne H.H., (ed.), Criminal Injuries. London; Festschrift fur Koichi Miyazawa. Baden- Butterworths. Baden; Nomos Verlagsgesellschaft. Morris, N. and Hawkins, G. (1969), The Fattah, E.A. (1997), Criminology: Past, Honest Politician’s Guide to Crime Present and Future-A Critical Control. Chicago; University of Chicago Overview. London; Macmillan, N.Y.; St, Press. Martin’s Press. Parker, G. (1977), An Introduction to Fattah, E.A. (1997), Toward a Victim Criminal Law. Toronto; Methuen. Policy Aimed at Healing not Suffering. In Davis R.C., Lurigio A.J., and Skogan Pfeiffer, C. (1993), Opferperspektiven: W.G., (eds.), Victims of Crime. Second Wiedergutmachung und Strafe aus der Edition, pp. 257-272, Thousand Oakes; Sicht der Bevölkerung. Manuscript, 22 SAGE publications. pages.
Harris, K.M. (1991), Moving into the Ranish, D. R. and Shichor, D. (1985), New Millenium -Toward a Feminist The Victim’s Role in the Penal Process. Vision of Justice. In Pepinsky H.E., and Federal Probation. Vol.49, no.1, pp. 50- Quinney R., (eds.), Criminology as 57. Peacemaking. Bloomington; Indiana University Press. Ranish, D.R. and Schichor, D. (1992), The Role of the Victim in the Penal Jobson, K.B.(1977), Dismantling the Process. In Fattah, E.A.,(ed.), Towards System. Canadian Journal of a Critical Victimology. London; Criminology and Corrections. Vol. 19, Macmillan, N.Y.; St. Martin’s Press. no.3, pp.254-272. Sessar, K. (1992), Wiedergutmachungen Joutsen, M. (1987), The Role of the oder Strafen; Einstellungen in der Victim of Crime in European Criminal Bevölkerung und der Justiz. Justice Systems. Helsinki; Institute for Pfaffenweiler. Crime Prevention and Control.
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Wright, M. (1991), Justice for Victims and Offenders- A Restorative Response to Crime. Milton Keynes; Open University Press.
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ANCILLARY (ADHESION) PROCEEDINGS IN GERMANY AS SHAPED BY THE FIRST VICTIM PROTECTION LAW: AN ATTEMPT TO TAKE STOCK
Eberhard Siegismund*
I. INTRODUCTION legitimate rights. It is quite obvious that the victims of crime are often weaker Even in the 1970s, an aggrieved person members of society and that they need help, was still treated as a ‘’forgotten man’’;1 in emotional care, social stability and, last but scientific debate the victim of a crime was not least, financial support.5 a mere shadow. In the 1980s that situation changed fundamentally. Specific Finally, it should not be forgotten that amendments were rapidly made to the improved victim protection can also legislation of the time, which I shall look contribute to ensuring effective criminal at later, and these changes are particularly prosecution: this can be seen from the fact remarkable because at the time no real that in some 90% of cases, crimes are solved “pressure group’’ existed to push for as a result of information provided by change.2 victims.6 Consequently, if the judicial authorities take better care of victims of What victim protection in criminal crime, this can have positive repercussions proceedings basically aims to do is to stop on people’s feeling of well-being. Hence, in a person aggrieved because of a criminal this way victim protection can help to act from being a mere object of the strengthen the legal order.7 proceedings, whose main function it is to be a witness in court; s/he should be made The Declaration of Basic Principles of a player in the proceedings with rights Justice for Victims of Crime and Abuse of which s/he can assert there. Victim Power adopted by the General Assembly protection also aims to deflect the focus of of the United Nations on 29 November 1985 the proceedings from the accused ensuring shows that this rediscovery of the aggrieved that, while the proceedings still person or the victim of crime is not merely concentrate on establishing the accused’s guilt, the proceedings also take on board 1 Cf. Weigend, ZStW 96 (1984, p.761). the interests of the aggrieved person and 2 Cf. Riess, Jura 1987, p281, p.283. the relationship between them and the 3 Cf. Jung, ZStW 93 (1981, p.1147). 3 accused. 4 Cf. inter alia Compendium of Judgments of the Federal Constitutional Court 39, 1 (p.47 f.); 88, 203 The concept of victim protection derives (p.257 f.) 4 from the principle of the social state. The 5 Cf. Goll, ZRP 1988, p.14. state complies with that principle only if it 6 Cf. Kirchhoff, in: Das Opfer und die ensures social justice in legislation and Kriminalitätsbekämpfung [Victims and the fight government, and helps the weaker against crime] published by the Federal Criminal members of society to assert their Investigation Office, 1996, p.48; Cf. also Koch/ Poerting/Störzer, Kriminalstatistik 1996 [Criminal * Deputy Director General, Judicial System Division, statistics for 1996], p.2 f. Bonn, Germany. 7 Cf. Goll, op. cit.
102 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS a national phenomenon but an substantive truth behind the criminal act international one. As you are aware, the and to punish the perpetrator of the act.9 Declaration contains a range of The traditional form of criminal recommendations intended to assist proceedings under English law is that of governments in the international an adversarial proceeding with the result community to help and assist the victims that representatives of the prosecuting of crime and abuse of power of various body and the defendant or their legal levels. counsel shape the proceedings: if the prosecutor withdraws the charges or the As I shall tell you about ancillary accused confesses their guilt they can proceedings as regulated by the German influence the course of the proceedings. In Code of Criminal Procedure, which governs this way the judge is merely a neutral compensation for aggrieved parties in arbiter who delivers judgment on the basis criminal proceedings, it appears vital to of incriminating or exonerating evidence start by quoting the basic provision of the collected by the “parties’’. aforementioned Declaration, which deals with asserting claims for damages: The duty incumbent on German criminal judges to establish the substantive truth “8. Offenders or third parties rather than formal truth also changes the responsible for their behaviour should, roles in another way: the judge is master where appropriate, make fair of the proceedings; s/he has to know what restitution to victims, their families or is in the case files, s/he does not merely dependants. Such restitution should examine the witnesses but is required, on include the return of property or their own responsibility, to gather all payment for the harm or loss suffered, information which might incriminate or reimbursement of expenses incurred as exonerate the accused. The duty to clarify a result of the victimization, the the facts of the case, which is enshrined in provision of services and the restoration the Code of Criminal Procedure, can of rights.’’ require that the court collects evidence which exonerates the accused even against Later on we shall be looking at whether their will or that it clarifies incriminating - and to what extent - German procedural facts, even if the public prosecutor shows law, as improved by the Victim Protection no interest in them. Even if the accused Law of 18 December 1986, takes accunt of and the public prosecutor both agree to these maxims. forgo the further collection of evidence, that is not sufficient to release the court from II. ANCILLARY PROCEEDINGS IN its duty to clarify the facts of the case. PRACTICE The principle that the court must clarify A. Basic Aims of Criminal the facts of the case renders ancillary Proceedings Under German Law proceedings, which are part of the criminal Criminal proceedings are not of an proceedings, particularly attractive to adversarial nature in the same way as civil victims of crime: they do not have to proceedings, which are characterised by the produce evidence themselves but can leave parties freedom to shape them.8 The aim it to the public prosecutor and the court to of criminal proceedings is to investigate the
9 Cf. KK Pfeiffer, Fourth Edition, Introduction, 8 Cf. Federal Court of Justice, NJW 1960, p.2346. margin reference 2, with further references.
103 RESOURCE MATERIAL SERIES No. 56 bring charges against the accused. criminal offence which exceeds the maximum value applicable to litigation Ancillary proceedings are based on the before the Local Courts (previously DM notion that proceedings relating to a single 5,000, now DM 10,000). set of circumstances should be handled together. So, where claims to substantive This is important because some 99% of or symbolic compensation arise from a criminal proceedings at first instance are criminal act - be it fraud, embezzlement, held before the Local Courts.11 In even assault or slander - then there is much proceedings before the Local Courts, it is to be said for dealing with the aggrieved possible to assert property claims (e.g for person’s claim to damage in the criminal return of stolen assets or for pecuniary proceedings rather than waiting for a compensation - mainly reparation for pain subsequent civil action to be brought, and suffering - or claims for reimbursement thereby avoiding duplication of efforts and of funeral expenses or claims resulting from also the possibility of contradictory judicial unjustified enrichment) irrespective of the decisions. value of the object of litigation.
The decision on the application is An amendment to section 406, actually taken during the main proceeding, subsection 1; 2, subsection 3, of the Code not, for example, at a separate, later of Criminal Procedure has made it possible hearing. To that extent, the term “ancillary - as proposed in the government’s draft proceeding’’ is in fact a misnomer. As legislation12 - to produce judgments on the already said, the principles of criminal grounds of the claim or on a portion thereof. proceedings - i.e. the inquisitorial maxims In the draft it was assumed that a decision - apply to the proceedings. This means that on the grounds of the claim (which would the court must clarify the facts of the case be easier to clarify using the resources of of its own motion and is hence also not the criminal proceedings) could in the bound by the procedural declarations of the future be taken in the ancillary accused. Consequently there is no proceedings. The level of compensation - judgment of admission of the sort found in which, as a point of detail, is irrelevant to section 307 of the Code of Civil Procedure.10 the criminal proceedings, and to establish would delay clarification of the criminal The Victim Protection Law pursues the proceedings - could, if necessary, be dealt aim of improving reparation for damages with in later civil proceedings. In this way, within the criminal proceeding, primarily so the ‘explanatory’ notes, it would be by aiming to broaden use of ancillary possible to avoid taking evidence on the proceedings. This is done in the following grounds of the claim more than once. way. Moreover, in many cases it would make it possible to do without further acrimonious According to the revised version of discussion as to the level of compensation.13 section 403, subsection 1, of the Code of Criminal Procedure, in proceedings before Where, however, a decision has been the Local Court, the aggrieved person may, taken only on the grounds of the claim, the without the consent of the accused, also assert a property claim arising out of the 11 Cf. Riess, Jura 1997, p.281, p.289. 12 Cf. Explanatory comments in Bundestag 10 BGHSt 37, 263, as confirmed by Wendisch, JR 1991, Publication 10/5305, p.16. p.297. 13 Cf. Bundestag Publication, op. cit., p.15.
104 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS hearing to decide the amount (level of the promote indemnification for damage by the claim) takes place, upon application, before offender. In effect, the execution agency a competent civil court.14 The victim does may facilitate payment of costs or a fine not require legal assistance to do this (see (by delaying payment or the granting of section 404, subsection 1). payment by instalments) if, without such easier payment terms, the indemnification According to section 404, subsection 5, would be consiberably endangered. This of the Code of Criminal Procedure, as might be the case even if the offender were amended by the Victim Protection Law,15 able to pay the fine promptly but, given the the applicant may receive legal aid for the primacy of the fine, s/he would ancillary proceeding under the same subsequently be compensating the victim provisions as in civil litigation.16 The effect only much later.18 of this is as follows. In summary, it can be seen that the law If the victim is unable to meet the costs offers victims of crime the following options of the litigation (or part of the costs, or in for initiating ancillary proceedings: instalments), and if the case shows prospects of success (see sections 119 to (i) Ancillary proceedings allow for the 122, Code of Civil Procedure), the criminal criminal and civil-law consequences court shall award legal aid once public of a criminal offence to be dealt with charges have been brought. The decision in a single set of proceedings. Hence is not subject to challenge by the other they would allow the victim to assert participants in the proceedings. their rights quickly and simply.
Where the court has convicted the (ii)Normally speaking, even lawyers accused and held that the victim is to be should be happy about the existence indemnified, the following problem in not of these proceedings: they spare the uncommon. As a conviction means that the judge and legal counsel from going offender must also pay a fine and court through civil proceedings; they costs, s/he will do all they can to avoid a reduce the time spent in court substitute prison term (applicable if they because there is no need to bring the defaulted) by using their available assets case before several different courts primarily to pay off the fine (and the costs) and so judicial decisions are not likely before indemnifying the aggrieved person.17 to become contradictory. The new rule introduced into the second sentence of section 459a, subsection 1, of The interests of the aggrieved person or the Code of Criminal Procedure is intended their heirs are taken on board in a number to prevent that from happening and to of ways:
14 Cf. section 406, subsection 3, third sentence, Code (i) S/he is supposed to be informed of of Criminal Procedure, in conjunction with section their option to assert a claim, even 304, subsection 2, Code of Civil Procedure. in criminal proceedings, at an early 15 Version pursuant to the Bundesrat proposal, cf. stage (section 403, subsection 2, Code Bundestag Publication 10/5305, page 15, 29 no. 11, of Criminal Procedure). page 33. 16 Sections 114 f., Code of Civil Procedure. (ii)Claims must not take any particular 17 Cf. Riess, Jura 1987, 281, 289; Riess/Hilger, NStZ 1987, 145, 157. 18 Cf. Riess/ Hilger, NStZ, op.cit.
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form - it can be made (even orally) at proceedings is particularly the main hearing before the advantageous for the aggrieved party beginning of the closing arguments as it means that the principles of the (first sentence of section 404, criminal proceedings are applicable. subsection 1, Code of Criminal Hence, unlike in civil proceedings, the Procedure). S/he does not require a court is required to establish the facts lawyer to file the claim. of the case (section 244, subsection 2, Code of Criminal Procedure). (iii) If the victim is unable to meet the Consequently it must, of its own costs - in part or in instalments - of motion, extend the taking of evidence bringing the case, and if the case has to all facts and evidence which are sufficient prospects of success, they important for the decision. Unlike in receive legal aid and a legal civil proceedings, the aggrieved party representative is appointed. is therefore not required to produce evidence; it can leave it to the public (iv) The victim has the right to be present prosecutor and the court to establish and to be heard. As a participant in the facts. However, the court’s duty the proceedings, s/he must be heard to establish the facts is limited by at the main hearing.19 The victim section 405 of the Code of Criminal may apply for evidence to be taken,20 Procedure: if an examination of the has the right to ask questions facts would protract the criminal pursuant to section 240 of the Code proceedings disproportionately, of Criminal Procedure, and is section 405 requires the court to authorised under section 238, abstain from a decision.22 I shall be subsection 2, Code of Criminal looking at this provision in more Procedure, to challenge orders of the depth later. presiding judge concerning the way in which the hearing is conducted. (vi) Finally, the aggrieved party still has Finally, in line with section 257, Code the possibility of asserting before the of Criminal Procedure, the victim has civil courts claims asserted the right to make statements after unsuccessfully before the criminal the defendant has been examined and courts. In principle, therefore, the after each individual taking of aggrieved party can only emerge from evidence. In the main hearing, ancillary proceedings as a winner, not victims enjoy these rights, however, a loser.23 only insofar as they are relevant to the civil claim.21 Finally, and of Thus, at first sight, it would appear that particular significance, is the right to the catalogue of rights and entitlements consult the case files, which all enjoyed by the victims of crime takes full aggrieved persons may assert through their lawyer. 22 Cf. LR Hilger, 25th Edition, section 405, margin reference 11, with further references. (v)The fact that the ancillary 23 Cf. Riess, Die Rechtsstellung des Verletzten im proceedings are part of the criminal Strafverfahren, Gutachten für den 55. Deutschen Juristentag [Legal status of the aggrieved party in 19 Cf. LR Hilger, op. cit. criminal proceedings; expert report to the 55th 20 Federal Court of Justice, NJW 1956, p.1767. Conference of German Lawyers], Volume 1, Part 21 Cf. LR Hilger, op. cit. C, margin reference 42.
106 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS account of the basic principles of justice for claims because the offender simply does not victims of crime and abuse of power have sufficient resources. As already adopted by the United Nations’ General mentioned, in the face of a substitute prison Assembly. sentence, the offender will first attempt to pay a fine. The solution identified by However, things look different in Parliament, i.e, to facilitate payment by the practice. Only a couple of weeks after the offender under the second sentence of Victim Protection Law came into force, this section 459a, subsection 1 of the Code of attempt by Parliament to increase the Criminal Procedure, if, without such aggrieved party’s chance of obtaining facility, the indemnification by the reparation for damage suffered within convicted person for damage caused as a ancillary proceedings was critically result of the offence would be considerably appraised in the literature.24 The endangered, was described as an amendments which it introduced to the law unsatisfactory minimum and a “faltering were pejoratively described as “cosmetic’’ first step’’.27 and there was said to be much doubt as to their ability to incriease the “enthusiasm’’ From the victim’s point of view, it would felt for ancillary proceedings in practice.25 certainly have been more satisfactory to refrain from collecting the fine if the Regret was expressed that no attempt offender complied with a duty to make had been made to deprive the courts of the reparation for damages or to satisfy the possibility of abstaining from a decision on aggrieved party’s claim from the proceeds the substitute claim within the framework of the fine.28 As this manner of of the second sentence of section 405.26 The compensating victims would, however, latter provision allows the judge to abstain have caused the state coffers to suffer from a decision “in the event the motion considerable financial loss, the chance of cannot be properly settled in a criminal pushing it through were rather slim from proceeding, in particular, if its examination the outset. would protract the proceedings or if the motion is not permissible’’. This was a As was to be feared, given the criticisms facility of which the courts had made all expressed in the literature, the too frequent use for a substantial period of improvement which Parliament expected time. to see in the settlement of victims’ claims for damages from criminal acts, and the Criticism was also voiced that the law expected extension in the use of ancillary had failed to resolve the tug of war between proceedings,29 failed to materialise. the state’s action to enforce pecuniary fines Despite the fact that ancillary proceedings and the legitimate indemnity claims of the have formed part of the criminal aggrieved party in a way which favoured proceedings since as far back as 1943 and the aggrieved party. This belies the fact that they are familiar to all lawyers, their that in many cases it becomes impossible use continues to be infrequent as the to assert the aggrieved party’s indemnity following figures illustrate.
24 Cf. Riess, Jura 1987, p.281, p.290; Weigend, NJW 1987, p.1170, p.1176. 27 Cf. Weigend, op. cit., Riess, Jura 1987, op. cit. 25 Cf. Jung, JuS 1987, p.159; Weigend, NJW 1987, 28 Cf. Wiegend, op. cit., with further references, cf. p.1170, p.1176. Weigend, ZStW 96 (1984) p.761, p.793. 26 Cf. Weigend, op. cit. 29 Cf. Bundestag Publication 10/5305, p.8.
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In 1997 Germany’s Local Courts handed but more like 15 to 25%. down 2,951 judgments in ancillary proceedings. Of these, 2,840 were final The reasons why people are less than judgments and 111 judgments on the keen to use ancillary proceedings in grounds;30 142 judgments were handed practice, than Parliament would have down in ancillary proceedings by first- wished are well known. A wide-ranging instance Regional Courts - 119 as final study of legal trends carried out in the early judgments and 23 as judgments on the 1990s demonstrated36 that there was grounds.31 By contrast, over the same “broad’’ rejection of ancillary proceedings period the Local Courts handed down a by judges, public prosecutors and legal total of 395,17932 judgments and the professionals overall and proved that Regional Courts handed down 10,82333 aggrieved persons are generally unfamiliar judgments overall. These figures show how with this type of proceeding.37 The low seldom ancillary proceedings are practical significance of ancillary conducted; as a proportion of all judgments proceedings in also decried by Germany’s delivered, ancillary proceedings made up European neighbours, insofar as the legal only about 1% of proceedings before the prerequisites are comparable there.38 Regional Courts and 0.75% of proceedings at the Local Courts. The reason given in the study for why Germany’s judges, public prosecutors and That said, it has been estimated in some legal professionals tend to shy away from competent studies that it would have been ancillary proceedings is that they consider possible to bring ancillary proceedings in them to be “anathema to criminal just about 70% of all cases in which a proceedings’’.39 The reason for this is judgment was handed down.34 In about possibly that the strict separation between 65% of those possible cases, reparation had criminal and civil law instilled during legal yet to be made for damage caused. Given studies, and the mental distinction that in about a quarter of all such cases a between punishment and reparation, run civil action had already been brought or a deep; also criminal judges might fear that lawyer had already issued a claim for the they will be put under pressure and amount at issue, it can be assumed that overburdened by having to deal with there was a genuine need for ancillary complex issues of civil law.40 The reason proceedings to be conducted in about 35% for this may well be that the conditions of the eligible cases.35 Had, therefore, attaching to culpability under the criminal ancillary proceedings been used as law and those applicable to claims for envisaged by Parliament, the proportion damages under civil law are too dissimilar would not have been around 1% or 0.75% in German law: the causality obtaining
30 Federal Statistical Office, Wiesbaden, Criminal 36 Cf. Kaiser, Die Stellung des Verletzten im Courts, 1997, working documents, p.12. Strafverfahren, Implementation und Evaluation 31 Federal Statistical Office, Wiesbaden, Criminal des Opferschutzgesetzes [Status of the aggrieved Courts, 1997, working documents, p.46. person in criminal proceedings, implementation 32 Federal Statistical Office, Wiesbaden, Criminal and evaluation of the Victim Protection Law], Courts, 1997, working documents, p.16. Freiburg/Breisgau, 1992. 33 Federal Statistical Office, Wiesbaden, Criminal 37 Cf. op. cit., p.278. Courts, 1997, working documents, p.50. 38 Cf. Kintzi, DriZ 1998, p.65, p.72. 34 Cf. Kaiser, op. cit., p. 276. 39 Op. cit., p.278. 35 Cf. Kaiser, op. cit., p. 276. 40 Cf. Kintzi, op. cit.
108 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS under the criminal law is one of First and foremost, judges and lawyers feel equivalence, under civil law it is one of that the procedural delays resulting from adequacy; liability under criminal law is the taking of additional evidence are restricted to actual guilt, under civil law considerable.44 All professional groups exposure to risk is also taken into account; agree that ancillary proceedings are the finally, there are major differences as to the one source of rights for aggrieved persons distribution of the burden of proof and the causing the longest delays in criminal duty to tell the truth (the defendant has proceedings.45 the right to lie whereas respondents (under civil law) and witnesses are required to tell The view of judges, public prosecutors the truth41). and lawyers are in stark contradiction to the results of surveys of aggrieved parties: Moreover, the case-law of the Federal these surveys generally revealed a great Court of Justice, which increasingly feels deal of interest in active participation in bound to reverse erroneous decisions in criminal proceedings. 96.9% of all victims ancillary proceedings, is not apt to of crime favoured the possibility of dealing encourage the judiciary to make more use with the question of damages as part of the of this special type of proceeding.42 This criminal proceedings.46 shows that, from the viewpoint of the Federal Court of Justice, the grounds that It must therefore be concluded that judges take for establishing compensation ancillary proceedings, which were created for pain and suffering in ancillary more than fifty years ago to reflect the proceedings are not infrequently erroneous. interest of victims of crime and which have Often there is insufficient detail on judicial been improved by a number of provisions findings on the facts and the reasoning in the Victim Protection Law, are used. If such shortcomings lead to considered by those victims of crime to judgments being reversed, the judge reflect their concerns, yet they have found concerned is hardly likely to continue few friends in the judiciary. wanting to make decisions in ancillary proceedings. B. What Needs to be Done? On this point, the Grand Criminal Law However, not only legal difficulties cause Commission of the Association of German lawyers to be shy of ancillary proceedings. Judges was appointed in the mid-1990s by Many people support claims that ancillary the Federal Ministry of Justice to produce proceedings place an unnecessary burden an expert report on improving victim on criminal judges. It is claimed that a protection in criminal proceedings. It took considerable amount of additional work can the view that (further) attempts at stem from the ancillary proceedings.43 legislating would have no real prospect of breathing new life into ancillary 41 Cf. LR Hilger, op. cit., introductory comment to proceedings.47 They conceded that thought section 403, margin reference 9. should be given to a mandatory provision 42 Cf. Kintzi, op. cit., with reference to the decisions requiring, upon application of the victim, of 27 March 1987 (2 StR 106/87); 9 August 1999 (4 the civil law aspects of establishing StR 342/88); 25 August 1989 (3 StR 159/89); 13 December 1990 (4 StR 519/90); 14 August 1991 (3 44 Cf. Kaiser, op. cit. StR 37/91); 30 October 1992 (3 StR 478/92); 30 April 45 Cf. Kaiser, op. cit. 1993 (3 StR 169/93); 9 June 1993 (2 StR 232/93). 46 Cf. Kaiser, op. cit. p.276. 43 Cf. Kaiser, op. cit., p.265. 47 Cf. Kaiser, op. cit.
109 RESOURCE MATERIAL SERIES No. 56 damages always to form part of the or supplement, for run-of-the-mill cases criminal proceedings. Yet, as not all such as reparation for damage, primary claims for damages under civil law compensation for pain and suffering, and are suitable for being dealt with in criminal the return of specific objects. proceedings, a statutory provision of that type could not be implemented in the face Even if such attempts at revitalising of opposition from practitioners. This what might almost be considered “dead’’ would mean that ancillary proceedings will law appear wholly praiseworthy, they probably continue to be of minimal cannot prevent judges, where necessary, significance.48 from pulling on the handbrake by applying section 405 of the Code of Criminal Against the background of these - in my procedure and abstaining from a decsion view, convincing - arguments, it is no because dealing with the application for surprise that current legislative work by ancillary proceedings might considerably the Länder aimed at breathing new life into protract the criminal proceedings, e.g. ancillary proceedings (ancillary settlement because a motion by the victim for further before the courts between the victim of the clarification of the events at issue might crime and the accused) have necessarily cause new witnesses to be heard.52 been doomed to failure.49 In Germany, practice has shown that It continues to be doubtful whether even organisational improvements (or reorganising ancillary proceedings more to training and increased publicity) have been the benefit of victims can bring about their unable to increase the use of ancillary renaissance. It would seem to go without proceedings. This is borne out by the fact saying that the judicial authorities must that the above-mentioned proposals, which adopt a less reticent stance here if, in were tabled in the summer of 1996, have criminal proceedings, large numbers of failed to have a positive effect on the victims of a crime can associate and press numbers of cases involving ancillary for a decision in ancillary proceedings.50 proceedings. In the year thereafter, the Thought could be given to reducing the Local Courts handed down very nearly four already low threshold for access to ancillary hundred fewer judgments in ancillary proceedings further, so that when the proceedings than in 1995; before the parties concerned - who, in any case, Regional Courts the number of judgements contribute to about 90% in solving crime - was reduced from 186 to 142. There can lay a criminal information before the police, be no clearer proof of a trend away from they could be given a form which they could ancillary proceedings in practice. complete within a few minutes, constituting a full and proper application III. USING VICTIM-OFFENDER for the opening of ancillary proceedings.51 MEDIATION TO TAKE ACCOUNT In so doing, it could be possible to assist OF THE VICTIM’S INTERESTS the parties by providing standard text, While my comments might have shown which applicants would have only to tick that Parliament’s attempts to improve the lot of victims of crime within the ancillary 48 Cf. Kintzi, op. cit., p.72. proceedings have not been entirely 49 Cf, Bundesrat Publications, 50/95; 70/96; Bundestag Publication 13/6899. 50 Cf. here Rössner/Klaus, NJ 1996, p.288, p.292. 52 Cf. LR Hilger, op. cit., section 405, margin reference 51 Cf. Rössner/Klaus, op. cit., p.293. 11, with numerous references.
110 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS successful, it should however be pointed out settlement is centred upon an agreement that the Victim Protection Law has set an arrived at during a mediation session by important signal for the (further) extension which the perpetrator commits themself to of victim-offender mediation in Germany. make good the damage caused. Given the manifold difficulties which such Among the detailed list of factors listed agreements may encompass, they are in section 46, subsection 2, of the German concluded only under the supervision of Criminal Code, which help exonerate the recognised experts (psychologists, social- offender when criminal tariffs are education experts, social workers). calculated, an “attempt by the offender to arrive at a settlement with the aggrieved The settlement focuses not only on party’’ was included almost as a flag for substantive reparations but, as far as future legislative action.53 Its inclusion is possible, also aims to achieve genuine intended to indicate that when fixing reconciliation between perpetrator and punishment, the courts should have special victim. This is why reparations are not regard to an attempt by the offender to restricted to replacing material damage; satisfy the aggrieved party’s claim for other - non-material acts - can also be reparation in ways other than by material considered, e.g, the perpetrator apologising reparation for damage. This provides an to the victim. incentive for the accused to take on board the victim’s interests - where possible While in 1989, 2,100 cases were handled before the hearing takes plase - to enable in this way, in 1992 the figure rose to 5,100. the court to impose a more lenient In 1995 settlements were sought with more sentence. than 9,000 perpetrators and 8,000 victims,54 i.e, more than three times the That such facilities to improve the judgments handed down in ancillary possibility of arriving at a settlement proceedings. The most important classes between perpetrator and victim were of offence in terms of attempted initially made practically possible, and settlements include: later enshrined, in normative texts is one of the most significant criminal policy • bodily injury - 63.6% developments in Germany over the past • theft/fraud - 11.3% years. In this connection, projects designed • damage to property - 14.5% to allow for a settlement between • robbery and blackmail - 9% perpetrators and victims were first set up • defamation - 9.3% under the criminal law relating to young people. Such projects under general law 54 Cf. Wandrey/Weitekamp, Die organisatorische were included later. Their aim is to provide Umsetzung des Täter-Opfer-Ausgleichs in der help for victims in coming to terms with Bundesrepublik Deutschland - eine vorläufige the consequences of a criminal act. Under Einschätzung der Entwicklung im Zeitraum von the supervision of a third party not 1989 bis 1995 [Organisational implementation of involved in the conflict, a specially victim-offender mediation in the Federal Republic regulated mediation process aims to of Germany - an initial estimation of developments achieve a comprehensive settlement from 1989 to 1995], in “Täter-Opfer-Ausgleich in between perpetrator and victim. The Deutschland, Bestandsaufnahme und Perspektive’’ [Victim-offender mediation in Germany - taking 53 Cf. here Riess, Jura 1987, p.281, p.290; Weigend, stock and looking forward], published by the NJW 1987, p.1170, p.1176. Federal Ministry of Justice, Bonn 1998, p.131.
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It is surprising to see how willing As regards the, sums of money, the aggrieved parties are to arrive at a picture obtained is as follws: settlement: Reparation for Damages Payments • bodily injury - 78.1% up to DM 250 54.4% • theft/fraud - 82.5% from DM 251 to DM 2,000 39.8% • damage to property - 84.9% from DM 2,001 to DM 4,200 4.2% • robbery and blackmail - 62.6%.55 in excess of DM 4,200 1.8%58
The most important criterion for Payment for Pain and Suffering assessing the success of victim-offender up to DM 500 62.3% mediation is the settlement between from DM 501 to DM 1,000 17.7% aggrieved party, and the accused. The from DM 1,001 to DM 35,000 20.0% number of successful settlements is surprisingly high, broken down here by The evaluations so far have related to classes of offence: the agreement that services are to be provided. This sort of solution makes sense • bodily injury - 86% only if there is compliance, as otherwise • theft/fraud - 91.3% the aggrieved person is merely • damage to property - 92.4% disappointed yet again. It is pleasing to • robbery/blackmail - 94.3%.56 note that in about 80% of cases, the sums of money agreed were paid in full.59 The content of the settlements is also of great interest. Looking at the actions As a result of the positive experience agreed between the accused and aggrieved gained with victim-offender mediation, this party, as part of the victim-offender facility became specifically enshrined in mediation, the following picture emerges. general criminal law as part of the Law to Actions agreed included: Combat Crime, which entered into force on 1 Decemer 1994. Section 46a of the • apology - 72.4% German Criminal Code permits the courts • giving a present - 6.8% to reduce penalties or - if the penalty • return of property - 2.1% imposed does not go beyond imprisonment • money for pain and suffering - 21.5% not exceeding one year or a fine of not more • job of work - 6.6% than 360 daily increments - to refrain • joint activities with the victim - 8.4% wholly from punishment if, in the attempt • compensation - 27.3% to achieve a settlement with the aggrieved party, the perpetrator has made reparation As this assessment takes account of all the in full - or to a considerable degree - for different possible actions, the total arrived their actions or has made a serious attempt at is in excess of 100%57. at making reparation for their act.
55 Hartmann/Stroezel, Die bundesweite TAO- By introducing this rule, Parliament Statistik [German national statistics on victim- attempted to focus greater attention on offender mediation] in “Täter-Opfer-Ausgleich in those of the victim’s interests which can Deutschland’’ [Victim-offender mediation in best be dealt with under victim-offender Germany], op. cit., p.175. 56 Hartmann/Stroezel, op. cit., p.187. 58 Hartmann/Stroezel, op. cit., p.187. 57 Cf. Hartmann/Stroezel, op. cit., p.186. 59 Cf. Hartmann/Stroezel, op. cit., p.188.
112 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS mediation using forms of material and non- take steps to achieve this.’’ material assistance - compensating for damage and allaying fears. The This “appellate norm’’ is intended to explanatory memorandum to the bring about more widespread use of victim- legislation states that this approach is also offender mediation in practice by ensuring more apt than simple punishment to gain that the public prosecutor and the court the perpetrator’s understanding of the must - except in manifestly unsuitable reprehensible nature of their actions and cases - examine whether a settlement to accept responsibility for the between the accused and the aggrieved consequences of the crime committed.60 person can be achieved. Yet this still leaves it for the court and the public prosecutor In cases where the court would be to decide how intensive that examination allowed to abstain from punishment, the will be and how to bring about the public prosecutor - with the consent of the mediation. There is a range of possibilities, competent court - can even refrain from from distributing a leaflet with abstract bringing public charges; in cases of that information to making oral nature, there is not even a need for the case recommendations in specific cases to come before the courts. concerning how the damage might be repaired. As the law currently stands, it is entirely up to the accused to decide whether s/he This provision has been supplemented wishes to try and achieve a settlement with by a further provision allowing the public the aggrieved party and to make up for loss prosecutor to instruct the accused “to take suffered as a result of the crime. This serious steps to achieve a settlement with means that those accused persons who the aggrieved party’’. Once that has have competent legal counsel and sufficient happened, the public prosecutor has the resources are more likely to see their option of discontinuing the proceedings. punishment reduced or to escape punishment than those accused persons While it is true that the aforementioned who are unfamiliar with such possibilities. draft legislation, which aims to enshrine As this circumstance does not square with victim-offender mediation, has yet to the German Government’s concern to overcome all the various Parliamentary ensure comprehensive support for the hurdles, hardly anyone in Germany worth interests of victims of crime, the Federal taking seriously would consider calling into Ministry of Justice is currently considering question an extension of victim-offender enshrining victim-offender mediation in mediation. Consequently, everything criminal procedural law. It is intended that seems to support the view that victim- the basic provision, which was drafted by offender mediation, which it is now the Ministry only a couple of months ago, impossible to dissociate from the system should be worded as follows: of criminal law sanctions as a conceivable reaction to criminal acts, will continue - to “At all stages in the proceedings, the a greater degree than hitherto - to help public prosecutor and the court shall victims of crime to escape the psychological, examine the possibility of achieving a social and financial problems which can settlement between the accused and the result from crime. aggrieved person and, in suitable cases,
60 Cf. Bundestag Publication 12/6853, p.21.
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THE FUNCTION OF HONORARY JUDGES IN CRIMINAL PROCEEDINGS IN GERMANY
Eberhard Siegismund*
I. INTRODUCTION a severe and of a most severe nature to the jury court, which was characterised by the In the following I shall attempt to give division of the bench into a judicial bench you an overview of the law relating to and a jurors’ bench: the 12 jurors were honorary judges in criminal jurisdiction in assigned the decision on culpability and the Germany and to explain the role played by 3 professional judges the decision on lay judges in criminal proceedings. The punishment, i.e. sentence. Other serious participation of laymen and laywomen in crimes and most less serious crimes were criminal jurisdiction is one of those dealt with by the criminal chamber, controversial topics in criminal law where composed solely of professional judges; less opinions part ways. Whereas one group serious crimes of a minor nature fell within sees the participation of laymen and the jurisdiction of the jury court, where the women as a guarantee of the democratic 2 lay judges decided on culpability and process in court1, others are fundamentally sentence together with the professional sceptical about lay participation2 or want judge5. to further curtail lay influence3 . I will start by outlining the activities performed by lay Partly following the wide-ranging judges, thereafter I will set out the amendments to the law on lay judges - requirements for appointing lay judges, particularly during the thirties - the use of describe their rights and duties and the honorary judges in criminal jurisdiction course of deliberations in the court today is as follows. Since the importance deliberations room. Finally, I will go into of the office of lay judge is governed, on the the question of whether lay judges should one hand, by their use in the various court be dispensed with. instances and, on the other, by their differing numerical proportion to the II. FIELD OF ACTIVITY OF LAY professional judges, it would seem JUDGES IN GERMANY expedient to subdivide according to the Participation of lay judges in the various instances. criminal justice system is based on reform ideas and demands during the last century, A. Courts of First Instance parallel to the desire for popular Courts composed of several judges with participation in legislation and jurisdiction at first instance are the Jury administration4. The original rule, for Court at the Local Court and the Grand which provision was made in the Code of Criminal Chamber at the Regional Court. Criminal Procedure and the Law Concerning the Constitution of the Courts, 1 cf. Wassermann, RuP 1982, p.117, p.120. which entered into force on 1 October 1879, 2 cf. Kühne, ZAP 1985, p.237. assigned the decision on serious crimes of 3 cf. Michaelsen, Kriminalistik 1983, p.445. 4 cf. LR Schäfer, 24th ed., introduction chapter 15 * Deputy Director General, Judicial System Division, margin reference 2. Bonn, Germany. 5 cf. LR Schäfer, ibid.
114 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
The Jury Court, which used to be the first or 3 professional judges and 2 lay judges instance for very serious crimes, is now only in all cases of serious crimes that do not a criminal chamber with special fall within the jurisdiction of the Local jurisdiction, but has retained its old name. Court or of the Higher Regional Court; it The Higher Regional Court, which also has jurisdiction over all criminal functions as a court of first instance in offences where the sentencing powers of the regard to crimes against the state, is Local Court are insufficient. composed of professional judges only. The so-called Jury Court constitutes a At the Local Court, the jury court decides special Criminal Chamber for serious in criminal proceedings relating to serious crimes of the greatest gravity, particularly and less serious crimes in cases where the homicide crimes listed in a conclusive criminal judge does not have jurisdiction; catalogue of jurisdiction in section 74 the sentencing range of the Jury Court subsection 2 CCL. This Chamber has the extends to a maximum of 4 years same composition as the general Grand imprisonment. Criminal Chamber.
The Jury Court is composed on principle The Youth Chambers of the Regional of one professional judge as presiding judge Court have the same composition as the and two lay judges (section 29 subsection normal criminal chambers. They decide at 1, Courts Constitution Law - CCL). Where first instance on homicide crimes the scope of the matter so requires, the Jury committed by juveniles and young adults. Court may also - upon application by the They also have jurisdiction in proceedings public prosecutor - function in the where juveniles and young adults are composition of 2 professional judges and 2 prosecuted together, and where the Local lay judges (section 29 subsection 2, CCL). Court’s sentencing range is insufficient.
The Jury Court for youth matters is The Youth Chamber of the Regional composed of one professional judge, as Court has jurisdiction, at first instance, in presiding judge, and 2 lay judges for youth youth protection matters as well. These matters. Criminal offences are prosecuted are cases where adults are prosecuted for in this court if youth imprisonment, which criminal offences that caused injury to a is enforced in a youth prison, may be child or a juvenile (e.g, maltreatment or imposed as the sentence. If the anticipated sexual criminal offences) or where children sentence is less severe, as for instance in or juveniles are required as witnesses. the case of youth detention, the prosecution is brought before a judge sitting alone with B. Appellate Instance on Fact and jurisdiction over youth matters. By the Law way, youth courts decide in criminal Lay judges also participate at the proceedings against juveniles and young appellate instance at the Regional Court. adults, i.e, delinquents who were aged Given that there is a review of facts and between 14 and 18, and between 18 and law on appeal, it would certainly seem 20 years respectively, at the time the crime expedient for lay judges to be brought in. was committed. The Appeal Chamber at the Regional As a court of first instance at the Court reviews Local Court judgements in Regional Court, the Grand Criminal the composition of one professional judge Chamber decides in the composition of 2 and 2 lay judges - i.e, with the same
115 RESOURCE MATERIAL SERIES No. 56 composition as the Local Court. B. Improving the Quality of Jurisprudence In proceedings on appeals on facts and In this connection, one often hears the law against judgements of the Youth Court slogans: popular orientation, present-day sitting with lay judges, the Youth Chamber relevance, sense of justice, and plausibility is composed of 3 professional judges and 2 control8. It is said that the lay judge brings lay judges, and in proceedings on appeals in a popular orientation by their sense of on facts and law against judgements of a the popular mood, hence preventing the judge sitting alone in youth matters it is professional judge from sinking into a composed of the presiding professional routine9. Through lay participation, the judge and 2 lay judges in youth matters. professional judge is forced to measure and clarify the accuracy of their observations In Germany, we have about 61,000 lay and conceptions and the persuasive power judges at the courts with jurisdiction over of their ideas by being confronted with matters relating to young people and over objections issuing from an untested sense adults. This is an impressive figure when of justice10. S/he is forced to formulate what set in relation to the figure of 4,000 judges s/he wishes to say in a clear and intelligible in criminal jurisdiction. manner, in other words, in a manner conducive to popular comprehension. III. PUBLIC PARTICIPATION By contrast, the following arguments are There are basically three arguments used to controvert this. Assuming that supporting the participation of laymen and legal professionals articulate their ideas in women in criminal proceedings, i.e, the a manner incomprehensible to laymen and democracy principle, the quality of women, lay judges would have to rectify jurisprudence and the popular educative this by self-confidently posing further effect6. questions. But, so the argument goes, this would be rather unlikely since lay judges A. Democracy Principle are mostly only passive participants and By acting as a lay judge, the ordinary they are overburdened by the task of citizen can take part in the dispensation of examining the professional judge’s proposal justice and obtain experience of what for a decision11, especially as a lay judge happens in the deliberations room as well does not have a command of specialist legal as of the difficulties, doubts and even the terminology. conflicts of conscience that may arise in coming to a just decision. Co-responsibility Against this backdrop, there is a need for the decision given counteracts the for more intensive discussion of the criticism that might otherwise easily arise, question of whether the sense of justice that namely that judgements are delivered the lay judge brings to bear and their sense “from an ivory tower”7. Nevertheless, when of plausibility are suited to improving the considering this aspect, it must not be forgotten that laymen and women have the 7 cf. LR Schäfer, ibid., margin reference 8. same statutory duty as professional judges 8 cf. Kühne, ibid., p.238. to uphold the secrecy of judicial 9 cf. LR Schäfer, ibid. deliberations, i.e, to remain silent about the 10 cf. LR Schäfer, ibid. course of deliberations. 11 cf. Volk in: Festschrift für Dünnebier, 1982, p.373, p.377; Casper-Zeisel, Der Laienrichter im 6 On this see Kühne, ZRP 1985, p.237, p.238 Strafprozeß, 1979, p.84.
116 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS quality of jurisprudence. Seen against the background of the large number of foreigners whose lives have been C. Popular Educative Effect centred in Germany for a considerable Finally, the use of lay judges is also length of time, and who are largely linked to the expectation that these judges integrated in German life, but who shy will increase people’s acceptance of court away from acquiring German nationality decisions, that they will improve popular for a variety of reasons, the question is legal knowledge, hence contributing to being discussed as to whether non- inner appreciation of criminal law norms Germans are to be admitted to the office of and, at the same time, that they will have lay judge as well15. Hence it has currently a general preventive impact12. been suggested that where a foreigner has lived in the country for a specified length But critics opposed to this notion say of time, has the necessary linguistic that this effect could only be achieved if competence and fulfils the personal lay judges were to be active in effective prerequisites, s/he should be admitted as instruction of the public outside their court an honorary judge16. Grounds for admitting activity; however, this is said to be not foreigners as honorary judges are said to normally the case13. Judging from my be: integration of the foreign population professional observations over a period of and greater acceptance of court more than 10 years, this is negated by the jurisprudence. fact that lay judges consistently perform their duties with great eagerness and pride Admittedly, the fact that a certain so that we can assume that there is integrative effect may follow from such a feedback in the lay judge’s family and in measure must not be overlooked. But it their circle of friends and acquaintances. seems clear that an integrative effect would Whether, however, lay judges enjoy more probably only arise in relation to those on credibility and have greater power of whom the office of honorary judge had been persuasion than professional judges - who conferred. are similarly in a position to report on their experience - must remain an open question. However, there are misgivings about the assumption that court jurisprudence would IV. WHO CAN BECOME A LAY enjoy greater acceptance as a result of JUDGE? participation on the part of foreigners. This would only be possible if, in individual A. General Prerequisites cases, special lay judges from a specific Section 31, second sentence, CCL region could be chosen for a particular stipulates that a lay judge must possess defendant, i.e. Turkish lay judges for German nationality. If a non-German lay Turkish defendants and so on. Apart from judge takes part in criminal proceedings, the fact that this would be linked to the the bench will not have been properly risk of abuse and manipulation - which constituted with the result that this will would hardly be conducive to acceptance present an absolute ground for an appeal of court jurisprudence - choosing lay judges on law14. for specific individual cases is not feasible
14 cf. Section 338 no. 1 StPO; cf. LR Schäfer, 24th ed., Section 31 margin reference 4. 12 cf. Kühne, ibid. with numerous references. 15 cf. Röper, DriZ 1998, p.195; Jutzi, DriZ 1997, p.377. 13 cf. Kühne, ibid., p.239. 16 cf. Röper, ibid.
117 RESOURCE MATERIAL SERIES No. 56 seeing that only about 30% of the suspected The almost equal composition of the Jury criminal offenders found by the police in Court for youth matters is based on the 1997 did not have German nationality. In Youth Courts Law; there section 33 the end, it is likely that in the future too provides that a man and a woman should there will be no criminal courts composed be brought in as lay judges at every main of non-German lay judges17. proceeding conducted by a bench. Parliament assumed that women, in their The question of whether a lay judge role as mothers and rearers of the young, should be male or female does not arise would generally be able to understand because equality for women is already young criminal offenders better and would anchored in the constitution (Article 3 of be more likely to choose the appropriate the Basic Law). More than 70 years ago, sanction for the wrong committed. In however, a speaker at the German actual fact, there are female lay judges Congress of Lawyers in Leipzig (in 1921) particularly at the youth courts who are expressed his emphatic opposition to strongly committed in the educative sense women acting as lay judges as follows: as teachers, social workers or persons responsible for training others. “The reputation of the courts calls for judges for whom the defendant has So as to ensure that lay judges have the respect. In the light of the actual necessary experience of life, the Law conditions still pertaining here ... men prescribes a minimum age limit of 25 years often do not yet have the necessary (section 33 no. 1 CCL). Since most citizens respect for a woman. So admitting are already pursuing an occupation at this women would mean lowering respect for age, they will usually have a general the court and therefore respect for the understanding of the life situations to be law. But this must be avoided adjudicated in criminal proceedings. On particularly at the present time...”18. the other hand, the maximum age limit of 70 years is designed to ensure that people Another question to look at is the who are no longer capable of matching up question of whether women actually make to the physical and mental rigours of the up 50% of lay judges. Here we find office of lay judge are not appointed to that interesting results when we compare office19. benches handling matters relating to adults with those handling youth matters. Familiarity with local conditions (section Whereas women at courts handling adult 33 no. 3), as required by the law, allows matters were under-represented regional views regarding the importance (compared with their share of the and circumstances of a criminal offence to population), accounting for a figure of about have some influence on the judgement20. 30% in 1975, of about 20% in 1981, of about 10% in 1989 and, in 1997, of just 3%. The It seems obvious that that a prospective result is quite different in respect of lay lay judge must be in full possession of their judges at youth courts: here women are a civil rights and must be eligible to hold little over-represented - in 1975 by about public office, if s/he is to be appointed to 6% and in 1997 by about 1%. the office of lay judge (cf. section 32 no. 1).
17 cf. Wassermann, NJW 1996, 1253, 1254, Jutzi, DriZ 19 cf. Schäfer, ibid., Section 33 margin reference 1. 1997, p.377. 20 cf. Benz, Zur Rolle der Laienrichter im Strafprozeß, 18 cf. von Hasseln, DriZ 1984, p.12, p.14. 1982, p.67.
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B. Grounds for Exclusion • Members of the German Federal To prevent incompetent or unsuitable Parliament and Federal Council, of people from holding the office of lay judge, a Land Parliament or of a second the Law makes provision for a number of chamber; grounds for exclusion. People who have been sentenced to a term of imprisonment • People who, in the preceding term of of more than 6 months’ duration for office, performed the duties of commission of an offence with intent are honorary judge for 40 days or who are excluded, and so are those in respect of already performing the duties of whom investigation proceedings are honorary judge; pending for an offence that might lead to loss of eligibility to hold public office • Members of the medical professions; (section 32 nos. 1 and 2). • People who have reached the age of Section 33 no. 3 (restriction of disposition 65 years or who will have done so at by virtue of a court order) refers to all cases the end of the term of office. of restricted disposition in connection with property as a whole, as with all persons An additional case for exemption has deprived of legal capacity on account of recently been introduced: it covers those mental illness, mental deficiency, cases where acting as a lay judge would prodigality, alcoholism or drug addiction, seriously endanger the economic existence or with those placed under temporary of the person concerned or of a third person. guardianship21. It is true to say that cases of exemption Finally, the cases of unsuitability on the are usually already taken into account ground of a person’s occupation (section 32 when the list of candidates and lay judges nos. 1 to 6) are also of interest. This is is being drawn up; they are otherwise only designed to avoid taking people performing recognised if the lay judge concerned functions that are important in public life asserts them within one week after s/he has away from their full-time work, as well as been informed of their assignment. Where to avoid tensions between defendants and such grounds arose or become known later, lay judges which might lead to mutual the time limit shall start to run from that prejudices as far as people working in the time (section 53 subsection 1 CCL). administration of justice are concerned22. D. Selection of Lay Judges C. Grounds for Refusal Lay judges are selected every four years. The office of lay judge is admittedly an The Regional or Local Court director honorary one (section 31, first sentence, determines the required number of CCL) but selection for this office is principal and assistant lay judges nevertheless a duty from which the person (substitute lay judges) for the Jury Courts concerned can obtain an exemption only on and Criminal Chambers on the the strict conditions laid down in section presumption that principal lay judges will 35 CCL. The following persons can refuse not be brought in more than 12 times on appointment to the office of lay judge: sitting days every year, and s/he will inform the municipalities of the figures allocated 21 cf. LR Schäfer, ibid., Section 32 margin reference to them. Pursuant to section 36 subsection 11. 1 CCL, the municipalities draw up uniform 22 cf. Benz, ibid., p.70. lists of lay judge candidates for the Local
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Court and the Regional Court. Candidates Criminal Chambers (section 77 CCL). can be nominated by parties and charitable associations, although any interested There is special selection procedure for citizen can indicate this to their municipal lay judges at the Youth Courts. In order to administration. In spite of the obligation obtain citizens who have a special under section 36 subsection 2 CCL to take educational aptitude or who have had long representative account of all population experience in the education of young groups, this means that predominantly people, the lists of candidates for the office politically active members of the of lay judge are drawn up by the youth municipality - i.e, mainly middle-class welfare committees, bodies set up at the people - are proposed for selection in line municipality whose members are experts with the ratio of party representation in on matters of child and juvenile education. the municipal bodies23. If there are not The Youth Court judge will take the place enough candidates, municipalities of the Local Court judge at the lay judge occasionally take their candidates for the selection committee. list from the register of residents in accordance with the principle of random V. RIGHTS AND OBLIGATIONS OF selection24. LAY JUDGES As mentioned above, every citizen who The municipal council approves by 2/3 has been appointed as a lay judge must majority the list of lay judge candidates perform the duties of this office properly, from the preliminary lists of candidates. even where it is considered burdensome in The list should contain at least twice as the circumstances of the individual case. many names as the number of persons Pursuant to section 56 CCL, the judge is determined by the President of the entitled to impose a regulatory fine on a Regional Court or of the Local Court lay judge who, without sufficient excuse, (section 36 subsection 4 CCL). Since it fails to appear at sittings on time or who seems wholly impossible in cities with lists seeks to evade their responsibilities in some of candidates containing about 2,5000 other way, e.g, by refusing to participate names to “select” individual persons in the in a vote26. sense of weighing up the personal characteristics of individual candidates, This provision is not without its candidates for the office of lay judge are problems, considering that section 30 CCL occasionally selected by mere counting or provides that during the main proceedings at random, and are then approved by 2/3 the lay judge exercises judicial office and majority25. enjoys the same voting rights as the professional judge. The equality of lay After the list has been displayed in judge and professional judge established public for one week (section 36, 37, 38 CCL) under the aforementioned provision is the lay judge selection committee, set up definitely restricted by granting the at the Local Court, will select the lay judges professional judge explicit rights over lay for the next term of office from this list. judges. The same applies to lay judges for the A. Participation of Lay Judge in the 23 cf. Kühne, ZRP 1985, p.237, p.238 Main Proceeding 24 cf. Lieber, Der praktische Ratgeber für Schöffen, In accordance with the aforementioned 1st ed., p.86. 25 cf. Jasper, MDR 1985, p.110, p.111. 26 cf. Schäfer, ibid., Section 56 margin reference 3.
120 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS provision of section 30 subsection 1 CCL, have to investigate any exonerating during the main proceedings the lay judges circumstances. Where an indictment is fully exercise judicial office and enjoy the preferred, this duty to investigate is all the same voting rights as the professional more incumbent upon the judge (section judges and, as a matter of principle, they 244 subsection 2 Code of Criminal also participate in decisions to be taken Procedure). This provision reads as follows: during the main proceeding. “In order to determine the truth, the Before dealing with the decision-making court shall, upon its own motion, extend powers of professional judges and lay the taking of evidence to all facts and judges, it would seem to be indispensable evidence which are important for the to describe the function of the Criminal decision.” Court judge in Germany, which is not comparable to the function of the Criminal The duty to investigate extends to all Court judge in English-speaking systems. facts which need to be proven, no matter whether these facts are directly or In the adversarial system, as a matter indirectly relevant to the question of guilt, of principle, the court has to make its to the question of legal consequences or to decision solely on the basis of the evidence procedural questions. So the duty to presented to it by the parties. This system investigate applies, in particular, also with is based on the idea that the court respect to the facts which are relevant to proceedings should be structured in the the determination of sentence, no matter form of a dispute between two equal whether these facts concern the offence or adversaries before an arbiter who also has the offender. to decide the outcome of the duel. If the parties agree to resolve their dispute by the The duty to investigate is first of all notorious “plea bargaining”, or by reducing incumbent upon the court. It extends in the charges from a serious crime to a less every direction, in favor of the defendant serious offence, the judge will usually be and against them, and it is not subject to bound by such an arrangement. In this any motions, suggestions or requests by the dispute, the public prosecutor is not an participants. So it can happen that the impartial authority, but party to the court will proceed to take exonerating proceedings. This is the role imposed on evidence even against the defendant’s will them. The judge is, so to speak, only the or to investigate incriminating intermediary or arbiter who sees to it that circumstances, even if the public the parties stick to the rules of the game. prosecution office shows no interest. Even Even if the court would want to learn the where the defendant and the public whole truth, it has no procedural means to prosecutor both agree to dispense with the take action to this effect, given the taking of further evidence, the court will dispositive powers of the parties. In fact, not be released from its duty to investigate. the court might have to decide on the basis of insufficient evidence. As has been outlined before, during the main proceedings the lay judges perform The system operated in Germany is judicial functions to the full extent and with different. When the police or the public the same right to vote as the professional prosecution office in Germany learn about judges; this means that when I am a criminal offence, they are obliged to speaking of “the court” this includes the lay ascertain the facts thoroughly, i.e, they also judges as well. They participate in any
121 RESOURCE MATERIAL SERIES No. 56 order, decision and voting unless the law unless a substitute lay judge is available. expressly assigns certain tasks to the A similar risk for the course of the trial lies presiding judge or the professional judges. in thoughtless remarks from lay judges The most important decision is a concerning the outcome of the proceedings judgement which consists of a conviction in the presence of defence counsel or public and a sentence, as well as other decisions prosecutors. Against this background, it ending the proceedings, such as is easily understandable that the termination of proceedings. It is important professional judges prefer lay judges who to note that the conviction and a sentence do not ask questions in the main proceeding are pronounced in one single decision, like and refrain from making any remarks the following: “The defendant is guilty of concerning the proceedings - whether in the theft. He is sentenced to 6 months main proceeding or outside. It is obvious imprisonment. He is ordered to pay the that this is not compatible with the costs of the proceedings.” Orders preceding function of the lay judge to contribute to the judgement, such as a decision on a the decision-making in the same way as a motion for the admission of evidence, are professional judge. also made in co-operation with the lay judges. VI. DELIBERATIONS AND VOTING In the deliberations and in the voting, In order to be sufficiently informed - with which usually follow the hearing, lay regard to the court’s official duty to judges and professional judges have the investigate as mentioned before - the lay same vote. The manner in which the judge is entitled to question the defendant deliberations take place is defined by as well as witnesses and experts (section statute in two rules only (section 194 CCL): 240 subsection 2 Code of Criminal Procedure). The lay judges put questions • The presiding judge chairs the directly; they only have to ask the presiding deliberations, poses questions and judge formally to be granted the right to collects the votes. speak. They are not obliged to disclose to • Differences of opinion concerning the the presiding judge the content of the subject, the formulation and the order question in advance or to ask for of questions or concerning the result permission to pose questions. In practice, of the voting are decided by the court, however, lay judges seldom make use of i.e, the professional judges and the their right to ask questions. Such restraint lay judges together. on the part of lay judges is something that the professional judges do not mind in Usually the secret deliberations start practice. Awkward, ill-considered or even with the question as to which facts are unfair questions from lay judges may proven. At the Local Court, the presiding considerably impair the proper course of judge will give their version of the facts and criminal proceedings. For instance, a lay discuss it with the lay judges; at the judge asking the defendant why s/he Regional Court, where two or three doesn’t finally confess since the evidence professional judges are involved, this available provided sufficient proof might function will in most cases be performed lead to a defence counsel motion of by the rapporteur. challenge on grounds of bias. If such motion is successful, the lay judge will be Subsequently, the deliberations will deal excluded from the proceedings, which with the question as to which of the facts means that the trial has to be started again constitute the elements of an offence, i.e,
122 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS which offence has been committed. Then term of service has ended - (section 44 the court will discuss any mitigating or subsection 1 German Judiciary Act) such aggravating circumstances. Finally - and processes are hardly ever discussed in this is more often than not highly public, and for good reason. The secrecy of controversial - the sentence will be deliberations ensures open discussion in determined. the administration of justice28, so that no professional or lay judge needs to fear that If consensus cannot be achieved on their opinion might be revealed to the individual points, formal voting is required. public. Hence, under German law, public The order of voting is regulated by section announcement of a dissenting vote is not 197 CCL: first the youngest lay judge will allowed. An exception applies to the cast their vote, then the older one. The Federal Constitutional Court, the highest professional judges vote after them, first German court. If a lay judge discloses the the rapporteur, the others in the order of secrecy of deliberations, a regulatory fine their length of service, the youngest first. may be imposed pursuant to section 56 The presiding judge is the last one to cast CCL. their vote. This is meant to ensure that the lay judges do not feel inhibited before VII. SHOULD LAY JUDGES BE the professional judges, or the younger DISPENSED WITH? judges before the older ones. Meaningful participation of lay judges in the administration of criminal justice is Any decision to the defendant’s conceivable only if they are capable of disadvantage concerning culpability and assisting the professional judge in the the legal consequences of the offence application of the law. Since lay judges are requires a two-thirds majority (section 263 barred from inspecting the files, they can Code of Criminal Procedure). This means only rely on the result of the oral hearing. that the two lay judges - at least in theory But they will not be able to gain an - can take advantage of their power not only adequate basis for decision-making unless at the Local Court but also at the Regional the professional judge directs the Court against the three professional proceeding in such a way that it is generally judges. However, in my experience of more understandable and, if necessary, also uses than ten years at various penal chambers, recesses in order to explain technical terms I have never seen lay judges actually take to the lay judges, comment on expert this option. This is certainly due to the opinions or recapitulate the taking of fact that the presiding judge, who chairs evidence step by step29. the deliberations with the lay judges, performs an advisory function concerning As my own experience has shown, it is legal issues and can skilfully steer the extremely rare for a lay judge to contribute result27. This applies in any case to the to the clarification of facts, unless for Local Court; the situation is different with example when s/he happens to have specific the chambers of the Regional Court: here knowledge of the subject or where s/he is it may indeed happen that a “stubborn” able to contribute professional experience professional judge and a lay judge enforce or experience of life in the field concerned. a more lenient decision.
Since the lay judge as well as the 27 cf. Benz, ibid., p.84. professional judge have to preserve secrecy 28 cf. Schmidt-Räntsch, JZ 1958, p.329. regarding the deliberations - also after the 29 cf. Benz, ibid., p. 90.
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But it would nevertheless be short-sighted solve this specific problem, the key to dispense with the participation of lay statement remains true, namely, that judges. An empirical and psychological- acting as a lay judge, in general, is not theoretical study of existing law concerning asking too much of the person concerned. lay participation in criminal jurisdiction Nevertheless, it seems advisable for lay has shown that lay judges can indeed cope judges to be given some assistance in the with the tasks assigned to them30. fulfilment of their tasks-whether through specific information to be provided by the There is no qualitative difference professional judge or through regular between the decision-making processes of training32. lay judges and those of professional judges; the process of judging by lay judges is a For lay judges it is very important that rational one, too. It is governed roughly judicial decisions should reflect what the by the same factors as the process of public feels is right or wrong. This is what judging by legally trained persons and it is they regard as the main purpose of their not affected, to any major degree, by office. During the deliberations, therefore, sympathy for, or dislike of, the defendant. most lay judges strive to voice popular In addition, lay judges do not have any convictions of what is right or wrong32. As stronger tendencies towards extremely the results of the aforementioned study harsh or lenient decisions than the show, this leads rather frequently to respective presiding judges. The attitude differences of opinion between lay judges of lay judges, therefore, is not appreciably and professional judges33. Surprisingly, more repressive or more lenient than that however - and this is also what I have of presiding judges. experienced - it rather seldom happens that lay judges exert influence with respect to Nor is there anything wrong with the the outcome of proceeding. The question ability of lay judges to understand what is as to the reasons for this must be left open; going on. As a rule, lay judges are able to it would seem possible that a quite follow an average main proceeding easily. substantial number of lay judges Most lay judges are able to understand endeavour to avoid disagreement with the what is happening in the main proceeding presiding judges34. and what it is all about. There are certain problems of comprehension, though, which Lay judges are often purported to be lay judges may have and which may be highly susceptible to media influence. understandable in the particular case, but According to the aforementioned study, which must not be ignored. Indeed, they which is based on interviews with occur too often simply to be tolerated. A professional judges, there is no indication classical problem, for example, is the that the attitudes of lay judges are participation of lay judges in cases influenced by public or published opinion involving economic offences. In such cases, to any extent worth mentioning. It is true, people with no special training will find it difficult, in particular, to comprehend 31 cf. Katholnigg, Wistra 1982, p.91; Michaelsen, economic processes31. Although there are Kriminalistik 1983, p.445; Wassermann, JVBI. no practical approaches in sight so far to 1970, p.145, p.148. 32 cf. Rennig, ibid., p.572. 30 cf. Rennig, Die Entscheidungsfindung durch 32 cf. Rennig, ibid., p.572. Schöffen und Berufsrichter in rechtlicher und 33 cf. Rennig, ibid., p.573. psychologischer Sicht, 1993, p.570 et seq. 34 cf. Rennig, ibid.
124 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS though, that it cannot be ruled out completely that media reports may have some effect on the opinions of lay judges, but for the same good reason this could also be said of professional judges35. In any case it should be noted that the belief that lay judges are highly susceptible to media influence must finally be abandoned36.
In conclusion, it should be pointed out that the participation of lay judges in the administration of criminal justice has more advantages than many of its opponents expect. In addition to increasing popular confidence in the justice system, in ensures, above all, that criminal proceedings - and, in particular, the verdict - remain easily understandable and comprehensible to everybody. This seems to be all the more important as criminal law, after all, is a matter not only for the professionals involved, but for society as a whole.37
35 cf. Rennig, ibid. 36 cf. Rennig, ibid. 37 cf. Rennig, ibid. 38 cf. Geerds, Schiedsmannzeitung 1980, p.86.
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COMMUNITY POLICING IN THE CONTEXT OF SINGAPORE
Jarmal Singh*
I. INTRODUCTION of a community-based policing strategy through the Neighbourhood Police Post Singapore has grown in many ways over (NPP) system in 1983 and the shift towards the last 40 years to become a city-state that community-focused policing through the enjoys a high level of economic growth, creation of Neighbourhood Police Centres political stability and most importantly, a (NPCs) in 1997. sense of safety and security. It was not a smooth journey, as the country experienced Prior to 1983, policing strategies were its turbulent periods in the 1950s and the reactive in nature. Police services were 1960s, characterised by problems of dispensed centrally, mainly through the 8 political instability, communist insurgency, police stations existing at the time. Each secret societies, unemployment and police station served a very large area and communal riots. these areas were patrolled by cars. Impacted by urbanisation, social and Today, Singapore’s crime rate is low by economic transformations, the police were international standards and has declined faced with rising crime and a loss of public successively for 9 years from 1989 till 1997. contact and support. The SPF then Crime rate has only edged up slightly by realised the importance of fostering closer 5.2% in 1998 when the entire South East police-community relations in an effort to Asia region plunged into financial and prevent crime. By re-orienting a patrol economic crisis. The rise was mostly strategy that was skewed towards the attributed to theft of handphones and cash motorised mode to one that was community cards, and immigration offences. oriented and emphasised foot patrol, it is felt that the police could create a Amidst the rapid modernisation of heightened sense of presence and visibility society, much of the transformation from to deter crimes. the old crime-ridden town to a safe city today can be attributed to the Singaporean The Neighbouhood Police Post (NPP) government’s tough stance towards system, adapted from the Japanese Koban criminals and criminality in the form of System, was introduced in 1983. Eight strict laws and heavy penalties. NPPs were set up as a pilot in a constituency, with a view to assess the Apart from the strict laws and rigorous impact and success of the system in enforcement, the improvement of the social Singapore’s environment. The trial was a and economic situation helped to control success. By 1993, the entire set of 91 NPPs crime. Over the past 15 years, the was set up throughout the island. This was Singapore Police Force (SPF) has made two accompanied by falling crime and increased significant innovations in the area of sense of safety and security amongst the policing in light of social and economic public. changes. The first being the introduction However, in view of rising expectations * Deputy Director Operations, Police Headquarters, of both the public and police officers, and Singapore Police Force, Republic of Singapore. the need to address new challenges arising
126 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS from various developments, the police have and effects within the society. It actively now embarked on revamping the NPP seeks to mobilize the various sections of the system into the NPC system. The aim of community such as public organizations, this paper is to share the SPF’s experience private firms, governmental agencies and in its adoption of community policing as the the general population in crime principal policing strategy. In addition, the elimination, prevention and control. By NPP and NPC systems, which are the educating the community in these areas, operating structures to carry out this community policing hopes to reduce crime strategy, will be discussed. rates and at the same time, stimulate the society to self-poIice. II. CONCEPT OF COMMUNITY POLICING III. COMMUNITY POLICING VERSUS TRADITIONAL POLICING The basic premise of community policing is that the police and the members of the As opposed to the traditional reactive, public should work together to eliminate, legalistic crime fighting strategy, suppress and prevent crime in society. This community policing advocates a is an extension of the realisation that crime community-oriented policing strategy. It is a community problem created by societal is based on the assumption that the issues and failures, and not just a police problem of crime cannot be adequately met issue or an indication of its effectiveness. with law enforcement. Instead, it Police effectiveness and public order cannot emphasizes proactive policing tactics and be greatly enhanced unless the community the mobilization of the community in the can be persuaded to do more for itself. areas of crime elimination, prevention and detection. The key differences between Community policing seeks to inform and Community Policing and Traditional educate the public about crime, its causes Policing are as listed below.
Traditional Policing Community Policing • Reactive to incidents. • Pro-active in solving community related problems. Discuss possible solutions with the community. • Roles of police officers are limited to incident • Roles of police officers are broadened to include response. identification and solving of problems. • Random patrols in cars to respond to crimes. • Visible patrols to interact with the community, i.e foot patrols, bicycle patrols, scooter patrols. • Focus on internal resources. • Leverage on community resources. Police work • Limited linkages with the commuity. with extensive co-operative links with the community. • Information from the community is limited. • Information from the community comes from many sources. • Supervision is control-oriented; authoritative • Decentralisation of authority and autonomy style or command and control style. given to front-line officers. • Rewards based on solving of cases. • Performance evaluation rewards based on service activities; crime prevention, satisfaction and sense of safety of the community.
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IV. SPF’S ADOPTION OF THE The SPF could no longer simply rely on COMMUNITY POLICING the 8 divisional police stations for efficient STRATEGY and speedy service. There was a pressing need to develop a new, efficient response The key strategic driver for the SPF’s system that could cope with the changing adoption of the community-oriented operating environment and at the same policing model was to establish and time, offer opportunities for meaningful leverage community support for our own police-public interaction in a densely law enforcement policies and strategies in populated, urban environment. This the face of a changing operating spurred the SPF to develop the environment. The key changes in the decentralised system of the NPP to serve operating environment were as follows. the needs of the urban population better. A. Increasing Crime Trend (1974 to C. Rising Public Expectations 1983) Thirdly, the general population was Firstly, although the crime rate in increasingly affluent and educated. This Singapore was low by world standards, raised two challenges for the SPF. One was there was a disturbing trend of an overall to meet rising public expectations of the increase in all types of crime (except violent police service. The other was stiff property crimes) for the period 1974 to competition from the public and private 1983. Analysis revealed that 70% of such sectors for quality recruits. The nature and crimes were house-breaking, theft of prospects of police work was deemed by the vehicles, and robbery which could have younger generation as comparatively been prevented. The promotion of unappealing. Community-oriented community-oriented policing would help policing addressed these two challenges by the SPF to battle crime, as improved police- raising the quality of police services public relationships should result in a through attracting better quality officers higher level of crime prevention awareness seeking job challenge and satisfaction in and greater public co-operation with the the enhanced job scope. police. D. Learning From the Japanese B. Change in Population Koban System Distribution At this stage, the SPF was in search of a Secondly, the population distribution successful community policing model. This was changing. In the 1960s, before the was found in the form of the Japanese creation of the Housing Development Koban (or police post) system. In Japan, Board (HDB), the bulk of Singapore’s the high crime clearance rate of 60% was population was concentrated in the centre due to the trust and co-operation that the of the city. However, as a result of the HDB public had with the police. Statistics also success in providing low cost public indicated that 80% of the Japanese public housing, about 84% of Singapore’s readily provided information to help the population shifted from the city area to new police arrest offenders. The desire to learn towns and estates all over the island. from the Japanese experience and to These new public housing estates emulate the success of the Koben system comprised mainly of high rise buildings and led to the institutionalisation of community these lessened the opportunities for the policing as the new policing strategy and public to interact with the police. philosophy of the SPF.
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V. THE NEIGHBOURHOOD POLICE in the community. The area of coverage of POST (NPP) SYSTEM each NPP is based largely on the political boundaries. The average population A. Study Team covered by each NPP is about 35,000. In November 1981, a team of Japanese experts was invited to help implement the Being the most familiar police contacts, Koban System in Singapore. The Koban the NPPs have been located where their system was to be adapted for use in the services will be demanded most. Factors Singaporean environment, with varying such as the number of households and social settings and attitudes of the population are taken into consideration in populace. setting up and locating NPPs, to reach out to the widest possible section of the With the recommendation of the Study population. Team to establish one NPP per constituency, 8 NPPs were first established D. Oganisational Structure on 1 June 1983 in the 8 constituencies in A NPP is manned by a team of about 12 one police division. The second phase of to 16 police officers who provide round-the- implementation began with the setting up clock service by working in 3 eight hour of several NPPs in two other police shifts. The Deputy Officer-in-Charge (OC) divisions. Positive public response to the of the NPP, is tasked to lead and manage NPP system lead to the acceleration of the the NPPs with guidance and support final implementation phase ending in provided by the operations staff units in December 1994. There are now 91 NPPs the land division headquarters. throughout the island. One division was merged with neighbouring divisions so that NPPs are also grouped in fives or sixes manpower saved could be deployed to the and placed under the charge of an OC NPP frontline, to meet the needs of the new for better management and coordination system. between the different shifts. This allows for the transfer and movement of officers B. Purpose of the NPP system among NPPs in the same group. Officers The NPP system was implemented in in neighbouring NPPs supplement each Singapore with the following objectives: other through joint night patrols and covering the duties of absent officers. • To improve police-community Flexible working hours and shift have also relations in Singapore; been introduced in the NPP system. • To prevent and suppress crime through the co-operation of and E. NPP Function & Duties support from the community; and The establishment of NPPs enables the • To project a better police image and smooth execution and running of various win the confidence of the public in the functions and activities. The key functions police with more community-oriented of the NPPs, which ultimately must result services. in better police-community relationships, more arrests and effective crime C. Infrastructure / Location prevention, are as follows: NPPs are the most familiar police contacts of the community within their • High profile police presence (or high neighbourhood. They are kept small to be visibility patrols) personal, but big enough to make an impact • Provide efficient counter service
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• Respond to incidents between the residents and the NPP officers • House visits not only improve police-community • Crime prevention relations, but also lead to increased public • Community liaison co-operation and support for the SPF’s • Security coverage/crowd control efforts at preventing and suppressing duties crimes in Singapore.
F. High Visibility Patrols J. Crime Prevention NPP officers are required to patrol in the The NPP also function as a crime area under the jurisdiction of their NPP. prevention centre where crime prevention The officers conduct foot patrols, bicycle advice is given and where services such as patrols and scooter patrols so as to be able the engraving of names on personal to interact with the community and property is provided free for the residents. enhance their rapport with the residents. To enhance the community’s awareness on crime prevention, the NPP officers conduct G. Counter Services crime prevention exhibitions, school talks, NPP officers provide a wide array of crime risk surveys, as well as the counter services in order to attract the distribution of crime prevention pamphlets community to visit the NPP and thus and newsletters to the residents. increase the opportunity of interaction with the public. The counter services provided K. Community Liaison by the NPP officers are: Before the NPP system was implemented, there was no dedicated • Lodging of Police Reports officer assigned to liaise with community • Traffic Accident Reports and grassroots organisations. With the • Lost & Found Reports NPP system, NPP officers were assigned • Change of Address to attend meetings of organisations in their • Reporting of Deaths areas of jurisdiction and this improved • Enquiry markedly the co-ordination and co- operation between the police and the H. Incident Response community organisations. The NPP NPP officers attend to non-urgent cases system also accelerated the formation of only. Urgent cases are attended to by the Neighbourhood Watch Groups (NWG) for Fast Response Cars (FRC) from the Land residential areas and Crime Prevention Divisional Headquarters. However, NPP Committees for industrial estates and officers will still respond to urgent cases to shopping complexes. assist the FRC officers. VI. RESULTS OF THE NPP SYSTEM I. House Visits The introduction of community policing NPP officers are also required to conduct through the NPP system has certainly house visits to residents within the brought revolutionary changes within the constituency. The rationale of such house realm of policing. Firstly, it has changed visits is to enable the NPP officers to the SPF’s from a reactive or incident-driven develop rapport with the residents. These policing approach to a proactive approach House visits also help the residents to get that attempts to prevent the possibility of to know the NPP officers personally as well crime before it can occur. The community as the services provided by them and the is now mobilised to play an important role NPP. The close rapport and interaction
130 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS in crime prevention. contact with the public; • NPP system has increased the Another effect of the NPP system is the confidence of the general public in the decentralisation of police functions from police; the divisional level to neighbourhood level. • NPP system has had a positive The police at the frontline are more impact on the image of the police. empowered with greater autonomy and discretion to discharge their duties. This Community policing and the NPP has expedited police response to crime system has brought the police services to incidents and improved quality service. the community, helped Singapore achieve a low crime environment, and enabled The decentralisation principle has also SPF’s to reach out to the public. enabled the police to penetrate deeper into the society and thereby effectively pre-empt There is ample evidence that the criminogenic conditions. It is possible for community policing strategy and the NPP the police to tap valuable information about system in Singapore is a success. The 1996 the people and the conditions that are Global Competitiveness Report ranks causing criminality. Singapore the safest city in the world in terms of its resident’s confidence that their Community policing has shifted its person and property are protected. emphasis from car patrols to foot and bicycle patrolling. Together with house VII. BUILDING ON THE visits, this has brought the police very COMMUNITY POLICING much closer to the community. The STRATEGY increased visibility of the police in the The NPP based system of community neighbourhoods has helped to deter crimes policing has served the SPF well for 14 and eliminate the general fear of crime in years from 1983 to 1997. In 1996, the SPF society. This is also noted in the decreasing initiated a review of its operational crime rates each year. strategy. The review was driven by the realisation that the future would not be With community policing, the public has built through perfecting the past, no matter also become more aware of its role and how successful it had been. More responsibility in crime prevention and importantly, the SPF must ensure that the detection. The number of public-assisted success of the NPP system itself does not arrests had steadily increased from 33.6% become a limiting force that stifles growth in 1992 to 34.8% in 1993 and 36.1% in 1994. and innovation in meeting new policing That is about 1/3 of the total arrests made! challenges and public needs. The close co-operation is not only reflective of the high level of public spiritedness but As the SPF enters the new millennium, also the evolving partnership between the being the sole provider of policing services, public and the police in crime busting. The the organisation owes its fellow citizens to SPF has strengthened the trust of the further improve the already low-crime public in the police. environment and strive to make Singapore even safer than it already is. Policing must Two surveys conducted in 1987 and 1991 be done smarter and more effectively than confirmed that: before. It is also clear in the SPF’s vision to become a strong service organisation by • NPPs have created more and closer
131 RESOURCE MATERIAL SERIES No. 56 making continuous improvement to work repeated one-off responses to such processes to meet rising public incidents is not an operationally effective expectations. At the same time, the SPF solution to the problem, Hong Kah South wants to offer every officer within the NPP adopted the following solution. organisation a more enriching job scope and experience that stretches the officer’s A. Co-operation with Coffee-shop abilities and helps maximise their Owners potential. Mindful of the need to maintain good rapport and act in partnership with Since the implementation of the NPP community resources to resolve local system, the SPF has retained its community problems, Hong Kah South traditional, reactive policing capabilities NPP officers sought the co-operation of the (namely, fast response patrols and owners of the problematic coffee-shops in investigation teams) in its 7 land divisions. the following areas: Only the 91 NPPs that report to these police divisions have evolved along the (1)Stop the sale of beer and start direction of developing community-based preparations to close half-an-hour policing capabilities. before the end of the stipulated licensing time, so that ample time is Community-based policing has also been given to the patrons to finish their refined incrementally over the past 14 drinks. years. One recent innovation is the doctrine of ‘problem-solving’, under which (2) Stack up the chairs and chain them NPPs initiate the resolution of certain up, before closing the coffee-shop. community law and order problems that arise from simple systemic causes. The (3) Remove all empty bottles from the problem-solving approach makes tables to prevent their use as community policing more effective because weapons. it is proactive and pools the whole community together in a concerted effort B. Dialogue Sessions with Coffee- to ensure a safe, peaceful and cohesive shop Owners society. Based on the recommendation of Hong Kah South NPP, regular dialogue sessions An example of a good problem-solving with the coffee-shop owners are conducted case is that by Hong Kah South NPP. The at the Division Headquarters. Besides NPP used to receive many complaints crime prevention advice and police about coffee-shop patrons consuming beer, recommendations, there is also sharing of after midnight, even when the coffee-shops good practices between the coffee-shop in question were closed. Residents owners. This is effective in exerting peer complained about the incessant noise group pressure on the owners of pullution, littering, vandalism (often problematic coffee-shops to follow the good vulgar words written on walls), urinating example set by their counterparts. in public places, and fighting. The coffee- shop patrons’ unruly behaviour caused The above measures were successful in sleep deprivation to the residents, dirtied curbing the problem. Residents now enjoy the neighbourhood and created a sense of restful nights, the neighbourhood is public unease (especially to young ladies pristine in appearance, and a sense of peace returning home late at night). Aware that and security prevails.
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VIII. NEW OPERATING Policing Centres (NPCs) system has been ENVIRONMENT created to enhance the community policing approach by: The SPF is expected to work in an increasingly complex environment, with • Strengthening the SPF’s front-line forces that affect community safety and operating system; security arising from a multiplicity of • Building a strong service causes. These complex social ills are organisation; characterised by seemingly intractable • Increasing community involvement problems such as juvenile delinquency, and responsibility for its own safety spousal violence, the link between and security; and substance abuse and property crime, or the • Optimising the value contributed by law and order problems posed by foreigners each police officer to the policing working in Singapore. process. The SPF’s traditional tool of effective IX. NEIGHBOURHOOD POLICE enforcement can no longer, by itself, CENTRES adequately address these challenges. The doctrine of problem-solving, which is A. Changes to NPP System targeted at simple systemic causes, and In order to deliver decentralised, flexible, analysed and solved at the level of the NPP, integrated and community-focused is also impotent in the face of higher-order capabilities, the existing structure of land social dysfunction. divisions and NPPs will be modified. At the centre of the new operating system is In addition, the SPF must continue to the Neighbourhood Police Centre (NPC). meet the rising public expectations of its The existing seven police land division will service standards, as well as its ability to be reconfigured into six policing regions. enhance safety and security. A recent Reporting to each of these regional survey, commissioned by the Service commands will be the NPCs. Improvement Unit (SIU), revealed that one area where the SPF failed to provide high NPCs will be the sole vehicle for front levels of satisfaction, but which was highly line policing to ensure the community’s important to the public, was the ability of safety and security. In the redesigned the police to help solve the problems that system, NPCs will be accountable for the have been brought to the attention of the total outcome of policing in the community. NPPs. A short summary of the key differences between the NPP system and the NPC In October 1997, the SPF made another system is given in the below figure. significant and bold move to re-design the NPP system in a bid to strengthen its community policing approach, in light of the changing environment and factors. A system that can carry the strengths of the previous NPP system, like tapping on local knowledge to solve crimes, and at the same time can enable the SPF to grow and address key policing needs, ensures its continued relevance. The Neighbourhood
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NPP System NPC System • Community policing post with limited services • One-stop total policing centre provding the full range of policing services • Disparity in workload due to electoral based • More efficient pooling of manpower resources boundaries to serve the community • General services to attract residents and • Focused on services that are critical to safety establish points of contact and security
• Low value tasks and narrow job scope • High value, board job challenge, better quality officers • Compartmentalisation of services with many • Integrated service process with one NPC officer officers each performing a separate task handling the entire service process • Lower priority on proactive work • Dedicated resources for proactive work • Community-based policing • Community-focused policing
B. One-Stop Total Policing Centre counter services for the public and an Today, the areas policed by NPPs vary optimal number of NPPs to be deployed in significantly. Some NPPs have jurisdiction the NPC system. The emergence of the over areas with 2,000 households, while NPC as the sole vehicle for the provision of other NPPs serve up to 5,000 households. policing services means that NPPs cease NPCs will however serve areas of similar to be sub-units of a larger police unit. The residential population sizes. officers manning each NPP will come from the NPC itself. NPPs therefore represent On average, each NPC will serve about service points only, with the deployment of 100,000 residents. The size of each NPC patrol, investigative and pro-active policing is kept to between 100-120 officers, with resources based on the overall needs of the administrative overheads, such as entire NPC area of operations. personnel and logistical support borne by the Regional Command Headquarters. It Each of the six policing regions will have also ensures that the NPCs are not so large a dedicated Regional Command as to present a cold and impersonal image Headquarters to oversee police operations. to the public. Six Regional Commands will replace the existing seven police divisions. These A total of 32 NPCs will be created by the Regional Commands will comprise the year 2001 to serve an indigenous command and support elements for the population of 3.2 million in Singapore. region. They will also include specialist NPCs, as centres of total policing, have a investigation units, focusing on variety of policing options, ranging from investigations into serious crimes and reactive patrols and investigations, to pro- other investigations likely to lead to active policing activities. These 32 NPCs prosecution in court. Each Regional islandwide will be supplemented by at least Command will house a NPC to serve as the another 66 NPPs, with each NPC frontline service point for public managing between 1 to 4 NPPs. interaction.
With the creation of NPCs, the current 1 A DGP is a development plan that defines and 91 NPPs would be re-distributed to achieve builds a particular township. In the plan, each a balance of easy accessibility to police town’s boundaries are clearly mapped out.
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C. Relationship to Development D. Strengthening SPF’s Front-Line Guide Plans (DGPs) Operating System Unlike the current NPP boundaries The front-line operating system refer to which are linked to political constituencies the way the SPF organises and discharges that may change after a General Election, its policing duties that impact the public NPC boundaries are based on Urban every day : fast response patrols, Redevelopment Authority’s (URA) investigations, counter service and Development Guide Plan1 (DGP) areas for proactive functions such as house visits. A the following reasons: key feature of the NPP system is the compartmentalisation of its functions. A (a) The DGP areas, being geographically- typical minor crime case is attended to by based, provide additional leverage by a fast response crew, then by NPP officers creating a sense of territorial who guard the scene until a Divisional ownership for the community. This Headquarters investigator arrives. will enhance the community’s Frequently, the Scene of Crime officer may identity. even arrive separately to take photographs of the scene and dust for finger-prints. The (b) Each DGP area also has an expressed case and the victim are thus handed from vision, which further reinforces a one officer to another. coherent identity for the communities living within that area. The present system has many drawbacks. Firstly, each officer handles (c) DGP areas are permanent, unlike only a small piece of the entire service electoral boundaries. Over time, process. This unnecessarily limits the distinct identities can emerge for contributions and job challenge open to different communities, without being officers. Secondly, it also dilutes the interrupted by changes in ownership over the case. The sense of constituency boundaries. ownership diminishes when one officer passes the case over to another to complete Each NPC operates out of police facilities the service delivery process. Thirdly, the sited within its area of operation. Facilities NPP officers’ local knowledge is not tapped for the NPCs could be co-located with other in the cases, as their participation at the community agencies. A single edifice, crime scene is only transient. Lastly, the representing all the community agencies crime victim is inconvenienced and may for that area, will further reinforce the even get confused with the service delivery sense of community identity and due to the internal inefficiencies in police permanence. As NPCs or NPPs are the work processes. means through which the SPF engages in community-focused policing, they can The NPC system aims to integrate the easily blend into a building that entire service process : where fast response, encompasses community clubs, community general investigations and basic scene of libraries, and service points for other crime work are launched from the NPCs. community agencies. Most NPCs would be Officers are trained, supported and enabled sited at the heart of the residential area in to carry out all the previously the DGP and remain easily accessible via compartmentalised functions in one single public transport. service delivery. They will also take over the ownership of cases, which are of a neighbourhood character, and pursue
135 RESOURCE MATERIAL SERIES No. 56 follow-up investigations. Complex cases to the demand for police services. For will still be handled by the Regional example, the number of fast response cars Headquarters and the Criminal varies with the demand throughout the Investigation Department (CID). whole day. One may see a higher number of patrol cars during the peak morning and The NPC officers are also rotated among evening hours, where incidents are usually a wider and more challenging range of high. In addition, some of the NPPs are duties as compared to the NPP sstem : fast closed partially at night from 11 pm to 8 response and counter service during which am, where the demand for counter service s/he will take over the investigations of the is low and the police officers could be re- cases that s/he attends to; follow-up deployed to perform more effective moblie investigations; and proactive policing such patrols. as community patrols, house visits, community liaison, school visits etc. A major quality service programme was also initiated to help officers internalise a More attention and time is accorded to strong service mindset. proactive functions as the NPC system seeks to reach out to the community even F. Enhancing Community further. Officers on such duties will not be Involvement and Responsibility re-deployed to attend to other cases unless The need to enhance community the case is urgent and involves life and involvement and responsibility is death. consistent with the need for the SPF to expand beyond its traditional areas, so as E. Building a Strong Service to best tackle the impact of deep-seated Organisation social ills on law and order. By leveraging Although the SPF’s primary goal will on the involvement and sense of ownership remain to ensure safety and security, it of individuals living within the community, must, in order to continue to win the resources available to address such widespread community support and trust, social dysfunction are also far greater than respond to the community’s needs in this if the NPPs, grassroots organisations or area through high service standards. other community agencies attempted to However, over the years, the NPPs have solve them on their own. take on more services. Some of these were justified on the grounds that police officers This marks a key shift from community- need to interact and reach out to the public. based policing to community-focused policing. Community-based policing is, at The SPF realised that in order to succeed its heart, concerned with how the in strengthening the sense of safety and community can help the police do its job security of the communities the police better. In the new model, the focus is serve, there is a need to refocus efforts on entirely on the community, as the those services that directly affect this sense customers to which the police add value. of safety and security. These core services The police, together with the community, include responding to and detecting crimes, will strive to provide total solutions to the maintaining the peace and preventing community’s safety and security needs. disorder. This is the next natural stage in the development of policing in Singapore. It Another change in the NPC system is builds on the trust and goodwill the police the conscious matching of police resources have secured through community policing.
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The shift to a community-focused model Government’s strategy to gradually lower fundamentally alters the SPF’s operating the community’s level of dependency on the strategy. Successful policing will no longer authorities and to engender shared be measured solely in terms of falling crime responsibility for social problems and their rates. As the focus shifts from the police to solutions. the community, what matters to the community, for example, its level of safety This is done through a new initiative and security, will determine the success or known as the Community Safety and otherwise of the police mission. Security Programme (CSSP). A CSSP is an action programme jointly drawn up by Arising from this, it will no longer be the grassroots leaders, residents and the appropriate for formulaic approaches to be police. It consists of the profile of the applied uniformly across the different community and its needs, the key agencies communities. Police units operating in involved and the action plans to tackle the different communities must develop community problems affecting the safety customised solutions tailored to meet the and security of the neighbourhood. needs of, and which take into account the Through CSSPs, the NPC system aims to constraints on, each community. The need shift the community’s mindset from what for specific, custom-made and workable the police are doing about safety and solutions will redefine the required levels security to what we can do together. of operational competence. These demands will fuel the need to develop, at the One CSSP is crafted for each precinct / organisational level, learning competencies constituency and each differs from another, so that each customised solution enhances since different communities in different the quality of the future solutions. neighbourhoods might not share the same concerns. The CSSP aims to get the An operating strategy that is focused on residents more involved and be responsible the community also entails a skillful in taking actions to address the safety and management of relationships between the security concerns affecting their police and the individuals, grassroots neighbourhoods. The driving belief is that organisations and volunteer groups that each citizen can make a difference to form part of the community. Structurally, society. the SPF will be empowered and decentralised, so that at the front-line, G. Optimising the Contribution of police officers can ‘broker’ for total solutions Each Police Officer in response to community law and order The SPF currently has a regular concerns. component of nearly 8,000 officers and 1,000 civilian staff. With falling birth rates, Such an approach also has other the size of new cohorts joining the benefits, in particular, by providing workforce grows smaller each year. As an opportunities for individual participation organisation competing within a limited in improving the quality of life in their pool of labour resources, the SPF must be community, so that emotional bonds to the attractive and challenging to bring in the community are strengthened. It therefore best talents. Whilst the SPF may face the forms an inportant element in the overall challenge of attracting the best talent to Singapore 21 vision to build a civil society join the organisation, it has to contend with with strong community ties and active retaining officers over the medium to long citizenry. It is also an integral part of the term.
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SPF Commissioner, Khoo Boon Hui, nurturing and building a network of during one of his dialogue sessions with community relationships within a precinct NPC officers said “...That is why not only of about 1,200 - 1,500 households. As this do we have to take care of those who are group is deployed as an operational entity, with us, but to get the best people to join us it will facilitate the process of team ...one of the main motivations of why we learning, a key lever of change and are going into the NPC system, ... is to bring innovation in the redesigned system. our officers to match the expectations of the job, and to be proud of what we do.’’ An average of 5-6 such groups form one team, which is led by a team leader and Through the NPC system, the SPF is one assistant team leader. Each NPC have able to redesign its front-line jobs so that four teams, reporting to an NPC it can continue to recruit quality manpower commander. Each NPC comprise, on from each graduating cohort. At the same average, 100 regular officers. With another time, in line with the national policy of 15 full-time national servicemen attached continuous upgrading, the SPF also needs to the NPP, the total strength of the NPC to upgrade the qualifications of its officers will be about 115 officers. after they have entered the service. Re- designing jobs to create viable and X. NPC IMPLEMENTATION attractive front-line careers in the NPC PHASES system will serve to enhance the credibility As the NPC system is a major change of the SPF as an institution, and instill for the entire the SPF. It involves major trust in the ability of the police to carry re-organisation. Many of these changes out their tasks effectively. will take some time to implement. A phased implementation approach has been The educational profile of police officers adopted: serving the community must be kept high to match the broad rise in educational Pilot Phase qualification of the society. This will enable Oct 1997 1st pilot: Queenstown NPC the SPF to meet new job demands, greater created in Central West challenges and the expectations of the Region. public. Apr 1998 Another 3 NPCs, namely Bukit Timah NPC, Bukit H. Organisational Structure Merah West NPC and In order to fulfil its role as being Jurong East NPC were community-focused, and responsive and created in same region. flexible to the needs of the community, police officers in the NPC operate in an Phase I empowered and self-directed fashion. They Jun 1999 6 NPCs in West Region to work as a team, rather than as individual be created. officers. Phase II The basic unit in the NPC is a group of Jun 2000 14 NPCs to be created in three front-line officers, led by one group North, North-Eastern and leader. This group of four officers is self- East Regions. directed, and undertake the entire range of policing responsibilities of the NPC. Each group is also responsible for
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Phase III SPF believes that its policing changes are Jun 2001 8 NPCs to be created in set in the right direction. Our success will Central-Western Region. depend on our willingness to learn and change the way we operate. Our In Commissioner Khoo’s words, “A pilot commitment and passion to learn is not to test whether the system will succeed collectively as a team, from the top police or not. It is a pilot in the sense that we chief to the front-line officer, may turn out allow officers more leeway to improve the to be the most significant success factor in system, to share experiences, resolve our journey into the new policing operational problems and tell us what is environment presented by the next wrong.’’ millennium.
XI. PRELIMINARY NPC’S RESULTS A recent review of the pilot phase implementation has shown positive results and all the NPC objectives are largely met. A large majority of the officers felt that they had stronger working relationships with their team mates, between teams, supervisors and key officers. 74% of the officers were confident of their abilities in performing the various aspects of NPC duties (information technology systems, procedures and investigative duties). 81% of the officers rated the facilities in the NPC to be much better than their previous workplace (NPPs and Land Divisions).
Compared to one year before the NPC was set up, one-third of the residents in the precincts felt that the safety in the neighbourhood now was “much better”. Two-thirds of the residents felt that the police had at least made some improvements to increase security in the neighbourhood with the creation of NPCs.
XII. CONCLUSION The community policing framework in Singapore has been shifted to uplift the professionalism in front-line jobs and getting the community more involved in safety and security matters. The re-design of the NPP system builds on the achievements the SPF has made over the past few years - community policing, empowerment and quality service. The
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CRIME PREVENTION-THE SINGAPORE APPROACH
Jarmal Singh*
I. INTRODUCTION pushed by a strong executive and enacted by a very responsive legislature; a very Singapore, being a city state dependant robust and efficient world class court on trade and with business links to all parts system; a police force also aspiring to be of the world, is a very open country. world class in its total policing capabilities, Further, its strategic location makes it a which includes at its bedrock, community natural hub for airlines and ships. In view policing in a strong, symbiotic partnership of the very many varied cultures and with the community it polices, strong historical attractions in the region enforcement by incorruptible officers and surrounding it, large numbers of tourists an austere but humane correctional system and business travelers pass through it. It which aids rehabilitation whenever is hence open to varied influences, and is possible. also vulnerable to passing crooks who can easily pass of as locals or tourists. The main thrust of the police-community partnership is based on mutual help, with As most of its occupants are descendents the public being persuaded and encouraged of immigration stock, mainly from the to take personal responsibility both Peninsula Malaysia, the Indonesia individually and in partnership with others archipelago, China, India and Europe, it in safeguarding themselves, their property is heterogeneous. There are hence and their neighbourhood with the advice sensitivities relating to race, religion, and assistance of the police. It is based on language and nationality. These need to the principle that prevention is a be safeguarded against exploitation by community responsibility and crime bigots and anti-national elements. prevention measures taken by the Nevertheless, their common destiny and community can limit and reduce the need to work among and with each opportunities for the commission of crime. other have led to the establishment of a Further, the community has a role in generally similar outlook relating to their mitigating the impact of crime on physical self and property. As all value unintended victims, such as the these rights, crime which attacks these dependents of victims, offenders and others rights is obviously abhorred and is always who suffer collateral damage from these a highly topical subject of concern inspite crimes. The community also has a role in of Singapore having one of the lowest crime reintegrating people into society. rates in the world. Since 1988, Singapore has been enjoying The low crime rate has been achieved a decreasing crime rate for 9 consecutive by the combination of deterrence, years. This would not have been possible enforcement and rehabilitation under a if not for cooperation from the public, very effective criminal justice system. brought about by community-policing. Deterrence is provided by tough laws, About 1/3 of all arrest cases are solved as a result of public-spiritedness shown by * Deputy Director Operations, Police Headquarters, members of the public, assisting or giving Singapore Police Force, Republic of Singapore. vital information leading to the
140 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS apprehension of the criminal. the community. Crime prevention education make people aware that: In the last two decades, Singapore has become highly industrialised and (i) They are personally responsible urbanised. The SPF has become an for the safety of their property organisation fully committed to serving the and themselves, and for the needs of and protecting the people living safety of their neighbourhoods. in Singapore. In response to these changes, (ii) Many crimes are opportunistic in the SPF has also undergone a period of nature and are committed transformation in terms of its through the negligence and organisational structure and policing carelessness of the victims. strategies. Crime is prevented if the opportunity is denied or delayed. The SPF has moved from reactive (iii) They can prevent crimes by policing to proactive policing based on the taking simple and effective concept of community policing and adapted measures on their own or in co- from the very successful Japanese Koban operation with their neighbours. model. This led to the establishment of 91 Crime prevention measures must neighbourhood police posts (NPPs) under be commensurate with the threat. the supervision of 7 land division Effective protection will not come headquarters. The NPPs primary role is from any single measure but from creating a sense of security in the the sum total of all practical and neighbourhood through easily accessible possible measures. counter service, close liaison with the public, high visibility patrols, house visits B. Formation of a Crime Prevention and crime prevention education. Branch The Crime Prevention Branch of the SPF II. CRIME PREVENTION was formed in 1977 under the Criminal CONCEPTS AND STRUCTURES Investigation Department (CID) to cater for the needs of a specialised branch A. Concepts devoted exclusively to crime prevention Accompanying community policing, is activities. The main task of the branch was the development of a proactive approach to inform the public that they have a to crime prevention. The most strenuous significant role to play in safeguarding efforts by the police alone will not produce themselves and their properties against the desired results if the community stands crime. For that purpose, the branch by passively in the erroneous belief that embarked on an extensive programme of crime is purely a police responsibility. The crime prevention activities, which includes community must accept that the task of talks, exhibitions and personal calls to crime prevention is as much a community disseminate advice on measures that could responsibility as it is a police responsibility, be adopted to prevent crime. and must join hands with the police to make crime prevention effective. The In view of the economic growth and failure of public involvement in crime industrial development in Singapore, the prevention may be attributed to ignorance. branch was expanded to that of a Crime It is the police responsibility to overcome Prevention Division (CPD) in 1981, so as this ignorance through a sustained to provide a more thorough and efficient programme of education that brings about crime prevention programme for the public. crime prevention awareness throughout
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The formation of the CPD signaled the The NCPC comprises of persons from beginning of the community-oriented both the private and public sector. policing strategy in Singapore. Since its Members include business and social inception, the CPD has initiated several leaders, professionals and police officers. projects in crime prevention, namely the It is involved with other organisations and Neighbourhood Watch Scheme (NWS), government departments in promoting Crime Prevention Committees (CPCs), crime prevention. It works closely with the Crime Risk Surveys, Operation police and organises exhibitions, Identification, crime prevention workshops, courses, contests and talks to exhibitions, crime prevention campaigns; involve and educate individuals and and youth programmes like the Crime organisations on crime prevention. It also Proficiency Badge Scheme for uniformed conducts research into various aspects of groups like the National Police Cadet crime prevention. Research is also Corps, Scouts and Girl Guides etc. commissioned to measure the effectiveness of crime prevention programmes. Various The Division was later to work closely subcommittees are also formed under the with the National Crime Prevention NCPC to address problems related to crime Council (NCPC) which was formed on 4 within various trades and concerns. They July 1981. The formation of the Council include: marked an extremely important event in the history of crime prevention work and (i) Hotel Security Committee development in Singapore. (ii) S e c u r i t y a t C o n s t r u c t i o n Worksites Committee C. National Crime Prevention (iii) Children & Youth Committee Council (iv) Security at Commercial Premises The National Crime Prevention Council Committee (NCPC) was set up in 1981 to act as a (v) Security in Housing Committee catalyst and partner to mobilise the (vi) Focus Group Committee support of groups and individuals from the community to work closely with the police III. CRIME PREVENTION on crime prevention. It is a non-profit SCHEMES making organisation which depends A. Neighbourhood Watch Scheme entirely on donations to run their activities. (NWS) The NCPC objectives are: In 1981, the SPF introduced the Neighbourhood Watch Scheme (NWS) to (i) To raise the level of public tap on the resources of the community, awareness and concern about especially the residents of high-rise crime; apartments, in line with its community, (ii) To encourage self-help in crime policing concept. The Scheme was prevention; originally conceived to encourage mutual (iii) To study, develop and improve care and help among neighbours, through crime prevention measures residents keeping an eye out for each suitable for adoption by the other’s premises, and it was hoped that public; and civic-mindedness, neighbourliness and (iv) To co-ordinate the efforts of social responsibility in the context of crime organisations interested in such prevention would be enhanced. This would activities. contribute to keeping neighbourhoods safe from crime.
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By 1993, the NWS had 10,000 groups of at-large (through initiatives such as about 5 households located on the same problem-solving ), and to the individual floor of a block of apartments, and led by a (through house visits ). In order to achieve group leader. Such a group is called a this, the following was addressed: Neighbourhood Watch Group (NWG). The goals of the NWG are: (i) The need for the aims, structure and activities of the revised NWS (i) To encourage residents to keep an to be congruent with the priorities eye for their neighbours’ of community agencies, thus premises, so as to enhance the underscoring the relevance of physical security of their estate. community-based cooperation at (ii) To disseminate, through the the grassroots level. NWG leader, awareness of (ii) The need to leverage on the potential threats to resident’s strengths of the existing safety in their estate. grassroots network such as (iii) Instill, through the NWG leader, Residents Committees (RCs) / an awareness of potential threats Residents Associations (RAs). to residents’ safety in that estate. (iii) The need for activities under the revised NWS to cause individuals Despite the large number of NWGs to develop a greater sense of formed, the scheme met with limited belonging to and responsible for success. The activities of the NWGs have the neighbourhood they live in. been minimal or, in some cases, non- existent. This is due to the following B. Neighbourhood Watch Zone factors: (NWZ) The new model for the Neighbourhood (i) Lack of leadership by NWG Watch Scheme envisages a strategic leaders; partnership between the SPF and (ii) Lack of participation by NWG Residents’ Committee (RC) for Public members; Housing and Resident’s Association (RA) (iii) Limited scope of activity for for Private Housing (the key community NWGs; agency at the grassroots level). The SPF (iv) Existence of alternative channels no longer attempts to build up a network of communication. of community relationships in isolation. Instead, it will work with and through the In the light of the above factors, a review RCs and RAs, in order to achieve the of the NWS in 1996 was made with a view objective of the Neighbourhood Watch to ensuring that it continues to remain Scheme. This is done primarily through effective and to complement the work of the the creation of “Neighbourhood Watch Residents Committees (RCs), Residents Zones” in each of the 456 RC and 65 RA Associations (RAs) and the police. The RCs Zones. NWZs will form an integral part of and RAs are grassroots community-based the RC and RA structure, and will be led civic organisations that are all over by the Liaison Officer (LO) of the RC or RA Singapore. The principal considerations on Zone, assisted by their Assistance Liaison the revised NWS form an integral part of Officers (ALOs). They can be the vehicle the police’s overall strategy of community through which the RC’s and RA’s aim of policing, working in conjunction with engendering a strong community spirit can attempts to reach out to the community- be achieved. Their focus, unlike the NWGs,
143 RESOURCE MATERIAL SERIES No. 56 is not on crime-related concerns alone, but leaflets and posters; on all issues that interest or affect the (iii) Work jointly with RC and RA community. members to discuss and propose solutions to crime concerns; RCs and RAs have been strengthened (iv) Seek residents’ feedback on police as the pre-eminent community issues during house visits; organisations at the precinct level. They (v) Meet NWZ LOs for information have the mandate not only to discuss, but on RC/RA events; also to deal with all aspects of concerns that (vi) Identify RC/RA activities as have crime or law and order implications. platforms to promote crime Key areas of community concern will be prevention awareness; focused on the RCs and RAs. This gives (vii) Organise activities at a ‘small the community an identity to rally to. Since group’ level to provide the RCs and RAs have more substantial opportunities for NWZ members areas of focus, the possibility of active and to meet and get to know each meaningful participation in RC/RA other; activities by residents will be raised. (viii)Customise police publications with community level messages The transformation from Neighbourhood for dissemination to residents; Watch Groups to Neighbourhood Watch and Zones (NWZ) is a move from quantity to (ix) Work with the community on quality. With a more manageable number crime prevention publications. of NWZs to work with, NPPs can concentrate on working more closely with The role of Liaison Officers (LOs) in each NWZ, thus strengthening its NWZs are as follows: leadership and administration. A total of 25 NWZs were launched at the pilot phase (i) Promote neighbourliness, in April 1997. To date the SPF has harmony and cohesiveness within established 191 NWZs. A typical NWZ is the NWZ; made up of a Liaison Officer (LO) and is (ii) Conduct NWZ programmes to assisted by Assistant Liaison Officers raise the crime prevention (ALOs). The LOs and ALOs of the NWZ awareness of the residents; work very closely with the NPP officers to (iii) Acting through the ALOs, coordinate crime prevention activities and disseminate information to and programmes to foster community bonding. channel feedback from the They will also disseminate information to residents to the neighbourhood the residents and channel feedback from police post/RC/RA. residents to Resident Committees (RCs)/ (iv) Coordinate and promote a wide Resident Associations (RAs) and NPPs. range of activities eg, social and The role of our NPP officers in NWzs are cultural, etc, to engender a strong to work in close partnership with the community spirit among members of RCs/RAs in promoting residents and to raise crime neighbourhood watch. Typically, they will: prevention awareness; (v) Attend to neighbourhood and (i) Actively support RC and RA community crime prevention activities; matters; (ii) Disseminate crime prevention (vi) Promote and encourage resident information through house visits, participation in crime awareness
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programmes; V. CRIME PREVENTION FOR THE (vii) Mobilise community resources to GENERAL PUBLIC address residents’ crime concerns A. Crime Prevention Exhibitions (viii)Resolve, with the support of and Talks NPPs, disputes among residents; To stimulate greater public interest and and instill crime prevention awareness, crime (ix) Foster civic consciousness prevention exhibitions are held throughout amongst residents. the year at shopping centres, community centres and void decks of apartments to The SPF, in building a strong community reach out to the general public. The police support, had created the Neighbourhood also conduct talks at grassroots and private Watch Zones in 25 RC Zones for its pilot organisations. Crime prevention scheme launched in April 1997. A survey phamplets, posters and handbooks are also was conducted a year later to find out the produced and distributed to the general level of awareness of the NWZ scheme and public during exhibitions or talks and are and the crime prevention knowledge of the easily available at the Neighbourhood residents. The findings were that more Police Centres/Posts. than 90% of the respondents wanted the scheme to continue or be implemented in B. Annual Crime Prevention their estates. They also felt that the Campaign scheme was effective in helping to prevent To focus attention on crimes which affect crime. With the success of this scheme, the the public at large, the police, together with SPF is embarking to expand it island-wide. the NCPC, jointly organise the Year-End To date, the SPF has established 191 Festive Season Crime Prevention NWZs. Campaign. The mass media such as television, cinema, posters etc, would also IV. CRIME PREVENTION be employed to communicate crime PROGRAMMES AND PROJECTS prevention messages to the general public. With community policing firmly in place, and strategic networks established with C. Crime Risk Surveys public organisations such as grassroots To determine security weaknesses, the organisations, and private bodies such as police conduct Crime Risks Surveys for various trade associations, it becomes both residential and commercial premises possible to leverage on their cooperation upon request (by appointment or and expertise in crime prevention. The registration at crime prevention reach of crime prevention programmes exhibitions). The police also visit scenes of initiated by the SPF is greatly enhanced crime to advise the victims of means of through these collaborations with leading improving the structural security features public and private organisations that aim of their premises. The aims of the surveys to enhance security-awareness and are: security within their respective trades and spheres of operation. The following are (i) To provide specialised advisory some of the crime prevention programmes services on crime prevention to being implemented by the police in the public at no cost; collaboration with the community. (ii) To help improve the physical security features of premises; and
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(iii) To encourage the use of various 2. Crime Prevention for Uniformed crime prevention measures and Groups devices to enhance the security of To reinforce crime prevention messages premises. among uniformed youth groups in schools such as the National Police Cadet Corps, D. Crime Watch TV Progamme the Scouts and Girl Guides, participation To educate the general public through in crime prevention activities are the television, the police and the NCPC also encouraged. These activities include crime jointly produce the Crime Watch TV prevention knowledge tests, visits to NPPs Programme Series. The programme and the Crime Prevention Display Room. features crime awareness including solved Upon completion of these activities, and unsolved cases, appealing for students would be awarded the Crime information and witnesses and public Prevention Proficiency Badge. The police education segments on crime prevention intend to extend the award to all other measures or road safety. This TV uniformed groups in schools. programme is shown monthly during prime-time in both the English and 3. Textbook for Students Chinese languages. To educate our students on crime prevention, a series of crime prevention E. Crime Prevention for Senior textbooks called “Dear Mr Policeman” were Citizens brought into the school curriculums in 1986 Senior citizens being vulnerable and to teach students from upper primary to trusting, can easily become victims of lower secondary levels the importance of unscrupulous criminals. Crime Prevention crime prevention. This series, which is still Talks are conducted by Crime Prevention currently being taught, will soon be Officers (CPOs) to various senior citizen replaced in 1999 by an enhanced series associations or groups. This also involves called “Safe and Secure: That’s Our police liaison with the People’s Association Singapore”, which will carry not only crime and related organisations on the organising prevention messages from the police, but of crime prevention programmes and also road safety, and fire safety messages exhibitions. from the Singapore Civil Defence Force, and drug abuse prevention messages from F. Crime Prevention for the Young the Central Narcotics Bureau. and Youths 1. School Security Committees (SSCs) 4. Crime Prevention CDs for Schools The Committee is headed by teachers in A crime prevention interactive multi- the schools themselves. The programme media CD targeting students and youths was formed to enhance crime prevention have been developed. The CD contains the and fire safety in the schools. The police messages of crime prevention, fire safety/ officers at the NPPs act as liaison officers emergency preparedness, anti-drug abuse to these SSCs. Meetings are held with and road safety, from the police, Singapore SSCs to update them on the latest crime Civil Defence Force and the Central trends and advice. The police also render Narcotics Bureau respectively. The CD assistance, such as arranging and comes complete with digitised images and conducting crime prevention talks to the good audio and visual animation to make students. learning fun and interactive for students and youths alike.
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5. Crime Prevention Videos academic and recreation support; An educational video called “Gangfile” and warning teenagers of the dangers of joining (iii) Voluntary curfew. gangs; and a handbook called “Say No To Gangs”, has been produced and distributed Participants in the voluntary curfew to all schools. Another video, entitled scheme will have to undertake not to visit “Prison Me? No Way!” has been produced certain entertainment outlets and likely for students and youths to steer them away gang hangouts. They must also stay at from crime. The video recounts the prison home during certain times of the day. Their life of 2 youth offenders, and conveys the parents will have to agree to supervise severity, harshness and consequences of a them and ensure that they observe the prison sentence. The video, which is curfew for the duration of the programme. distributed to all schools, comes complete with a teachers’ guide. 8. Visits to Penal Institutions The police and CNB will continue to 6. Joint School Talks on Crime and Drug organise institutional visits for youths Abuse Prevention identified to be involved in petty crimes and To maximise the benefits of combined other delinquent activities at the prisons preventive drug and crime education and Drug Rehabilitation Centres among students, the police and the Central respectively. This would enable the youths Narcotics Bureau (CNB) have integrated to have direct exposure to the deprivations and coordinated joint school talks on crime, in the drug and penal regimes. secret society activities and drug abuse prevention. The police, CNB and Ministry 9. Organisation of Police Youth Camps of Education (MOE) also work together to Youth camps for high-risk students will draw up a year-long lecture schedule for be organised by the police to serve as an schools. This schedule ensures that every outlet for energy and imagination, to steer school will be visited by the officers and youths away from crime or associating with benefit from their talks. Apart from the bad elements. This will also instill some schedule, schools can also request special confidence as well as social skills in them. talks to small group of students who have been singled-out for any kind of infractions. 10. Honorary Volunteer Special This helps the police and CNB to establish Constabulary (VSC) Scheme better ties with discipline masters and with As juvenile delinquents have become schools in general. increasingly defiant and aggressive over the years, the police alone cannot tackle 7. Streetwise Programme the problem effectively. The Honorary VSC In addition to preventive education in scheme was introduced in 1997 to schools, the National Youth Council (NYC) strengthen the links between schools and has initiated the “StreetWise Programme” the police in an effort to keep juvenile -a programme designed to change the delinquency problems and youth-gang behaviour of youths who have unwittingly influences away from schools. Teachers are drifted into gang activities. Three key appointed as Honorary VSC Senior components in the programme are: Officers.
(i) Counselling; The appointment symbolises police (ii) D evelopment training to presence and authority in schools and inculcate life skills and provide enhances teachers’ position as the overseer
147 RESOURCE MATERIAL SERIES No. 56 of school discipline. The Honorary VSC To date, 145 CPCs have been formed all Senior Officers carry warrant cards which over Singapore. enables them to make arrests when there are serious breaches of the peace within, 2. Crime Prevention for Construction or in the immediate vicinity of, the school Sites compound or during school activities. Security audits of construction sites are conducted jointly by the Singapore The Honorary VSC Senior Officers play Contractors Association Limited (SCAL), the role of the liaison officer between the the NCPC and the police. The objectives respective schools and the police. Police are to promote and encourage crime will work closely with them to curb juvenile prevention awareness, enhance work site delinquency. They will contact the police security and to deter unauthorised visitors should the need arise and assist in and illegal immigrants. To educate foreign scheduling talks on topics related to secret workers, a crime prevention video for society activities or crime prevention. They construction workers in 7 different also help to organise police-youth activities languages was also produced and such as visits to prisons and monitor the incorporated as part of the orientation behaviour of delinquent students in programme for foreign workers. Every schools. year, seminars on construction safety and security are also jointly organised by the As they are part of the SPF, they are police, NCPC and SCAL. conferred powers of arrest, and can offer advice on police procedures and police- 3. Crime Prevention for Hotels related matters to staff and students in The Singapore Hotel Association (SHA), their schools. They also counsel the NCPC and the police work closely in recalcitrant students on the consequences organising the annual Hotel Security of criminal or gang activities. Conference and Awards Presentation. Together with SHA, the police also conduct G. Commercial and Industrial security audits at hotels to ensure their Sectors standard of security. The objectives are to 1. Crime Presentation for Crime promote an urgent sense of security in the Prevention Committees (CPCs) hotels, to encourage and assist installation To look after the commercial and of mechanised security systems such as industrial sectors, the police in 1982 closed-circuit television (CCTV) and to introduced Crime Prevention Committees endorse security training programmes for (CPCs). CPCs serve as an organised body the hotels. where the police can work closely with both the commercial and industrial sectors on VI. EVALUATING THE crime prevention. They are equivalent to EFFECTIVENESS OF THE the Neighbourhood Watch Scheme in COMMUNITY POLICING public/private residential estates and are STRATEGY / CRIME PREVENTION responsible for monitoring and looking PROGRAMMES after the security of their respective The effectiveness of any country’s commercial/shopping or industrial policing strategy and crime prevention complexes; organising crime prevention programmes is best gauged by a public activities and implementing the perception survey on the overall crime recommended security measures in levels, sense of security and police consultation with police representatives.
148 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS presence. To this end, such a survey was and grassroots organisations to raise crime conducted by the police in 1997. Of those prevention awareness. To do this, the surveyed, 62% of the respondents believed police will continue to establish close that major crimes were declining, and 46% partnerships with community-based perceived that minor crimes were organisations and self-help groups to declining. Comparing the general security leverage on mutual strengths and expertise of Singapore with most countries in the to combat crime. world, 93% of the respondents felt it was better. 86% of the respondents also felt that C. Enhancing Crime Prevention the security in Singapore at present (1996) Awareness among Police Officers was better than 5 years ago (1991). More To continue enhancing crime prevention than 95% of respondents felt that, on the awareness among its officers, the SPF aims whole, the NPP system, and the police in to further enhance the expertise of Crime general have met their expectations. Prevention Officers, by upgrading the general crime prevention knowledge In terms of the effectiveness of crime (including technical and highly specialised prevention programmes, television aspects) and awareness of officers through programmes such as crime watch continue training. Police will, together with the to top the list, with 93% of respondents NCPC, generate initiatives for crime having known of it. Of the respondents who prevention and build strategic alliances expressed knowledge of the crime watch with organisations in the private and programmes, 75% have watched it before. public sector to raise crime prevention Other crime prevention activities which the awareness in their respective fields. public are aware of include posters (73%), leaflets and newsletters (69%), and VIII. CONCLUSION exhibitions (68%). To manage the expectations of the public, and to meet the challenges of the 21st VII. FUTURE CHALLENGES century, the police will continue to improve A. Expansion of Neighbourhood and fine-tune the system of community Watch Zones policing and to continuously involve the The strategy of engaging the community public. Internally, the police will in crime prevention awareness will continuously hone and improve the existing continue. The police are looking into the infrastructure of community policing to expansion of the NWZ Scheme. The aim is keep in step with the complexity of the to foster the idea of neighbourhood watch crime scene in the years to come. No effort and the concept of self-help in crime is spared as our officers are continuously prevention to residents via the Residents’ trained with the latest technology and Committee (RC) and the Residents’ know how. Laterally, the police will also Association (RA). With close partnership venture to establish strategic alliances and in the community, the NWZ Scheme will partnerships with grassroots bodies, become more effective in reaching out to private organisations, various trade residents island-wide. associations, public institutions, etc, to curb crime. In this regard, work on the NWZ B. Enhancing Strategic Alliances Scheme will be carried out in earnest so with Community Groups that it is implemented island-wide. The The SPF intends to enhance the future of our policing strategy is embodied strategic alliances with community groups in our crime prevention slogan for 1998/
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99, which is “Together We Can Prevent Crime”. Thus, as we enter into the 21st century, the police-public partnership will remain a vital chemistry for any success in combating crime.
150 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
CRIMINAL VICTIMISATION ACROSS THE GLOBE
Ugljesa Zvekic*
I. WHY THE INTERNATIONAL comparability of the amount of crime CRIME VICTIM SURVEY known by the police. Police figures vary because of differences in legal definitions, The potential of victim surveys for recording practices, and precise rules for comparative purposes led to the carrying classifying and counting incidents. These out of the first International Crime Victim limitations are well known. Survey (ICS at the time, later renamed ICVS), in 1989. A first proposal to organise A number of industrialised countries an international victimisation survey was have launched crime or “victimisation” launched by the OECD in the 1970s. Pilot surveys to gain a wider and better studies were carried out in the USA, the knowledge of national crime problems - Netherlands and Finland. Further to a and, to a great extent, the ICVS reflects meeting of the Standing Conference of their approach and experience. Such Local and Regional Authorities of the surveys ask representative population Council of Europe, held in 1987 in samples about selected offences they have Barcelona, a working group was created experienced over a given time. They deal and started developing the survey with incidents that have, or have not, been methodology and questionnaire. Some reported to the police and in particular, twenty countries were invited to with the reasons why people do or do not participate in a standardised victimisation choose to report them to the police. They survey. provide a more realistic record of the population affected by crime and - if the There were three main reasons for surveys are repeated - a measure of trends setting up the ICVS. The first was related in crime unaffected by changes in the to the enormous problems with offences victims’ reporting behaviour, or by recorded by the police for comparing crime administrative changes in recording crime. in different countries. The second was the Social and demographic information on the lack of any alternative standardised respondents also provide an opportunity to measure, and the third was the promotion analyse types of crime risks and the way of the victim survey in countries that have they vary for different groups according to no, or only a meagre experience of it. All a number of factors, such as social status, the above-mentioned reasons are fully age, gender, etc. applicable to countries in transition. The experience gained with national and Police figures are inadequate for local surveys called for a comparative comparative purposes because the majority international survey in view of the fact that of incidents that the police become aware the number of countries with appropriate of are brought to their attention by victims, surveys were limited, and the surveys used and any differences in propensity to report different methods, thus making in different countries will influence the comparison far from straightforward.1
* Deputy Director, United Nations Interregional Crime and Justice Research Institute, UNICRI.
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II. THE ICVS TO DATE in the participating countries, while maintaining responsibility for the There have been three rounds of the questionnaire, sample selection and ICVS. The first was developed by a interview procedures. UNICRI was Working Group set up in 1987, leading to responsible for the face-to-face fieldwork early in 1989. Thereafter the questionnaire and for monitoring of the Working Group reformed, consisting of Jan ICVS in the developing countries and van Dijk (Ministry of Justice/ University countries in transition. The data from the of Leiden, the Netherlands; overall co- surveys were integrated and processed by ordinator), Pat Mayhew (Home Office, John van Kesteren of the Criminological United Kingdom), and Ugljesa Zvekic and Institute, Faculty of Law of the University Anna Alvazzi del Frate of the United of Leiden in the Netherlands. Nations Interregional Criminal Justice Research Institute (UNICRI) in Rome. Fifteen countries took part in the first (1989) ICVS, including the cities of Warsaw The second ICVS took place in 1992/94, (Poland) and Surabaya (Indonesia). The and the third in 1996/97. In the second (1992/94) ICVS covered eleven industrialised countries, each country met industrialised countries, thirteen its own survey costs, although much of the developing countries and six countries in administrative overheads of the ICVS transition. Eight of the countries had taken programme were borne by the Dutch part in 1989. Full details of the 1989 and Ministry of Justice, which has also 1992 surveys in industrialised countries sponsored survey activities in almost all are reported in van Dijk et al., (1990) and the developing countries and countries in in van Dijk and Mayhew (1992). Further transition. Further financial assistance information and reports on the 1992 ICVS, was provided by the Dutch Ministry of including six countries in transition, are Foreign Affairs; the Home Office, UK; the presented in Alvazzi del Frate et al. (1993). Department of Justice Canada; the European Institute for Crime Prevention The second (1992/94) round of the ICVS and Control (HEUNI); and UNDP. The expanded to include standardised surveys Working Group managed oversight of the in thirteen developing countries and six surveys, although a co-ordinator in each countries in transition, mainly at the city country was responsible for the conduct of level. These were taken forward largely by fieldwork and, where necessary, for UNICRI, which was keen to sensitise ensuring a sound translation of the governments of developing countries and questionnaire. The technical management countries in transition on the dimensions of most of the surveys in the industrialised and extent of crime in their urban areas - countries was carried out by InterView, a especially as police data on crime was often Dutch survey company. InterView sub- poor. Results from the developing world are contracted fieldwork to survey companies reported in Zvekic and Alvazzi del Frate (1995). After the second ICVS, a 1 Differences in survey design and administration programme of standardised surveys of influence both the amount and type of victimisation crime against businesses was also mounted measured. The technical differences at issue in nine countries. Comparative results are include: the number of people interviewed in the presented in van Dijk and Terlouw (1996). household; sampling frame and age range; mode of interviewer, “screening” methods and number of The third round of the ICVS was carried “screeners”, “recall” period; and respose rates. out in 1996 and 1997 and encompassed
152 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS eleven industrialised countries, thirteen countries are reported in Mayhew and van developing countries and twenty countries Dijk (1997) and, for developing countries, in transition. Two volumes (Zvekic, 1998, in Alvazzi del Frate (1998). All in all, with and Hatalak, Alvazzi del Frate and Zvekic, the 1996/97 ICVS, more than 130,000 1998) report the findings related to people were interviewed in 40 languages countries in transition, while the results around the world. of the 1996 ICVS for industrialised
TABLE 1 International Crime Victim Survey - Overview of Participation in the 1989, 1992-94 and 1996-97 “Sweeps”
Industrialised Countries 1989 1992-94 1996-97 Australia ＊＊ Austria ＊ Belgium ＊＊ Canada ＊＊＊ England & Wales ＊＊＊ Finland ＊＊＊ France ＊＊ Germany ＊ Italy ＊ Japan ＊ Malta ＊ The Netherlands ＊＊＊ New Zealand ＊ Northern Ireland ＊＊ Norway ＊ Scotland ＊＊ Spain ＊＊ Sweden ＊＊ Switzerland ＊＊ USA ＊＊＊
Countries in Transition 1989 1992-94 1996-97 Albania ＊ Belarus ＊ Bulgaria ＊ Croatia ＊ Czech Republic ＊＊ Estonia ＊＊ F. R. of Yugoslavia ＊ FYR of Macedonia ＊ Georgia ＊＊ Hungary ＊ Kyrgyzstan ＊ Latvia ＊ Lithuania ＊ Mongolia ＊ Poland ＊＊＊ Romania ＊ Russia ＊＊ Slovak Republic ＊＊ Slovenia ＊＊ Ukraine ＊
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TABLE 1 (continued)
Developing Countries 1989 1992-94 1996-97 Argentina ＊＊ Bolivia ＊ Botswana ＊ Brazil ＊＊ China ＊ Colombia ＊ Costa Rica ＊＊ Egypt ＊ India ＊＊ Indonesia ＊＊＊ Papua New Guinea ＊(°) Paraguay ＊ The Philippines ＊＊ South Africa ＊＊ Tanzania ＊ Tunisia ＊ Uganda ＊＊ Zimbabwe ＊ (°)Data set not available
III. SURVEY METHODS interviewers of what happened. Therefore, the ICVS accepts a broader definition of The ICVS was carried out by using two crime than the police who, once incidents main survey methods: computer assisted are reported to them, are likely to select telephone interviewing (CATI) and face-to- those which merit the attention of the face. As a rule, CATI was adopted in the criminal justice system, or meet industrialised countries, with the exception organisational demands and parameters to of Northern Ireland (1989 and 1996), Spain allow for further processing. (1993) and Malta (1997), and face-to-face was used in the developing countries and Eleven main forms of victimisation are countries in transition, with the only covered by the ICVS, three of which allow exception being Slovenia (1992 and 1997). for further grouping. Household crimes are those which can be seen as affecting the A. Sampling household at large, and respondents report In all developed countries and in some on all incidents known to them. For countries in transition, a national sample personal crimes, they report on what ranging between 1000 to 2000 respondents happened to them personally. was used, while in most developing countries and countries in transition a city Household Property Crimes: sample of 1000 was used. • theft of car • theft from cars B. The Count of Crime • vandalism to cars The ICVS enquires were about crimes • theft of motorcycles against clearly identifiable individuals, • theft of bicycles excluding children. While the ICVS looks • burglary with entry into incidents which, by and large, accord • attempted burglary with legal definitions of offences, in essence • robbery it accepts the accounts that the respondents are prepared to give to the
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Personal Crime: additional questions about what happened. • theft of personal • property pickpocketing C. Translation of Questionnaire • non-contact personal thefts In some countries the interviewers, • sexual incidents having to work in several local dialects, • sexual assaults were provided with the translation in the • offensive behaviour language of the majority linguistic group; • assaults/threats while translations into dialects were • assaults with force provided on the spot, that is to say, during • assaults without force the interviewing process. It is difficult to assess to what extent this affected the In the surveys in developing countries responses, but it does indicate the need for and countries in transition, consumer fraud closer monitoring and control of the and corruption were also covered. translation procedure and reliability. Back Consumer fraud was asked about in the and forth translation from the original industrialised countries in 1992 and 1996, English into and from the language in and corruption in 1996/97. question was carried out in a number of countries, both to ensure the adequacy of The respondents are asked first about translation as well as to provide for the their experience of crime over the last five most appropriate native wording. years. Those who mention an incident of any particular type are asked when it D. Carrying Out of the Full-fledged occurred, and if in the last year, how many Survey times. All victims reporting incidents over Data collection lasted from eight to ten the past five years are asked some weeks in each country and was followed by
TABLE 2 Aggregate Victimisation Rates by World Regions ICVS (urban five year rates: 1988-96) Countries Total Western New Latin In Asia Africa Europe World America Transition Car crime 29.7 36.8 44.6 29.9 27.8 7.5 22.4 Burglary/attempt 20.4 14.4 23.3 32.4 17.3 11.3 35.4 Other theft 32.3 27.1 26.6 42.4 31.9 30.3 41.7 Violent crime 20.4 15.8 20.2 36.1 17.3 13.0 31.8 Violence (females) 7.4 5.0 8.0 14.3 6.0 4.8 12.6 Violence (males) 6.2 5.0 8.4 8.0 6.5 2.4 7.9 Any crime 63.7 61.2 65.3 76.6 62.0 45.0 74.0 Consumer fraud 29.4 12.5 7.9 24.4 39.8 27.6 48.7 Corruption 11.0 1.1 1.0 19.5 12.6 20.2 13.5
Note: Table elaborated from J.J.M. van Dijk. “Criminal victimisation: a global view”, paper presented at the International Conference on Surveying Crime: A Global Perspective, Rome, 1998.
155 RESOURCE MATERIAL SERIES No. 56 the data entry and logical validation and Africa. In these two regions, the level process. On average, fieldwork lasted four of violence is more than twice as high as months including translation of the elsewhere but it is also high in the New questionnaire, sampling, data collection World (Australia, Canada, New Zealand and preparation of the dataset for delivery. and the USA); Western Europe and Asia A final report was prepared by each are less exposed to violent crime. Different national co-ordinator. is the global pattern of distribution for car related crimes for which the highest rates The results are based on data which are in the industrialised world. However, have been weighted to make the samples car owners risk of having their cars stolen, as representative as possible of national burglarised and/ or vandalised are similar populations aged 16 or more in terms of across the globe (with the exception of Asia gender, regional population distribution, where it is the lowest) but somewhat higher age, and household composition. in Africa.2 Furthermore, the rates of property crime have gone down or E. Face-to-face Interviewing stabilised in several of the most In most countries, the survey was industrialised countries. However, the risk carried out by an ad hoc team of of being victimised by violence across the interviewers. On average, face-to-face world is at least one in five. interviews lasted thirty minutes and could generally be understood by illiterate As regards consumer fraud and respondents. corruption in public administration it is much higher in the developing world and IV. CRIMINAL VICTIMISATION: AN countries in transition, adding additional OVERVIEW burden and cost of overall criminal victimisation to people in less affluent Criminal victimisation is a widespread societies.3 feature of urban areas across the globe: there is no crime-free country. Certain residential, age and gender Victimisation by conventional crime is groups, as well as life styles, run higher commonly experienced by all nations and risks of criminal victimisation. While much in particular, the inhabitants of large cities. of it is circumscribed, gender differences In this sense, criminal victimisation is a do appear to show somewhat more stable global statistical norm. It is not a distinct differential patterns. In the industrialised property of some countries only. world, men and women run similar level of risk for assault. In other parts of the Irrespective of the part of the world, over world there are clear gender differences a five year period, two out of three putting women at a much higher risk of inhabitants of large cities are victimised being victimised by violence. Thus, while by crime. It is particularly significant to men across the globe run a similar level of note that the victimisation rates are risk of being assaulted, the risks for women highest in Latin America and Africa, while in Latin America, Africa and Asia are fifty they are the lowest in Asia. Countries in percent higher 4. Furthermore, assaults on transition show rates remarkably similar women tend to be familial or domestic in to those of Western Europe.
2 Specific crime victimisation rates such Van Dijk. “Criminal...”, ibid, table 2 note. 3 as those for burglary, other theft and U. Zvekic, Criminal Victimisation in Countries in violent crime are highest in Latin America Transition. UNICRI Publ. No. 61, 1998.
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TABLE 3 Crimes Reported to the Police in Three Global Regions: ICVS (1992-96)
Industrialised Countries Countries in Transition developing countries Theft of car 92.6 87.5 89.5 Burglary 84.5 64.9 47.4 Theft from car 56.9 44.3 41.8 Assault with force 48.1 34.1 36.2 Robbery 46.9 32.7 34.2 Theft of Personal 43.8 21.9 19.2 Property Sexual assault 26.8 21.3 22.4 the sense that in a third of the cases of in a criminal charge and court sentence. violence against women, the offender was In the majority of countries, around half of known (even by name) to the victim. the suspects or those criminally indicted Domestic violence is most often reported are found guilty and subsequently by women in the New World and Western sentenced.6 Europe.5 In all the parts of the world, the most Crime rates based on officials statistics frequently reported crime is that of theft are universally lower than survey-based of car, with the reporting rates around 90%. victimisation rates. Therefore, differences With the exception of burglary in the in officials crime rates among countries industrialised world and countries in have much to do, in addition to the crime transition, as well as of theft from cars in type, with the propensity to report crimes the industrialised world, all other crimes to the police, and further down the criminal in all three developmental categories are justice road, police capacity to record them, reported by less than half of the victims. and then the prosecution and courts Particularly low are the reporting rates for capacity to process the cases and charge/ sexual assault. In other words, less than sentence offenders. The attrition rates one in three female victims of violence (capacity) of the criminal justice system is report their victimisation to the police. widespread, and filtering out is a universal process present in both mandatory as well It is evident that national and global as discretionary criminal justice systems. crime levels, as reported by the UNCJS The first filtering out is to be looked for in (official statistics), are much lower than the the relationship between citizens and the “true” levels of crime, mainly due to police. In no part of the world are all crimes reporting patterns. On average, crime reported to or detected by the police, nor reported to the police continued to rise in are all those that are known to the police 1980s and 1990s. “The most commonly passed on further down the road to result 6 G. Newman, “Advance in Comparative 4 Van Dijk. “Criminal...”, supra. Criminology: The United Nations Global Report on 5 A. Alvazzi del Frate, Victims of Crime in the Crime and Justice” paper presented at the Developing World, UNICRI Publ. No.57, 1998, pp. International Conference on Surveying Crime: A 69-71. Global Perspective, Rome, 1998.
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TABLE 4 Percentage of Victims Satisfied with the Police upon Reporting an Incident ICVS (1992-96)
Western Europe New World Countries in transition Asia Africa Latin America Burglary 67.8 74.4 37.8 42.2 29.4 24.6 Contact crimes 64.0 69.7 39.8 61.7 46.8 34.2 reported crime was theft, followed by World, Western Europe and Asia (74%, 50% burglary. Violent crime made up some 10- and 60% respectively). Much lower levels 15% of all reported crime” 7. The of satisfaction are expressed by citizens established reporting pattern is that from Africa (41%) and particularly irrespective of crime type, there are much dissatisfied are citizens from Latin America higher police reporting levels in the and countries in transition (just around industrialised world as compared with 20% are satisfied). other parts of the world. This propensity to report is related to a number of factors, The analysis of the results of the United including as regards property crimes, Nations Survey of Crime Trends and the insurance coverage. The ICVS has clearly Operation of Criminal Justice Systems 8 demonstrated that the ratio between shows that most countries tend to imprison average insurance coverage for the those offenders who were sentenced for industrialised world, on the one hand, and serious crimes. Prison is the universal the rest of the world, on the other, is that sanction applied for serious offences, more of 70%: 10-15% (although the situation has the any other sanction. This is regardless improved recently in countries in of the type of legal system or level of transition). development of a country. There are also wide variations in the prison rates of The propensity to report also has to do various countries. However, these with citizens’ evaluation of police variations do not appear to be dependent performance. This type of information is on the amount of crime in the society. Nor not provided by the official criminal justice does the use of non-custodial sanctions, the statistics. The ICVS explored this issue to availability and use of which are policy find that there is proportionately more choices. As a general pattern, greater use victims of crime from the industrialised of non-custodial sanctions does not lead to world satisfied with the police upon less use of prison, or vice-versa. In the reprting a crime than it is the case with developing world and countries in the victims from other world regions who transition, the public displays a marked reported an incident to the police. preference for prison as a punishment. There appears to be, however, a certain Satisfaction with reporting to the police similarity in comparative perspective shows a similar pattern of general between the amount of prison actually used satisfaction with the police in controlling and the preferences for types of crime. The highest levels of satisfaction 8 H. Shinkai and U. Zvekic. “Punishment” in G. with the police in controlling crime are Newman (Ed.) Global Report on Crime and Justice. expressed by the citizens from the New New York-Oxford, UN & Oxford University Press, 7 Van Dijk, “Criminal...”, supra. 1999.
158 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS punishment. Punishment practice and interpretation of the relationship between policy do not appear to be grossly crime and development needs revisiting. determined by the developmental level of Subsequent analyses and in particular the the country. most recent one by Van Dijk 11 of motivation and opportunity factors based on ICVS V. CRIME AND DEVELOPMENT IN showed that the levels of contact (violent) GLOBAL PERSPECTIVE crimes and thefts are higher in the countries where a high proportion of people Without entering into by now a feel economically deprived and that the criminological common knowledge lower affluence was associated with higher regarding the main theories of crime and risk of victimisation by more serious development, and in particular crime and crimes. modernisation, the afore considerations regarding crime levels and punishment The ICVS data on victimisation rates for issue have clearly demonstrated that much theft of personal property, burglary and of the discussion on the relationship assault all reveal a negative correlation between crime and development needs to with the UNDP Human Development be revisited. Index. The more developed the country, the less frequent victimisation for theft (-0.560 Much of the previous debate on crime N=53), burglary (-0.422 N=53) and, to a and development, originating with much lesser extent, assault (-0.113 N=53). Durkheim, was tested with official criminal The Fifth UNICJS provides compatible justice data on crime levels. In short (and data for 1994 on intentional homicide and with a certain degree of simplification) they theft12 from 28 countries ranging from the appeared to confirm that the levels of most to the least developed according to the property crime are higher in more Human Development Index (HDI).13 By developed societies than those of violent correlating data for homicide and theft with crimes in less developed societies. Indeed, the HDI for the respective countries, a earlier UN reports based on UNCS also positive correlation with theft rates is supported this interpretation. However, found (0.596 N=28), while a negative integration of the UNCS and the ICVS data correlation between homicide rates and casts serious doubt as to the above HDI is also found, although weaker (-0.204 relationship. N=28). 14 The first analysis of the ICVS results in 1993 9 and 1995 10, when data from the 11 van Dijk, “Criminal...”, supra. developing world and countries in 12 The UN Crime Survey categories used here are transition were made available for the first “total intentional homicide” and “total theft”. time ever, indicated that the traditional 13 The 1994 Human Development Index for the 9 U. Zvekic, A. Alvazzi del Frate. “Victimisation in responding countries is taken from Human the Developing World: An Overview” in A. Alvazzi Development Report 1997,United Nations del Frate, U. Zvekic, J.J.M. van Dijk (eds.) Development Programme, Oxford University Press, Understanding Crime: Experiences of Crime and Oxford / New York, 1997. Crime Control, UNICRI Publ. No. 49, 1993. 14 The analysis of the correlation between data from 10 U. Zvekic and A. Alvazzi del Frate. “Comparative the ICVS, the Fifth UN Crimes Survey and Human Perspective” in U. Zvekic and A. Alvazzi del Frate Development Index is presented in A. Alvazzi del (eds.) Criminal Victimisation in the Developing Frate, Victims of Crime in the Developing World, World. UNICRI Publ. No. 55, Part One, 1995. UNICRI Publ. No. 57, 1998, pp. 133-138.
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TABLE 5 United Nations Survey of Crime Trends and Operations of Criminal Justice Systems, Homicide and Theft Rates (1994) and UNDP Human Development Index (1994)
Country Name Homicide Theft HDI 1994 Rates×100,000 pop. Rates×100,000 pop. Japan 1.4 1,049.8 0.940 England&Wales 1.4 4,863.6 0.931* Singpore 1.7 919.6 0.900 Canada 2.0 3,430.4 0.960 Scotland 2.2 4,641.8 0.931* Malta 3.0 1,125.0 0.887 Belguin 3.4 2,733.0 0.932 Austlia 3.5 1,582.3 0.932 Slovakia 3.8 1,099.8 0.873 Hungary 4.7 1,321.7 0.857 Denmark 5.1 3,963.1 0.927 Italy 5.3 2,330.9 0.921 Slovenia 5.7 811.7 0.886 Israel 7.2 182.3 0.913 Romania 7.6 457.6 0.748 India 7.9 33.1 0.446 Azerbaijan 8.9 65.0 0.636 Rep of Moldova 9.5 334.1 0.612 Costa Rica 9.7 520.8 0.889 Kyrgyzstan 12.3 238.4 0.635 Georgia 14.4 109.7 0.637 Kazakstan 15.7 591.6 0.709 Ecuador 18.5 239.6 0.775 Bolivia 23.3 392.4 0.589 Nicaragua 25.6 173.9 0.530 Jamaica 29.8 520.5 0.736 Kuawit 58.0 10.6 0.844 Colonbia 78.6 233.3 0.848 Sources: Fifth United Nations Survey on Crime Trends and the Operations of Criminal Justice System, UNICJIN (rates elaborated by UNICRI); Human Development Report 1997, United Nations Development Programme, Oxford University Press, Oxford/New York, 1997.
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TABLE 6 Correlation with the Human Development Index (HDI)
Homicide -0.204 Assault -0.113
Theft 0.596 Theft 0.560 Burglary -0.422
VI. CONCLUDING REMARKS serious offenders and the prison rates are not generally related to crime The above referred to results and rates, the levels of socio-economic considerations seriously challenge the development or to the use of non- modernisation theory, which as stated custodial sanctions; yet, punishment earlier, was empirically tested with police preference still reflects to a great reported figures, which are normally much extent the affluence levels, the actual lower in less developed societies. The use of imprisonment or shared belief empirical base for testing the in “just deserts”. modernisation theory was exclusively composed of official criminal justice Much of the previous discussion and statistics. The ICVS empirical base, which revisited modernisation theory is based on is composed of victimisation data on interpretative integration of UNCS (official experiences with crime and reporting to the criminal justice statistics) and ICVS police, undermines the very foundations of (victimisation survey-based data). the prevalent crime and development However, this is not sufficient to reveal explanatory perspective. with any degree of reliability the “true” empirically based historical relationship Crime and justice appear to have a between crime and development, since degree of independence from levels of there are no comparative international development more than previously historical victimisation survey data that thought15. This is particularly evident with would match those available through the respect to the following: official criminal justice statistics and the UNCS. Thus, one is tempted to credit the • there is no strong evidence that globalisation process with effects reflected developing countries have higher in a certain degree of levelling off crime and violent crime rates than developed justice across the globe. While this might countries; either they never had them prove to be true, in view of the fact that but data was restricted or in recent the ICVS data used for comparative years the levels have become quite analysis relate to urban areas only, and similar; thus embedding urbanisation, (which • the assumption that the developed certainly is the trade-mark of world exhibits higher property crime modernisation all over the world). There rates than developing countries still is much to be desired in exploring the seems not to hold true, at least as globalisation-related conventional crime regards the urban areas; effects. • all countries use imprisonment for REFERENCES 15 Newman, “Advances...”, supra.
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Alvazzi del Frate, A., Zvekic, U. and van in Countries in Transition. Rome: Dijk, J.J.M. (Eds.) (1993). UNICRI. Understanding Crime: Experience of Crime and Crime Control. Rome: Van Dijk J.J.M. (1998) ‘Criminal UNICRI. Victimisation: A Global View’. International Conference on Surveying Alvazzi del Frate, A. (1996). Manual, Face- Crime: A Global Perspective. Rome, 19- to-face International Crime (Victim) 21 November 1998. Survey. UNICRI. Newman, G. (1998) ‘Advanced in Alvazzi del Frate, A. (1998). Victims of Comparative Criminology: The United Crime in the Developing World. Rome: Nations Global Report on Crime and UNICRI. Justice’. International Conference on Surveying Crime: A Global Perspective, Hatalak, O., Alvazzi del Frate, A. and Rome, 19-21 November 1998. Zvekic, U. (Eds.) (1998). International Crime Victim Survey in Countries in H. Shinkai and U. Zvekic. (1999) Transition: National Reports. Rome: ‘Punishment’ in G. Newman (Ed.) UNICRI. Global Report on Crime and Justice. New York-Oxford, UN & Oxford Mayhew, P. and van Dijk, J.J.M. (1997). University Press. Criminal Victimisation in Eleven Industrialised Countries. The Hague: WODC.
Van Dijk, J.J.M. and Mayhew, P. (1992). Criminal Victimisation in the Industrialised World: Key Findings of the 1989 and 1992 International Crime Surveys. The Hague: Ministry of Justice of the Netherlands.
Van Dijk, J.J.M., Mayhew, P. and Killias, M. (1990). Experiences of Crime Across the World: Key Findings from the 1989 International Crime Survey. Deventer: Kluwer Law and Taxation.
Van Dijk, J.J.M. and Terlouw, G.J. (1996). ‘An international perspective of the business community as victims of fraud and crime’. Security Journal, October: 157-167.
Zvekic, U. and Alvazzi del Frate, A. (1995). Criminal Victimisation in Countries in the Developing World. Rome: UNICRI.
Zvekic, U. (1998). Criminal Victimisation
162 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
CITIZENS’ EXPERIENCE WITH CRIME PREVENTION
Ugljesa Zvekic*
I. THEORETICAL BACKGROUND also envisages a “crime market”, but the presence of motivated offenders is defined Among the criminological theories as the demand side and the availability of specifically applicable to crime prevention, suitable and poorly protected targets as the the economic theory of crime proposed by supply side. Becker in19681 asserts that potential offenders constantly move between Although motivated by the same legitimate and illegitimate activities, assumption of the existence of a “crime depending on the results of a cost-benefit market” as was the case for Becker and assessment. While making the decision, Ehrlich, van Dijk reverses the parties and as whether or not to undertake illegitimate describes the victims as “reluctant actions, they calculate the risk of being suppliers” of opportunities for crime: “The apprehended as costs against the economic criminal opportunities offered by potential benefit if the action is successfully victims are an undesired side-effect of their concluded. This theory starts from the possession of certain goods”. assumption that the offender’s behaviour is induced by the desire of economic gain. The theory keeps the focus on the In order for a crime of this type to be offender’s behaviour and the cost-benefit committed, three elements are analysis which motivates the decision of determinant: the presence of a suitable whether or not to commit a crime. target, skill and opportunity. However, in this paradigm, higher opportunity costs for the offender are According to his theory, further determined by better protection of suitable developed by Ehrlich2, the offender targets and increased self-precautionary represents the supply side of the crime measures adopted by potential victims market. The supply of crime will be based (target hardening), rather than effective on the costs (the probability of being law enforcement alone. In this respect, caught, the amount of sanction envisaged more attention is paid to the prevention of for that particular crime and all possible crime rather than the punishment of the intervening variables). Depending on the offender once a crime has already occurred. level of the cost, more or less crimes will Potential victims are involved in the occur. Such “costs” very much depend on scheme, thus shifting from a specialised deterrence determined by effective law role for the police in crime prevention to enforcement. 1 G. Becker, “Crime and Punishment: An Economic In more recent years, the rational- Approach”, Journal of Political Economy, 76:2, 1968, interactionist model developed by van Dijk3 pp. 169-217. 2 I. Ehrlich, “Participation in Illegitimate Activities: * Deputy Director, United Nations Interregional A Theoretical and Empirical Investigation”, Journal Crime and Justice Research Institute, UNICRI. of Political Economy, May 1973, pp. 521-565. **Authored by Dr. Anna Alavazzi del Frate, Research 3 J.J.M. van Dijk, “Understanding Crime Rates”, Officer, UNICRI. Presented by Ugljesa Zvekic, British Journal of Criminology 34:2, 1994, pp. 105- Deputy Director, UNICRI. 121.
163 RESOURCE MATERIAL SERIES No. 56 community-based crime prevention. Western Europe and the New World, while in other participating countries samples The rational-interactionist model helps were drawn from large cities. to understand crime phenomena, which are similar in many countries and are of high The type of dwelling most frequently concern to the international community. found in the survey was a house, either this model is applicable to crimes against isolated, semi-detached or in a row. For the household, but also to property and example, the popular formula of houses in economic crimes in which shops, office a row represents the absolute majority of buildings and corporations are increasingly cases in Northern Europe. becoming the victim. In both cases - crimes against individuals or households and Apartments rank first as the type of crimes against business - target hardening dwelling, except in the group of countries is up to the potential victims. in transition, where the former-socialist model based on extensive urbanization However, an involvement of the “formal” predominates. In these cities the large structures in crime prevention activities is majority of people live in apartment- still necessary to address the problems buildings. In Africa, Asia and Latin which are at the basis of the offender’s America, the large majority of the behaviour. Issues to be addressed include respondents live either in houses or in urbanization, migration flows, education different types of dwellings. Shanties and opportunities for employment, account for 17% in Africa and 13% in Asia, especially for young males. Furthermore, and the inclusion of respondents from these urban design, especially in newly built areas in the ICVS sample may also reflect residential areas, should be improved to on victimisation rates. provide the necessary infrastructure (e.g, schools, shops, recreational areas) as well However, it should be noted that the as services (e.g, street lights, public ICVS classification by types of dwelling was transport and telephones), which would meant to identify the type of housing rather assist in improving the quality of life in the than assessing the residential status of the neighbourhood and of the people who live respondent. Obviously, different types of there. dwelling require different crime prevention devices. II. URBAN DESIGN AND TYPE DWELLING The concept of an isolated or semi- detached house may represent different The International Crime (Victim) Survey realities in developed and developing was carried out on national samples in countries. For example, high-income areas
Table 1 Type of Dwelling of ICVS Respondents, by Regions (1996)
Western New Countries in Africa Asia Latin Europe World Transition America Apartment 29.3 21.2 62.6 9.2 19.9 25.6 House 69.2 73.4 33.1 70.7 66.3 70.4 Other 1.5 5.4 4.3 20.1 13.8 4.0
164 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS in some developing countries often consist reference to the 1992 sweep of the ICVS4, in compounds that are extremely well the type of housing, more than the protected from the outside by fences, watch surounding context, is correlated with dogs and patrols. It was reported by some burglary. Actually, a positive correlation ICVS national co-ordinators that it was was found between being a victim of sometimes difficult for the interviewers to burglary and living in a house rather than obtain access to houses selected for the an apartment. As Table 3 shows, in all survey because of the high level of security regions - with the exception of countries in at the entrance of the compound. The transition - respondents living in a house corresponding type of housing will most run risks of burglary higher than the probably be less protected and patrolled in average. Western Europe or the New World, where this type of security is less common. Very often a break-in also involved damage to doors, locks or windows. This III. BURGLARY happened more frequently in Western Europe, in Africa and in the New World. A Burglary is the typical household crime. possible explanation for the lower The ICVS questionnaire included questions frequency of damage found in countries in on victimisation experiences for burglary transition, Asia and Latin America is that and attempted burglary. Table 3 shows households are less often protected by one-year prevalence victimisation rates at crime prevention devices, thus making it the country and regional levels for burglary easier for the burglar to access the house. and attempted burglary. Another aspect which was taken into The regions in which survey respondents account was whether anything had were often affected by these types of crime actually been stolen when the burglary were Latin America and Africa. Medium occurred. Actual theft during burglaries risk was observed in the New World and happened more frequently in countries in countries in transition, while Western transition and in developing countries. Europe and Asia showed the lowest levels This finding may suggest that the type of of risk. In most regions, the 1996 one-year objects stolen is different in Western burglary rates were either equal to or lower Europe and the New World to those in other than those observed in 1992. At the regions. According to national co- country level, both types of crime increased ordinators from developing countries, in The Netherlands, Georgia, Russia, India, stolen goods often included money, food and and in all three Latin American countries simple household objects such as cutlery which were involved in both sweeps of the or linen, which were most probably stolen ICVS. Rates for burglary and attempted for the personal use of the burglar. In rural burglary are very close to each other in areas, cattle were often stolen. most regions.
People who live in rural contexts apparently run lower risks of 4 J.J.M. van Dijk “Opportunities of Crime: A Test of housebreaking in comparison with city the Rational-Interactionist Model”, in Crime and dwellers. Higher percentages of residents Economy - Reports Presented to the 11th of urban areas were victims of burglary Criminological Colloquium (1994), Council of than respondents from villages and rural Europe, Criminological Research, Vol. XXXII, 1995, areas. However, as van Dijk observed with pp. 97-145.
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Table 2 One Year Prevalence Rates for Burglary and Attempted Burglary, by Countries and by Regions, 1992 and 1996, and Risk of Burglary for Type of Area and Type of Dwelling, by Regions, 1996 Burglary Attempted Burglary Attempted Burglary Burglary Burglary Burglary Burglary Burglary Rural Urban Apartment House Areas Areas 1992 1992 1996 1996 1996 1996 1996 1996 Austria n.a. n.a. 0.8 0.6 Belgium 2.3 1.8 n.a. n.a. England and Wales 3.2 3.0 3.0 3.4 Italy 2.4 1.7 n.a. n.a. Finland 0.6 0.5 0.6 0.7 France n.a. n.a. 2.2 2.1 N. Ireland n.a. n.a. 1.6 1.1 Netherlands 2.0 3.0 2.6 3.2 Scotland n.a. n.a. 1.5 2.4 Spain 2.7 4.9 n.a. n.a. Sweden 1.5 0.8 1.4 1.2 Switzerland n.a. n.a. 1.7 1.3 Western Europe 2.1 2.2 1.7 1.8 1.5 2.0 1.6 1.7
Australia 4.1 4.0 n.a. n.a. Canada 3.4 2.9 3.4 2.8 New Zealand 4.4 3.6 n.a. n.a. USA 3.2 3.9 2.7 3.5 New World 3.8 3.6 3.0 3.2 2.8 4.0 2.4
Albania n.a. n.a. 3.5 2.9 Czech Republic 4.7 1.6 2.2 2.7 Estonia 5.9 3.1 4.0 3.9 Georgia 2.5 2.0 4.0 3.1 Hungary n.a. n.a. 2.6 1.9 Kyrgyzstan n.a. n.a. 4.6 4.3 Latvia n.a. n.a. 2.6 5.3 Macedonia n.a n.a. 2.0 1.6 Mongolia n.a. n.a. 9.3 6.1 Poland 2.2 2.7 2.0 1.7 Romania n.a. n.a. 1.2 2.0 Russia 1.8 3.6 2.9 4.6 Slovak Republic 3.4 1.6 n.a. n.a. Slovenia 1.8 2.5 n.a. n.a. Yugoslavia n.a n.a. 2.9 2.7 Countries in Transition 3.2 2.4 3.4 3.3 2.8 3.5 3.3 2.6
Egypt 3.0 3.8 n.a. n.a. South Africa 7.2 3.9 6.8 3.7 Tanzania 21.2 13.3 n.a. n.a. Tunisia 7.4 4.5 n.a. n.a. Uganda 14.2 13.0 8.1 10.4 Zimbabwe n.a. n.a. 10.2 7.2 Africa 10.6 7.7 8.4 7.1 5.5 8.5 5.8 9.0
China 1.5 0.4 n.a. n.a. India 1.2 1.3 2.2 3.0 Indonesia 4.6 2.0 4.5 2.9 Philippines 2.9 2.1 1.7 0.9 Asia 2.6 1.5 2.8 2.3 3.2 2.7 2.1 2.8
Argentina 2.9 3.9 7.5 6.9 Bolivia n.a. n.a. 7.1 9.0 Brazil 1.4 2.4 2.6 3.5 Costa Rica 4.4 6.1 7.6 9.3 Latin America 2.9 4.1 6.2 7.2 5.4 6.3 5.2 6.3
166 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
Table 3 Percentages of Burglaries Involving Damage and Actual Theft, by Regions - 1996 Western New Countries in Africa Asia Latin Europe World Transition America Apartment 58.4 50.0 42.2 55.7 28.9 32.8 Objects Stolen 74.9 72.6 77.9 89.1 91.5 85.9
Vice versa, in the more affluent regions, B. Crime-prevention at the where most people keep their money in the Household Level blank, and often jewelry and other valuable The costs related to burglary may objects are kept in safes and security greatly be increased if a household is lockers, burglars take what is available and protected by crime prevention devices. give preference to objects which are easily Deterrence is put in place by creating re-sold. In this respect, the most frequently physical or psychological barriers between stolen objects are those which are easier to the offender and the target. place on the market of stolen goods, such as electrical appliances, TV and radio sets, It appears that the patterns of VCRs, hi-fi equipment, as well as furniture committing burglaries in isolated houses and objects of art. The difference in objects or flats in condominiums are different. An stolen between the affluent and poor apartment may be better protected from regions is opportunity determined, in terms attacks from outside than a house, but once of the type of objects available, or the level a burglar gets in, he/she is more likely to of protection. work undisturbed because of the higher level of anonymity which is found in a A. Fear of Burglary condominium. The respondents were asked whether they felt that a burglary was likely to occur Crime prevention measures suggested in their household in the next twelve for the two types of dwelling are also months. Table 5 shows that the majority different: while a burglar alarm can be of the respondents from Western Europe, advisable in both situations, its the New World and Asia were not effectiveness can be greatly reduced if the concerned about the possibility of a break- house is isolated and the alarm is not in in the near future, while the opposite connected, for example, to the local police was the case with the majority of the station. Otherwise, if the alarm consists respondents from Latin America and more of an acoustic deterrent, it can only work if than 40% of those from countries in it is likely to be heard by somebody in the transition and Africa. The higher the rates neighbourhood. of victimisation for burglary and attempted burglary, the higher the fear of this type of Three main types of crime prevention crime. There is a strong correlation at the measure are commonly used to protect regional level between the perceived households and were identified by the likelihood of burglary and burglary ICVS questionnaire. The first type consists (0.8232), and even more with attempted of behaviours adopted by the household burglary (0.9111). Within the regions, members in order to prevent crimes. For similar levels of fear of burglary were example, keeping a watch dog, making the perceived by those living in houses and house look and sound occupied while away those living in apartments. by leaving curtains and shades in their
167 RESOURCE MATERIAL SERIES No. 56
Table 4 Likelihood of Burglary in the Next Twelve Months, by Regions (1996)
Western New Countries in Africa Asia Latin Europe World Transition America Very likely/likely 29.6 26.8 41.1 43.7 21.3 56.6 Not likely 63.0 67.5 35.6 33.2 51.7 31.4 Don’t know 7.5 5.7 23.3 23.1 27.1 12.0 normal position or lights on, or asking a therefore appears that crime prevention neighbour or a caretaker to look after the measures are least used in countries in house. In many cultures, households are transition, the region in which most rarely left unattended and relatives or respondents lived in apartments. In friends may come along and take care of addition, the cost of crime prevention the home. devices that are more suitable for apartments (e.g, burglar alarms) are A second type consists of physical devices higher and therefore less in use in less which are put in place in order to make affluent countries even if apartments are access of unauthorized persons to the more diffused dwelling places for city household more difficult. This type inhabitants. includes the simplest and more diffused crime prevention devices such as door It should also be noted that the locks, window grills and fences. Burglar percentage of those who declared that they alarms installed to protect the household did not use any of the measures listed by from break-ins also belong to this category. the ICVS ranged from 11.9% in the New World to 36.5% in the countries in Finally, a third type exists at the transition, reflecting both the suitability of community level and consists of the types of devices for types of dwellings, as establishment of community-based well as the level of expenditure for crime initiatives involving other parties in crime prevention. prevention (such as other citizens, but also the police, the municipality or the schools). The ICVS revealed that various types of For example, “neighbourhood watch” crime prevention measures exist in all schemes involving the residents of a world regions, although their use is more particular area. frequent where affluence is higher. The most popular crime prevention measure Table 5 shows the rates of crime was asking the neighbours to look after the prevention measures observed by the 1996 house in case of absence. A minimum of ICVS. It should be noted that the adoption 25% of the respondents in Russia to a of crime prevention measures very much maximum of 83% in Northern Ireland and depends on the type of dwelling (a India normally ask their neighbours to look correlation of 0.835 was found between an after the household when away. aggregate index of crime prevention measures and living in a house rather than The second most diffused method was an apartment). In fact, most of the devices the use of door locks and ownership/use of or precautions listed in Table 6 are more watch dogs. Keeping a watch dog was suitable for a house than an apartment. It mentioned by approximately a quarter of
168 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
Table 5 Crime Prevention Measures at the Household Level, by Regions (1996)
Western New Countries in Africa Asia Latin Europe World Transition America Ask neighbours to look after the house 59.2 97.1 48.6 47.7 76.7 60.5 Door locks 46.2 54.7 26.9 31.9 42.0 41.8 Watch dog 20.4 34.7 20.7 18.9 19.7 39.7 Windows grills 14.5 20.9 8.6 34.2 30.0 34.2 Neighbourhood watch 17.7 36.2 8.4 10.3 22.9 12.1 Fence 16.2 17.5 5.2 38.6 4.2 20.7 Burglar alarm 13.4 20.5 4.4 5.9 1.7 12.3 Caretaker 4.0 8.3 0.9 7.5 10.6 10.4 None 27.5 11.9 36.5 27.2 21.3 15.4 the respondents, with peaks of 65% in fear of burglary than the average. Bolivia, 39% in the USA and 38% in The Philippines. Data from the ICVS reveal that “simple” crime prevention measures such as door Asking the neighbours and keeping a locks and window grills are used in all the watch dog are two widely used types of participating countries. The countries in protection by the respondents from all the which such devices are less used are those regions, including more than 20% in in which there is a low incidence of crime countries in transition. It is interesting to prevention measures in general, as is the observe that watch dogs are not only case in Finland, Estonia, Albania, Latvia, frequently found in houses, but are also Poland, Russia, Mongolia and Yugoslavia. frequently kept in apartments: it appears As regards Finland, low crime rates may that even a pet might do some crime be a possible explanation for a lesser use prevention work. of household protection. In the other countries, all belonging to the group of Employing a caretaker to prevent crime countries in transition, it appears that the was indicated by 10% of the respondents process of increased protection of residence in Asia and Latin America. This measure is much slower than the spread of property is very much related to the urban and social crime. structure of the country, as well as its habits. It therefore appears that rates vary As expected, window grills and fences depending on the local situation. In a few are very frequent in all regions where the countries, including Costa Rica, Argentina. most popular type of dwelling is a house, India, Zimbabwe, Finland and France, with the exception of Asia. An aggregate rates of employment of caretakers are index of crime prevention measures reveals much higher than in the rest of the that they are more frequently used in the participating countries. In all regions, regions in which burglary rates are higher. respondents who declared the presence of These findings suggest that crime a caretaker showed a significantly lower prevention measures are adopted where
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Table 6 Burglar Alarms, by Countries - 1992 and 1996
1992 1996 % Difference England & Wales 22.1 27.2 +5.1 The Netherlands 7.6 10.1 +2.5 Finland 1.0 1.0 0.0 Sweden 5.4 6.7 +1.3 Canada 13.0 20.0 +7.0 Estonia 0.8 3.1 +2.3 Poland 1.4 1.4 0.0 Russia 5.9 7.2 +1.3 Georgia 3.7 3.5 -0.2 Czech Republic 2.9 6.9 +4.0 India 2.7 1.7 -1.0 Indonesia 3.9 0.9 -3.0 The Philippines 2.3 1.8 -0.5 Uganda 5.5 4.6 -0.9 South Africa 9.4 8.0 -1.4 Costa Rica 9.1 8.3 -0.8 Argentina 15.8 26.7 +10.9 Brazil 2.9 0.1 -2.8 and when burglary occurs more frequently. 1992 and 1996 in the participating Once adopted, the crime prevention devices countries. In general, burglar alarms are tend to reduce the feeling of insecurity, at more frequently installed to protect houses least initially: the respondents who than apartments. Alarms are more adopted crime prevention measures more diffused in the more affluent regions, i.e, frequently perceived that burglary in the the New World and Western Europe. next twelve months is unlikely. However, within these regions they are not very popular in Switzerland, Finland, It therefore appears that respondents Sweden and Austria, which are also the from high-crime regions feel safer countries with the lowest burglary rates. (unlikelihood of burglary) if they use crime The apparently high incidence of burglar prevention measures, while the same alarms in Latin America is mostly due to feeling of safety is expressed by their spread in apparently high incidence respondents from low-crime areas who did of burglar alarms in Latin America is not adopt any of the crime prevention mostly due to their spread in Buenos Aires, measures identified by the survey. where 26% of the respondents owned such a device in 1996. C. Burglar Alarms Table 6 shows the percentages of Between 1992 and 1996 the use or respondents who owned burglar alarms in installation of burglar alarms increased in
170 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS most countries in Western Europe, the New promoting informal crime control. This World and countries in transition. It is approach, if co-ordinated with the police, hard to tell whether a wider use of burglar helps to limit the use of self-defense and to alarms can be related to the increase or improve the quality of life in the area. decrease of burglary rates, although it appears that the majority of the The ICVS identified huge differences in respondents who owned an alarm in 1996 the country-by-country rates of the use of were not victims of burglary in the past five neighbourhood watch schemes within the years. Respondents with a burglar alarm six observed regions, and even at the sub- who were not victims of burglary in the past regional level between countries that are five years showed the percentages of fear otherwise similar to each other. For of burglary were markedly lower than the example, while in England and Wales more average for the sample. than 48% of the respondents said they belonged to such schemes, this was the case It thus appears that the respondents with only 28.3% in Scotland and 1.6% in believe that alarm systems actually deter Northern Ireland. This data suggest that burglars. Nevertheless, in ten “neighbourhood watch” very much depends industrialised countries participating in on programme implementation at the local the 1996 ICVS, an experimental question level. was posed to victims of burglary who were also owners of burglar alarms to assess IX. POSSESSION OF FIREARMS whether their alarm was installed before FOR CRIME PREVENTION or after the burglary occurred. Results The perception that a gun can be show that the majority of victims who considered an effective crime prevention declared that their household is protected device is frequent in some countries and by a burglar alarm decided to install it only many people depend on a firearm for after the burglary occurred. protection. Finally, for comparative purposes, it Table 7 shows that rates of ownership of should be taken into account that in several firearms very much vary from region to countries insurance companies encourage region. The highest ownership rates were a wider use of burglar alarms by offering observed in the New World and Western reductions on the cost of household Europe, followed by Latin America and insurance if an alarm system has been countries in transition. However, the installed. reasons for gun ownership are different and vary very much from country to country. D. Neighbourhood Watch Schemes Not all the firearms are meant to be used and Examples of Partnership in for crime prevention purposes. Crime Prevention Neighbourhood watch schemes are quite In countries in transition and developing popular in the New World, Asia and countries hand guns were more widespread Western Europe, but much less so in the than long guns. It should be observed that other regions. These schemes imply a handguns - which are mostly owned for certain level of social cohesion and that all crime prevention purposes - were more the participating residents share the frequently found in large cities than in objective of preventing and reducing crime rural areas and in some cities, especially by increasing the level of “natural in Latin America, they represented the surveillance” in a specific area, thus
171 RESOURCE MATERIAL SERIES No. 56 absolute majority of the firearms owned by country and furthermore it has recently the respondents. emerged from a period of disintegration of the former Yugoslavia. War was spreading In the United States, 57% of the all around and contributed to increased respondents said they owned a weapon for feelings of fear, on the one hand, and to hunting, while another 39% said that the more availability of weapons on the other. purpose of ownership was self-protection According to the Yugoslav survey co- and prevention of crime. Although it was ordinator, the ownership rate of 30% is an possible to provide multiple responses, this underestimate of the actual number of proportion of respondents believing in guns weapons existing in Belgrade. The main for crime prevention is among the highest purpose for ownership was reported as reported to the survey. being for the prevention of crime, followed by the statement that a weapon has always In countries such as Canada and been in the respondent’s family. Finland, the relatively high ownership rates were explained by the respondents Finally, in Argentina the large majority as being for hunting purposes as they of gun-owners (65%) declared that they sometimes need to be ready to face wild owned it to protect themselves from crime. animals which may attack isolated houses. This was the case with most of the firearm In these countries, ownership with the owners from Latin America, Asia and purpose of crime prevention was mentioned Africa, although actual rates of ownership in less than 1% of the cases. varied, the lowest being in Asia and Africa.
In Switzerland, 64% of the respondents The above examples show different declared that a firearm was in their patterns of ownership and use of weapons. household because they belong to the army. While it appears that there is no correlation This is because the military system in between burglary and gun ownership as Switzerland envisages that all male such, a strong correlation was found citizens remain enrolled with the army between both burglary and attempted until they are 55 years old, thus burglary and ownership with a purpose of participating in periodical re-training and crime prevention (.962 and .926 taking care of their own military weapon, respectively). which is normally kept in the household. The purpose of crime prevention was Finally, respondents who declared mentioned by 7 % of the owners only. owning a weapon for crime prevention purposes also perceived high chances of The Federal Republic of Yugoslavia burglary (very likely and likely) within the represents a different situation. There is next twelve months (correlation = .728419). a tradition of ownership of firearms in this
Table 7 Firearms: Rates of Ownership and Crime Prevention Purpose, by Regions (1996)
Western New Countries in Africa Asia Latin Europe World Transition America Gun ownership 17.8 36.5 11.7 63.6 4.1 15.9 c.p. purpose 8.6 21.8 28.7 79.4 34.6 65.7
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V. CRIME PREVENTION urban policies and crime prevention, and STRATEGIES: BETWEEN FORMAL stressed that only a global and partnership- AND INFORMAL based approach may be effective in embracing all the causes of crime, with the The ICVS data shows that crime participation of all the agents concerned.5 prevention measures at the individual level was not a major concern of the respondents The principle of sharing crime from the participating countries. Although prevention responsibilities with the burglary in the next twelve months is community has been widely accepted and perceived as likely or very likely by more many governments place crime prevention than 40% of the respondents in most programmes involving citizens, law developing countries and in countries in enforcement and all relevant components transition, only some basic measures to of society among the highest national prevent crime are put in place by those who priorities. This implies a significant effort fear that their household will be broken to be jointly undertaken by all the partners into soon. involved, including setting an agenda which should focus on local needs without It is hard to assess whether this means loosing track of the experience gained at that there is not enough protection put in the national and international level, clearly place by individuals or whether crime identifying its objectives and timing, prevention policies in different countries assigning roles and appointing leaders to are based on different strategies which give co-ordinate action, adopt common more or less room to “self-help”. “Self-help” standards and include proper evaluation may be considered the most informal type of the results achieved. of crime control, and is therefore individualised. The “social” mechanisms Long-term plans may not be primarily for crime prevention, such as nighbourhood aimed at the reduction of crime, which is a watch schemes, require the citizens to desirable side-effect. For example, participate in crime prevention activities improving the design of the urban organised by groups of peers who work in environment by providing more street agreement with the agencies of formal illumination is likely, primarily, to improve control for the benefit of the community. the quality of life and secondarily, reduce opportunities for crime. It therefore appears that a desirable development would include a broader The International Centre for the participation of citizens in crime prevention Prevention of Crime (ICPC) has promoted programmes which would involve several a review of best practices in the field of counterparts and tackle various aspects of urban crime prevention.6 This resulted in everyday life. a collection of model programmes put in place in various cities and local A. International Work Within the framework of the Ninth 5 United Nations, Report of the Ninth United Nations United Nations Congress on the Prevention Congress on the Prevention of Crime and the of Crime and the Treatment of Offenders, Treatment of Offenders, A/CONF. 169/16, 12 May held in Cairo, Egypt, in 1995, a workshop 1995, p. 82. on “Urban Policy and Crime Prevention” 6 The collection of best practices is accessible from was organized. Its final report reflected the Internet at the ICPC World Wide Web address the indissoluble links established between
173 RESOURCE MATERIAL SERIES No. 56 communities around the world. Three situation and trends in crime prevention. main areas for effective prevention have It also provides an opportunity to analyse been identified: particular contexts and to make suggestions as to specific crime prevention (a) reducing risks of victimization and re- programmes. In 1994 UNICRI, in co- victimization of citizens by increasing operation with the Research Institute of the formal and informal control; Ministry of the Interior of the Russian Federation, recommended a model crime (b) preventing offending and re-offending, prevention programme for the city of by targeting groups at risk and Moscow.9 A comprehensive model of the providing them with educational and components of crime prevention recreational opportunities, as well as highlighted the particular problems of a possibilities for housing and country in transition towards a market employment; economy. The transition process involves higher rates of crime (in particular (c) specific target-hardening, through the property crime), whilst there are scarce encouragement of a broader use of self- financial resources to combat it. The crime precautionary measures. prevention strategy should include seven elements: It should be noted, however, that the vast majority of crime prevention programmes 1. The promotion of active crime have been established in Western Europe prevention policies to accompany law and the New World.7 Very few cases have enforcement and criminal justice, been found in developing countries and based on international experience countries in transition. Among them, one obtained through effective projects has been reported from Colombia8 and developed by the United Nations and consisted of setting up groups of “peace other relevant international promoters” who assisted in the organisations. identification of problematic situations and potential offenders, thus leading to the 2. The development of long-term plans, creation of programmes in law even though public opinion might ask enforcement, public education and social for short-term responses to crime. development. 3. Improved coordination of crime The ICVS is not only useful for providing prevention activities at the national, an informed overview of the international regional and local levels.
7 For a comprehensive collection and analysis of 4. The encouragement of the public to crime prevention programmes in Europe and North be involved in crime prevention, by America, see J. Graham, T. Bennett, Crime strengthening the community’s Prevention Strategies in Europe and North America, confidence in the police. European Institute for Crime Prevention and Control, affiliated with the United Nations 5. The promotion by law enforcement (HEUNI), 1995. and criminal justice of the safety and 8 The programme is called DESEPAZ, Programma Desarrollo Seguridad y Paz (Urban Development, 9 M. Alexeyeva, A. Patrignani (eds.), Crime and Safety and Peace Programme) and is based in Cali, Crime Prevention in Moscow, UNCRI Publ. No.52, Colombia. 1994.
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security of persons and property.
6. The treatment of victims with respect and understanding of their needs, and the provision of prompt assistance and information about their rights.
7. The regular monitoring of crime prevention programmes, based on reliable information, analysis and public discussion with all parties involved.
The Moscow model, which was also based on the extensive analysis of the results of the 1992 ICVS in Moscow, confirms the potentials of the ICVS as a tool to promote community and victim- centred crime prevention strategies.
Furthermore, improved police- community relations, which may result from a better knowledge of victimisation experiences, will lead to an increased use of crime prevention measures at the individual/household level, as well as within the framework of “social” crime prevention programmes.
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CITIZEN’S APPRAISAL OF SECURITY AND CRIMINAL JUSTICE: AN INTERNATIONAL PERSPECTIVE
Ugljesa Zvekic*
I. INTRODUCTION United Nations Survey of Trends in Crime and the Operation of Criminal Justice People tend to appraise security and Systems and INTERPOL), and on the criminal justice on the basis of their own other, a wealth of experience gained experience or by stories told, written or through national victimisation surveys seen on TV. This appraisal is a mixture of carried out in a few industrialised rational and irrational elements, including countries, gave impetus for an attempt to fear for security and moral values as to provide an alternative international what is just and what is not. This paper measurement of crime. discusses people’s reactions to crime, to police, victim support and punishment. In The ICVS started in 1989 by the other words, reactions, expectations and Ministry of Justice of the Netherlands, and values as related to different components subsequently (1991) was further developed of the crime process based on the results of with the involvement of UNICRI. It the International Crime Victim Survey reached its third “sweep’’ in 1996-97. It (ICVS). received major financial support from the Ministries of Justice and Foreign Affairs Several interrelated considerations and of The Netherlands, the UK Home Office experiences prompted the launching of the Research and Statistics Directorate, and International Crime Victim Survey (ICVS). the UNDP for selected countries, as well First, an increased interest in and concern as from local funding as regards the with the victims of crime both at the developing countries and countries in national as well as the international level transition, and on a self-funding basis for (the United Nations (UN) in particular). the majority of the participating Second, increased scepticism about the industrialised countries. reliability of official criminal justice statistics, mainly in terms of their focus on It can be stated without exaggeration criminal justice system concerns, its that this was one of the major empirical operation and offenders. Third, a perennial international comparative projects in the criminological concern with dark figures. area of crime prevention and criminal Fourth, the official criminal justice justice, with particular emphasis on statistics provide quite a restricted victimisation risks and experiences of measure of the functioning of the criminal citizens all over the world. This is evident justice agencies, excluding performance from the number of participating countries appreciation by the citizens, and thus, the with an average sample ranging from 1,000 accountability issue. Fifth, on the one to 2,000 respondents from each hand, difficulties with international participating site, resulting in more than comparisons based on official criminal 130,000 people from all over the world justice statistics (as evidentiated by the being interviewed about their victimisation * Deputy Director, United Nations Interregoinal experience, contacts with law enforcement Crime and Justice Research Institute, UNICRI. and evaluation thereof; patterns and
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Countries Participating in the Three Sweeps of the ICVS: 1989; 1992-94; 1996-97 Industrialised Countries in Transition Developing
Australia Albania Argentina Austria Belarus Bolivia Belgium Bulgaria Botswana Canada Croatia Brazil England & Wales Czech Republic China Finland Estonia Colombia France Federal Republic Costa Rica Germany of Yugoslavia Egypt Italy FYR of Macedonia India Japan Georgia Indonesia Malta Hungary Papua New Guinea The Netherlands Kyrgyzstan Paraguay New Zealand Latvia The Philippines Northern Ireland Lithuania South Africa Norway Mongolia Tanzania Scotland Poland Tunisia Spain Romania Uganda Sweden Russia Zimbabwe Switzerland Slovak Republic USA Slovenia Ukraine methods of crime prevention; and attitudes twice and 19 participating for the first time towards punishment. in 1996-97. It should be noted that the participation of developing countries and The 1989 sweep involved 15 countries in transition increased from 2 in industrialised countries, one developing 1989 through to 20 in 1992-94 to 34 in 1996- country (Indonesia) and one Eastern- 97. It should be also noted that in all Central European country (Poland). The industrialised countries, the ICVS was second round of the ICVS involved: 12 carried out on a national level by using industrialised countries, 13 developing CATI, while in almost all developing countries and 7 countries in transition. The countries and countries in transition it was third sweep of ICVS included: 11 carried out on a sample of population from industrialised countries, 14 developing the largest city through face-to-face countries and 20 countries in transition. interviewing. International comparative All together, 58 countries participated in analysis was thus restricted to urban areas the sweeps of the ICVS, with 7 only. The results of the ICVS are presented participating three times, 22 participating in numerous publications and at various
177 RESOURCE MATERIAL SERIES No. 56 international fora, including the two major III. REPORTING TO THE POLICE international conferences held in Rome in The “police crime story’’ is the amount 1992 and 1998 respectively : and type of crime known to them. It will Understanding Crime: Experiences of differ from the “real crime story” depending Crime and Crime Control, and Surverying on citizens’ propensity to inform the police Crime: A Global Perspective. about crime. To this reported crime, the police can add crimes detected by them but II. CRIME CONCERNS not reported, and they can deduct some Fear of crime is one concern. In this criminal activities which do not figure in study it was measured by two indicators: the “police crime story” because of specific feeling safe after dark and avoiding going investigative, technical, procedural, social out alone. Only data related to feeling safe and political reasons. There are, however, after dark is presented here. The important variations across countries as to respondents were asked how safe they feel the volume and type of crime known to the when walking alone in their area after police and admitted into police dark. administrative records.
The data reveals that street safety is Not surprisingly, the propensity to report perceived to be highest by citizens in Asia, to the police depends heavily on the followed by Western Europe and the New seriousness of the crime, whether tangible World. In Africa a bit less than 60% of the or intangible. However, reporting is also citizens feel safe. Just about half of the influenced by other factors: previous citizens in Latin America feel very and personal experiences of reporting; other fairly safe when walking alone after dark. acquired experience with, or attitudes to The citizens that feel least safe are those the police; expectations; factors related to in countries in transition, where 46% say the particular victimisation experience at they feel safe, while 54% say they feel a bit hand; the existence of alternative ways of unsafe or very unsafe. Among the world dealing with this; the relationship with the regions, the lowest percentage of citizens offender; and the “privacy” of the issue. from countries in transition (13%) say they feel “very safe” in streets after dark. Crime reporting, as mentioned above, differs according to the crime in question.
Table 2 Street Safety in World Regions
Very Fairly A bit Very Do not safe safe unsafe unsafe know Western Europe 28.0 42.2 19.6 9.6 0.6 New world 26.9 40.7 18.5 13.5 0.4 Countries in Transition 13.2 33.3 35.8 17.1 0.6 Asia 25.2 53.5 13.6 7.7 0.0 Africa 24.4 33.9 22.0 19.2 0.4 Latin America 18.9 32.5 26.6 21.7 0.3
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It is evident that car theft is more reported in transition rank third on burglary, fifth than any other crime, while sexual on robbery and fourth on assault. There is incidents, corruption and consumer fraud then a clear difference in reporting levels are, on average, the least reported. between, on the one hand, the However, reporting rates also differ from industrialised world and, on the other, the country to country, as well as depending rest of the world. on the developmental level. It is also claimed that the reporting rates have to Comparing the two data sets do with the crime level in the society (victimisation rates and reporting rates) it irrespective of the above-mentioned factors becomes clear that the highest level of or as a baseline from which other factors correspondence between the victimisation influence the levels of reporting. For and reporting rates for all three crime types illustrative purposes, reporting rates for is found in Asia. From a comparative burglary, robbery and assault based on all perspective, Asia has both the lowest sweeps of the ICVS are presented in Table victimisation as well as the lowest 3. reporting rates. On the other hand, the highest reporting rates of the New World Among the three crimes, the highest do not correspond to the victimisation reporting level is for burglary, followed by levels reported for the New World. robbery. Less than one third of the victims Generally speaking, it appears that the of assault reported it to the police. For all reporting levels do not reflect the three crimes, the highest reporting levels victimisation levels. This seems to support are in the industrialised world, both Old the hypothesis that the victimisation level and New. From among the group of non- is not the most important factor in industrialised countries, burglary is conditioning the reporting practice, and reported the most in countries in transition that it cannot be considered even a solid and in Africa, and the least in Asia; while baseline for predicting propensity to report from among the non-industrialised group to the police. High crime does not less than one third of the victims reported automatically and necessarily lead to high assault and somewhat more than a third disclosures of crime. Other factors appear reported robbery to the police. Therefore, to have more weight on the propensity to in terms of the “reporting ranks”, countries report to the police.
Table 3 Percentage of Burglary, Robbery and Assault Reported to the Police in Six Global Regions, 1989, 1992 and 1996 ICVS (1 year)
Burglary Robbery Assault Western Europe 79.6 45.5 28.5 New World 85.3 75.9 45.3 Countries in Transition 63.2 25.1 20.4 Asia 40.8 33.3 31.0 Africa 57.7 33.5 20.4 Latin America 44.1 20.7 23.6 Total 61.8 39.0 28.2
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Why do people report crimes to the industrialised world than in countries in police? The reasons are divided into: sense transition, the reasons for reporting in of civic duty (“should be reported”; “to stop order to compensate for damage will reflect it”); need for assistance (“to get help”); this discrepancy. “At the individual level, recovery/compensation of damage those without insurance are less likely to (“recovery of property”; “insurance”). report burglaries to the police... At the “Want the offender caught/punished” lies aggregate level, there is always a strong somewhere between means for recovering association between the insurance coverage property and damage, and expectation for and reporting of burglaries to the police’’ the law enforcement agency to effectively (van Dijk, 1994). Indeed, the countries and deal with offenders. regions with low insurance coverage tend to display low reporting rates of burglaries Civic duty related reasons are prominent to the police. across the board independently of crime type and developmental groupings. While “Want the offender caught/punished” as this is true for “should be reported”, a reason for reporting figures prominently reporting crime for preventive purposes “to for all three crimes. However, differences stop it happening again” is of particular in the importance of this particular reason significance for threats/assaults or robbery, between the regions are less pronounced while less so for burglary. This is quite a when it comes to assault and robbery, and rational attitude on the part of the victims more pronounced when it comes to who also consider that reporting violent burglary. Most probably, the level of crimes has more chance of inducing insurance coverage again is at play in a preventive action by the police while sense that for the victims of insured burglary prevention is becoming much households to get the offender caught/ more the citizen’s own prevention activity. punished is of less importance in terms of “To get help” as a reason for reporting is reporting to the police. On the other hand, more frequently mentioned with relation if there is no household insurance, in order to threats/assaults and robbery. to recover property it is also important to find and punish the offender. In addition, Recovery of property and insurance are there is a more punitive orientation in the both mentioned with respect to burglary developing countries and countries in and robbery. It is interesting to note that transition (Zvekic, 1997), which also reporting for the reason of recovering indicates the importance of this reason for property for both crimes is much more reporting crime to the police. present among victims from countries in transition and the developing world than It was noted that, on average, there are from the industrialised world. Inversely, more non-reported crimes - in particular insurance reasons are much more robberies and threats/assaults - in all the important in the industrialised world. regions of the world and especially in There is a very clearly established pattern, countries in transition. according to which high insurance coverage results in high reporting rates in order to That the “police could do nothing” was get the insurance premiums. Where frequently given as a reason for not insurance coverage is low, expectations reporting property crimes - thefts of related to reporting are to “recover” stolen personal property, thefts from cars, etc. property. Since the level of insurance This may signify a belief that the police coverage is much higher in the would be unable to recover property, find
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Table 4 Reasons for Reporting Crime to the Police, 1996
Recover Insurance Should be Want To stop To get Other property reasons reported offender it help reasons caught Burglary Western Europe 32.2 43.2 46.0 31.9 18.2 8.4 11.9 New World 17.4 22.8 51.1 27.2 13.0 8.7 15.2 Countries in 57.5 15.0 37.4 51.4 27.0 12.5 2.5 Transition Asia 82.2 4.4 48.9 64.4 64.4 26.7 - Africa 72.6 13.1 26.8 53.9 20.8 16.7 1.2 Latin America 53.2 26.2 19.5 42.9 34.8 8.6 3.1 Total 52.4 20.8 38.3 45.3 29.7 13.6 6.8
Robbery Western Europe 35.2 13.6 40.9 36.4 21.6 17.0 18.2 New World 23.3 13.3 56.7 46.7 26.7 20.0 16.7 Countries in 43.2 12.4 33.9 54.1 33.6 21.1 7.7 Transition Asia 80.6 2.8 47.2 69.4 41.7 25.0 2.8 Africa 57.6 10.1 36.4 55.6 20.2 17.2 2.0 Latin America 39.0 32.0 23.0 54.0 40.5 17.0 3.0 Total 46.5 14.0 39.7 52.7 30.7 19.6 8.4
Assault/Threat Western Europe 4.5 5.6 35.0 32.2 31.6 22.0 23.7 New World 6.9 6.9 36.2 39.7 39.7 24.1 22.4 Countries in 8.5 12.2 31.8 41.1 44.0 25.6 7.5 Transtion Asia 16.2 10.8 43.2 48.6 73.0 40.5 - Africa 3.5 - 34.1 56.5 45.9 1.6 3.5 Latin America 18.0 42.4 18.7 38.8 44.6 22.3 7.2 Total 9.6 15.6 33.2 42.8 46.5 25.4 12.9
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Not Solved Inappropriate Other My No serious it for the police authorities family insurance enough myself solved it Burglary Western Europe 26.2 21.4 4.8 - 7.1 4.8 New World 30.8 15.4 7.7 - - 7.7 Countries in 27.0 13.3 13.2 6.6 9.0 6.5 Transition Asia 52.4 13.3 14.3 2.9 3.8 2.9 Africa 17.4 12.3 10.7 7.1 5.5 2.4 Latin America 24.0 10.8 2.9 - 5.9 5.3 Total 29.6 14.4 8.9 5.5 6.3 4.9
Robbery Western Europe 35.7 10.7 17.9 1.8 5.4 - New World 5.9 41.2 11.8 11.8 - - Countries in 23.4 12.7 10.3 1.7 6.4 8.0 Transition Asia 30.4 10.1 18.8 4.3 10.1 1.4 Africa 14.7 9.6 10.9 - 1.9 0.6 Latin America 18.1 6.3 5.5 0.5 0.5 2.0 Total 21.4 15.1 12.5 4.0 4.9 3.0
Threat/Assault Western Europe 38.6 13.6 8.0 4.7 2.7 - New World 25.6 17.9 7.7 6.4 2.6 - Countries in 26.2 19.5 14.5 6.3 6.8 6.7 Transition Asia 36.4 33.9 8.3 8.3 17.4 0.8 Africa 22.5 18.1 25.2 2.5 6.0 - Latin America 17.4 30.7 21.8 0.7 4.2 1.6 Total 27.8 22.3 14.3 4.8 6.6 3.0
Police could Police won't Fear/ Didn't Other Don't do nothing do anything dislike of dare reasons know police Burglary Western Europe 16.7 2.4 - 2.4 21.4 8.1 New World - 15.4 - - 38.5 - Countries in 28.4 16.7 5.6 6.8 8.6 9.4 Transition Asia 14.3 5.7 11.5 - 3.8 3.8 Africa 35.2 12.3 2.8 6.3 14.2 4.3 Latin America 21.1 42.1 7.7 2.6 13.7 2.4 Total 23.1 15.8 6.9 4.5 16.7 5.6
Robbery Western Europe 25.0 7.1 5.4 7.1 16.1 2.7 New World 5.9 - 11.8 17.6 23.5 - Countries in 30.9 27.7 13.5 9.9 9.7 6.5 Transition Asia 30.4 17.4 9.1 10.1 4.3 - Africa 46.8 14.7 5.1 12.2 16.7 1.9 Latin America 34.0 53.9 24.4 3.9 3.9 0.9 Total 28.8 24.2 11.6 10.1 12.4 3.0
Threat/Assault Western Europe 15.0 10.9 2.9 7.4 16.5 2.4 New World 6.4 15.4 5.1 5.1 28.2 5.1 Countries in 21.1 18.2 23.1 9.6 7.8 3.8 Transition Asia 31.4 20.7 33.3 20.7 3.3 3.9 Africa 19.9 12.7 2.7 15.2 9.4 1.6 Latin America 14.9 26.1 6.9 9.6 6.2 1.8 Total 18.1 17.3 12.3 11.3 11.9 3.1
182 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS the offender, or do anything else of benefit. other hand, 22%, 26% and 15% of victims It could also signify a fairly realistic of assault/threats from Latin America, judgement about the liability of the police Africa and countries in transition to do much about something on which they mentioned the “inappropriateness’’ of the have little information to act. In essence, case for the police as reasons for non- though, it is an expression of resignation. reporting. In contrast, “the police wouldn’t do anything” may carry a more explicit The resigned attitude towards the police criticism that the police would be reluctant (“police could do nothing’’) is particularly to take action, even though they might be prominent among the victims of all three expected to do so. “Fear/dislike of police” crimes dealt herewith from all but the certainly signifies a negative attitude industrialised world. As will be seen later, towards the police, either of a general this has much to do with the expectations nature, or related in some way to the citizens have about the police, as well as particular offence in hand. As might be with the satisfaction with the police in expected, fear and/or dislike of the police controlling and preventing crime. was often mentioned in relation to violent crimes and sexual incidents. These might The two more implicit criticisms of the involve a close relationship with the police are also more pronounced reasons offender(s), or sometimes even a lifestyle for not reporting the three crimes provided that may lead the police to treat the victims by victims from countries in transition. as accomplices, or people “who deserve This is, however, more related to “police what they got”. That women victims of won’t do anything’’. It should be noted that sexual incidents are often treated the implicit criticism that the police would unsympathetically by the police is also now be reluctant to take action is, on average, well recognised. more highly related to robbery and assault/ threats than to burglary. “Fear/dislike’’ of Table 4 presents reasons for not police is mentioned significantly as a reporting. Crimes are mainly not reported reason for not reporting robbery in Latin because they are not considered “serious America and the New World, as well as for enough”. Since this section deals with the assault/threats in Asia. police, it is worth looking more clearly at police related reasons: “police could do A. Satisfaction with the Police nothing”; “police won’t do anything” and The ICVS also indicates the strength of “fear/dislike of police”. police-community relations in showing:
It should be noted that around 30% of (i) the degree of satisfaction victims feel the victims of burglary from the New World when they report to the police; and and even 52% from Asia thought that the (ii)the reasons why victims were burglary which took place in their dissatisfied with the way the police household was “not serious enough’’. This handle cases once reported. reason, together with “inappropriate for police’’, indicates the characteristics of the Among the reasons for dissatisfaction event itself. As regards robbery, “not with the police once burglary was reported, serious enough’’ is mentioned as a reason the most frequently mentioned were “the for not reporting by 36%, 30% and 23% of police did not do enough” and “were not the victims from Western Europe, Asia and interested”. The first reason was identified countries in transition respectively. On the by more than 40% of the burglary victims
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Table 5 Reasons for Dissatisfaction with the Police (1996)
Did not Were not Did not Did not Gave no Incorrect Slow to Other Do not do interested find recover inform- /Impolite arrive reasons know enough offender goods ation Burglary Western Europe 44.0 34.7 30.7 18.7 28.0 10.7 16.0 14.7 - New World 75.0 25.0 25.0 20.0 25.0 10.0 20.0 20.0 - Countries in 41.5 34.0 46.8 46.4 16.0 12.8 11.2 7.1 1.0 Transition Asia 50.0 20.6 52.9 55.9 14.7 17.6 17.6 2.9 - Africa 51.5 21.8 38.4 44.1 20.5 5.7 18.8 6.1 - Latin America 55.8 41.4 34.5 32.1 26.1 20.9 4.8 3.6 0.8 Total 53.0 29.6 38.1 36.2 21.7 13.0 14.7 9.1 0.9
Robbery Western Europe 50.0 41.2 14.7 20.6 8.8 20.6 11.8 11.8 - New World 40.0 40.0 40.0 6.7 13.3 20.0 13.3 6.7 - Countries in 38.7 41.1 44.3 32.5 18.0 20.1 12.0 11.9 2.2 Transition Asia 46.7 33.3 73.3 73.3 33.3 13.3 33.3 6.7 - Africa 40.0 21.7 40.0 38.3 18.3 11.7 16.7 6.7 1.7 Latin America 56.0 53.6 44.0 26.4 29.6 18.4 9.6 0.8 - Total 45.2 38.5 42.7 33.0 20.2 17.4 16.1 7.4 2.0
Assault/Threat Western Europe 21.1 15.3 9.3 1.0 9.4 5.8 7.8 13.6 - New World 23.4 14.3 10.0 - 14.3 - 10.0 12.2 - Countries in 45.3 42.1 24.2 9.5 13.5 21.7 12.7 9.8 0.6 Transition Asia 31.3 25.0 37.5 12.5 31.3 25.0 18.8 - - Africa 44.7 17.0 34.0 10.6 14.9 17.0 12.8 19.1 - Latin America 50.0 44.9 34.6 6.4 25.6 29.5 11.5 2.6 - Total 36.0 26.4 24.9 8.0 18.2 19.8 12.3 11.5 0.6
184 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS in countries in transition and up to 75% of not recovered. Around 40% of the victims those from the New World. Disinterest on of robbery from Africa, Latin America and the part of the police was mentioned by 41% countries in transition express the same of the victims in Latin America and one view. These two reasons for dissatisfaction third of the victims in countries in are less prominent among the victims of transition and Western Europe. robbery from Western Europe and the New World, although the latter give more A substantial portion (ranging from one importance to the offender being caught third to more than a half) of the victims of rather than to the goods being recovered. burglary from the countries in transition also highlighted that the police “did not find The victims of assault/threats, the offender” or “did not recover goods”. particularly in countries in transition, Indeed, in countries in transition, “want single out that the reasons for offender caught/punished’’ and “recovery of dissatisfaction with the police reaction to property’’ were among the principal reasons reporting crime have to do with the police for reporting burglary to the police. not doing enough and not finding the Therefore, if these expectations are not met offender. In addition, victims complain that by the police, victims who reported the police were incorrect/impolite, which is burglaries express dissatisfaction, more characteristic of the victims’ highlighting unmet expectations. As evaluation of police attitudes in countries mentioned earlier, in this part of the world, in transition. This factor indicates certain where insurance coverage is low, victims features of police culture that lack respect will have a substantial economic stake in for the particular needs and expectations reporting in order to retrieve stolen of the victims of violence. property or receive some compensation from the offender who needs to be identified On the global level, less than half of the and brought to justice.1 respondents are satisfied with the police in controlling crime locally, even though Victims of burglary from the developed those who are satisfied are more than those world are more sensitive to other indicators who are not (Table 6). In the New World, a of police performance, such as providing large majority of the respondents (76%) are appropriate information and speed or satisfied with the police in controlling slowness of the police in arriving at the crime; this is also the case with citizens place of the crime. from Western Europe (54%) and Asia (58%). On the other hand, more than half of the Victims of robbery across the globe tend respondents from Africa (52%), 40% from to emphasise that the police “did not do countries in transition and as many as 70% enough’’ (ranging from 40% in the New from Latin America are not satisfied with World and in countries in transition up to the police job in controlling crime locally. 56% in Latin America) and “were not interested’’ (from a peak of 54% in Latin It should be noted that the lowest levels America to 22% in Africa). More than 70% of citizens’ satisfaction with the police are of the victims of robbery in Asia are exhibited in Latin America and in countries dissatisfied with the police because the in transition. However, it should also be offender was not found and the goods were noted that the largest percentage of “don’t knows’’ is found in countries in transition. 1 For the preliminary analysis related to a restricted This can be explained by the fact that, sample of countries in transition, see Zvekic (1996). during the period in which the 1992 ICVS
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Table 6 Satisfaction with Police in Controlling Crime Locally, by Regions (1996)
Yes, good job No, not a good job Don’t know Western Europe 54.0 25.6 20.4 New World 76.0 15.1 8.9 Countries in Transition 23.2 40.0 36.7 Asia 58.3 30.7 11.0 Africa 41.1 51.7 7.2 Latin America 21.9 69.6 8.5 Total 45.8 38.8 16.8 was carried out, and - in some countries - in the near future also contributes to also during the period when the 1996 ICVS dissatisfaction with the police in controlling was administered, the police were crime locally, and supports the view that undergoing changes as to their mandates more frequent patrolling might be both a and organisation. deterrent, as well as effective in “stopping crime’’, finding the offender and recovering Other factors related to police the stolen property. performance also have a lot to do with citizens’ satisfaction. There is a moderate B. Victim Assistance positive correlation between satisfaction Victims of crime who had reported these with the police in controlling crime locally crimes to the police were asked whether and the frequency in local patrolling they received support from a specialised (0.349), although it is higher in both the victim support scheme. Furthermore, they developing world (0.382) and countries in were asked whether a specialised victim transition (0.376) than in the industrialised support agency would have been useful. world (0.165). In all likelihood, respondents in those parts of the world As expected, on average, only a few attach more importance to the presence of victims obtained any assistance, which was police locally in eveluating their given mainly to victims of sexual offences performance in controlling crime locally. It and robbery in the New World and Western might be the case that the citizens of the Europe. In the developed world, victims developing world and countries in also expressed greater appreciation for the transition consider that frequent police establishment of specialised victim support patrolling would deter crime and meet a agencies. Such support is more evident in number of their expectations, such as Latin America than in countries in finding and arresting offenders, recovering transition and the rest of the developing stolen goods and arriving speedily at the world. place of the crime. C. Punishment Orientation In addition, the citizens in countries in Punishment is at the end of the criminal transition (to a larger extent than citizens justice system. It can be seen as indicating from the industrialised world) are societal reactions to crime; whether these concerned that a burglary will occur within are those of the state or people’s notions of the next year. Therefore, fear of burglary when, how and who should be punished.
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Yet, the range of sanctioning options in a Indeed, as noted, the recovery of stolen given society is usually limited to a few that goods is one driving factor in the evaluation are selected by the legislator and a few of the police performance in less affluent which may fall outside the official economies. Nonetheless, certain patterns sanctioning range (e.g. various forms of in punishment orientation emerged, in moral condemnation, or other forms of particular regarding differences between punishment which are neither recognised the more and less affluent societies. nor approved by the official penal code). Some of these alternatives may be harsher On a regional level, more than half of and some milder than those applied by the the respondents in the New World and state-centred criminal justice system. Latin America, and almost three-quarters in Asia and Africa, opted for imprisonment. The ICVS asked respondents about On the other hand, some 40% of the sanctioning options, which are usually respondents from countries in transition present in most criminal justice systems.2 and somewhat less than a third from However, some options were not available Western Europe favoured imprisonment. in all the countries, and some that were available were not offered for comment. Following imprisonment, the next most Another major limitation in measuring preferred sentencing option was people’s attitudes towards punishment community service, which was favoured by stemmed from the hypothetical burglary almost one third of the respondents. In scenario use. It contained sufficient Western Europe, community service was elements to help form a lay opinion, but the preferred sentence by almost half of the lacked the most important details to respondents, followed by approximately provide for informed professional opinion.3 one third each in Latin America and in Yet, it was felt that for the public at large, countries in transition. Only 10% of the the particular details that may mitigate or respondents from Asia and Africa opted for aggravate the offender’s position were some sort of community service. unnecessary. There were, however, problems of interpretation linked with the Regional variations regarding a fine as target of theft: namely, a colour TV set, the a favoured sentencing option for a young value of which varies across countries. recidivist burglar are not pronounced and average 9% of the respondents. A 2 The question was as follows: "People have different suspended sentence is thought to be the ideas about the sentences which should be given to most approprate sentence by 5% of the offenders. Take for instance the case of a man 21 respondents; ranging however from 2% in years old who is found guilty of a burglary for the Asia and Africa respectively, to 7% in the second time. This time he stole a colour TV. Which countries in transition and Western of the following sentences do you consider the most Europe. appropriate for such a case: fine, prison, community service, suspended sentence or any other sentence". Both the 1992 ICVS (Kuhn, 1993) and If the interviewee opted for imprisonment, he/she 1996 ICVS (Zvekic, 1997) support Kuhn’s was asked to specify the length. finding that those who had been victimised 3 There are serious doubts as to whether a were no more in favour of a prison sentence professional judge would be able to state what than others, both at the global and regional would be the most appropriate punishment based level. There is no significant difference in on the elements provided by the ICVS preferences for sentencing options between questionnaire. victims and non-victims of any crime. A
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Figure 1
Attitudes to Punishment, Imprisonment as Preferred Sanction, by Regions
80.0 70.0 60.0 50.0 40.0 30.0 20.0 10.0 0.0 Western New Countries in Asia Africa Latin Total Europe World Transition America group of special interest as regards the and the predominant actual use of non- punishment of the burglar is that of those custodial sanctions and imprisonment, on who had been burgled themselves. the other. This seems to indicate at least However, there is no substantial difference two things: first, a degree of independence between the victims and non-victims of in types of sentencing from the geo-political burglary, with the exception of burglary and development position; second, that victims from the New World who appear public attitudes do reflect, to a certain to be stronger supporters of imprisonment degree, the actual availability of sentencing than non-burglary victims, still within the options and their use in practice.4 In other prevaling prison-centric orientation in that words, public attitudes are influenced by part of the world. Further analyses carried penal systems and penal practice, although out on victims and non-victims of contact neither exclusively nor in a clearly pre- crimes and vehicle-related crimes also deterministic manner (Zvekic, 1997b). confirmed the above-mentioned finding. In many countries much work is still The demand for severe punishment, needed to promote credible non-custodial then, is stronger in the more crime-ridden sanctions and in particular, to overcome nations or in those in which there is a lack difficulties in implementation following of alternative solutions, including adequate conviction. In fact, public attitudes often insurance coverage. There, ideas about lag behind sentencing reform and time is preventive approaches to sentencing may needed to convey the message that appear less appropriate. Deterrent punishment is implemented seriously, in sentencing, regardless of whether or not it order to ensure public acceptance. Support is effective, may have more appeal. 4 H. Shinkai and U. Zvekic. “Punishment’’ in G. There is a certain level of correspondence Newman (Ed.) Global Report on Crime and Justice. in the regional patterns based on public New York-Oxford, UN & Oxford University Press. attitudes to punishment, on the one hand, 1999.
188 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS for imprisonment is often formed by Zvekic, U. (1997b). ‘International trends vicarious information, traditional belief in non-custodial sanctions’. In, Villé, R, systems and socio-legal heritage. Fear of Zvekic, U. and Klaus, J., Promoting crime also appears to support harsher Probation Internationally. Rome: UNICRI. sentencing. All of this is not an irrational response to urgent crime problems. Where Shinkai, H. and Zvekic. U. (1999) the replacement of stolen property is “Punishment’’ in G. Newman (Ed.) Global relatively easy, either through insurance Report on Crime and Justice. New York- coverage or through the ability to buy new Oxford, UN & Oxford University Press. commodities, severe punishment is not the obvious cure. However, where - as is the case in the majority of countries in transition and in the developing world - hardship precludes replacing stolen property, calls for more severe punishment, bringing offenders to justice and the recovery of stolen goods are rational responses to crime problems.
REFERENCES Kuhn, A. (1993). ‘Attitudes towards punishment’. In, Alvazzi del Frate, A., Zvekic, U. and van Dijk, J.J.M. (Eds.), Understanding Crime: Experiences of Crime and Crime Control. Rome: UNICRI.
Van Dijk, J.J.M. (1994). ‘Who is afraid of the crime victim: criminal victimisation, fear of crime and opinions on crime in an international perspective’. Paper presented at the World Society of Victimology Symposium. Adelaide, Australia, 21-26 August 1994.
Zekic, U. (1996). ‘Policing and attitudes towards police in countries in transition’. In, Pagon, M. (Ed.), Policing in Central and Eastern Europe, Proceedings of the International Conference. Ljubljana, Slovenia, 14-16 November 1996.
Zvekic, U. (1997). ‘Les attitudes des victimes envers la police et la punitivité: résultats des sondages internationaux de victimisation’. Revue internationale de criminologie et de police technique, Vol. I, Janvier-Mars.
189 RESOURCE MATERIAL SERIES No. 56
INCLUDING VICTIMS IN THE AMERICAN CRIMINAL JUSTICE PROCESS
Heather L. Cartwright*
I. INTRODUCTION: WHY DO WE in making the criminal justice process more NEED VICTIMS’ RIGHTS LAWS? responsive to victims of crime, we in the United States still think we have some “I will never forget being raped, ways to go to become a system that treats kidnapped, and robbed at gunpoint. all participants in the process fairly. However, my sense of disillusionment of the judicial system is many times The United States has a very serious more painful. I could not in good faith crime problem. Millions of citizens become urge anyone to participate in this victims of crime every year. We are still hellish process.” learning what long term impacts crime victimization has on individuals and A victim (as quoted in the President’s communities. Crime victimization can Task Force Report at p. 5 (1982)). negatively affect a victims’ views of their government and community, their sense “To be a victim at the hands of the of safety, and mental health. Indeed, with criminal is an unforgettable some types of victimization, especially nightmare. But to then become a crimes against children, there is some link victim at the hands of the criminal between those who have been victims and justice system is an unforgivable those who become victimizers. For the travesty. It makes the criminal and health and safety of our communities the criminal justice system partners therefore, it is important to treat crime in crime.” victims in a manner that will promote healing and recovery from the experience. Robert Grayson (as quoted in the President’s Task Force Report at p. 9 For the health and future of our criminal (1982)). justice system it is also important to treat victims well. Victims who survive their Dire descriptions of the American experience, and are brave enough to report criminal justice system such as these and the crime, turn to their government others were heard at public hearings expecting it to do what a good government conducted by the Presidential Task Force should do, protect the innocent. The on Victims of Crime in 1982. The hearings American criminal justice system is and subsequent report issued by the Task absolutely dependent on crime victims’ Force motivated a dramatic change in the cooperation. Without the cooperation of way the criminal justice system in the victims and witnesses in reporting and United States treats victims of crime at the testifying about crime it is impossible in a Federal and local level. Although we have free society to hold criminals accountable. made some progress in the past 17 years When victims come forward in our country * Attorney Adviser for Director, Office of Victims of to perform this vital service, however, they Crime, Office of Justice Programs, Department of often find little assistance and protection. Justice, United States of America. There is a sense experienced by many
190 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS victims that the system is out of balance, The one thing victims want more than that there are many rights and protections any other, however, we have no power to for offenders, but none for victims. To give. Ultimately, victims want the crime continue to encourage victim participation not to have happened. Because this is in the system, and to make that impossible for the criminal justice system participation as helpful as possible both to to provide, many victims are going to be the victim and the system, it is vital that disappointed at the end of the process. If certain essential victims rights are the process has been fair, however, most incorporated into the process. victims will eventually be satisfied with the system, even if the result is not what they Finally, providing basic victims rights is wanted. the right thing to do. Our justice system must be fair to all involved to really III. VICTIMS’ RIGHTS IN THE dispense justice. If victims walk away from AMERICAN SYSTEM the experience feeling that they were not As you may already know, we have two respected, listened to, consulted, or major justice systems in our country: the protected, the system really has failed them states and the Federal government. Each in a significant way. Regardless of what state has its own system, with its own moral code we as individuals adhere to, the constitution, laws, and governmental way our systems treat crime victims, some structure. States have jurisdiction over all of the most wronged members of our crimes occurring in that state. The Federal societies, is a true measure of the morality system encompasses only certain limited of our societies. crimes, usually those having an impact beyond a single state. In our country, the II. WHAT DO VICTIMS WANT? states have really been the leaders in the Of course, as with all people, victims area of victims’ rights, although those want to be treated with dignity and respect. rights vary from state to state. The Federal This is difficult to legislate, but should be system’s first victims’ rights statute was used as a guiding principle. In terms of passed in 1982, in the aftermath of the actual, enforceable rights, victims President’s Task Force on Victims of Crime. generally report that they want to be Since that time, several additional laws informed and participate. Being informed have been passed that have expanded and usually encompasses getting notice of what strengthened the Federal crime victims’ is happening in the case and having some rights. Even today, we have new legislation ability to observe proceedings. pending in our Congress to further expand Participation centers around having the the rights of Federal crime victims. In victims’ side of the story heard and addition, for several years our Congress has validated, especially the extent of the harm been debating adding a provision for caused by the crime. Another very victims rights to our Federal constitution. important need for victims, and indeed the That constitutional amendment is most urgent one I encountered as a public supported by the President and the prosecutor, is the need to feel safe as the Attorney General. victim participates in the criminal justice process. Victims more than anyone know how destructive the offender can be and are understandably concerned about their safety as they participate in the process.
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IV. TYPES OF VICTIMS RIGHTS considered a victim for purposes of LAWS receiving victims’ rights. A. Definition of Victim One final important issue that any Interestingly enough, one of the most drafter of victims’ rights provisions needs contentious issues when establishing to consider is the line to draw between victims’ rights laws is deciding who should direct and indirect victims. There must be qualify as a victim. Some suggest that the some point at which a person’s injury from rights, or at least stronger or more a crime is too attenuated to entitle them to comprehensive rights, should be limited to victims’ right. Certainly, most people who violent crime victims. This policy excludes are physically injured should be considered victims of economic and property crimes victims. In addition, some people who like fraud. Some of the states limit victims’ suffer emotional harm and trauma should rights to situations involving physical be included, but it is more difficult to draw injury to the victim, however, the Federal a line when you talk about emotional harm. stature includes victims of all crimes. It Take the example of a bank robbery crime. should be noted that some economic crimes have devastating impacts on their victims, Typically, the bank, which suffers the especially if the victim is particularly financial harm, is considered the primary vulnerable like an elderly person. victim. The question presented is whether the tellers, bank employees, and customers In the case of a homicide, incapacitated present in the bank at the time of the or child victim, most statutes allow for a robbery are also “direct” victims of the family member such as a spouse or parent crime. The answer to this question will to be considered the victim. It is important depend to a great extent on the facts of each to make sure that anyone who is culpable specific case. If, for example, a robber for the crime is not designated the victim points a gun at a teller as part of the under this provision. robbery and, as a result, the teller suffers psychological trauma (and may be a trial This raises another difficult issue, witness), the harm is a direct result of the whether someone who is culpable in some crime and the teller probably should be way for the crime being investigated or treated as a victim, even though s/he may prosecuted, or some other crime, is entitled not have suffered any physical injury (the to receive victims’ rights. Although our teller is actually the direct victim of an Federal statutory definition of victim is armed assault which may not be separately silent about this question, as a policy charged). matter our Federal Justice Department has decided that those individuals who are In comparison, a bank employee who culpable in the crime being investigated or was in another room and only heard people prosecuted will not be treated as victims. talking about the robbery may also suffer This means that victims who may be some trauma, but is much more indirectly culpable for some other crime are treated harmed and usually should not be as victims. Examples of such persons are: considered a victim for purposes of victims’ illegal aliens who are involuntary servitude rights and services. In between those two victims, inmates who are victimized in examples are a variety of different factual prison, and victims of witness intimidation. situations requiring law enforcement This policy prevents someone who is an personnel to use their judgement and draw injured participant in the crime from being lines just as they do in other contexts.
192 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
There may be cases that involve out to victims containing some of the same hundreds or even thousands of direct information. Our Federal prosecutors have victims. For example, in a terrorist a book called the “Victim Witness bombing or a mass violence shooting, there Handbook” which contains information may be a large number of persons who are about the stages of the criminal justice killed, injured, or suffer extreme emotional process. harm such that they would be considered direct victims. Indeed, in a terrorist The other type of notice, notice of events incident, the terrorist targets a large and proceedings in the criminal justice number of people with the intent of process, is one of the most time consuming inducing fear and other emotional harm. and expensive of the victims rights for Just because there is a large number of government to provide. Keeping victims victims does not mean that victim services informed throughout the criminal justice should not be provided. It just means that process, however, is a very important right you have to be more creative about how to because it is a recognition that victims are provide them. more than mere pieces of evidence in the government’s case; that they as individuals B. Right to Notice have a real interest in the progress of the Perhaps the most fundamental right of criminal case and the current status of the a crime victim is the right to be kept offender. There are dozens of events or informed by the criminal justice system. proceedings in the ordinary criminal justice The other rights and services that may be process for which notice may be required available to a crime victim are meaningless by our state and Federal statutes. The unless the victim knows they exist. For types of proceedings and events that are example, a victim’s right to attend most frequently included are: scheduled proceedings or to be heard at proceedings court proceedings and any cancelled or can have no effect unless the victim is rescheduled dates, dismissal or dropping notified in advance of those proceedings. of case, plea bargains, appeals, release from The right to be notified can be divided into prison (including conditional releases), and two classifications: the right to general parole hearings. In the Federal system we information which is of interest to all crime provide victims with notice of the status of victims, and the right to be kept informed the investigation, the arrest of the offender, about proceedings and events relating to the filing of charges, the scheduling of the offense against that particular victim. public court proceedings, the release or detention status of the offender, the Our state criminal justice systems often acceptance of a plea of guilty or the trial provide much general information of verdict, the sentence, any scheduled parole interest to all victims. Such general hearing, any release of the offender information includes: notice of the (including escape, work release, and availability of crime victim compensation furlough), and the death of the offender if money; referrals to victim services such as s/he dies while in custody. rape crisis centers, homicide survivor groups, and general victim service The procedures that the state and agencies; information about the steps Federal governments use to notify victims involved in a criminal prosecution; and vary widely. In the Federal Justice notification about victims’ rights. In the Department, we encourage personal Federal system, many of our investigative contact with and notice to victims if agencies have brochures which they hand possible. Many notifications are
193 RESOURCE MATERIAL SERIES No. 56 accomplished through phone calls and every instance, and so in almost every letters. With some notices, such as a instance a substantial effort to identify and notification that an offender has escaped personally contact victims of violent crime from prison, immediate notification by will be warranted, regardless of the telephone can be a matter of life or death. number of victims involved. Indeed, law Increasingly, states are using technology enforcement field offices should consider to assist with victim notification. With assessing the possibility of a large scale automated notification systems, victims’ violent crime occurring within their names and addresses are entered into a jurisdictions, identifying the resources computer that can automatically issue currently available to provide victim notification letters when some particular assistance (government resources and event occurs. These systems also have the private resources such as the Red Cross) capability to call a victim in an emergency, and those resources needed but not such as when an offender escapes from available, and developing contingency prison. The Federal system is presently plans for contacting and providing considering adopting such a system. assistance to mass crime victims should the need arise. Notification presents a particular challenge in cases with large numbers of As another example, victims of financial victims. Some cases may involve crimes such as telemarketing fraud often thousands of victims. Our Federal Justice suffer significant (to them) harm and have Department’s policy provides that in cases a high degree of need for notice and referral with large numbers of victims, Department services. Names and addresses of victims employees should use the practical means of financial crimes can often be obtained best calculated to achieve actual contact from offenders’ records, and even in with and notice to victims. A variety of situations where thousands of victims exist techniques are available to enable law it may be appropriate to send individual enforcement personnel to provide adequate victims an initial notification letter notice and assistance to victims in larger informing them of the nature of the offense cases. The determination of what efforts and assessing their interest in receiving are sufficient and what types of notice and future notice and consultation services. assistance are appropriate depends largely Under one Federal law, defendants who on the anticipated needs of the crime have been convicted of offenses involving victims. In addition, law enforcement fraud may be ordered by the court to spend personnel need to carefully evaluate the up to $20,000 to provide notice to victims type of information relayed and the method explaining the conviction (18 U.S.C. §3555). of communicating the information to see Offices that frequently deal with cases that notification efforts do not compromise involving large numbers of identifiable investigations or inadvertently invade fraud victims may wish to develop the victims’ privacy. ability to conduct mass mailings in-house, while offices that do not should locate Identifying the nature of the harm private companies who can handle suffered by crime victims is essential to sensitive government information and who determining the appropriate method of can assist with the provision of such effectuating notice and providing services when needed. assistance. Victims of violent crimes, for example, may have a high level of need for In other cases involving large numbers a wide range of victim services in almost of victims, circumstances may require other
194 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS methods to provide notice and assistance membership a significant number of to the victims. When a crime results in a victims of a particular violation may have large number of victims who are likely have newsletters or other methods of informing suffered significant harm and cannot be their members that can be used to provide readily identified, but who reside in a information about the ongoing progress of limited geographic area, a well-publicized a case. Some victims themselves may be town meeting may be an effective way to willing to assist with preparing and identify victims, provide victims with notice disseminating a newsletter or participating and pertinent information, and consult in a phone tree. with victims concerning the crime and the government’s investigation. Still other C. Right to Attend the Trial cases may present a situation where a very The ability of victims to attend trial large number of victims (spread out over a proceedings is one of the most significant large geographic area) have likely suffered in the eyes of victims, and one that is very only minor (to them) financial losses. important to ensuring victim satisfaction Under theses circumstances, the use of with the system. In the American judicial representative victims, victim proxies (such system, however, this is a very troublesome as organizations that represent the right if the victim will also be a trial interests of the victim class or actual class- witness. Under most rules of evidence, action representatives) or even the general there is a rule commonly referred to as the media may be the most efficient method to “rule on witnesses”. The rule provides that provide victims with notice and witnesses should be excluded from the information concerning the crime. courtroom during trial proceedings except when they are testifying. The rule is Other techniques, beyond those designed to prevent witnesses from hearing mentioned above, also exist that can, in other evidence in the case and then certain situations, assist law enforcement intentionally or unintentionally changing personnel to provide large numbers of their testimony to conform with the other victims with information concerning the evidence. Defendants are exempt from this ongoing status of an investigation, rule. prosecution, or detention. For example, toll-free telephone numbers can be The states and the Federal government established that not only permit victims to have taken a variety of approaches to try call in and get recorded information to harmonize the rule on witnesses with the concerning the status of a matter, but that victims’ right to attend trial. Some states actually call the victims to alert them to a mandate the exclusion of all witnesses from change in status. With individuals’ all proceedings. On the other extreme, increasing ability to access the Internet, some states specifically exempt victims web sites can be created that contain from the rule on witnesses in much the information concerning the progress of same way that the defendant is exempt. investigations and prosecutions (keeping in Some states take a middle route, for mind, of course, that any information that example, allowing the victim to sit in on is not for public dissemination should not the trial after the victim has testified. be posted on the Internet. Items that would Overall, the majority of states that give normally be appropriate for a press release, victims the right to attend the trial also such as dates for public court proceedings, give the judge discretion to exclude the are appropriate for the Internet.) Also, victim, either as a witness or to preserve private groups that have within their the defendant’s right to a fair trial
195 RESOURCE MATERIAL SERIES No. 56 generally. The defendant’s right to a fair D. Right to be Heard trial is guaranteed by the US Constitution, The primary proactive way victims can the highest law of the United States, while participate in the criminal justice process the victims’ right to attend is a matter of is by speaking or submitting a written subordinate state law. In the Federal statement to the court. The most courts, victims have a “qualified” right to important proceeding for this participation attend that is, they have the right to be is at the sentencing hearing. Generally, present at all public court proceedings all states recognize that victim input has a related to the offense, unless the court proper place in the sentencing process. Our determines that testimony by the victim United States Supreme Court, the highest would be materially affected if the victim court in the land, has stated: heard other testimony at trial. In 1996, new legislation gave Federal victims an “It is an affront to the civilized additional attendance right. Federal law members of the human race to say now provides that a Federal judge can not that at sentencing ... a parade of exclude any victim from trial if the victims’ witnesses may praise the background, only role as a witness is testifying at the character and good deeds of the sentencing hearing. Interestingly enough, Defendant ... without limitation as to this statute was passed specifically to relevancy, but nothing may be said address the attendance issue in a high that bears upon the character of, or profile case, the Oklahoma City bombing the harm imposed, upon the victims.” trial. In that case the victims hired their own attorney and lobbied Congress for Payne v. Tennessee, 111 S. Ct. 2597, 2609, permission to attend the trial, even though quoting Payne v. Tennessee, 791 S. W. 2d 10, 19 some of them planned to be sentencing (Tn. 1990) witnesses. As of 1995, every state allows victim The Oklahoma City bombing trial also impact evidence at sentencing, either was the first to use a closed circuit through input into the presentence report television link to broadcast the trial to an or through presentation of a written or oral auditorium so that any victims who wanted statement at the sentencing hearing in fact, to could watch proceedings. That case most states allow both forms. The majority involved over 2,000 victims and there of those states also require the court to wasn’t enough room in the courtroom for consider the victim’s statement in making all the victims to observe the trial. In the sentencing determination. Federal addition, the trial venue was moved from statutes require probation officers to Oklahoma City to Denver, Colorado, some prepare presentence investigation reports distance away. Many of the victims could which include a section on the impact of not afford, nor did they want to, travel to the crime on the victims. attend the trial in Denver. So the judge authorized a closed circuit television link In a few states, allowing a victim to between the courtroom in Denver and an testify at sentencing rests solely with the auditorium in Oklahoma City. The discretion of the trial judge, while in the auditorium was treated like a courtroom vast majority of states, victim participation and was presided over by a retired through oral impact statements is a matter magistrate. Grief counselors were of right. Many states specifically delineate available at the site. By all accounts this the information to be included. Typically, procedure was highly successful. states allow evidence of the physical,
196 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS mental/emotional, social and economic pretrial diversion or entry into a plea harm caused to the victim and/or the agreement, giving the victim an victim’s family. They may also allow the opportunity to offer his or her views and inclusion of the victim’s of family’s views concerns assists the prosecutor in concerning both the offense and/or offender, formulating an appropriate disposition. in addition to their opinions regarding the appropriate punishment. The definition of the term “consultation” anticipates an interactive dialogue between In general, victim impact statements two parties. Its usage by the Task Force may be given by the victim, homicide reflects an intention that victims be survivors, or the parent or guardian of a provided with more than just information minor victim. Children can submit victim concerning developments in their cases; it impact statements in a format that is age instead encourages prosecutors to actively and developmental level appropriate. solicit and consider victims’ input before Some courts have developed forms for taking dispositive action. Many, but not children to fill out with places for children all states, have attempted to address this to draw pictures and circle smiley faces or issue by adopting statutory provisions sad faces. mandating meaningful interaction through consultation in accordance with this Other stages where states provide for broader Task Force objective. For example, victim impact include the parole release several states have adopted laws requiring decision, pretrial release decisions, and the prosecutor to obtain the views of the plea bargain acceptance proceedings. Most victim before a disposition is final and even states allow victims to present a written go so far as to require the prosecutor to or oral statement to the parole board for certify to the court that he or she has consideration at the parole hearing. A few complied with the consultation mandate. states specifically authorize the use of However, almost as many states have audio or videotaped statements at the chosen to limit the prosecutor’s parole hearing. Victims’ rights to responsibilities to informing, notifying, or participate at the other stages are much advising a victim of the action to be taken. more limited. One of the more It should be noted, however, that in no state controversial proceedings is the plea has the right to confer been equated to the bargain acceptance proceeding. It is right to direct the prosecution of the case important to note, moreover, that victims’ or veto prosecutorial decisions. rights laws only afford victims a voice at such proceedings, not a veto. In the Federal system, Federal prosecutors are to use their “best efforts” E. Right to Confer with the to see that victims are accorded their right Prosecutor to confer with an attorney for the In 1982, the President’s Task Force on government. New Justice Department Victims of Crime recommended that policy, which will go into effect this prosecutors consult with the victim during summer, requires Federal prosecutors to the various stages of the prosecution as one use reasonable efforts to notify victims of of the objectives included in its proposed and consider their views about proposed guidelines for fair treatment of crime plea bargains. In deciding what is victims and witnesses. Whether it involves reasonable, prosecutors can look at a series the reduction of charges to a lesser offense, of factors including whether the plea dismissal of the case, consideration of bargain contains confidential provisions
197 RESOURCE MATERIAL SERIES No. 56 such as a cooperation agreement, the proceedings in which a child participates, number of victims, public safety, and and make recommendations to the court whether the victim may be a witness in the concerning the welfare of the child. case if the plea bargain falls through. Most states have multidisciplinary child Hopefully, these guidelines will abuse teams. These teams are professional encourage prosecutors to consult with units composed of representatives from victims in more cases, while preserving the heath, social service, law enforcement, and discretion to withhold that information for legal service agencies to coordinate the a legitimate law enforcement reason. assistance needed to handle cases of child abuse. The purpose of multidisciplinary F. Child Victims and Witnesses teams is to maintain the credibility and Unfortunately, children are direct reliability of the child’s testimony, as well victims of a variety of crimes including as to monitor the child’s safety and well- physical abuse, sexual abuse, exploitation being throughout the case. The goals of and pornography. Additionally, children the multidisciplinary team are: witness a broad range of crimes including violent crimes. Too often in the past our (1) to minimize the number of criminal justice system has not paid interviews to which the child is sufficient attention to the needs and subjected, to reduce the risk of welfare of child victims and witnesses, suggestibility in the interviewing causing serious consequences. Contact process; with the system aggravated the trauma (2) to provide needed services to the that the child had already experienced, child; and making it more difficult for the child to (3) to monitor the child’s safety and well- participate in the investigation and being. prosecution of the case and ultimately, making it more difficult to prosecute the In some situations, the trauma of case. Basic victims’ rights laws apply participating in the trial process can be so equally to child victims. In addition, many great that the child is unable to testify or states and the Federal government have there is a substantial likelihood that the enacted laws to specifically address the child would suffer emotional harm from issues raised by children’s participation in testifying in open court. Technology can the criminal justice process. come to the rescue in such a situation. In Federal courts, there are two alternatives Children receive enhanced protection in to live, in-court testimony that can be used some states and the Federal system. For when a child is unable to testify because of example, in many jurisdictions, the name fear or emotional trauma. In some and identifying information about a child situations, a child can testify by 2-way victim is confidential and is not to be closed circuit television. The attorney for disclosed, except in limited situations. All the government and the attorney for the court papers identifying a child victim must defendant are present with the child in a be filed under seal. It is a crime of room outside the courtroom. The child’s misdemeanor contempt to violate this rule. testimony is transmitted into the In some jurisdictions the court may appoint courtroom for viewing by the defendant, a guardian ad litem for a child victim or jury, judge and public. The defendant is witness. A guardian ad litem may attend provided with the means to/of all the depositions, hearings, and trial communication with their attorney and the
198 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS television transmits the defendant’s image provide assistance to victims can seek into the room where the child is testifying. restitution as well. Definitions for Another alternative to live, in-court compensable losses under state restitution testimony is a videotaped deposition of the laws have also expanded to include child. A judge presides at the deposition psychological treatment, sexual assault and rules on all questions of law just like exams, HIV testing, occupational/ at trial. The defendant is permitted to be rehabilitative therapy, lost profits, moving present unless the court finds that the child and meal expenses, case-related travel is unable to testify with the defendant there expenses, and burial expenses. and orders that the defendant be excluded. The tape can then be played at trial. Most states are making restitution mandatory as part of a criminal sentence. G. Restitution Aside from the direct benefits to crime In 1982, the President’s Task Force on victims and society that come from Victims of Crime called for mandatory restoring the victims’ financial losses, there restitution in all criminal cases, unless the is a growing recognition that holding presiding judge could offer compelling offenders directly accountable to their reasons to the contrary. As the Task Force victims as part of a sentence has a noted, “the concept of personal rehabilitative effect on the offenders accountability for the consequences of one’s themselves. In a recent revision to its conduct, and the allied notion that the restitution laws, the California Legislature person who causes the damage should bear noted that “Restitution is recognized to have the cost, is at the heart of civil law. It should a rehabilitative effect on criminals ... [and] be no less true in criminal law.” Studies restitution is recognized as a deterrent to indicate that restitution is one of the most future criminality.” The Federal system significant factors influencing victims’ now has mandatory restitution for most satisfaction with the criminal justice Federal crimes. process. Although restitution has always been available via statute or common law, Although the law has been in effect since it remains one of the most underutilized 1996, it has been a challenge to get Federal means of providing crime victims with a prosecutors and judges to comply with it. measurable degree of justice. In fact, a recent report by the US General Accounting Office found that less Restitution laws have been broadened restitution was being ordered in Federal in recent years and made more mandatory. courts after the Mandatory Victim Historically, only those persons who have Restitution Act than before the Act. The suffered physical injury or financial loss as reason for this situation is not clear but a direct result of a crime have been eligible presents us with a challenge for the future. to receive restitution from the perpetrator for their out of pocket expenses. But as H. Right to Protection from the restitution statutes have evolved, Offender definitions of who qualifies and the kind of In recent years, reports from the media losses covered have broadened and law enforcement officials suggest that considerably. Today, not only do victims intimidation of victims and witnesses is on themselves qualify for restitution, but, in the rise. In addition, the proliferation of some states, family members, victims’ youth gangs appears to directly correlate estates, private entities, victim service to a dramatic rise in acts of intimidation, as well agencies, and private organizations who as acts of violence, against those victims and
199 RESOURCE MATERIAL SERIES No. 56 witnesses who testify against fellow gang however, it is also considered to be one of members. Prosecutors and victim the most effective. Relocation programs advocates have recognized the relationship generally fall into three categories: long between measures to enhance a victims’ term, short term, and emergency. Probably feelings of security and greater willingness the most secure program that exists is the of crime victims to cooperate with criminal Federal Marshal’s Service’s Witness justice officials and criminal prosecutions. Security Program. The Program has very Measures to protect crime victims take strict entrance requirements and entails a varying forms. Many states grant victims complete change in the participant’s a right to protection from the offender, or identity. Many victims and witnesses are they provide information regarding the unwilling to enter this program because it protective measures available. Other may mean that they can never contact approaches include amendment of bail family members again. Other permanent provisions, providing separate or secure measures include relocating a victim’s waiting areas in court, and various residence. If the victim lives in public measures to protect victims through the housing, the government can request that discovery process. Recent bail provisions the public housing authority transfer the now include danger to a victim or to the victim to another location far away from community as a reason to deny release the victim’s present home. If the victim pending trial. In addition, prosecutors does not then return to the original abode, have historically requested high bail as a some measure of safety is achieved. Short means of keeping intimidators behind bars. term relocation procedures include placing a victim in a hotel, motel, or with out of In addition to these legislative measures, town family or friends for the duration of many law enforcement and prosecution the investigation or trial (or perhaps even agencies have developed comprehensive longer). Emergency relocation usually witness security programs. These involves an immediate placement of a programs evaluate threats and take actions victim or witness into a safe house or hotel to improve the security of the victim or until more permanent location is secured. witness. It should be noted that the The relocation program should be tailored government can not guarantee anyone’s to the individual and the nature of the complete safety. The government can, threat. It is very important that the victim however, take steps designed to reduce the understand that once relocated, he or she risk of intimidation and harassment. Some can not return to the area where the threat of these steps include relocating an exists. intimidated witness, preventing intimidation in courtrooms and jails, and Gang members and associates of reducing community-wide intimidation, In defendants often appear in court to frighten addition, there are many steps that victims witnesses into not testifying. Because the and witnesses can take themselves to threat may be very subtle and because enhance their security, such as getting an judges often feel that the constitutional unlisted phone number. Government requirement of a public trial prevents them personnel can assist victims and witnesses from removing such individuals from the with identifying actions that will help. courtroom, it is often difficult to stop this kind of intimidation. Nevertheless, a Relocating intimidated victims and number of judges have taken steps to witnesses is one of the more extreme remove gang members from the courtroom, measures that the government can take, to segregate gang members and other
200 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS intimidating spectators, or to close the (2) check on case file documentation; courtroom entirely to spectators. (3) evaluate the level of services provided; Incarcerated witnesses who are targets (4) resolve any outstanding victim for intimidation in gang, drug-related cases complaints; require special protection, including (5) gather any available statistics from separation from the defendant within the any tracking or reporting systems in same correctional facility or transfer to a place; and nearby correctional facility, and separate (6) review the background and training transportation to court to testify. of personnel who are in direct contact with victims. V. COMPLIANCE The Audit process begins with a notice All of these victims’ rights statutes are letter sent to particular agency informing meaningless, however, if law enforcement it of the date and expected length of the personnel and the courts do not follow audit (usually one day). Enclosed with the them. States and the Federal government notice is a “pre-audit packet” which asks have struggled with the issue of ensuring detailed questions about the agency’s compliance with the victims’ rights laws. policies and procedures, personnel, Two unique state programs, the audit training and other matters. The agency is program and the ombudsman program required to complete the packet before the offer some ideas about how to encourage day of the audit. The actual audit is compliance. conducted at a site visit to the agency. During the site visit, the auditors meet A. Audit Program with personnel, conduct file reviews, and The State of Arizona has a victims’ rights perform an exit interview where they State constitutional amendment as well as discuss their findings. In conjunction with several victims’ rights statutes. The State an audit, the Attorney General’s Office Attorney General’s Office has a component sends a Victims’ Rights Survey to selected called the Office of Victim Services which victims who have been assisted by the is responsible for distributing State victims’ agency. The Survey asks the victims, the rights funds monies and monitoring state consumers of the agency’s “product”, to and local compliance with the victims’ indicate whether they received all the rights laws. By statue, the State Attorney victims rights to which they are entitled. General’s Office must report to the Any problems identified through the Governor and the State Assembly each year survey can be addressed during the audit on the status of the victims’ rights program, meetings. Finally, the Attorney General’s the Attorney General’s compliance with the Office prepares an audit report that can program, including the level of service, and be provided to the Governor to satisfy the the expenditure of all monies. To satisfy monitoring requirement. The report also this reporting requirement, the Arizona contains recommendations on improving Attorney General’s Office developed an services from that office. audit system to gather compliance information. B. Compliance Committee or Ombudsman The Audit is designed to examine: Another interesting example are the compliance programs in Colorado, (1) the policies and procedures in place Minnesota, and Wisconsin. Each state has in a particular criminal justice office;
201 RESOURCE MATERIAL SERIES No. 56 a slightly different approach to complaints concerning unlawful or accomplishing the same task; providing inappropriate agency action. Center recourse to crime victims who feel that officials may not prescribe remedies for their rights have been violated. The violations of victims’ constitutional differences in the three States’ programs protections. The scope of their ability to are found in their structure and powers. act allows them to investigate complaints Colorado uses a Victims’ Compensation and and present the victims’ concerns to the Assistance Coordinating Committee, which official whose actions are in question. receives complaints from victims. The Committee has power to investigate VI. VICTIM ASSISTANCE violations of victims’ rights under the PROFESSIONALS State’s constitutional amendment and to In addition to the statutory victims’ recommend action with which the agency rights that legislatures have been focusing at issue must comply to rectify victims’ on, the emergence of victim assistance complaints. The Committee may also professionals has really improved victims’ monitor the implementation of the treatment in the criminal justice process. suggestions. When agencies do not comply Many government agencies, especially law with the Committee’s directives, the matter enforcement, prosecutor’s offices, and may be referred to the Governor and/or the parole agencies have created victim and State Attorney General for review. witness assistance units, whose mission is to assist victims through the criminal Minnesota has placed oversight in the justice process. Some private agencies also Office of the Crime Victims Ombudsman. perform this function, particularly in The ombudsman investigates both sexual offenses, domestic violence, and statutory violations of victims’ rights laws homicide cases. There is a real effort in and alleged mistreatment by criminal this country to professionalize the victim justice practitioners. The ombudsman assistance positions and make sure that approaches the enforcement of victims’ the personnel have adequate training to rights in a neutral and objective manner; provide needed assistance. A further acting not as victims’ advocates but as improvement in child cases includes the advocates of fair government. In addition hiring of a child interview specialist who to responding to requests for investigations can assist law enforcement and prosecutors by citizens, the ombudsman has the in a forensic interview of a child that takes discretion to inspect the actions of agencies into consideration the child’s on its own initiative and may pursue cases developmental level and psychological based on reports in the press. The state. ombudsman’s power is limited to investigating alleged abuses and proposing VII. THE OFFICE FOR VICTIMS OF remedies when appropriate. The CRIME ombudsman may make public - to both the press and the legislature - his or her In 1982, the United States Congress findings after an investigation. created the Office for Victims of Crime (OVC) to be the national advocate for crime Wisconsin has a State level victims victim’s issues. Congress also created a service office called the Victim Resource fund, composed of fines from convicted Center. One of the Center’s charges is to Federal offenders, special assessments and act as a liaison between criminal justice forfeited bail bonds. This money is agencies and victims in resolving administered by OVC and primarily
202 112TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS distributed back to the states pursuant to a Congressional formula. Part of the states’ money goes to pay direct compensation to victims of violent crime for medical expenses, lost wages, and burial costs. The other part of the states’ money goes to support state level victim assistance programs such as rape crisis centers, child advocacy centers, domestic violence shelters and homicide support groups. The remaining money that is not sent to the states is used by OVC to support the Federal government’s victim assistance programs in Federal law enforcement agencies and for discretionary grants by the OVC Director. Recently, Congress created a special terrorism fund for use in providing emergency services for terrorism victims which also came out of the fund. These programs are vital as a supplement to the victims’ rights provisions that govern the criminal justice system.
VIII. CONCLUSION Although we have made great strides in the past 17 years in incorporating victims’ rights into our criminal justice system, we still have far to go to make the system fair for crime victims. Some provisions work well and some need much more improvement. The task is an important one, however, and essential to maintaining a fair and just criminal justice system.
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THE FRAMEWORK AND CURRENT SITUATION OF CHINA’S CRIME PREVENTION
Wang Ping*
I. INTRODUCTION II. THE PREVENTION OF CRIMES AND PUBLIC PARTICIPATION The increase of crimes is a challenge the world faces today. How to prevent and China mainly executes the policy of reduce crimes is also an important issue overall control of social public security in for the Chinese government to tackle. It is the prevention of crimes. That is also an important issue regarding how to preventing, controlling and punishing make the offenders, who are under punitive criminal crimes, under the leadership of sanction due to their violation of law, the government and participated in by all completely correct their deviant behavior the people of society, by using economic, and conscience, and help them take on the administrative, legal, cultural and correct ideological and life track to return educational means. to society, so as to prevent them from recommitting crimes. This not only To mobilize society to prevent crimes, the requires the government’s effort but also most important thing is to have a common the participation of the whole society. understanding. People are prompted to be aware that crimes occur due to extensive China has 580 million juveniles under social causes. The sole effort of law the age of 25, accounting for about half of enforcement is by no means enough to the country’s population. The problem with prevent and curb crimes. Only by adolescents has always been a focal point mobilizing the whole society can this work in overall control of social public security. be done effectively. Second, China has Juvenile delinquency has made up 70-80% established a complete, systematic and of all the criminal crimes, which is very effective mechanism of overall social public serious. Surveys indicate that at the security at various levels of the begining of the 1990s, the age of the subject administrative jurisdiction. As a of crime has tended to become younger. mechanism, it is a macro-social project Juveniles aged around 18 have become the involving various systems and main body of offenders, most of whom band departments. The departments concerned, together to commit crimes and employ which are relatively independent but inter- similar means to those of adults. How to related, have specific work targets, tasks take effective measures and prevent and methods. juvenile delinquency is an urgent problem the Chinese government should solve. The overall control of social public Therefore, this paprer shall also discuss the security is a theory which is promoted by prevention of juvenile delinquency and the Chinese government and has been protection of adolescents in China. proved correct in practice. An operational framework has been formed on the basis of this theory. Naturally, the great importance attached to this policy by the * Judge, No. 1 Criminal Adjudication Division of governments at the central and lower Beijing Higher People’s Court, Peoples’ Republic of levels, and the extensive participation of China.
204 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS the people, are the premise and basis for unfavourable impact on society and establishing and improving this optimize the social environment. Methods mechanism. to do this are:
III. MOBILIZING SOCIETY (i) Intensify control over the cultural market to prevent vulgar, low-taste Joint efforts of the police and the masses, and pornographic books and journals China’s judicial system is composed of the from flowing into society, while public security bureaux, procuratorates developing and building healthy and courts. The public security bodies are cultural establishments; most closely connected with society. The (ii) Strengthen the management of the grass-roots organs of the public security artistic market, conduct a clean-up bureaux are the local police stations and and rectification of the ballrooms, the police, which are most closely linked film and video halls, game halls and with the local people. billiard halls; (iii) Mobilize the whole society to show Each street community and village have concern for the growth of youngsters; neighbourhood (villagers’) committees, organize outstanding figures in the which are the grass-roots public order- older-generation to form associations maintaining organizations joined in by the or groups caring for the younger people. The residents of these generation; make use of various organizations co-operate with the police forms to enhance the moral education and are jointly responsible for social of them; stability. In case any sign of crime is (iv) Improve the control of over- detected, most of the initial information of population. The judicial organs shall it is provided by these residential obtain information about school organizations. At the same time, legal dropouts, students with misdeeds, publicity and law promotion education, juvenile delinquents and offenders especially for youngsters, are done by these released from labour camps; keep a grass-roots organizations in co-operation record about them and determine the with the public security organs, key targets who are to be helped and procuratorates and courts. As a result, the educated on preventing crimes. The efforts of the police and the participation transient population shall also be of the whole society are more systemized included in this management. and legalized in China. B. Strengthen Education and A. Strengthening Culture and Management of Adolescents Ethics Effective prevention of crime begins with Moral education, strict control of social the prevention of juvenile delinquency. The order and purpose management make an education of adolescents is a matter important line of defence to prevent crimes. concerning the country’s future and the Various measures should be taken to flourishing or decline of a nation. Everyone conduct moral education on the premise bears his/her share of the responsibility for that persistent efforts must be put on the educating adolescents. One’s growth reform policy and the building of the cannot occur without the family, schools socialist market economy, in a bid to and society, which affect early education overcome the negative effect and factors of and growth. Good work in these three the market economy, reduce its aspects would result in the effective
205 RESOURCE MATERIAL SERIES No. 56 prevention of juvenile delinquency. people. The cultural and ethical education in the schools is of especially important 1. Attach Importance to the Role of the significance. Schools are the second line Family of defence to prevent juvenile delinquency. The Chinese government has been At present, most of the college and middle attaching great importance to family schools are devoting much attention to construction and improving the quality of intensifying legal education and increasing parents. The family is what a child first the legal awareness of the students. Legal encounters and forms the first line of knowledge has become an indispensable defence for juvenile delinquency. Family part of the moral education and curricula background and parents’ speech and image in the colleges and universities. The exercise invisible and formative influence purpose of spreading legal knowledge is not over the child’s psychology, character, only to let the youth know what constitutes hobbies and even morality. Therefore, the crime, but to encourage them to fight parents should undertake their first against crimes and unhealthy habits and responsibility to society, i.e learning how practices. The State Education to become good parents and teachers of Commission required that the schools their children. Family ethical education should transfer their purposes of education is of important significance in preventing from examination-oriented to quality juvenile delinquency. The specific education. Now schools have began to measures are: stress the students’ ethical and moral education in a bid to publicize legal (i) In the countryside, such activities knowledge and prevent and reduce juvenile shall be conducted as to encourage delinquency. farmers to acquire elementary education, learn technologies and Through contact with various types of share with each other in performance juvenile delinquents, we know that a large and contributions. In the urban number become ‘the accused’ as a result of areas, activities to be carried out such their complete ignorance of the law. The as giving commendation to advanced people’s courts, at various levels, have parents and setting up typical model actively participated in the work of overall parents; control of social public order and (ii) Social guidance shall be offered to publicizing legal knowledge, and exert parents’ role in the family to great efforts in preventing juvenile encourage a civilized, healthy and delinquency in the following two aspects: scientific way of life; (iii) Activities of rich variety are (i) Judicial personnel have gone to the conducted for family ethical schools and communities to give education; lectures. In Beijing alone, the (iv) Spare-time parent schools are built adjudication personnel of the juvenile so parents shall receive training and courts have given more than 300 learn the correct ways to educate lectures to more than 170,000 people children and have their sense of in middle and primary schools in the family education enhanced. past decade. Some of them have also gone to the parks and streets during 2. Emphasis on Legal Education in holidays to answer people’s questions Schools concerning law. The function of schools is to educate the
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(ii) Courts take part in the activities of transferred for examination before broadening and enriching the prosecution. A defendant in a case of students’ legal knowledge in schools. private prosecution shall have the The schools invite judicial right to entrust persons as his functionaries as the judicial defenders at any time. A people’s propagandists to explain legal procuratorate shall, within three days knowledge, help and educate the from the date of receiving the file students involved in illegal activities. record of a case transferred for The courts offer legal consulting on examination before prosecution, an irregular basis to assist schools in inform the criminal suspect that he organizing and drafting plans for law has the right to entrust his defenders. publicity work. A people’s court shall, within three days from the date of accepting a case IV. PUBLIC PARTICIPATION IN of private prosecution, inform the THE CRIMINAL PROCEEDINGS defendant that he has the right to entrust his defenders.” A. The Improvement and Perfection of China’s Criminal Procedure Article 96 stipulates: Legislature In 1996, China made necessary revision “After the criminal suspect is of the Criminal Procedure Law passed in interrogated by an investigation body 1979, so as to probe criminal facts more for the first time or from the day on accurately and timely. The revision was which enforcement measures are made on perfecting enforcement measures, adopted against him, he may appoint investigative measures, terms of custody a lawyer to provide him legal advice, and for guaranteeing the rights of or to act as his attorney to file participants in proceedings. The revision complaints or charges. Whenever the further clarifies the position and role, criminal suspect is arrested, the division of work and restrictions of public appointed lawyer may apply on his security bodies, procuratorates and courts behalf for obtaining a guarantor and in the criminal proceedings. awaiting trial out of custody.” The court hearing methods have been In accordance with these stipulations, perfected to intensify the defence of the two the lawyer may, in a case of public parties so that the three functions of the prosecution, be involved in the procedure procedure - accusing, defending and as a defender as early as on the date the adjudication - can be better played and procuratorate receives the file record of a ensure that the facts are objectively and case transferred by the public security body fairly judged, and that laws are applied or its investigation organs. While in a case accurately. Let us take a look at the of private prosecution, the lawyer may be revision of the 1996 Criminal Procedure involved in the procedure within three days Law on the system of advocacy. According from the date of the people’s court’s to Article 33 of the Criminal Procedure law: accepting the case. In addition, the lawyers in a public prosecution can also be “A criminal suspect in a case of public appointed by the criminal suspects to be prosecution shall have the right to the legal adviser, so that s/he may be entrust persons as his defenders, from involved at the stage of investigation and the date on which the case is offer legal aid to the criminal suspects.
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This is greatly advanced compared with the reporters shall be given an award. In this 1979 Criminal Procedure Law. These way, all the people are encouraged to revisions push a great leap forward for prevent and punish crimes. China’s system of advocacy. From the legislative point of view, we can see the C. Openness and Impartiality of current law has greatly enhanced openness Administration of Justice and transparency in the pre-adjudication According to the current Criminal activities such as crime detection, case Procedure Law, the people’s courts shall review and decision-making for review cases in public. What China’s prosecution; and has increased the criminal adjudication stresses is the possibilities for public participation to meet principle of impartiality of the the purpose of punishing criminals and administration of justice and a public trial protecting the innocent. system. All the criminal judicial proceedings and all the processes and B. Mobilizing the Public to Control details are open to the public. Residents, Crimes with their identity cards, can present at China’s Criminal Procedure Law the court as an observer to hear any case stipulates that: the governmental being trialed (except those which are not departments, organizations, enterprises, heard in the public). This move, placing institutions and critics have the right and China’s judicial proceedings under the are obliged to find out the criminal facts or supervision of the public, is beneficial to criminal suspects and bring charges judicial openness and impartiality. It is against them to the public security bodies, also a good way to spread legal knowledge people’s procuratorates and people’s courts. among the public, which plays an indirect These three bodies should accept the role in preventing crimes. The open trial charges, accusations and voluntary has increased the transparency of trial surrender of the offenders. In each city, work, helped enhance the legal awareness and even each district in China, there are of the citizens and helped democratize the mail boxes for accusation reports and country’s judicial system. Reporters can hotlines. Once the public discover criminal also cover the cases being tried in public. phenomena, they can report it to the public security bodies, procuratorates and courts D. The Trial Procedure for Juvenile in the most convenient way. Since this Delinquents measure was adopted, many major cases The prevention of crimes shall now focus have been detected and adjudicated thanks on juvenile delinquency, which has been to reports from the public. At the same recognized in many countries of the world. time, the strict policy and measures to Much has been done and good results have protect witnesses have guaranteed the been achieved in this regard in China. This safety of witnesses to a maximum degree. part deals with the participation of courts, society and parents in the trial of juvenile In China, few cases have been reported delinquents. concerning witnesses’ injury by the clients. The departments have been set up in the The basic principle of China’s dealing public security bodies, people’s with juvenile delinquency is “stressing procuratorates and people’s courts to accept education while making punishment as the the reporting of information from the subsidiary measure.” This principle has public. If the information is found true, been reflected in Chinese law and the investigation shall begin right away. The special provisions concerning cases of
208 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS juvenile delinquency. China’s Supreme and are keen on saving and educating the Peoples Court in its Provisions on Dealing defendants. In the trial of a theft case with Juvenile Criminal Cases emphasized involving a juvenile, one defender said to that “if the appearance in court of a juvenile the defendant: “You turn around and take defendant’s adult relatives is beneficial to a look at your father who has pined away the trial work and education of the juvenile because of you.” Hearing this, the defendant, they shall be permitted or defendant sobbed too bitterly to speak. invited to the court upon approval of the Then, the legal agents educated the President of the Adjudication division.” defendants with strong affection. The These relatives shall participate in the education during the trial achieved good education of the juvenile defendant. The results. Judicial Interpretation of the Supreme People’s Court on the Applicable Laws on V. SOCIETY’S PARTICIPATION IN Handling Criminal Cases Involving THE REHABILITATION OF Juveniles stipulates that for juvenile OFFENDERS offenders who are sentenced to criminal A. Widening the Way to Their detention or imprisonment of less than Return to Society three years, if they: behave and mend their How to help an offender get back on the ways after committing crimes; their right track of life mentally and physically families have the conditions for when they are released from the prison guardianship or the social education (after serving the full term of a sentence) measures can be carried out; and the is an important aspect for preventing and offenders are believed not to harm the reducing recommitted crimes. Since China society after probation, probation shall be adopted a reform and opening-up policy, the applied to these delinquents. It is quite economic and social structure has clear that the public is playing a decisive undergone great changes. This has role in the criminal procedure for juvenile brought both opportunities and new delinquents. The specific measures are: challenges to the released prisoners. The challenge is mainly reflected in their (i) Set up special adjudication division employment and the form and content of to handle juvenile criminal cases; their education. Merely relying on (ii) The trial of the courts shall reflect the governments to find them jobs can no principle of “stressing education longer suit the new situation under the while making punishment as the market economy. New channels must be subsidiary measure”; found for employment. (iii) Make trials a medium of education, which runs through the trial process; It is the experience of China that, in light (iv) Guarantee to appoint defenders and of the principle of educating, rehabilitating try to invite the agents ad litem to and redeeming the offender, the released take part in the procedure. personnel’s dignity, morality through education and ability to solve their The agents ad litem are usually the problems in life are improved. Take Beijing juvenile defendant’s parents, adopted for example, the settlement rate of the parents or guardians, who bring up or have returned prisoners has reached 84.6%. The custody of the juvenile defandants. They rate in Tianjin is 90%, while in Liaoning mostly have blood relationships or Province, the rate is more than 90%. The guardianship. They care about the possible ‘education through helping’ has greatly punishment the defendants may receive reduced the recommittal rate.
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1. Perfecting Legislature and Offering (ii) Build bases for the temporary Guarantees settlement of returned prisoners. In Starting from the 1950s, China has Shanghai, two transportation worked out clear stipulations on the companies have been built, settling employment of returned prisoners. In the more than 5,000 returned prisoners; 1990s, China established very complete (iii) Give proper preferential treatment to legislative provisions in this respect. Not these people; only has the central government worked (iv) Use market fairs to offer employment out a series of regulations in this respect, opportunities. For example, the provincial and municipal government Shenyang has fully employed market also have done the same according to their fairs as the main channel for offering respective situations. Many townships and employment to the returned villages have also formulated their own prisoners. The industrial and rules on settling the released prisoners. commercial administration The State enterprises have also set rules departments have actively provided on employing them. All these measures convenience and conditions for them have provided legal guarantees to the to find jobs. In the past three years, settlement and education of the returned the city’s various types of markets prisoners. have employed 2,408 such personnel, who have since then lived a self- 2. Leaders Assume Responsibility to reliant and ‘getting-rich-through- Ensure Participation of Departments labour’ life. The Chinese government regards the settlement and education of the released B. Relatives’ Participation in the prisoner as an important part of work Rehabilitation of Offenders evaluation for regional and department The offenders’ relatives are encouraged leaders. A leaders’ responsibility system to and supported in keeping contact with has been adopted, linking their the offenders serving a sentence; and co- performance with their promotion, award operate with the educators so that those or punishment. In Liaoning Province offenders, especially the juveniles, can feel alone, more than 2,500 leaders above the the warmth of the family. Lots of cases county and division level are engaged in indicate that the family factor is an this work. So far, 16 provinces in the important factor that leads youngsters to country have built provincial-level commit crimes, and that also reforms the competent departments to settle and young offenders. As families emerge in the educate returned prisoners. human society, the attachment to the family has become a common psychological 3. Exploring New Ways for Employment characteristics of human beings; the Under great employment pressure, the degrees varying among people of different government is still requiring local age groups as well as individuals of the governments to explore new ways for the same age group. After being imprisoned employment of released people. The main to serve a sentence, they lose their freedom measures are: and are separated from their families, leading to stronger attachment to their (i) Intensifying technical training before families. Whether the family members they return to society, so that they can care about or visit them will, to a great acquire one or two practical skills for extent, affect their feelings and employment; psychological state. Therefore, to correct
210 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS their anti-social psychology, the prisons and delinquency cases so the juvenile offenders reformatories shall try their best to can return to society after serving part of encourage, support and instruct the a term of sentence and reduce unfavourable offenders’ relatives to join in the factors. The probation system is a method rehabilitation work, to keep close contact to execute punishment on the offenders with their children, who would feel this according to the Criminal Law. Probation concern and warmth from them. is applied to the offenders who are sentenced to criminal detention or to a This is greatly beneficial to weakening fixed-term imprisonment of less than three and eliminating anti-social psychology. years. Probation may be granted to Many persistent offenders and offenders according to the circumstances recommitters have thus mended their ways of their crime and extent of repentance, and and started new lives. Gao, a young farmer, the condition that they shall not do any was sentenced to a three-year-and-six- harm to society after they are put under month imprisonment for theft, later eight probation. years imprisonment was imposed on him for the offence of fleeing and theft. His wife Probation for juvenile delinquents can divorced him after he was imprisoned, yield more positive effects than for adult leaving him a one-year old child, and offenders. First, they are not isolated from married another man living far away from society and their families so that they can her native village. At the time of extreme adapt themselves to society after long-time despair, Gao’s brother and his wife imprisonment. Second, families, units, frequently came to see him, encouraging enterprises and communities can also be him to actively reform himself. They also mobilized to educate and help them. Third, helped him raise his child, although they they shall be free from “cross-infection” in had already had two children. Later, his the prison, which is helpful to their brother died in a traffic accident. His rehabilitation. From 1987 to 1997, the sister-in-law, the widow had to foster the courts at various levels in Beijing three children on her own. She kept on sentenced 9,045 juvenile delinquents. A visiting her brother-in-law confined in total of 2,014 of them, who were sentenced prison. Moved by the care from the to criminal detention or a fixed-term relatives and educators, Gao devoted imprisonment of less than three years, himself heart and soul to his reform. In were put under probation. They accounted the prison, he was awarded as “excellent for 22% of the sentenced juveniles, which cook,” “excellent stockman” and “reform was more than 10 percentage points higher activist.” According to the verdict of the than the adult offenders. intermediate people’s court, he was released on probation and later married his 2. Mobilize Society in Follow-up sister-in-law. With the help of the villagers, Education of Juvenile Delinquents he was hardworking and became well-off. During probation, the courts at various They said: “Gao has changed to a levels shall continue to educate juvenile hardworking, honest and helpful man.” delinquents, although they are not within the jurisdiction of the courts. Most of the C. Proper Penalty Methods for courts have set up files for education and Juvenile Offenders. regularly hear reports about the progress 1. Penalty is Not the Aim of their rehabilitation. By way of practice, When conditions permit, probation is not a single case of recommitment of crime more frequently adopted in juvenile has occured if the rehabilitation of juvenile
211 RESOURCE MATERIAL SERIES No. 56 delinquents is reported to the court contribution to the four modernizations of monthly. our country.” On the occasion of festivals and public holidays, the adjudication Before the verdict for probation is given personnel send the juveniles stationary and to the juvenile delinquent, the courts shall other gifts to help them to change. As a contact the school and community where result, the juvenile offenders are more the juvenile is to settle in their employment confident about their rehabilitation now or schooling. At the same time, they shall that society has not forgetten about them. help the receiving units to build education The crime recommitment rate in the past organizations so that the juveniles under ten years in Beijing is around 2%. probation can study or work in a good environment. According to the statistics V. AID TO VICTIMS AND VICTIMS’ for the past 10 years, of the courts in PARTICIPATION IN CRIMINAL Beijing, with the help of juvenile courts, PROCEEDINGS 75 of the delinquents under probation were China’s Criminal Procedure Law regards enrolled in colleges or academic schools, the victim as a party who is bestowed an and one became a postgraduate student. independent position in the proceedings. 207 went to senior high schools, vocational This is to ensure the victim’s procedural high schools or secondary professional rights are completely protected. The schools. victim’s procedural rights are characterized by independence, transformation, 3. Joint Efforts In and Outside Prison to completeness and restriction. Educate Juvenile Delinquents In light of the policy of educating and A. Independence redeeming young offenders and helping The right to prosecute is an important them to change, the courts and prisons co- procedural right of the victim. This right operate with each other to do educational is relatively independent in the criminal work. The adjudication personnel also pay procedure. The public prosecution body regular visits to the prisons and award good exercises the power to prosecute so as to deeds done by the offenders in the course safeguard the interests of the State, society of their rehabilitation. In 1991, a major and the victim. But it cannot exclude the flooding occurred in East China. More than right of the victim to independently 60 juvenile delinquents at Beijing’s Qinghe safeguard their own interest on the basis Farm each donated RMB 30 yuan to the of their individual stand. This point is of victims there. The people’s court of Xicheng great significance to the judicial bodies District in the city of Zhengzhou held a intensifying the protection of victim’s meeting where local leaders had a good talk procedural rights. with the juvenile delinquents and encouraged them to become useful persons B. Transformation of the Right in society. The 12 juvenile offenders were In a case of public prosecution, the right moved to tears and said: “We committed of action rests with the people’s crimes, but the court and people from our procuratorate. The victim has the right to hometown have not abandoned us. They request the bringing of an action. This cared about us and arranged visits for us. right means that the victim enjoys the right We shall redouble our efforts in reform and to, over the facts of crime which infringes try to perform meritorious service so we can upon their personal and property rights, get commutation and probation, and return bring a charge and request the judicial to society as soon as possible, to make our
212 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS organ to investigate the criminal agree with a judgement made at the first responsibility of the suspect. If the victim instance of the local people’s court, s/he has has any objection to the judicial body the right to request the people’s bringing an action in a case, the victim may procuratorate (at the same level) to propose use their legal capacity to sue for the right a counterappeal, but has no right to lodge of applying for reconsideration; right to an appeal to the people’s court at a higher supervise the filing of a case; and direct level. right of bringing an action. This transformation can be regarded as E. Strengthening Protection of the transforming the right of public Victim’s Procedural Rights prosecution to the right of private The victim’s independent rights to prosecution. prosecute are guaranteed in the following aspects. First, in the court hearing, the C. Completeness of the Right victim may make a procedural request and Whether a victim’s procedural right is proposals different from that of the public completely bestowed is an important aspect prosecutor. The reason is; the victim’s in evaluating the criminal procedure independent right make a litigant claim mechanism. China’s current Criminal embodies their status as a party in the Procedure, Law reflects the procedural criminal procedure. Now that the victim right of the victim all through the criminal is recognized as a party in the procedure procedure, and embodies the completeness and enjoys the independent right to of the right. For instance, the law has clear prosecute, therefore s/he shall be permitted stipulations on the victim’s reporting of a to independently make litigant claims case, accusing and private prosecution; favourable or unfavourable to the bringing supplementary civil action; defendant if s/he believes the public applying for withdrawal; appointing an prosecutior makes improper accusations agent ad litem; appearing in court; lodging against the crime. This is an important an appeal and requesting a counterappeal. aspect for the victim to completely exercise China adheres to the principle of State their power to prosecute. In this way, the prosecution, and the principle of victim’s victim can join the public prosecution to prosecution is concurrently adopted so that expose and accuse the crimes more the victim’s right to prosecute is effectively. guaranteed. At the same time, a mechanism was set up for the right of Second, an independent seat is arranged private prosecution to supervise the right for the victims. This not only reflects the of public prosecution. The stipulation on victim’s procedural position, but also application for withdrawal can ensure the guarantees the victim full exercise of their impartiality of the criminal procedure. The procedural rights. The victim is seated to agent ad litem system not only further the right of the public prosecutor, facing improves China’s legal system, but also the bar. They are seated on the side of the plays an important role in protecting the public prosecutor, not the defendent, to victim’s legal rights. indicate the confrontation between the victim and the accused. Finally, in the D. Restriction of the Right private prosecution cases of our country, The Criminal Procedure Law has, the victim is responsible for giving necessarily, restrictive stipulations over the evidence. The burden of proof for private victim’s procedural rights. In a case of prosecution lies with the private public prosecution, if the victim does not prosecutor. This is of positive significance
213 RESOURCE MATERIAL SERIES No. 56 to increasing the confrontation between bench, the clerks, public prosecutor, accuser and defender, and ensuring that appraisers and interpreters. As for the the adjudication body is in the middle. victims’ right of locus standi, statement can be made on the crime accused by the F. Right to Obtain Legal Remedy indictment. As for the victims’ right to ask, In China, the victim can entrust the the victim may, upon approval of the Chief lawyer to offer legal remedy. The agent of Judge, address questions to the accused, the victim can fully enjoy the right to act the witness and appraisers. As for right of as an agent ad litem. This is one of the the victim to air their views over evidence, important ways for the victim to obtain s/he may put forward their views on; the legal remedy. In reference to the Criminal testimony of the witness who fails to Law concerning the rights and duties of the appear before the court; conclusion of the defence lawyer of the accused, the agent of appraisal; record of investigation and other the victim can consult, extract and evidentiary documents; apply for obtaining duplicate the materials concerned at the new evidence through appearance at the people’s procuratorate. Upon approval of court by a new witness or apply for the witness or other units or individuals, reappraisal or investigation. In a private s/he can also collect the materials relating prosecution cases, the victim also enjoys to the case from them. They can also apply the right to reconcile with the accused on to the people’s procuratorate and people’s their own or to withdraw the private court for collecting and obtaining evidence, prosecution. or requesting the people’s court to notify a witness to appear before court. VI. CONCLUSION To sum up, this paper, in four parts - In China, the attorney-in-fact of the crime prevention, criminal proceedings, victims, especially the attorney at law, rehabilitation of the offenders and attach great importance to the work of an guaranteeing the rights of the victim - deals agent ad litem for the victim in cases of with crime prevention, corrections and private prosecution. Their work helps to protection of the offenders, public ensure the realization of the protection of participation and the joint effort of the the victim’s rights granted by the Criminal whole society in China. The aim is to Procedure Law and plays an important role inform you of the framework and current in enhancing the activities of the criminal situation of crime prevention in China, and proceedings. to study and discuss issues of common interest with friends from various G. Right of the Victim to Take Part countries, to improve public security. in the Court Hearing China’s Criminal Procedure Law allows the victim to exercise their procedural right during the court hearing. According to the law, the people’s court shall, within at least three days before a court is opened, serve a summons to the victim and a notice of appearance is also served to the attorney- in-fact of the victim. As for the right of the victim to apply for withdrawal, application can be made to the Chief Judge for the withdrawal of members of the collegiate
214 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
COMMUNITY INVOLVEMENT IN CORRECTIONS IN HONG KONG
Tai Kin-man*
I. INTRODUCTION diverse ways. Services and activities range from evening education classes, hobby This paper proposes to outline and classes, sports training, recreation, evaluate the current community presentation of certificates and character involvement in corrections in Hong Kong. training. Most involve the young offender It will focus on corrections under the penal programmes which place great emphasis jurisdiction i.e. the Correctional Services on character training and reintegration. Department, and the community based The powerful media has a role too. It has corrections like probation and community a lot to contribute in promoting public service orders, which come under the Social awareness of and influencing public Welfare Department in Hong Kong. attitudes towards the goals of offenders’ rehabilitation. The Hong Kong There are at any time over twenty Non- Correctional Service does recognize the Government Organizations involved in the potential for the community to become work of the correctional system in Hong involved in the work of corrections. It Kong. They are dominated by religious welcomes and actively seeks such organizations which mostly engage in involvement. evangelistic activities. There are others which provide reintegration support, A. Background prison visits and counseling services. The The Correctional Services Department Society for the Rehabilitation of Offenders in Hong Kong now operates 21 penal in particular is dedicated to help ex- institutions of all types. These include prisoners’ reintegration. It bridges a male and female prisons, reception centres, service gap for adult prisoners most of training centres for boys and girls, whom, unlike the young offenders or drug detention centre for young males, and drug addicts, do not have the benefit of statutory addiction treatment centres. There are aftercare supervision. The Prisoners’ currently some 11,423 inmates in all Friends’ Association on the other hand is categories. dedicated to providing prison visits primarily to those prisoners who do not Inmates discharged from training receive visits from relatives or friends. centres, detention centres and drug There are some 80 members, of whom some addiction treatment centres, as well as two-thirds come from the expatriate young prisoners discharged from prison, community. They can only cater for a are subject to statutory supervision. fraction of the total demand. Aftercare officers provide throughcare during custody and supervision. Aftercare Apart from Non-Government service is available to adult prisoners on a Organizations, private individuals from the more limited basis under two statutory community also involve themselves in schemes.1 * Superintendent of Hong Kong Correctional Services Department, Hong Kong. Welfare officers are available in every
215 RESOURCE MATERIAL SERIES No. 56 prison and reception centre to look after engage in evangelistic activities, their the welfare needs of all convicted and members visiting various institutions on a remand prisoners. Apart from the limited regular basis to hold religious services and minority who are placed under statutory seeing individual prisoners. Some also supervision schemes, adult prisoners organize recreation and entertainment for having completed their sentence do not the general prison community on holidays have the benefit of an aftercare service. and festive occasions. The service gap is basically filled by non- government organizations. One of the largest NGO’s dedicated to the field of corrections is the Hong Kong II. COMMUNITY INVOLVEMENT IN Society for the Rehabilitation of Offenders CORRECTIONAL WORK (SRO). This is a government subvented organization with a long history of A. Non-Government Organizations association with the system of corrections. (NGOs) Its stated aims are to provide a professional There are at any time over twenty NGOs social work service for offenders and involved in the work of the correctional discharged prisoners, as well as to establish system in Hong Kong. A few are dedicated and maintain centres for case work, to providing services to offenders. Many counseling, accommodation, employment have a religious background. A list of the rehabilitation and recreation for its NGOs currently involved is annexed to this clientele. Its workers regularly visit paper. Services provided by the NGOs various penal institutions to introduce its range from practical reintegration support service to prisoners, especially those prior to prisoner visits, or evangelistic activities. to discharge. It is by far the single most important NGO filling the service gap in It is noteworthy that the field is the reintegration of adult prisoners. dominated by religious bodies. They include various Christian, Catholic, B. Prison Visitors Buddhist and Islamic denominations. Under the Prison Rules, the After all, offenders are more in need of Commissioner of Correctional Services spiritual guidance for their reform, as well may, from time to time, appoint any person as the spiritual strength, to cope with life interested in the welfare, reform and in custody. These religious bodies primarily aftercare of prisoners to be a prison visitor. Indeed, regular visitors from the NGOs are 1 One is the Release Under Supervision Scheme, a so appointed and issued with prison passes. parole scheme, which came into operation in 1988. Worthy of mention are members of the So far, less than 300 have been released under this Prisoners’ Friends’ Association. The scheme. The other is the Post Release Supervision Association was first established in the Scheme, which has come into operation since early eighties with the support of the December 1996. This scheme is aimed at helping Correctional Services Department. The the reintegration of certain categories of prisoners object was to provide a service of regular who have completed their sentence. The prisoners visits for prisoners who are in need of have either been sentenced to six years or more, or friendship with members of the outside to a shorter term for specific gang related or sexual community; basically those who do not or violent offences. A total of 1,142 prisoners have receive visits from relatives or friends. been brought under this scheme as at 15/3/1999 and the success rate of those expired cases is Members of the Association come from 97.46%. different walks of life. Interestingly, some
216 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS two-thirds are expatriates of different Visiting justices are charged with duties nationalities. This in part has to do with to promote the efficiency of the service, to its history. It more or less began with report abuses, to hear and investigate concerns for expatriate prisoners who had complaints, to protect the general well no visits and who were socially being of prisoners and to advise on the handicapped amongst the local prisoners industrial employment and occupation, because of the language barrier. The key with particular relation to their founding members also came from the employment on discharge. expatriate community. With an active membership of some 80 persons, they can The regular visits by justices have still only meet with a fraction of the total become an established part of prison life. demand.2 Not only do they present a channel for prisoners to ventilate grievances, they also There is perhaps also a cultural factor demonstrate a kind of community interest in the lack of enthusiasm in the local and presence. Given the diverse community for this kind of voluntary work. background and experience of the justices, Prisons and prisoners are still taboo to their advice is highly valued and often many local people, let alone to go on prison provides the spur for improvement in the visits. Nonetheless, members of the work of corrections. Association have been doing a commendable service in providing desolate C. Personal Encounters with prisoners a link with community, and a Prisoners friendship that helps ease the deprivations The objectives of the scheme of personal of prison life. Such interactions are encounters with prisoners are two-fold: perhaps of greater benefit to the social and through exposure to personal experiences psychological bearing of the prisoners than of serving prisoners, the “youth at risk” one may readily recognize. may develop insight which will become new guidelines for their behaviour. The project Another kind of prison visitor is the more may also serve the reciprocal purpose of officious Justices of the Peace. It is inducing positive changes amongst the provided in the Prison Rules that two prisoners concerned and may, in the long visiting justices (one official and one run, facilitate their rehabilitation. unofficial) shall visit each prison at least once a fortnight. The official justices are Target groups participating in this appointed by virtue of their public office, project include students between Form 2 normally of at least assistant director level and Form 6, or aged between 13 and 18; in various government branches and clients of outreach social work teams; and departments. The unofficial justices are youngsters displaying maladjusted people of good character and social behaviour. The project represents a standing, appointed from a wide spectrum concerted effort in preventing juvenile of the community. delinquency. The support of schools, youth centres and parents to the project are determinant factors to its success. 2 A survey towards the end of 1998 found some 1,781 prisoners were not receiving visits from their D. Community Services relatives or friends, and about a third of this Other activities to encourage community number were catered for by members of the involvement include community service Prisoners’ Friends’ Association. programmes for young inmates, such as the
217 RESOURCE MATERIAL SERIES No. 56
Duke of Edinburgh Awards Scheme, Means of achieving this end include the Outward Bound, Scouting, etc. Continuous development and enhancement of efforts are being made to involve more rehabilitation based programmes, adopting training centre inmates in these activities measures to improve corrections- as community reintegration programmes community relations and encouraging of the department. In addition, CSD has community involvement in correctional been arranging for more inmates to take work. part in personalised social services for the elderly and the mentally or physically B. Development and Enhancement disabled before discharge. The Department of Rehabilitation Based has also sought assistance from the Hong Programmes Kong Council of Social Services to identify The commitment on the part of the more interested welfare agencies for Correctional Services Department (CSD) of support. The scouts training was set up a the Hong Kong Special Administrative decade ago with the personal and financial Region to rehabilitation is clearly support of a few dedicated individuals who demonstrated by the level of resources that have maintained their sterling support to has gone into prison workshops, this date. educational and vocational training, and parole systems. In the financial year 1997- III. CREATING AND SUSTAINING 1998, HK$434.1 million has been allocated THE INTEREST OF THE to rehabilitation programmes, representing COMMUNITY AND GOVERNMENT 17.4% of the total expenditure of the IN CORRECTIONS Department. A. General 1. Rehabilitation Programmes of CSD Correctional services in Hong Kong aims The Department has developed a whole to provide a disciplined but humane range of rehabilitation programmes and environment where inmates can receive services for offenders which are being appropriate counseling, educational and implemented. Different rehabilitation vocational training, and where they can programmes and supervision schemes prepare themselves to return to society as address the rehabilitative needs of law-abiding citizens upon release. Since it offenders in different kinds of institutions, takes time for the community to see how such as prisons, detention centres, training much the correctional programmes can centres and drug addiction treatment achieve, the positive aspects of correctional centres. Education programmes not only work has often been under-assessed, if not provide intellectual training to prisoners, totally ignored. In the worst case, but also serves as a channel for them to correctional work often encounters adverse touch base with the community. These criticism where the public tends to programmes include evening education associate correctional services with media classes, correspondence courses and self- reports on prison riots and escapes. study programmes which lead to accredited academic qualifications. Aftercare service There are some ideas on soliciting public is another major aspect of the interest and support for correctional rehabilitation programmes which services in Hong Kong. This has a lot to do facilitates released inmates’ smooth with promoting public awareness of and transition from custody to freedom, influencing public attitudes towards the through strict supervision conditions, job objective of rehabilitating offenders. placement and guidance to strengthen the
218 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS confidence of the offenders. At present, the The research found, on the whole, high rehabilitation programme is carried out by satisfaction levels in areas including 200 professionally qualified CSD officers aftercare services and officers, throughcare in different institutions. Over the years, services, education, vocational/pre- the rehabilitation programmes have vocational training, physical, social and evolved and developed. The Department mental health. The research has, also has its prison chaplains who pay nevertheless, recommended 30 sets of regular visits to prisoners to provide them recommendations to strengthen areas, with spiritual guidance and reintegration including educational training, vocational support. training, services for the families of young offenders, community reintegration, 2. Research on the Effectiveness of throughcare, half-way houses and a Rehabilitation for Young Offenders proposed short-term residential In April 1996, the City University of programme. These recommendations are Hong Kong was commissioned by the now being followed through by the newly Standing Committee on Young Offenders established Rehabilitation Division of the (SCOYO) of the Fight Crime Committee CSD, which formulates strategies for the (FCC) to conduct a one-year evaluation on long-term development of rehabilitation the effectiveness of rehabilitation programmes and aftercare services, and to programmes for young offenders, an area better co-ordinate the provision of these of considerable public interest. The programmes and services for both young evaluation covers rehabilitation and adult offenders. programmes currently run by CSD and the Social Welfare Department (SWD). Areas C. Measures to Improve of study relating to CSD includes detention Corrections-Community centres, training centres, youth prisons and Relations halfway houses. The overall objectives are: 1. The Public Relations Unit The inception of the Public Relations • to estimate the functions, Unit (PRU) in CSD has played a significant characteristics, content, duration and role in improving corrections-community resource input of existing relations. A better public information rehabilitation programmes for young service, with greater transparency, has offenders; become the norm in the public sector. It is • to measure the programmes’ recognised that the public has the right to effectiveness upon the young know, though sometimes only out of offenders’ completion of treatment; curiosity, the process of rehabilitation. On • to identity factors relating to the the other hand, the department is also success or failure of the programmes; making use of every opportunity to inform • to find out favourable or unfavourable the public of its operations in order to conditions in the implementation of enhance departmental image. rehabilitation programmes; and • to assess the quality, effect and The functions of the PR Unit include service gaps in existing rehabilitation disseminating information to the media via programmes based on the responses press releases, arranging interviews with of young offenders and the senior management staff on specific topics professionals involved in providing relating to the Department, and organising the programmes and in sentencing press visits to penal institutions. Media offenders. contribution in shaping public opinion,
219 RESOURCE MATERIAL SERIES No. 56 values and attitudes (towards creating a greater public confidence in the positive image of the Department) are impartiality of complaints investigation. notable. CSD is well aware of this potential and so works closely with the local media IV. SERVICES FOR OFFENDERS through its PR Unit. PROVIDED BY THE SOCIAL WELFARE DEPARTMENT Press conferences, press statements and A. Objective media visits to penal institutions are the Offenders’ rehabilitative measures, to be means to inform the community on the effective, should incorporate means to work of corrections, and help promote a guide them onto the right track, prevent more positive public image of the them from committing crimes again, and Department. On the other hand, major PR assist them to start afresh so that they can events such as the Department’s annual become not only lawful citizens, but also parade, autumn fair, scout rally and Staff contributing members of society. The Training Institute (STI) open day, which overall objective of the services for forms part of the recruitment campaign, offenders is to help them become law- are organised for the public. The opening abiding citizens and reintegrate into the of new facilities, education certificate community. This is achieved through both presentation ceremonies, and prison visits community-based and residential services, by prominent public figures also provide adopting social work approaches. It is good publicity. These activities assume hoped that through proper supervision, profound significance in linking the counseling, academic, pre-vocational and community with the Department and help social skills training, the offenders will be to shape public attitudes towards the equipped with the necessary skills to deal nature and goals of correctional work. with life demands. Since January 1998, information about B. Means CSD ranging from historical events, facts This objective is achieved through the and statistics, news and events of following means : individual institutions on special topics relating to prison development projects can • discharging statutory responsibility; be accessed through the Department’s • probation service; homepage on the Internet. This provides • administering community service an additional channel to communicate with orders; the public who may be interested in the • community support services; work of the Department. • remand home services; • residential training services; 2. The Complaints Investigation Unit • improvement measures; and On the operations side, the setting up of • assisting the magistrates through the the Complaints Investigation Unit (CIU) Young Offender Assessment Panel. as the Department’s independent mechanism to redress grievances from C. Statutory Responsibilities inmates, staff and the public, is another The Department is responsible for measure to enhance corrections- discharging statutory functions within the community relations. The creation of the framework of the following ordinances : Unit, which is headed by an Assistant Commissioner and staffed by teams of • Juvenile Offenders Ordinance, Cap. trained officers, is expected to inspire 226
220 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
• Probation of Offenders Ordinance, E. Community Support Service Cap. 298 Scheme • Community Service Orders A pilot community support service Ordinance, Cap. 378 scheme was introduced in December 1994 • Reformatory Schools Ordinance, Cap. to help rehabilitate juvenile offenders 225 through a community-based treatment • Protection of Children and Juveniles programme. The programme provides Ordinance, Cap. 213 structured day-training, such as social • Immigration Ordinance, Sec. 35(1) of groups, community service projects, job Cap. 115 training packages and counseling groups, to stimulate young offenders’ interest in D. Probation Service school or work and to develop their social During 1996/97, 162 probation officers skills. During 1996/97, groups were formed served all the magistracies, the District for 312 probationers/dischargees of Courts and the High Court, as welfare residential homes for juvenile offenders, agencies. The Department prepares social and 155 family members. inquiry reports on offenders, long term prisoners and petition cases. These reports F. Community Service Orders provide information on the offender’s A community service order may be made background to facilitate the court’s and against an offender of or over 14 years of concerned parties’ decision on suitable age convicted of an offence punishable with sentencing options for disposal of the imprisonment. The offenders perform offenders. unpaid work of benefit to the community for a number of hours, not exceeding 240, Probation officers also supervise within a period of 12 months. The offenders (of all ages), who are placed on probation officers will assess the suitability probation, to comply with the requirements of the offenders for performing such work, of the probation order. 12,520 probation as a rehabilitation/sentencing option. officer’s reports were produced and 7,643 clients were served in 1996/97. Out of the During 1996/97, 2268 social inquiries 3,659 cases completed, 2,779 probationers were conducted and 882 orders were made. (75.9%) satisfactorily complied with the Out of 745 cases completed, 662 (88.9%) conditions of the order. The 880 offenders satisfactorily rehabilitated probationers who failed to comply with the themselves through the 105 group projects requirements of their probation orders and 15 single placements organized in 112 were referred back to the courts for re- centres of NGOs and government sentencing. departments.
To promote greater community G. Post-Release Supervision of involvement in the rehabilitation of Prisoners Scheme offenders, volunteers (under the Volunteer The Post-Release Supervision of Scheme for Probationers) befriended 71 Prisoners Scheme commenced operation in probationers/residents of correctional December 1996. It is implemented jointly homes and helped them carry out activities by staff from the Correctional Services and programmes to serve the community. Department and the Social Welfare Department to provide statutory supervision for certain categories of discharged adult prisoners. The officers
221 RESOURCE MATERIAL SERIES No. 56 conduct interviews with the prisoners in accommodated in the below-listed homes. penal institutions well before their discharge to prepare them for their return I. Residential Homes for Offenders to the community, and to pay regular visits The period of placement in probation to the supervisees at their home/workplace homes/hostels ranges from six to twelve to help them rehabilitate and reintegrate months, with a period of aftercare into society. Employment, accommodation, supervision in the community. The period financial assistance, and counseling are of reformatory school training ranges from rendered. During 1996/97, 141 ex- twelve to eighteen months, followed with prisoners have been placed on supervision. eighteen months of aftercare supervision in the community. Counseling and training H. Remand Home/Place of Refuge programmes in academic studies, Service prevocational and social skills are provided. Children and juveniles who require There were 305 new admissions in 1996/ short-term remand/place of refuge facilities 97. The reprovisioning project for Begonia are now accommodated in Pui Yin Juvenile Road Boys’ Home (to improve service Home, Begonia Road Boys’ Home, Pui Chi standards) is under smooth progress. The Boys’ Home and Ma Tau Wei Girls’ Home, construction work is anticipated to be which provided 281 places and had a total completed in 1998/99. of 3746 2new admissions in 1996/97. J. Young Offender Assessment These homes provide temporary custody, Panel assessment and care to offenders aged 7 to The Young Offender Assessment Panel 16, illegal immigrants aged 8 to 18, and is a special board with panel members children/juveniles in need of care or drawn from the Department and the protection aged 8 to 18, including children/ Correctional Services Department to juveniles with a physical disability aged 9 provide co-ordinated professional views to to 18, and those with a mental disability magistrates in the sentencing of young aged 5 to 18. offenders aged 14 to 25.
Various kinds of developmental and In 1996/97, 55 magistrates and seven therapeutic activities, e.g handicrafts, judges made a total of 473 referrals to the domestic skills, family life education, social Panel. 462 panel cases were disposed of skills, etc, are arranged to keep the by magistrates and the panel’s residents meaningfully occupied during recommendations to the courts had an their stay in the homes. Young offenders acceptance rate of 84.2%. requiring residential training are
Nature Name Capacity Probation Home Begonia Road Boys’ Home 80 Fanling Girls’ Home 20 O Pui Shan Boys’ Home 48 Probation Hostel Kwun Tong Hostel 60 Reformatory School O Pui Shan Boys’ Home 48 Castle Peak Boys’ Home 75
222 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
V. SUMMARY renowned for its materialism and brisk pace of life, rather than for its community The benefits of community involvement spirit. Doing voluntary work for offenders in corrections are manifold. First and is not the dream of many and community foremost is the tapping of community attitudes do not change overnight. resources. They include not only the direct human resources, but also the Looking ahead, the Hong Kong professionalism and the organization Correctional Services should continue to which allows such resources to be used to build on the community involvement it has best effect. Without community already secured and to actively promote involvement, the government will either community awareness of the goals of have to directly or indirectly provide corrections and the role the community can resources, or accept that such services will play. not be provided at all, or provided on a reduced level or scale. Even if the List of NGOs involved in the government is prepared to substitute Correctional System in community resources, it may not be as cost Hong Kong effective because it is not geared to provide particular kinds of services. 1. The Society for the Rehabilitation of Offenders Hong Kong Secondly, the very nature and diversity 2. Prisoners’ Friends’ Association of community involvement is not what 3. Caritas Lok Heep Club government officials and money can 4. The Hong Kong Christian Kun Sun deliver. The effects on, and acceptance by, Association Limited prisoners are peculiar to the people 5. International Social Service Hong involved, by the very fact of their being Kong Branch members of the community or particular 6. Shuval Israel Centre sectors of the community. Thirdly, the more 7. The Alliance Bible Seminary extensive community involvment in Student Evangelistic Band corrections, the greater the community 8. Christian Prison Pastoral awareness of issues of corrections, and the Fellowship more likely community attitudes will 9. Hophzibah Evangelistic Centre support offenders’ rehabilitation. 10. Aberdeen East Congregation Jehovah’s Witnesses The Hong Kong Correctional Services is 11. Mother of Good Counsel Parish well aware of the benefits of community 12. Lotus Buddhist Association involvement. It welcomes such 13. Hong Kong Buddhist Association involvement and it does everything 14. Hong Kong Ling Yan Pentecostal possible to support and facilitate such Holiness Church involvement. It is also constantly watching 15. Good Shepherd Siaitere out for new opportunities to enlist greater 16. Buddhist Library of China community involvement. Having said all 17. Pentecostal Church of Hong Kong that, it must be conceded that the current 18. Christian & Missionary Alliance extent of involvement by the local Church Union of Hong Kong community is still relatively limited. What 19. The Leprosy Mission can be done is limited by the community 20. The Islamic Union of Hong Kong resources actually available and to a far 21. Land of Virtue Buddhist Centre greater extent, the prevailing attitudes of 22. St. Augustine Youth Association the community at large. Hong Kong is 23. Canossian Micsrons
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PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE CRIMINAL JUSTICE ADMINISTRATION
Ghazali bin Hj. Md. Amin*
I. INTRODUCTION unequals unequally, and that unequal treatment should be in proportion to the In any civilized society of today, the word inequality (Barry P. Norman; Modern justice (or injustice) refers to the rules and Political Theory; 1995; p.153). procedures that characterize social practices which are applied to the actions III. DEFINITIONS OF THE of individuals who participate in these CRIMINAL JUSTICE SYSTEM practices. When we speak of a breach of the rules of ‘natural justice’, we are Newman D.J defines the criminal justice referring to arbitrariness suffered by an system as, “a system that enforces individual in a ruled-governed process traditional systems, analysis of which (Barry P. Norman, 1955; An Introduction includes describing the structural inter- to Modern Political Theory; p.149). Thus, relationship of legislative, appellate court, when we talk about justice, it implies enforcement and administrative agencies, equality before the law, otherwise certain as well as their corresponding process of forms of inequality are arbitrary and decision making from the arrest of suspects unjust. through charging, adjudication, sentencing, imprisonment and release on As Rawls himself says, “Justice is the parole”. Reid (1982) defines the criminal first virtue of society” (Rawls, J.; 1972, The justice system as, “the agencies responsible Theory of Justice p.3) and most people for the enforcement of criminal law would agree that, although a society may including legislation, police, courts and exhibit other moral values than justice, a corrections. Their processes of decision society characterized by injustice would be making consists of the prevention, detection especially blameworthy. Not only is it right and investigation of crime; the to act justly, it is also specifically wrong to apprehension, accusation, and detention act unjustly. and trial of suspects; the conviction, sentencing, incarceration or official II. DEFINITIONS OF JUSTICE supervision of adjudicated defendants”. The Webster dictionary defines justice IV. EQUALITY IN THE MALAYSIAN as the administration of law, authority or CONTEXT jurisdiction in conformity with moral principles or law. According to Barry, the In Malaysia, a similar expression is conventional accounts of justice normally found in Article 8(i) of the Federal begin by stating a fundamental rule that Constitution, which guarantees that: “All derives from Aristotle. The theory is that persons are equal before the law and justice means treating equals equally and entitled to the equal protection of the law.” This expression of “equal protection of the * Superintendent, Public Relations, Royal Malaysia law”, was implanted in tote (derived form) Police, Malaysia. from Art.14 and Art.4 of the Indian and
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Pakistani Constitution, respectively. It justice system, the police, in executing their must also be mentioned here that although official duties, must ensure that any the Reid Commission in 1957 felt that shortfall in police action does not result in fundamental individual rights were “justice denied” to the person concerned. already established throughout Malaysia, In order to ensure and guarantee that nevertheless they felt that there should be justice is neither delayed nor denied, a constitutional safeguard because of Vincent Ng Kim Khoay, J.C. in PP v Lee apprehensions about the future Eng Kooi (1993) 2 AMR (Supp. Rep) 480 [Federation of Malaya (Constitutional rightly said, “Public interest consideration Commission, 1956-1957 Report, Paragraph demands that criminals are apprehended, 161) ]. rightly charged, fairly tried, justly convicted and appropriately sentenced. It is only V. POLICE ROLE IN THE through an interplay of good law officers CRIMINAL JUSTICE SYSTEM (police), honest and able DPPs, ethical lawyers and competent magistrates and Police are one of the integral components judges that these essential links in the of a criminal justice system. The police are administration of justice and maintenance always refered to the “long arm of the law”, of law and order are ensured for society. A “law enforcers”, as well as “peace shortfall in any these links hardly serves mediators”. In the course of the execution the public interest”. of their official duties, there may be some shortfalls or flaws in police actions. Such VI. PUBLIC ALSO HAS A ROLE TO police actions are pertaining to sections 3(3) PLAY IN CRIME PREVENTION of the Police Act, 1967; sections, 15, 28 and 117 of Criminal Procedure Code (Arrest); The surge in the crime rate last year, as sections 54 and 62 CPC (Search); and revealed by the police, is a reminder that sections 387 and 388 CPC (Bail). If police the people must never take safety and personnel, are ‘ultra vires’ of their official security for granted. According to jurisdiction in the course of performing statistics, the crime index rose from 87,902 their duties, or contravene any of the above cases in 1996 to 121,176 in 1997 (index mentioned sections of law, their actions, if crime is made up of violent and property done without due care and proper crimes). Policing say the increase was accountability, may result in a miscarriage significant, compared with the rise of 6,681 of justice on the part of the persons cases or 8.23% in 1996 from 81,221 cases concerned. in 1995. In 1997 property crime topped the list with 104,257 cases, an increase of As Alan E. Ellis said about law and 28,695 or 37.98%. The police had solved justice, “The concept of law, using law and 17,824 property crimes and 7,916 violent law enforcement, is only part of the large crimes. In the wake of these statistics, idea of justice...... Justice includes the use questions have been asked as to whether of law and it can’t really exist in society we have done enough to prevent crime. without order. But the idea goes beyond While we recognise that the police have a both law and order. It is close to what might major role to play, the responsibility is not be called fundamental fairness, liberty or ours alone. One leading newspaper almost moral decency...... ”. recently pointed out that while Malaysia is a comparatively safe country to live in, As law enforcement is the most critical its citizens and residents should remember and visible component of the criminal that these are extraordinary times.
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VII. COMMUNITY CRIME Foundation (MCPF) was established on 12 PREVENTION : WHY IS IT January 1993. The launching of the IMPORTANT ? Foundation was officiated by the Honourable Prime Minister of Malaysia, Community crime prevention means Dato’ Seri Dr. Mahathir Mohamed, who is people sharing the responsibility for also the patron of the Foundation. making the place where they live more secure. It doesn’t mean taking on the role 1. Objectives of the police, but using valuable police (i) The Foundation aims to contribute resource more effectively. to the enhancement of effective measures for crime prevention and The premise for community crime the treatment of offenders by way prevention is the same as for any of survey, research and other community endeavour - when people pull programmes. This is the basis of together to solve common problems, much solidarity and mutual co-operation is possible. Since residents know their own among persons involved with communities better than anyone, they can criminal justice system in countries often find solutions ideally suited to the of the Asian region; pursuing the social and cultural identity of their ultimate goal of peace and stability community. in the region. Obviously, for a community to undertake (ii) The Foundation shall also promote a successful crime prevention program, an public awareness of, and organized approach and a strong sense of participation in, crime prevention commitment are needed. In most efforts in tandem with the co- communities, there are individuals and ordinated efforts of government and groups with a proven track record of private organisations interested or organizing any number of local projects. involved in crime prevention and Frequently these people are leaders and the criminal justice system. volunteers alike and will have a long- standing commitment to improving the (iii) The Foundation shall receive and quality of community life. administer all funds for the fulfilment of the above objectives A growing number of community-based for the benefit of all Malaysians, organisations are now taking action or irrespective of race, creed or looking for ways they can be involved in religion. crime prevention programs. Some take part in programs such as Neighbourhood 2. Activities Watch. Others are creating new programs In furtherance of its declared objectives, designed to meet the specific situation in the Foundation shall undertake the their community. following activities: VIII. COMMUNITY POLICING/ (i) Organise, co-ordinate, promote ACTIVITIES FOR ENHANCING activities and assist other PUBLIC AWARENESS organisations, institutions, bodies A. Malaysia Crime Prevention and persons for the purpose of Foundation (MCPF) crime prevention. The Malaysia Crime Prevention
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(ii) Organise or assist in organising (ix) At least 70% of all income of the public lectures, training sessions, donations to the Foundation shall symposia, seminars, exhibitions be utilised for the fulfilment of the and other meetings concerning declared objectives of the research, training and public Foundation. enlightenment and awareness in connection with crime prevention (x) Collect and receive grants, and the treatment of offenders. endowments, donations and legacies from individuals or (iii) Conduct, assist or encourage such organisations or from any other activities as surveys, research and source for the promotion of the related activities in the field of objectives of the Foundation. crime prevention and the treatment of offenders. (xi) Solicit funds to support and sustain non-commercial activities (iv) Publish and distribute pamphlets, organised in fulfilment of its periodicals and other relevant declared objectives. literature to expound the aims and objectives of the Foundation, (xii) Generate income by utilising not subject to the prior approval of the more than 30% of all income and relevant authority. donations to the Foundation in short-term investments, the profits (v) Publish, exchange and distribute of which shall be used solely to fulfil documents and source materials the objectives of the Foundation. concerning crime and criminal justice, mainly in Asia. (xiii) C o n t r i b u t e t o w a r d s t h e rehabilitation of and assistance to (vi) Send, invite, assist in sending or the victims of crime, where such inviting researchers and experts in assistance is considered by the the field of crime prevention and Foundation to be appropriate the treatment of offenders, according to the merits of each case. regardless of their place of residence. 3. Membership (i) Ordinary Members: All individuals (vii) Assist the activities of those who whose applications for membership work for the rehabilitation of have been approved by the victims, offenders and former Executive Council. A university or offenders in Malaysia. university college student may become a member with the prior (viii) Collaborate and co-operate with approval of the vice-chancellor of other related organisations inside the university concerned. and outside Malaysia, particularly the United Nations Asia and Far (ii) Honorary Members: Individuals East Institute for the Prevention of who have been considered by the Crime and Treatment of Offenders Executive Council to be appropriate (UNAFEI) and other similar because of their outstanding regional organisations. contributions to the activities of the Foundation.
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(iii) Corporate Members: Duly dismissed from being a member. constituted associations, clubs or other similar bodies interested in A member intending to terminate their or contributing to the activities of membership shall submit a written notice the Foundation and considered by of intention to the Chairmam of the the Executive Council to be Executive Council. The Executive Council appropriate for the honour. may dismiss a member from membership in any one of the following circumstances: (iv) Life Members: The Executive Council may, in its absolute (i) When a member has damaged the discretion, grant life membership to reputation of the Foundation or members who have made acted in a manner prejudicial to the outstanding contributions to objectives of the foundation; promote the activities of the (ii) When a member has acted against Foundation. their membership obligations; (iii) When a member is conspicuously in The Executive Council may fix an default of membership dues and entrance and subscription fee for members continues to neglect the reminders and may, from time to time, vary the same, for payment. subject to the approval of the Registrar of Societies. The entrance fee shall be No subscription or part thereof, nor RM20.00 and the annual subscription fee entrance fee, if any, shall be returned to a shall be RM30.00. Corporate members member upon ceasing to be a member by shall pay an entrance fee of RM2000.00 and resignation, expulsion or termination of his annual subscription fee of RM2000.00. membership. The Foundation is not under the purview of the police, even though it The Executive Council shall have full has police officers within it. It is an NGO. power and discretion to approve or refuse applications for membership to the B. Central Monitoring System (CMS) Foundation. Only ordinary members, life The Malaysia Crime Prevention members and representatives of corporate Foundation (MCPF) is going all out to and associate members are eligible to vote reduce crime in the country. Two of its and be elected or appointed to the current projects are the Central Monitoring Executive Council. Each corporate and System (CMS) and Safe City Concept, associate member may nominate a number which are aimed at making it more difficult or representatives, as determined by the for people hoping to embark on a life of Executive Council, to participate in the crime. activities of the Foundation. Corporate and associate members are each eligible to a One of the main projects of the single vote. foundation is the implementation of a crime-fighting tactic known as the Central Membership sall be terminated on the Monitoring System (CMS) which will allow following grounds: the public to actively in combating house break-ins. With the CMS, the government (i) When the member resigns their won’t have to recruit more police personnel membership from the Foundation; and incur extra cost, especially at a time (ii) On their demise; when austerity drives are being adopted (iii) When the member has been nation-wide. Even if the economy was still
228 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS bullish, the public must play its part in constables. For example, if an alarm goes order for the police to effectively combat off in a house, a watch-constable will notify crime. the police before rushing to the scene. But if he arrives first, he can apprehend the The public expects the police to be unauthorized intruder. The watch- responsible for ensuring everybody’s safety; constables will be under the direct employ it is impossible. With our nation’s current of the security company operating the CMS population of 21 million, the ratio of police on behalf of the housing developer. personnel to civilians is 1:273. The logistics However, the police will monitor their of this ratio are indeed a handicap. There selection. They will have to undergo is no way everybody can be protected all training at the Police Training Centre the time. Based on limited human (Pulapol) and come under the command resources, the best that the police can do is and control of an area’s OCPD. introduce efficient crime-busting systems, step up patrols and quickly respond to As for the cost of the CMS, any service distress calls. rendered will have to be paid for. The cost will be a nominal monthly fee, which will At one time, we had neighbourhood vary depending on the type of system watch groups such as Rukun Tetangga, but installed. With wide usage, we believe the they fizzled out. People are either too busy cost of installing a CMS will be reduced, with their daily affairs or do not want to as was the case with hand-held phones, spend time on such activities. The CMS which are much cheaper now than when will be implemented at the planning stage they were first introduced. In time, it my of a housing scheme or township and will become a necessity rather than a luxury. represent a partnership between the The CMS will give house owners total peace developer, police and residents. The first of mind. It is actually a system which scheme to go online with the system will provides on-line communication, protecting be Bandar Utama Damansara in Petaling homes against intrusion by unauthorised Jaya. When operational sometime this persons. year, this upper-middle class residential estate will be the test-bed for an array of State-of-the-art onsite sending devices hi-tech equipment and newly devised laws. will alert trained personnel who will The CMS uses a sophisticated computer monitor a control room 24 hours a day. system with a control or operations room They can then take immediate action which is connected to the houses of should the need arise. Most CMS stations subscribers. In the event of a beak-in, are also equipped with monitors to enable sensors or cameras trigger off a signal in the controllers to view clients’ premises, the control room. The control room will be thereby helping to minimise the time taken monitored by watch-constables who are to check the status of an alarm. Such trained to respond immediately to any monitoring can be done by installing intrusion. special cameras with infrared sensors in strategic locations such as the living room, The watch-constable won’t be run-of-the- kitchen, staircase and study. mill security guards. Under Section 9 of the Police Act, they will be empowered to Every case will be investigated arrest suspects. This will make it easier immediately, but only in genuine situations for them to carry out their duties. The will clients be alerted and call the police police force will give support to the watch- for back-up. If the police come, watch-
229 RESOURCE MATERIAL SERIES No. 56 constables will assist in giving them an which that behaviour takes place. The Safe account of the burglary progress and City Initiative is an approach that can be location in the house. This will help the used to create a physical environment that police to act fast and accurately. can help in crime prevention in developing areas. It is a programme with integrated The government will be careful in the activities towards creating, or at least selection of firms participating in the CMS reducing the fear of, a city that is free from programme. Any security firms intending crime. to appoint watch-constables will have to apply to the Home Ministry for a licence. The Safe City Concept, involves the Only when the Ministry is satisfied that envelopment of a certain area. It involves the applicant fulfils all its requirements how buildings and structures are to be built will it grant approval. to prevent crime. Example: how advertising boards are put up on C. Safe City Initiatives pedestrian crossings. If it is all blocked The MCPF, spearheading the move to when you use the crossing, nobody can see ensure safety in the cities, was formed in you when you are robbed. Transparent 1993 to promote greater social and public advertisement boards should be used involvement in crime prevention. Its instead. This in just one small part of the current chairman is Education Minister, Safe City Concept. Where trees are planted Dato’ Sri Mohd. Najib Tun Abdul Razak. is also important- overgrown bushes should also be avoided because these can act as 1. Background an ideal place for criminals to hide. Studies The Safe City Initiative is based on the from some European countries and North principle “prevention is better than cure”. America have shown that the way towns This crime prevention approach is through and estates are designed is seen to have environmental design. It is based on the an affect on the crime rate. principle that crime prevention is achieved by reducing the opportunity to commit Besides that, it has been shown that the crime. In the United States, crime way a town is designed also results in prevention is by reducing the opportunity families being more friendly with each to commit crime. In the United States, other, reducing the rate of crime because criminal psychologists have proved that they will watch out for each other. Under 75% of crime is from victims behaviour the Safe City Concept, safety lanes for which encourages criminals to commit bicycles and motorbikes, and safer roads crimes against them. For instance, most will be built. It is holistic concept to make of the robberies and highway crime happen living in the city safer. because of opportunity, not because it was professionally planned. Experts within the MCPF, like the director of the Town and Country Planning Based on the above, it was decided that Department of Selangor, who is an exco prevention requires a physical member, is working on the Safe City environmental design which can generate concept. Developers are also updated on social behaviour that can deter criminals the State City Concept. from committing crime. This physical environmental design is consistent with The MCPF is also involved in the predictable relationship between researching the field of crime prevention, human behaviour and the environment in and sometimes invites experts from
230 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS different parts of the world to give talks on (xi) Continuous monitoring and new insights on fighting crime. The feedback. foundation is not under the purview of the police, even though it has police officers 4. Safe City Initiatives of Bangsar Zone within it. It is an NGO. The Malaysia Crime Prevention Foundation (MCPF), chaired by the We hope that in the future the MCPF Honourable Dato’ Sri Mohd. Najid Tun will almost be exclusively made up of non- Abdul Razak, has decided to implement the police personnel, except for the post of duty Safe City Initiative to combat crime in chairman who must be the IGP. The Malaysia. A special committee was formed latter’s presence will ensure police support to study in detail its implementation. On and supervision of its crime prevention June 2nd 1998, the MCPF Exco meeting project. decided the two pilot projects, i.e in Bangsar and Cheras Flats in Kuala 2. Characteristics Lumpur, be implemented. Both projects • Partnership between government will be made models for future and citizens, especially marginalized implementation in all states. groups; • Prevention of criminal behaviour Safe City Initiative’ Bangsar Zone through environmental design, comprises of the following areas: community development and education; • Sri Hartamas Residence Area • Combine citizens in crime prevention • Bukit Bandaraya Residence Area and instil neighbourhood spirit; and • Bangsar Baru Residence Area • Urban safety as a catalyst for change. • Lucky Garden Residence Area • Bangser Park Residence Area 3. Schedule of Activities • Bangsar Baru Town Area (i) Selection of project area, introduction to project area and IX. PUBLIC PARTICIPATION & target group; CO-OPERATION IN CRIMINAL (ii) Explanation of concept to target JUSTICE PROCESSES group; A. Investigation (iii) Formation of the Safe City 1. Arrest by Private Persons (SEC. 27 Committee for project area; CPC) (iv) Identification of issues/problems/ Any private person may arrest any crimes by target group and person who, in their view, commits a non- Committee; bailable and seizable offence, or who has (v) Solution to issues/problems by been proclaimed under section 44, and target group and Committee; shall without unnecessary delay take the (vi) Engagement of consultant if person so arrested to the nearest police necessary; officer or, in the absence of a police officer, (vii) Implementation of solutions; take such person to the nearest police (viii) Monitoring effectiveness of station. solutions; (ix) Modifications of solutions if 2. Information (SEC. 107 CPC) necessary; (1)All information relating to the (x) Documentation of project activities; commission of an offence, if given and
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orally to an officer in charge of a No person employed on a railway police station, shall be reduced to shall be required to leave their writing, or under direction, and be employment under such read to the informant. circumstances as to endanger the lives of persons traveling on the (2) All such information shall be entered railway. in a book to be kept by such officer, who shall append to such entry the 4. Examination of Witnesses by Police date and hour on which such (SEC. 112 CPC) information was given, and whether (1) A police officer making a police given in writing or reduced to writing investigation under this chapter may as aforesaid, shall be signed by the examine orally any person supposed person giving it. to be acquainted with the facts and circumstances of the case, and shall 3. Police Power to Require Attendance of reduce into writing any statement Witnesses (SEC. 111 CPC) made by the person so examined. (1) A police officer making an investigation under this chapter may, (2) Such a person shall be bound to by order in writing, require answer all questions relating to such attendance before themself of any a case as put to them by an officer. person being within the limits of the Provided that such a person may police district in which s/he is making refuse to answer any question, the an investigation who, from the answer to which would have a information given or otherwise tendency to expose them to a criminal appears to be, acquainted with the charge or penalty or forfeiture. circumstances of the case. Such persons shall be, required under this (3) A person making a statement under section to perform a journey of more this section shall be legally bound to than seven miles from their usual state the truth, whether or not such place of abode, exclusive of such a statement is made wholly or in portion of the journey as may be answer to questions. performed by train or motor car or other vehicle. (4) A police officer examining a person under subsection (1) shall first inform (2) If any such person refuses to attend that person of the provisions of as so required, such a police officer subsections (2) and (3). may report the refusal to a Magistrate who may thereupon in (5) A statement made by any person their discretion issue a warrant to under this section, whether or not a secure the attendance of such a caution has been administered to person as required by the aforesaid them under section 113 (1), shall, order. whenever possible, be taken down in writing and signed by the person (3) Any police officer requiring the making it or affixed with their thumb attendance of any person employed print as the case may be, after it has on a railway shall send immediate been read to them in the language in information thereof to the person in which s/he made it and after s/he has charge of the nearest railway station. been given an opportunity to make
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the corrections s/he may wish to original summons and by tendering make. or delivering to them a copy thereof under the seal of the court. 5. Omission to Assist Public Servant When Bound by Law to Give Assistance (2) Every person on whom a summons (SEC. 187 PC) is served shall, if so required by the Whoever, being bound by law to render serving officer, sign a receipt for the or furnish assistance to any public servant copy thereof on the back of the in the execution of their public duty, original summons. intentionally omits to give such assistance, shall be punished with imprisonment for a (3) In the case of a corporation, the term which may extend to one month, or summons may be served on the with a fine which may extend to four secretary or other like officer of the hundred ringgit, or both. If such assistance same. is demanded by a public servant legally competent to make such a demand (for the (4) Where the person to be summoned purpose of executing any process lawfully cannot, in the exercise of due issued by a court, or for preventing the diligence, be found, the summons commission of an offence, or for may be served by leaving a copy suppressing a riot or affray, or for thereof for them with some adult apprehending a person charged with or member of their family or with a guilty of an offence, or of having escaped servant residing with them. from lawful custody), they shall be punished with imprisonment for a term 3. Procedure When Personal Service which may extend to six months, or with Cannot be Effected (SEC. 36 CPC) fine which may extend to one thousand When the person to be summoned ringgit, or both. cannot, by the exercise of due diligence, be found, and service cannot be effected as B. Prosecution directed by sec.35 (4), the serving officer 1. Form of Summons and Service (SEC. shall affix a copy of the summons to some 34 CPC) conspicuous part of the house or other place (1) Every summons to appear, issued by in which the person summoned ordinarily a court under this Code, shall be in resides. In such cases the summons, if the writing and signed as provided by the court so directs, either before or after such Courts of Judicature Act 1964, or the affixing, shall be deemed to have been duly Courts Ordinance 1948, and shall served. bear the seal of the Court. 4. Allowances / Protection (2) Such summons shall ordinarily be All allowances are paid to witnesses served by a police officer but the attending court cases and protection is Court issuing the summons may, if it given on a selective basis, based on the sees fit, direct it to be served by any seriousness of the case. other person. 1. Payment of the Expenses of Prosecutors 2. Service Procedure (SEC. 35) and Witnesses (Sec 427 CPC) (1) The summons shall, if practicable, be In every criminal case tried before the served personally on the person High Court, and in every criminal case summoned by showing them the tried before a Sessions Court or a
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Magistrate’s Court, such a court may, General to advise the Yang di-Partuan in its discretion, order payment out of Agong or the Cabinet or any Minster upon the Consolidated Fund to the such legal matters, and to perform such prosecutor and to the witnesses, both other duties of a legal character, as may for the prosecution and for the defence, from time to time be referred or assigned or to such of them as it thinks fit, of to by the Yang di-Partuan Agong or the the expenses incurred by them Cabinet, and to discharge the functions severally in and about attending the conferred on them by or under this High Court, or the Sessions Court or Constitution or any other written law. Magistrate’s Court, and also as compensation for their trouble and loss The Attorney-General shall have power, of time, subject to such rules as are exercisable on discretion, to institute, prescribed. conduct or discontinue any proceedings for an offence, other than proceedings before 2. Reward for Unusual Exertion (Sec a Syariah Court, a native court or a court- 430CPC) martial. Whenever it appears to any court that a private person has shown unusual The Federal Government may confer on courage, diligence or exertion in the the Attorney-General the power to apprehension of a person accused of determine the courts in which, or the venue having committed, attempted to at which, any proceedings which s/he has commit or abetted an offence power under clause (3) to institute, shall punishable with death or be instituted, or to which such proceedings imprisonment, such a court may order shall be transferred. payment to them, out of the Consolidated Fund, of any sum not In the performance of duties, the exceeding one hundred ringgit. Attorney-General shall have the right of audience with, and shall take precedence 3. Compensation for Family of a Person over, any other person appearing before Killed during Arrest (Sec. 431 CPC) any court or tribunal in the Federation. If any person is killed in endeavouring to arrest or to keep in lawful custody a Subject to clause (6), the Attorney- person accused as aforesaid, the General shall hold office during the Minister of Finance may order payment pleasure of the Yang di-Pertuan Agong and out of the Consolidated Fund to the may at any time resign and, unless s/he is wife, husband, parent or child of the a member of the Cabinet, shall receive such deceased of such a sum or sums as remuneration as the Yang di-Pertuan appear reasonable in compensation for Agong may determine. the loss sustained. The person holding the office of Attorney- C. THE ATTORNEY-GENERAL General immediately prior to the coming The Yang di-Pertuan Agong shall, on the into operation of this Article shall continue advice of the Prime Minister, appoint a to hold the office on terms and conditions person (who is qualified to be a judge of not less favourable than those applicable the Federal Court) to be the Attorney- to him/her immediately before coming into General for the Federation. operation and shall not be removed from office except on like grounds and in a like It shall be the duty of the Attorney manner as a judge of the court.
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D. Judiciary Justice of the Peace shall take and 1. Justice of Peace subscribe an oath in the presence of a judge in chambers. 1. Appointment of Justices of the Peace, Subordinate Courts Act 1948 (Sec. 98) Nothing in this section shall be deemed to require a Justice of the Peace to be The Yang di-Pertuan Agong may, by satisfied as to the contents of any warrant under hand, appoint such document, or that the proper stamp persons as deemed fit to be Justices of duty prescribed under any written law the Peace within and for the Federal has been paid thereon, except to ensure Territory, and may, in like manner, that one or more stamps have been revoke any such appointment. affixed to the document and that they have been cancelled in the manner The State Authority may, by warrant prescribed by law prior to signature under hand, appoint such persons as and attestation. deemed fit to be Justices of the Peace within and for the State, and may, in A Justice of the Peace, whilst exercising like manner, revoke any such powers or performing duties as such, appointment. shall be deemed to be a public servant within the meaning of the Penal Code, All appointments and revocations of and the Public Authorities Protection appointments made under this section Act 1948; this shall apply to any suit, shall be notified in the Gazette. action, prosecution or proceeding arising therefrom. 2. Power of Justices of the Peace, Subordinate Courts Act 1948 (Sec. 99) E. Juvenile Court Justices of the Peace in West Malaysia A juvenile can only be tried in a juvenile shall have, and may exercise within the court, which is very different in composition State for which they are appointed, and procedure from other by courts. The such powers not exceeding the powers juvenile court is presided over by a of a Second Class Magistrate as may magistrate who is assisted by two advisors, be conferred upon them by any written one of the whom is usually a woman. It is law. not an open court, and only the court, court officials, parties to the case, parents or Justices of the Peace in Sabah shall guardians, lawyers, witnesses and have, and shall exercise and perform, newspaper reporters are allowed to be such powers and duties as may be present. The media cannot reveal the conferred or imposed upon them by any name, address or school or any other written law. They shall also have such particulars which may lead to the other powers and duties as the Minister identiffication of the juvenile. may, by regulations, confer or impose upon them, and the Minister may F. The Legal Aid Scheme in confer or impose the said powers and Malaysia duties upon all or any of the Justices of the Peace. 1. Mission Towards becoming an excellent agency, Before exercising or performing any of by providing caring and professional the powers or duties conferred, a legal aid and advice services to persons
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who qualify under the Legal Aid Act X. PUBLIC PARTICIPATION & CO- 1971. OPERATION IN THE TREATMENT OF OFFENDERS 2. Objectiive To date, 24,500 offenders are still under The objective of the Bureau is to detention in 36 various prisons and provide legal assistance to those who rehabilitation centres all over Malaysia. cannot afford legal fees and to uphold The administration is run by the Prison the principle of equality before the law. Department, which is directly under the Ministry of Home Affairs. They were 3. Function sentenced to prison by the courts for • To provide legal advice in all legal offences committed under the Penal Code, matters; Dangerous Drugs Act, Firearms Act or • To represent or provide legal other laws. Records show that public assistance in proceedings in all courts participation and co-operation in the in Malaysia in matters within the treatment of offenders was overwhelming. jurisdiction, as provided by law; and There were so many programmes and • To educate members of the public on projects being held. Two good example are their rights under the law. as follows: G. Conflict Resolution System A. Religious Activities Outside Trial: Plea Bargains There were more than 20 religious There is no governing law here, but it is organizations conducting various religious not illegal and it is not unusual to have activities and programmes in all 36 prison/ plea bargaining take place between the rehabilitation centres. The religious prosecution and the defence counsel only. organizations represented not only Muslim The court does not take part in the bilateral organizations but also Christian, Buddhist agreement. The matter of sentencing is and Hindu organizations. still up to the discretion of the courts. B. Therapeutic Community (TC) - Previously in a murder case, the defence Role Model and prosecution could have quick discussions at the bar table in court and 1. Objectives come to an agreement that the charge (a) To remind school children not to get under Section 302 of the Penal Code be involved in and to avoid committing reduced to Section 304. Not being able to crime. do that could cause delays and backlog. (b) To remind parents of the importance Public prosecutors have to put ‘on record’ of care and concern towards the social all requests and discussions with lawyers activities of their children in avoiding who ‘plea bargain’ for a reduction of charges crime. or for a review of a case. Any such application must be done in writing by the 2. Activities defence counsel (on record) to the Attorney (a) Talks/lectures were conducted by General or the head of the Prosecution offenders who were still serving their Division or State Legal Advisor. sentence, with the guidance of counsellors from the prison department to selected schools.
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(b)Slides/video/film shows. shall be applicable to any order made under this section. The court may direct that an 3. Target order for payment of costs, or an order for (a) All secondary schools in Malaysia. payment of compensation, shall have priority, and, if no direction be given, an (b) Teachers and Parent Associations order for payment of costs shall have through out the country. priority over an order for payment of compensation. In 1998, the programme was conducted in 19 schools in the state of Selangor, while To the extent of the amount which has 34 secondary schools in the Federal been paid to a person or to the Territory of Kuala Lumpur. About 11,000 representatives of a person under an order students and 3,000 parents participated in for compensation, any claim of such person this programme. So far 16 institutions or representatives for damages sustained (prisons) were actively involved in this TC by reason of the crime or offence, shall be programme. deemed to have been satisfied. The order for payment shall not prejudice any right to a civil remedy for the recovery of any XI. ASSISTANCE TO VICTIMS & property or for the recovery of damages VICTIM PARTICIPATION IN THE beyond the amount of compensation paid CRIMINAL JUSTICE PROCESS under the order. Every order made under this section by a magistrate shall be A. Order for Payment of Costs of appealable to the High Court. Prosecution and Compensation (SEC. 426 CPC) B. Victim in the Criminal Justice The court before which a person is Process convicted of any crime or offence may, in Until very recently, there was a striking its discretion, make either or both of the lack of information about victims, and even following orders against them, namely: now, knowledge is still fairly sketchy, limited to certain crimes and often, to (a) an order for payment of the cost of certain types of victims. This ignorance is prosecution or such part thereof as astonishing when one considers that the the court directs; criminal justice system would collapse if victims were to refuse to co-operate. Some (b) an order for the payment of a sum to victims have found that their treatment by be fixed by the court by way of officals in the justice system - the police, compensation to any person, or to the lawyers, court officials, judges and representatives of any person, compensation boards - is too stressful, injured in respect of their person, demeaning, unfair, disregarding of their character or property by the crime or feelings, rights, needs and interests. offence for which the sentence is Sometimes, they see the system as a second passed. victimisation which can be more unpleasant than the original crime. In The court shall specify the person to such cases, they may become disenchanted whom any sum in respect of costs or with the system and choose not to report compensation, as aforesaid, is to be paid; or to co-operate in the future; their and the provisions of section 432 [except experiences may also affect friends and paragraph (d) of subsection (1) thereof] family, and even the general public,
237 RESOURCE MATERIAL SERIES No. 56 spreading a general reluctance to co- to be repaid for his or her losses. operate. This syndrome is best known in rape cases were few women are willing to Compensation has been justified in co-operate, but also exists in other areas. several ways. Some say that the State has an obligation to protect the welfare and Victims often feel they are being used safety of its citizen, and that when it fails by the courts. They are expected to report to prevent crime, it should pay victims for to the police but are not always made feel their losses. Another rationale for comfortable in doing this. For most victims compensation is that it may prevent the police station remains a fairly victims from becoming angry at the uninviting environment. This reduces the criminal justice system and alienated from effectiveness of crime control, as it the political system (Schafer, 1968; Stookey, increases the offender’s chance of getting 1981). Even though compensation away undetected. If victims are asked to programs are sometimes aimed at public identify offenders, they are rarely screened attitudes toward the criminal justice and may, through fear of facing the system and the government, research offender, fail to identify him or her. When indicates that many victims who have called to give evidence, they are rarely sought compensation are disenchanted permitted to relate their experiences in with the criminal justice system. Indeed, their own words but are forced to answer administrative obstacles to securing questions which may actually misrepresent compensation, and the inadequate rewards their account of what occurred. provided to victims, seem to engender more Furthermore, if they refuse to co-operate, discontent towards the legal system among they may be prosecuted because they would applicants for compensation, than exists be obstructing the course of justice. The among people who do not apply for proceedings are indeed mostly adapted to compensation (Elias, 1983, 1984). the needs of the State, which has also been victimised in that its peace and its rules Compensation programs must deal with have been broken. The State has an the problem of the victim’s contribution to interest in the social control of offenders the crime. Victims sometimes precipitate and therefore has a right to require anyone a crime or contribute to their own to give evidence, but not at the expense of victimization, and in such cases, the State victims’ rights and interest. might choose not to compensate the victim. For instance, someone who first uses force C. Remedies against another person and then ends up In recent years, more attention has been badly injured in a fight might not be paid to victims. Systems of compensation compensated if the State Compensation and restitution have developed to repay Board found that the crime would not have victims for their losses. occurred without the victim’s initiating actions. In Great Britain, compensation is 1. Compensation limited to ‘deserving cases’, and this is Compensation is a system in which the determined in part by the degree to which State repays victims for their financial the victim is to blame for his or her own losses or physical injuries. Under this victimization (Schafer, 1968). system, it is not necessary to arrest and convict an offender for a victim to be 2. Restitution compensated, nor does a convicted offender A system of restitution requires have to be financially solvent for the victim offenders to make monetary payment or
238 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS provide services, either to the victim or the victims and witnesses the importance of community at large. Relatively, few testifying in court. In some jurisdictions, criminal courts have used restitution victims have even been included in plea extensively, but growing concern for bargaining conferences with the district victims’ rights has led some judges to attorney, the defence attorney and the require offenders to repay victims for their defendant (Heinz and Kerstetler, 1981). losses. One study found that victim-witness programs in prosecutors’ offices contributed Some claim that restitution makes in an important way to keeping victims offenders take responsibility for their informed about the progress and outcome behaviour and thus helps rehabilitate them of cases, and that crime victims expressed (Denning, 1976). Others claim that more satisfaction with the criminal justice offtenders who repay their victims may not system when they knew the outcome of the feel guilty for their crimes if they believe case and thought they had influenced that they have corrected their wrongs, and that outcome (Forst and Hernon, 1985). this may make it more likely that they will continue to commit crime. Restitution Few judges learn directly from victims might improve crime reporting if victims about the impact crime has on their thought they would be repaid for their psychological well-being, physical condition losses. Moreover, by easing public hostility and financial situation. Usually, judges toward offenders, restitution might reduce learn about this only from pre-sentence the isolation of offenders from conventional reports prepared by probation officers, who society and make it easier to reintegrate draw on secondhand information from them into society after they are released police reports, medical records, or victim from prison. Restitution would also lighten discussions with prosecutors. As a result, the burden on taxpayers if it replaced a some courts have introduced victim impact system of state compensation (Barnett, statements, detailed written reports based 1977; Bridges, Grandy and Jorgendon, on interviews with victims about the effects 1979). of crime on them (Forst and Hernon, 1985). In 1987, the US Supreme Court ruled that 3. Others such victim impact statements could not Victims have also been given a greater be used in hearings on the imposition of voice in the sentencing of offenders, though the death penalty, arguing that those defendants are usually allowed to respond hearings should focus on the defendant’s to victims statements. In some ‘moral blameworthiness’ rather than on the jurisdictions, victims must be notified of impact of the crime on the family of the hearings and trials and be informed when victim. an inmate is being considered for parole or escapes from prison. Today, nearly all states (in the USA) permit victims to appear at parole board In America, district attorneys have hearings or to file written statements with started to pay more attention to the role of parole boards, in order to make their the victim in the criminal justice system. wishes known whether a prisoner should They can help to deal with a victim’s fear be released. This reform was introduced of retaliation by the offender, frustration to the Federal Prison System in 1984. with delays in the court, and intimidation Many victims do not take this opportunity by a defence attorney’s cross-examination. to make their wishes known, either fearing District attorneys can also impress on retaliation or not wanting to dredge up
239 RESOURCE MATERIAL SERIES No. 56 unpleasant memories of past crimes.
However, those who oppose the use of victim’s testimony to parole boards and victim impact statements in court fear that those reforms might introduce public pressure or vengeance into proceedings that should be more dispassionate. They claim that poor and uneducated offenders might be punished more severely if they are confronted with articulate victims who demand long sentences. These critics assert that sentencing and parole should be based on an offender’s threat to society and behaviour while in prison, not on a victim’s wishes.
Supporters of these reforms argue that they draw the victim into the criminal justce system in a direct way, thereby providing a new perspective to criminal justice administrators. They also point to the greater degree of satisfaction with the criminal justice system among victims who believe their wishes have been taken into consideration in meting out punishment, arguing that a satisfied victim is more likely to report crime in the prosecution of defendants in the future, and this may help deter crime.
XII. CONCLUSION The criminal justice system would probably function more efficiently if it counseled victims and witnesses and tried to incorporate them more into the processing of defendants. Ultimately, the criminal justice system should achieve an equilibrium of justice for the victims, public and the State, as for well as for the defenders.
240 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE CRIMINAL JUSTICE ADMINISTRATION IN THE PHILIPPINES
Donna Lynn A. Caparas*
I. INTRODUCTION labored to prioritize legislation to curb the proliferation of crimes. The crime situation In the 1998 State of the Nation Address has evolved in such dimensions that that, of His Excellency, President Joseph Ejercito in order to curb it, a systematized and Estrada, the President announced the effective crime prevention and control adoption of a ten-point action program by program is deemed imperative. his government. The first major task he cited pertains to the strategic theme of his II. PHILIPPINE STRATEGIES FOR government, which he declared as a CRIME PREVENTION governance of transparency. All decision- making processes are to be publicly A basic condition for an effective and disclosed and must be consultative. The efficient criminal justice system is genuine immediate objective of the government is trust and confidence of the general public. to restore public confidence and its long It is this trust and confidence that spells term objective is to establish an enduring the difference between an actively partnership among government, the supportive public on the one hand, and an business community and civil society. apathetic community on the other hand. It is the building block of successful crime One of the major task of his government prevention strategies. is reduction of criminality by effecting the “immediate arrest of the most notorious A. The Philippine Criminal Justice criminals and drug pushers”. He has, in System: The 5-Pillar Approach fact, created a Presidential Anti-Organised The Philippine criminal justice system Crime Task Force to coordinate efforts as has four (4) formally organized components regard to the reduction of criminality. namely: law enforcement, prosecution, courts and corrections. The formal The upsurge in crimes concerns not only components are the traditional series of public security and order or political agencies that have been given formal stability, but also gravely affects the responsibility to control crime: the police, favorable economic gain of the country. The the prosecutors, the judges, prison and jail consequential repercussions of such crimes personnel, probation and parole officers. have compelled the Philippine government to launch a more intensified and more The fifth component is made-up of the unified drive to involve law enforcement, mobilized community and is outside this prosecutorial, and judicial agencies. In formal organization. If may be composed fact, even the legislative branch has of public entities, private groups and individuals and local officials who are * Project Evaluation Officer V, Division Chief, performing functions related to the Criminological Research Division, National Police prevention and reduction of crime. Commission, the Philippines.
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The fifth pillar has a two-fold role. First, participation are being introduced on all members have the responsibility to fronts. participate in law enforcement activities by being partners of the peace officers in In the reduction of crime, a systems-wide reporting crime incidents, and helping in strategy was initially developed in the the arrest of the offenders. Second, they 1970s. This ventured into specific have responsibility to participate in the community-based crime prevention promotion of peace and order through activities for adoption and implementation crime prevention or deterrence, and in the by criminal justice agencies, specifically rehabilitation of convicts and their those perceived to have the greatest reintegration to society. potential for improving the quality of life, and hence, reducing crime. The strategies B. The Holistic Approach that find relevance to the present are: 1) Over the years, crime has continued to reinforcement of the home and family life; be one of the major social problems and 2) educational improvement; 3) health questions linger in the minds of the public improvement; 4) active participation of as to the capability of the agencies religious organizations/groups; 5) concerned to respond effectively to the improvement of recreational facilities; 6) threat of crime. The failure to meet involvement of mass media; and 7) citizens’ targeted goals, however, should not be involvement in crime prevention activities. totally construed as a failure of the system but rather, on the prevailing environmental C. Coordination and Networking in conditions or foctors that may have the Philippine Criminal Justice precipitated the increase of crime System incidence. These factors include increasing The criminal justice arena is a system pressure from the family, peer groups, of interrelated goals, functions and roles. rural-to-urban migration, negative effects Interagency coordinating mechanisms of mass media, impact of poverty, have been created and strengthened to unemployment and inflation, and graft and optimize problem-solving for pressing corruption. issues affecting each pillar, and to work out the implementation of projects and In view of this, crime prevention policies activities within an interdisciplinary have been incorporated in national framework. economic development plans. Under the past administration, reinventing the 1. National Peace and Order Council bureaucracy and crafting a new and Several years ago, a centralized reinvigorated Social Reform Agenda coordinating mechanism to carry out a became priority actions. Specifially, the national program addressed not only Philippines 2000 program, launched in criminality but all forces that threaten February 1993, encompasses the Filipino national security was established with the vision for an improved quality of life for promulgation of Executive Order 309, as all. It is anchored in people empowerment amended by EOs 317 and 320, and recently and global competitiveness. EO 366. This national council, more popularly known as the Peace and Order Significant sector-specific strategies to Council, draws its membership from more equitably distribute the fruits of government agencies and non- development, to bridge rural-urban governmental organizations (NGOs). It disparities and to increase people’s underwent reorganization and
242 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS revitalization on all levels-national, Conferees in the Summit agreed to adopt regional, provincial and city/municipal. a Master Plan of Action for Peace and Order to be implemented for a period of 5 years The Peace and Order Council (POC) is a by the criminal justice system agencies and unified and strongly coordinated body to the mobilized community. Former carry out national programs addressed to President Fidel V. Ramos directed the the problems of criminality, terrorism, Peace and Order Council through the drugs, insurgency, rebellion or disruption National Police Commission’s Technical of public order, which threaten our national Committee on Crime Prevention and unity and security. Criminal Justice to oversee the implementation and monitoring of the 2. National Summit on Peace and Order projects contained in the Master Plan. In connection with this, the government tasked the National Peace and Order The Master Plan of Action for Peace and Council to call on all criminal justice Order is the blueprint for a concerted agencies in the country consultative government action against criminality, and meetings. This resulted in the holding of programs, projects and activities national peace and order summits to craft incorporated in the plan are to be a common policy and action plans against implemented from 1997 to 2001. criminals, especially those involved in heinous offenses. III. PUBLIC PARTICIPATION AND COOPERATION IN THE CRIMINAL The National Summit on Peace and JUSTICE PROCESS Order, which was institutionalized in 1993, Trust and confidence is built upon a firm is an annual exercise wherein government knowledge of a criminal justice machinery is considered in this jurisdiction as the fifth that is able to deliver justice speedily, component of the criminal justice system - accurately, equitably, fairly and accessibly, not just in the implementation phase but or any combination of these depending on also in the policy-formulation level. society’s culture and norms. The Summit of 1993 was the first time As reforms in the Philippine criminal that public servants met with the citizenry justice system gradually take root in the on a national scale to openly discuss the individual pillars, public trust and peace and order conditions in the country confidence can be built up into greater on which could be forged a rationalized vigilance and active community blueprint for action, distilled from the clash involvement. The process of regaining of intellectual and experimental insights. people’s trust and confidence in the country’s criminal justice system is being The Summits have endeavored to learn orchestrated at the highest levels of from hindsight, to sustain the gains that government and is being coordinated have been made in the past and to find out throught the close networking of inter- what more could be done to improve the disciplinary committees such as the administration of justice in the country and Napolcom Technical Committee on Crime the overall peace and order situation. The Prevention and Criminal Justice. Some of annual summit provides an occasion for a the programs initiated, by pillar, are the diagnosis of the year just past, and a following. prognosis of the year to follow.
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A. Police Level The major emphasis of COPS is the By and large, this pillar represents the imperative of cultivating a people-police most visible subsystem and has the partnership to champion the cause of peace greatest membership of the four formal and order in the community. Public components. To date, the country has a support is the desideratum of police total of 94,965 members of the Philippine effectiveness and success. The police can National Police nationwide, with NCR not single-handedly solve the manifold accounting for 10,644 members, excluding problems of criminality, considering its uniformed and civilian volunteers deficiencies in manpower, mobility, comprising a total of 3,817 at present. This communications and firepower. Only the in the entry point of the system for first people can fill the gap. offenders and the re-entry point for the failures of the other subsystem. This is The Philippine National Police (PNP) sometimes referred to as the “gateway to has been directed to hasten the full the Criminal Justice System”. implementation of community-based policing projects, especially in urbanized The law enforcement function is areas, nationwide. All territorial unit spearheaded by the Philippine National commanders have been directed to Police (PNP) and the National Bureau of accelerate the institutionalization of the Investigation (NBI). The PNP is national community policing system in their in scope and civilian in character and respective areas in cooperation with local administered and controlled by the government units (LGUs), other National Police Commission government agencies/offices, and (NAPOLCOM), an attached agency of the nongovernment organizations (NGOs). Department of Interior and Local Government (DILG). Cognizant that the support and involvement of the community is one of the Several measures have been initiated at significant factors in the successful the law enforcement level to maximize the implementation and intstitutionalization participation of the public at this level of of the community policing project, the the criminal justice system. Among these Napolcom enjoined the PNP to solicit and are: enter into partnership and alliance with all interested NGOs, civic organizations and 1. Community Oriented Policing Concept LGUs to be formalized through the signing (COPS) of Memorandum of Agreement without The National Police Commission and the exclusivity. Philippine National Police agreed that there should be a specific operational The physical/structural aspect of the program initiated by the government to project is the establishment of a modest counter criminality, even if some of the police box or police center in the community more successful models are those initiated wherein the activities of the system will by the community. The two agencies be planned, organized and executed. The agreed to implement and institutionalize primary function of the box or center is the a particular community-based crime organization of the community to prevent prevention program nationwide. This and control crime. program is dubbed the “Community- Oriented Policing System or COPS” On the other hand, its psychological/ behavioral aspect pertains to COPS as a
244 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS philosophy that guides the approach to vested with the jurisdiction to hear and policing taken by every police unit. It is decide citizens’ complaints against erring the process of changing the mindset and personnel that are filed before them. The attitude of the members of the police force intent of the law is clear. In the governance in solving criminality without resorting to over the police, local government units and violent means and methods. In the same the community must have substantial and manner, the members of the community more meaningful participation, will be convinced to enter into partnership particularly in the area of discipline. with the law enforcer to keep the community peaceful. While a police agency PLEB members are appointed by the can adopt aspects of the community local executives through the policing philosophy for selected units and recommendation of the local Peace and activities it undertakes, maximum impact Order Councils. In 1995, a total of 1,510 cannot be achieved unless the entire PLEBs were organized nationwide. PLEB station adopts the COPS philosophy and members are given the appropriate the station is organized in a manner that training upon appointment. Of the total reflects the commitment to neighborhood number of PLEBs organized, 1,087 PLEBS problem solving. were monitored to determine their caseload and status of case disposition, as well as to COPS aims to cultivate the citizen-police look into their technical or legal capabilities partnership to serve the cause of peace and and requirements. Around l,919 order in the community. It seeks the complaints against PNP members were cooperation and active support of NGOs, filed with the various PLEBs. Of this the local government officials, and the number, 824 were disposed of, registering entire community for crime prevention and a 42.9 percent case disposition rate. control. It also ensures immediate police response to situations, thereby fostering a 3. Establishment of “Women’s and sense of security among the residents in Children’s Concern Desk” in Police the community. In the long term, it aims Stations to facilitate the transition from the The establishment of the Women’s and traditional reactive incident-driven model Children’s Concern Desks in police stations of policing to a proactive style of operation is expected to further streamline and which seeks to identify and resolve strengthen the effort of the police in community problems and actively engage responding to problems of violence against members of the community in the process. women and children. As a management strategy, police women are assigned to man the desks, or if no female personnel are 2. Institutionalization of the Peoples Law available, a trained male police officer is Enforcement Boards (PLEB) assigned. To date, a total of 1,632 WCCDs People empowerment as a strategy in with 1,763 personnel (l,468 policewomen the administration of police administrative and 294 policemen) have been established disciplinary system finds actualization nationwide. In highly urbanized cities, the with the organization and operation of the WCCD handles the investigation of women People’s Law Enforcement Boards (PLEBs) and children’s cases. A total of 3,463 cases in the cities and municipalities throughout of abused women and children have been the country. reported to WCCD and acted upon appropriately. WCCP officers have been Under R.A. No. 6975, the PLEBs are effective tools in providing services to
245 RESOURCE MATERIAL SERIES No. 56 women and children in close coordination justice system, prosecution is viewed as the with the Department of Social Welfare and machinery that sets in motion the Development (DSWD) and concerned institution of action to establish the guilt women-based NGOs. of criminal offenders and law violators. Its mission is to maintain peace, order, safety Aside from these flagship programs, the and justice in the community through police also conduct their own public delivering prompt prosecutoral services, information and education programs that is, the investigation of crimes and the through a number of TV and radio prosecution of criminals. Tasked with this programs. They likewise conduct regular delicate function of screening and “Ugnayans” or dialogue with the evaluating which cases are to be dropped community and hold a “People’s Day” every or filed in court, the prosecution is often month. These activities make police called the prime official in law enforcement. services accessible to the public. They represents not only the community but the people in the prosecution and trial 4. Law Enforcement Pillar Master Plan of the accused in court. It is the of Action for Peace and Order prosecution’s responsibility to represent l. Pilot-Testing of Enhanced the government in court and to see that Community-Oriented Policing proper persons are appropriately charged. System in the Municipality of Valenzuela The National Prosecution Service came This pilot testing project was conducted into being on 11 April 1978 by virtue of in the municipality of Valenzuela. All police Presidential Decree No. 1275. The NPS is officers in this station are specially trained under the supervision and control of the in the COPs philosophy and mindset. They Department of Justice. They run a are also afforded better logistical support nationwide organization consisting of state like computers, hand held radios and office prosecutors, regional prosecutors, equipment. Seminar-workshops on crime provincial prosecutors and city/municipal prevention are regularly conducted and prosecutors tasked to undertake the attended by community leaders and the investigation and prosecution of cases police. Action planning sessions are also involving violations of penal and special held. laws.
A favorable result on the implementation The NPS is mandated to maintain and of the project was observed, particularly on uphold the rule of law through the effective the maintenance of peace and order. The and expeditious delivery of prosecutorial citizens observed that the continuous services in order to enhance peace and monitoring and evaluation of the COPs order. The members of the NPS are program in their area has brought about a primarily tasked to investigate and more favorable level of safety in the prosecute all criminal offenses defined and community. penalized under the Revised Penal Code and other special penal laws. B. Prosecution Level The National Prosecution Service (NPS) The Department of Justice, in is the prosecution arm of the Philippine coordination with various government government and is mandated to uphold the agencies maintains several programs to rule of law as a component of the criminal ensure citizen participation at this level of justice system. In the realm of the criminal justice administration.
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1. The Witness Protection, Security and P3,000.00 to about P15,000.00 in certain Benefit Program (WPSBP) cases; 3) travelling expenses and After only six years of operation, the subsistence allowance; 4) medical and Witness Protection, Security and Benefit hospitalization assistance; 5) housing or Program (R.A. 6981) has proven to be an rental allowance in case of witnesses is indispensable feature of the criminal with manageable risks. justice system in the country. Clients- witnesses covered by the program have The success of the Program is best continued to play a pivotal role in the measured by the number of convictions it successful prosecution of significant has secured. From 1991 to January 31, criminal cases. 1998, the program secured convictions in 132 cases, the most recent of which are the The Witness Protection, Security and Dumancas Kidnapping-Murder Case Benefit Program (WPSB), under Republic (involving the heiress of the owner of a bus Act No. 6981, is a recent legislative company) and the former Chief of Police of enactment granting witnesses certain Bacolod City, putting behind bars a total rights and benefits and defining their of nine accused based on the sole testimony responsibilities, if admitted into the of a witness under the program; the Cong. Program. Apart from the primary benefit Jalosjos case; and the Mayor Alonte case. of security and protection, witnesses may For 1997, the program placed behind bars be given any or all of the following benefits 45 accused with 23 witnesses testifying. under the program; 1) secure housing facility for high-risk witnesses; 2) financial The Department of Justice entered into assistance to witnesses and their agreement with different government dependents, ranging from a minimum of agencies for assistance and services to be
Table 1 Witness Protection and Benefit Program Budget and Important Statistics 1991 1992 1993 1994 1995 1996 1997 1998 Budget (in Million 25.00 25.00 23.036 18.718 25.360 35.00 Pesos Less Reserve - 1.964 2.268 .918 1.250 - Net Appropriations 25.00 23.036 20.768 25.800 24.110 35.00 Applications 60 149 293 499 525 317 245 112 Received (as of 8- 31-98) Carry over from 50 40 16 Previous Year Total on Hand 60 199 333 515 Admissions 6 99 247 273 300 229 189 53 (as of 8- 31-98) Denials/Archived/ 4 60 70 147 Withdrawn/Suspended Balance by Year-End 50 40 16 95 350* 500* Disposition Rate 17% 80% 95% 82%
247 RESOURCE MATERIAL SERIES No. 56 afforded to clients. The Department of injury, whichever determined by the Board. Foreign Affairs agreed to render assistance in facilitating/securing passports and visas 3. Prosecution Pillar Projects Under the for WPSBP covered witnesses and initiate Master-Plan of Action for Peace and negotiation with countries to determine the Oder feasibility of exchanges of witnesses. The 1. Prosecution, Law Enforcement and Philippine Overseas Employment Community Coordinating Committee Authority (POEA) agreed to assist (PROLECCs) witnesses in obtaining livelihoods abroad One of the projects contained in the through its government hiring schemes or Master Plan of Action for Peace and Order other methods of deploying overseas is the maintenance of the prosecution, law contractual workers. The Department of enforcement and community coordinating Labor and Employment and the service (PROLECCS). Representatives Department of Social Welfare and from the different pillars of the criminal Development conduct skills training justice system have taken cognizance of the programs for witnesses. low rate of cases rested in court. This could be attributed to the limited or lack of 2. Compensation for Victims of Unjust evidence presented in court. The Imprisonment or Detention and prosecution pillar of the Technical Victims of Violent Crimes from the Committee on Crime Prevention and Board of Claims Criminal Justice felt the need for closer Republic Act No.7309 is the law creating coordination among prosecution, law the Board of Claims under the Department enforcement, and community pillars, of Justice, granting compensation for specially in evidence gathering. victims of unjust imprisonment or detention and for victims of violent crimes. Project PROLECCS provides a regular One of the more vexing problems in the forum to achieve and sustain closer area of justice and human rights is the linkages among the prosecutors. Law implementation of the constitutional enforcers, and community in evidence- provision against the deprivation of life, gathering, specifically in cases involving liberty and property, without due process heinous crimes. It is also designed to help of law. Persons have been accused and attain a 50% increase in the rate of cases imprisoned for crimes they did not commit, rested in court for a 5-year period. The only to be subsequently acquitted. project envisions fostering an enhanced working relationship and to promote For the victims of unjust imprisonment, camaraderie among prosecutors, law compensation shall be based on the number enforcers and concerned non-government of months of imprisonment and every organizations (NGOs) through regular fraction thereof shall be considered one meetings, seminars and conferences. The month, but in no case shall such project was launched in August 1996 in the compensation exceed P1,000.00 per month. Metropolitan Manila area and is being In all other cases, the maximum for which participated in by Chiefs of Police, PNP the Board may approve a claim shall not District Directors, representatives from exceed P10,000.00 or the amount necessary other law enforcement units, and members to reimburse the claimant’s expenses of the community and cause-oriented incurred for hospitalization, medical groups such as the Crusade Against treatment, loss of wage, loss of support or Violence (CAV), the Citizen’s Crime Watch other expenses directly related to the (CCW), the United Pasig Against Crime
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(UPAC) among others. by the Prosecution Pillar, designed a “Training Program of Non-Chemists in To date, the PROLECCS have conducted Dangerous Drugs Identification”. The seven (7) general meetings and five (5) Sub- graduates thereof shall be called Drug Committee meetings. During the general Identification Accredited Professionals assembly meetings, several issues, (DIAPs). They shall be allowed to serve as problems and gray areas were discussed, expert witnesses in drug and drug-related especially on procedural matters and on the cases. From 1995 to 1996, two batches of gathering and presentation of evidence, for training were conducted, which produced the purpose of strengthening the merits of a total of 52 DIAP graduates. cases in court. Through the exchange of information during meetings, the law C. Judiciary enforcers were made to understand certain Together with the other pillars of the rules regarding gathering, handling, Criminal Justice System, the court is an preservation and presentation of evidence. important institutional agency relied upon Accordingly, the law enforcers will be able by a great number of people in the to apply the learned process in their future protection of their lives, rights and dignity, cases. as well as their property.
2. Training Program for Drug- The court plays a dual role in our Identification Accredited criminal justice system as both participant Professionals (DIAPs Training and supervisor of the latter’s process and Program) dispensation. In its role as participant, the One of the most pressing problems that court determines the guilt or innocence of hamper the speedy disposition of cases is the accused, the courts are responsible for the lack of witnesses who will testify in the trial process. Also it must ensure that court. Specifically, expert witnesses play the law is properly applied to the case at a vital role in the speedy administration of hand, and that all parties to the justice in that their knowledge may be proceedings receive justice. As supervisor, either make or break a case. Giving the court acts as important guardian of particular focus on the drug problem, the human rights. Thus, the court remains the Technical Committee on Crime Prevention final and ultimate sanctuary of the and Criminal Justice have taken citizenry against all forms of injustice. cognizance of the problem of the very low conviction rate in drug cases. The problem In their formal organization, the courts has been traced, among others, to the are concerned with punitive sanctions for dearth of government chemists who can violators of law. This concern is reflected testify as expert witnesses in court. At the in the activities of the courts personnel, as time, only the chemists from the Philippine well as in the very trial process itself, a National Police, the National Bureau of process that has as its goal ‘the Investigation (NBI), and the Dangerous determination of the guilt or innocence of Drugs Board (DDB) were allowed to appear the accused’. in court as expert witnesses. There is, however, an informal court The Napolcom TCCPCJ felt the need for organization that allows a certain degree a project that will augment the very limited of discretion about whom it should or number of resident chemists in crime should not punish. It also decides the laboratories. The Committee, spearheaded nature and extent of the punishment that
249 RESOURCE MATERIAL SERIES No. 56 is to be imposed. This informal side has The Foundation for Judicial Excellence, made possible some new approaches to the a private foundation, has granted awards control of crime, for example, by treatment for Judicial Excellence every year. This instead of punishment. private foundation grants awards to three (3) Outstanding Regional Trial Court As the court system now operates, an Judges, and three (3) Outstanding attempt is being made to be as non-punitive Metropolitan or Municipal Trial Court as possible by the use, for instance, of Judges. Likewise, the foundation also gives probation coupled with warnings of awards for Outstanding Public Prosecutors punishment for the offender who ventures and Outstanding Public Defenders. The outside the conditions set forth by the award system is implemented to affirm and judge. Such conditions include continued encourage exemplary performance and good conduct, adequate support of families conduct among public servants, and to and steady employment. Several projects strengthen citizen’s faith and confidence in are being initiated to make citizens aware the rule of law. of the operations of the judiciary. D. Corrections 1. Judiciary Project Under the Five-Year The corrections pillar is formally charged Master Plan of Action for Peace and with the primary responsibility of Order reforming the deviant behavior of 1. Conduct of Symposium on the offenders, young and adult alike, for their Operational Workings of the Court eventual absorption into the social and The courts pillar of the TCCPCJ economic streams of the community. These conducted symposia in different regions of goals are important in developing and the country to enhance the understanding implementing programs to achieve the of the public on the processes involved in objectives of corrections, which include the administration of justice. The symposia building and rebuilding solid ties between provided more information and the offender and the community, familiarization on the operational system integrating or reintegrating the offender and workings of the judicial system. The into community life, restoring family ties symposia enlightened the minds of those and obtaining employment and education. with negative beliefs about the judicial system and provided public awareness of In the Philippines, the primary agencies the entire criminal justice system. for institutional corrections are the Bureau Participants gained insights on the actual of Corrections, which is under the situation in courts and the causes of delay Department of Justice, responsible for the in the disposition of cases. treatment and rehabilitation of national prisoners who are serving sentence of more 2. Grant of Awards and/or Recognition than three (3) years; the Provincial Jails of Deserving Judges and Court which are administered and supervised by Personnel through the Merit System their respective provincial governments. To further improve the efficiency and Inmates who are serving sentences from effectiveness of the judges and court six (6) months and one (1) day to three (3) personnel, the grant of awards and years are confined in these jails and the recognition is given to deserving judges and Municipal and City Jails which are personnel through a merit and award administered by the Bureau of Jail system. Management and Penology (BJMP), which is under the DILG. The inmates confined
250 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS in these jails are serving sentences of not occupational record, interpersonal more than six (6) months of imprisonment. relationships and other such aspects of life.
The Bureau of Corrections, which is About 17,121 unemployed and low- mandated by law to safekeep and income probationers, parolees and rehabilitate national prisoners, has pardonees were assisted for job placement maintained about 20,172 prisoners in 1997, projects. About 5,434 clients were trained who are distributed in its seven prison and or extended scholarships on automotive penal farms. The Bureau, in cooperation mechanics, refrigeration, and air with non-government organizations, has conditioning and radio-audio repair. Some intensified the conduct of livelihood 2,061 of them either continued their formal training programs for prisoners through education or were given various income- the effective Agro-Industrial Livestock generating projects such as animal Productivity Program. The continuous dispersal, fish culture and backyard conduct of religious activities, recreation gardening. programs, as well as educational (both formal and non-formal) and training (ii)Parole and Conditional Pardon programs were given by concerned NGOs. Under these forms of release, prisoners who no longer need institutional treatment Non-institutional corrections involve the are released and given the opportunity to reformation and treatment of offenders be reintegrated into the community. It is outside correctional facilities, and are the President of the Philippines who grants community-based. These community- conditional pardon, upon recommendation based alternatives to imprisonment do not of the Board of Prison and Parole (BPP) include pre-trial diversions which, in the which has also authority to grant parole. Philippine setting, take the form of case disposition under the barangay justice The Board of Pardons has received a system, e.g release on recognizance, bail, total number of 17,803 carpetas from 1995 pre-trial conference and imposition of fines. to 1998. Out of this number, 8,490 were The non-institutional treatment of granted parole, 5,392 were released and offenders are as follows: discharged, and 2,025 were recommended for conditional pardon, 5,034 for (i) Adult Probation commutation of sentence and 98 for A significant milestone in the Philippine absolute pardon. Criminal Justice System is the institutionalization of the Adult Probation (iii) Probation for Youth Offenders Law under implementation of the Youth offenders are dealt with in Probation and Parole Administration (PPA) accordance with the provisions of the Child of the Department of Justice. The Parole and Youth Welfare Code. This Code and Probation Administration has received provides that “the court shall suspend all 36,939 applications for probation in 1998. further proceedings and shall commit the About 32,607 Post Sentence Investigation minor to the custody of the Department of Reports were completed and submitted to Social Welfare and Development (DSWD), the courts. The investigation of an or to any training institution operated by applicant for probation, parole or the government, x x x until he shall have conditional pardon involves a thorough reached twenty-one years of age x x x.” study of criminal records, family history, educational background, married life,
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Table 2 Comparative Data of the Board of Pardons and Parole (CY 1995 to September 1998) Particulars 1995 1996 1997 1998 Total Carpetas Received 5,750 4,969 3,986 3,098 17,803 Parole Granted 2,736 2,190 1,757 1,807 8,490 Recommended for 615 565 440 405 2,025 Conditional Pardon Recommended for 1,848 1,822 1,138 226 5,034 Commutation of Sentence Recommended for 42 25 15 16 98 Absolute Pardon Granted Final 1,377 1,446 1,603 946 5,392 Release and Discharge
1. Community Involvement in Commission for Prisoners Welfare, Corrections in the Philippines CARITAS (formerly the Catholic (1) Parole and Probation Volunteer Aides Charities), and the National Manpower Probation is a disposition of the court and Youth Council (NMYC) in providing that allows a convicted offender to serve small-scale livelihood projects and their sentence in a community and outside community-based programs for inmates. prison, but under the supervision of a Likewise, several religious groups visit jails parole and probation officer and subject to to share spiritual messages. certain conditions contained in the Parole and Probation Order. Dedicated members 3. Observance of the National of the community are tapped as volunteers Correctional Consciousness Week to ensure the success of the parole and Proclamation No.55l, dated March 15, probation system. These volunteers are 1995, declares the last week of October of screened and trained. Each volunteer every year as National Correctionol supervises a maximum of five clients and Consciousness Week. A national keeps all information about a parolee, secretariat, composed of government and probationer or pordonee in strict private sector representatives from media, confidence. S/he works in close academia, civic and religious sectors coordination with the Chief Probation and formulate a national plan for the Parole Officer in providing counselling and celebration. placement assistance. 2. Corrections Pillar Projects Under the 2. Strengthening of Coordinative 5-Year Master Plan of Action for Peace Mechanisms with Non-Government and Order Organizations 1. Operation and Management of the In line with establishing more Philippines-Japan Halfway House responsible rehabilitation and correction The Philippines-Japan Halfway House programs and services for inmates, was designed to provide preparatory correctional agencies coordinate with rehabilitation activities for released or pre- government and nongovernment release clientele in a 24-hour residential organizations like the Episcopal setting. It is geared towards preparing the
252 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS clientele to become emotionally, socially In line with this, government has and economically prepared for family and identified several ways of encouraging the community life and to cope with the community to join in the anti-crime different pressures in society. An campaign. One way is to provide venues interdisciplinary-trained staff provides for community-based participation in services wherein all activities are geared localized crime fighting. Another is to forge to providing therapeutic impact on the partnerships with non-governmental clients served. organizations (NGOs) in the creation of more crime-watch groups nationwide. A The construction of the edifice was third way is to tap media groups in shouldered by the Nagoya West Lions Club implementing communication strategies and the Asia Crime Prevention Foundation that will enhance public awareness. (ACPF). Several donations from the Nagoya West Lions Club and ACPF were Great emphasis has been placed on the also given through the efforts of the United subject of citizen participation in crime Nations Asia and the Far East Institute for prevention. The process offers a viable the Prevention of Crime (UNAFEI) and the means of involving citizens in the planning, Asia Crime Prevention Philippines decision-making and process of change and (ACPPI). The initial seed money for innovation. Various indigenous concepts operation of the Halfway House was taken of adopting community-based methods from the funds of the 5-Year Master Plan were formulated in urban locales in the of Action for Peace and Order. Various non- Philippines to assist in the process of government organizations and several maintaining peace and order, specifically private individuals have assisted in the against criminality. maintenance of the Halfway House, including the Makati Golden Lions Club, A. Community-based Strategies the Muntinlupa Lions Club and the Lady There are a number of community-based Judges Association of the Philippines. crime prevention programs. Recent community-based crime prevention groups differ from classic vigilante groups in that II. PUBLIC PARTICIPATION AND they do not put the law into their hands. COOPERATION IN CRIME Instead, their primary function has been PREVENTION the surveillance and protection of their own communities, often acting as an ancillary The activities that properly belong to the group to regular police. They amplified law community pillar are those that concern enforcement through pursuit and capture. the so-called infrastructure of crime, such Largely, their primary function is in as the lack of educational or recreational information gathering and dissemination, opportunities and inadequate job skills. as well as surveillance or neighborhood These are social conditions that foster policing. crime which the formal criminal justice system can not resolve alone. Other In the Philippine setting, the activated community actions that can contribute to community is spearheaded by the less crime are improvement of the home barangay, the grassroots political unit and family life, delivery of health and which is primarily envisioned to strengthen treatment services, reduction of criminal the popular voice of political decision opportunities and safeguarding of the making, and at the same time augment law integrity of the government. enforcement efforts in coordination with
253 RESOURCE MATERIAL SERIES No. 56 police forces. Involvement 93 to Cebu City Integrated Community Public Safety Plan, dated July 1. The Barangay Initiated Ronda System 18, 1993. The said plan aims to promote The Barangay Initiated Ronda System closer ties between the police and the is an offshot of Presidential Decree No. community, maintain peace and order 1232 authorizing the organization of through combined crime prevention, and community groups to serve as effective improvement of police image. vehicles for organized community participation in crime prevention. The said “Pakigsandurot” is a Cebuano word groups are organized by barangay officials. which means an act of fostering better The most common community-based crime relationships for the purpose of getting prevention program implemented by the fully acquainted with or obtaining a closer Barangay Council is the Ronda System, harmonious relationship. This plan conducted by the Barangay Security and encapsulates the idea of getting the police Development Officers or Barangay Tanods to be personally involved in the affairs of (Village Watchmen). Based from the community where they reside, interviews, Ronda has been implemented specifically on matters of peace and order. as far back as 1972 and is still in operation The plan conceptualizes a program where now. the police are enjoined to render two hours voluntary service to their barangay The Barangay Security and residence during their time off-duty and be Development Officers (BSDOs) or more always on call when the need arises. It popularly known as the Barangay Tanod, calls for their direct participation in are the volunteers who are responsible for conducting patrols and other police actions peace keeping activities in the barangay. in their area, side-by-side (buddy-buddy Recruited civilian volunteers will be system) with the tanods. Oplan engaged primarily in unarmed civilian Pakigsandurot regularly conducts assistance that shall include intelligence meetings/dialogues or fellowship every information-gathering, neighborhood second Saturday of the month. watch or “rondas”; medical/traffic/ emergency assistance; assistance in the Each barangay has a manpower identification and implementation of complement of twenty tanods and 15 community development projects; and reserves. The group is divided into two gathering relevant information and data shifts, the first shift is from 7:00 am to 7:00 as inputs to peace and order planning and pm and the second shift is from 7:00pm to research. 7:00am.
The localities have adapted the program To complement the program, another and have taken the liberty of assimilating operational activity was launched, code the concept into native culture and beliefs. named Oplan Tambayayong or Oplan Examples of these are the Oplan LUBAS (Lungsod Batok Salaod or City/ Pakigsandurot in Cebu City and the Community Against Crime). Composed of Neighborhood Watch Group in Baguio City. civilian volunteers, this organization is aimed to organize an anti-crime movement, (a) Oplan Pakigsandurot composed of well-meaning citizens to “Oplan Pakigsandurot” was initiated by complement the various PNP units in the the Cebu City local government. This is city in its operational activities. It is based on Cebu City Police Community likewise designed to promote peoples’
254 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS awareness of their basic obligation to Volunteerism plays a vital role. contribute to the maintenance of peace in Sustainability of any grassroots project their community. depends on the harnessing of local resources, particularly that of human (b) Baguio City’s Community Oriented resources. Policing (COP) Program In order to prevent or minimize the Aside from the Ronda, a number of incidence of crime in the city and to indirect measures are also conducted. promote the security and well-being of the Some of these include establishing day-care populace, Mr. Ray Dean Salvoza, a civic centers, organizing the youth, conducting leader, formulated the Community seminars on responsible parenthood, Oriented Policing (COP) Program as early providing training for livelihood and as November 1991. This program intends assisting families in the establishment of to meet the demands of innovative and small scale businesses. creative intervention, and is designed to promote a highly organized, high morale, The public perception survey reveals efficient police force working hand in hand that such programs are effective deterents with the community in crime prevention. to criminality. However, the study shows This was fully accepted in the city in 1993. that the effectiveness of community-based crime prevention programs depend upon a The program aims to install an host of factors. Based on the data gathered, integrated, interdependent law the effectiveness of projects depends on enforcement system designed to efficiently leadership, area of jurisdiction, population and effectively assist the Baguio City Police size, logistical capability and the location Force to prevent and minimize the of the barangay. incidence of crime. Involvement of the citizen/ community/ neighborhood crime 2. The Civilian Volunteer Organizations watch systems were sought to meet day to (CVO) Program day policing operations. To reorganize and consolidate the Barangay Tanod of the 1970’s, the The crime prevention activity conducted government initiated in 1989 the program by these community-based organizations is on Civilian Volunteer Organizations basically carried out through the Ronda (CVO’s) or Bantay Bayan. Most of the local system. The system is operated by teams governments just reorganized their of volunteers who take turns making Barangay Tanod and the same group acted rounds (Ronda) around the barangay as their CVOs or Bantay-Bayan. The during critical periods (late at night or establishment of another organization was early dawn). For operational purposes, the triggered by inactive Barangay Tanods. barangay is divided into “pook or puroks” The local executives and police officials and each “purok or pook “ has an appointed deemed it necessary to organize a new leader. There are various methods/styles group. The new group is called CVOs/ in conducting the Ronda and each Bantay-Bayan. barangay improvises according to its resources and needs. B. Forging Partnerships with Citizens’ Group/ Non-Government The main actors in the said programs Organizations are volunteers. The main component is Greater involvement of the community therefor citizen participation. towards effective social defense in the local
255 RESOURCE MATERIAL SERIES No. 56 setting is being mobilized through various neighborhood crime and related problems, groups. The Crusade Against Violence and to cooperate in law enforcement. It (CAV), the Citizens’ Action Against Crime involves the organization of neighborhood (CAAC), and the Movement for the blocks in a barangay into a Street Watch Restoration of Peace and Order (MRPO) unit. were created as an offshoot of the escalating incidents of violent criminality Each member of the Street Watch is in the country. These anti-crime expected to be on the look-out for crimes movements undertake: (1) protest rallies and emergencies within their own premises as the means of obtaining a more effective and that of their immediate neighbors. The response of the government in criminal monitoring efforts shall be assisted by the justice matters; (2) sustained court watch; Foundation for Crime Prevention by (3) information campaigns to increase providing the necessary infrastructure and consciousness of victims and their families networking. on the need to cooperate with authorities in reporting crimes and pursuing cases in Support of the media is provided by one court; (4) monitoring of cases pending with of the major television networks of the law enforcement agencies and the country, GMA Network, Inc. The Department of Justice; (5) legal assistance neighborhood Street Watch information and; (6) public education campaigns on and education campaign on crime crime prevention to encourage vigilance prevention is supported by the GMA’s radio among the citizenry in the campaign and television network. Crime prevention against crime and violence. information and tips are aired in its newscasts, radio and television programs. The Citizens’ Crime Watch is an GMA has also set up a Street Watch Action umbrella organization of non-government Center to follow up cases and report organizations (NGOs) and People’s emergencies. The station also airs feature Organizations (POs) working in stories and interviews on crime prevention partnership with the government in the and criminal justice issues. anti-crime campaign. It provides assistance to the police in information- Street Watch has established an gathering, reporting of suspicious persons Emergency Hotline (Emergency Hotline and places, service of subpoenas and other 117) which is centrally managed by the court processes, and monitoring the Philippine Long Distance Telephone progress of investigation, prosecution and (PLDT) Company and operated by qualified disposition of heinous offenses. In operators from the Philippine National barangays, Barangay Crime Watch Police. Centers are being organized by the Barangay Chairman in consultotion with C. Activities for Enhancing Public the City/Municipal Peace and Order Awareness Council concerned. The media’s role must be in making the public more conscious and aware of the 1. Most Recent Program (Example): problems of criminality, the sociology of Street Watch crime, the machinery of the criminal justice Street Watch is a program designed to system, the imperfections and problems get the community actively involved in besetting the system and the arduous preventing crime by encouraging neighbors process of prosecution. Criminal justice to help each other deal effectively with agencies can engage the services of the
256 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS media for a more effective fight against the active support and involvement of the crime. Towards this end, a Communication Department of Education, Culture and Plan was launched in 1994 to educate the Sports (DECS), the Peace and Order public on what the criminal justice system Councils, the Office of the Press Secretary- is and its critical role in the prevention and Philippine Information Agency (OPS-PIA) control of crime. and various citizens groups like the Crusade Against Violence and the Citizen 1. The Criminal Justice System Action Against Crime. Communication Plan A common strategy among the five In recent years, activities conducted pillars of the criminal justice system is the include the Presidential Kick-Off ceremony, conduct of an Information Education an inter-collegiate debate on crime Communication (IEC) Campaign. A prevention, an On-the-Sport poster making Presidential Directive was issued for the contests, symposia on crime prevention, five pillars of the criminal justice system skit-drama contest for high school to formulate and implement a students, motorcades and parades. These comprehensive Criminal Justice System activities are conducted nationwide. Communication Plan (CJS Complan). The CJS Complan was initiated to promote the V. KATARUNGANG PAMBARANGAY CJS in order to enhance justice, public SYSTEM - CONFLICT RESOLUTION order and safety through an integrated and SYSTEM OUTSIDE TRIAL sustained communication program. Presidential Decree No. 1508, otherwise Primers, posters, brochures, pamphlets known as the Katarungang Pambarangay and other materials containing information Law, established a system of amicably on the criminal justice system were settling disputes at the barangay level. prepared, reproduced and distributed to The system aims to strengthen the family the public. CJS agencies also air a weekly as a basic social institution, preserve and one-hour radio program “Bantay- develop Filipino culture and promote the Katarungan” (Justice Watch) which focuses quality and speedy administration of on crime prevention and the criminal justice being dispensed by the courts. The justice system. It is aired every Friday essence of Katarungang Pambarangay from 11:00 a.m. to 12:00 noon over DZBB (KP) is embodied in two salient features of Radyo ng Bayan. the law. One is that it makes the barangay settlement compulsory and a pre-requisite 2. Nationwide Crime Prevention Week to bringing suits in regular courts of justice, Celebration or before any governmental office The Department of the Interior and exercising adjudicative functions. Local Government, through the National Police Commission, spearheads the annual As a community-based, conflict celebration of the National Crime resolution mechanism, the KP has proven Prevention Week. Presidential its effectiveness in perpetuating the time- Proclamation No. 461 dated 31 August honored Filipino tradition of settling 1994, declared the first week of September interpersonal disputes amicably without of every year as National Crime Prevention resorting to confrontational social behavior. Week (NCPW). Moreover, while central to the concerns of the KP is the speedy administration of Plans, programs and activities for the justice, what appears to be of prime week-long celebration, are drawn up with
257 RESOURCE MATERIAL SERIES No. 56 significance over time is people through prevention, hinges on the support empowerment and, therefore, highly and involvement of the citizenry. Without supportive of the notions of social ordering the active and meaningful involvement of and human development. the community, even the best trained and equipped police force would fail in its The Philippine Barangay Justice system function of maintaining peace, order and exemplifies the personal-oriented approach stability in society. For instance, if the to the dispensation of justice within a faster citizenry would deny a former inmate the and shorter time frame, with less rigor and chance to be reintegrated into community cheaper costs. Its performance for over life, it would be difficult for the offender to more than fifteen years shows that it is one be reformed. sure mechanism for diverting cases of petty crimes and civil cases from the judicial “A vigilant community is a peaceful system. The amicable settlements of community”. In our society, emphasis and disputes intends to bury the rancour and recognition should be placed on the so- bitterness between the parties and ensure called mobilized community which is the preservation of closer personal composed of those who are tasked to relationship within the barangay. assume a leading role not only in law enforcement, but in the endeavor to fashion There are 41,000 barangays in the the values and attitudes that make the country, with a total number of 780,000 criminal justice system work. The mediators (Lupong Tagapamayapa Philippine criminal justice system has, in Members). The system has contributed to its feature, the community as its fifth pillar. the improvement of the administration of The community in this context refers to the justice specifically the problem of poor elements that are mobilized and energized people having limited access to the higher to help authorities in effectively addressing courts. the law and order concerns of the citizenry.
Progress reports from the Department As a sub-system of the criminal justice of the Interior and Local Government system, the community is the most critical (DILG) indicated that some 171,042,975 and useful component in view of its massive cases were settled, with only 53,361 and pervasive composition. Enlightened disputes being elevated to the courts. Its and cognizant of their roles in the settlement success percentage is a high maintenance of peace and order, as well as 89.25%. If this number of disputes were in the dispensation of justice, members of elevated to the courts, the government the community get involved in providing would have spent P 21,665,443,500.00 assistance and support to crime prevention representing the total cost of adjudication activities, particularly in improving the of the cases. This does not take into account detection and prosecution of crimes and the the other benefits to the country such as re-integration of offenders into the developing community leaders and mainstream of society. providing a complementing alternative to the judicial system at the barangay level.
VI. ASSESSMENT AND CONCLUSION The success of the criminal justice system, with the goal of reducing crime
258 112TH INTERNATIONAL TRAINING COURSE REPORTSREPORTS OF OF THETHE COURSE COURSE
GROUP 1
VICTIM ASSISTANCE: PUBLIC PARTICIPATION FOR MORE EFFECTIVE CRIME PREVENTION AND LAW ENFORCEMENT
Chairperson Mr. Ghazali Bin Hj. Md. Amin (Malaysia) Co-Chairperson Mr. Maxime Antoine Tirant (Seychelles) Rapporteur Ms. Donna Lynn Caparas (Philippines) Co-Rapporteur Mr. Kouji Yamada (Japan) Members Mr. Pa Hamady Jallow (Gambia) Mr. Haruhiko Ishida (Japan) Mr. Nobuo Nakamura (Japan) Mr. Nawaz Ul-Hvq Nadeem (Pakistan) Advisers Professor Shoji Imafuku (UNAFEI) Professor Chikara Satou (UNAFEI)
I. INTRODUCTION II. PARTICIPATION OF THE PUBLIC AND VICTIMS IN POLICE The importance of public participation INVESTIGATION in the effective functioning of the criminal justice system and in preventing crimes is A. Situational Analysis an acknowledged fact. The necessity to The basic objective of police work is the encourage and mobilize citizen maintenance of law and order, the participation can not be overemphasized, preservation of peace, the prevention and because the criminal justice system can not detection of crime, the apprehension of work in a vacuum. Likewise, past offenders and the promotion of public experiences have proven that public safety. This concept of police work is participation is indispensable for the universal, even if there are slight success of any crime prevention program. differences in the procedures of each country, largely dependent upon existing As reforms to maximize citizen laws. involvement in the criminal justice system gradually take root in the individual As regards police methods and pillars, this paper will focus on public procedures of investigation, the detection involvement at the police level. The paper of criminals, collection of evidence and will cover three (3) main topics, this manner of crime reporting, the present includes: 1) participation of the public in situations in the countries represented are police investigation; 2) community policing very similar. In all countries, reporting can and 3) victims assistance at the be done in three ways: 1) personal reporting investigation stage. It should be noted to police stations (police stations, koban, however, that this paper is prepared from police counters, etc.); 2) written report this perspective of criminal justice through letters of complaint; 3) telephone practitioners, most of whom are law hotlines. However, in the Philippines, enforcers (public officers, prosecutors). certain offenses should be reported to the Barangay1; this includes offenses punishable by imprisonment exceeding one
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(1) year or a fine exceeding 5,000 pesos. At this point, it should be noted that the Examples of these offenses include slight group had a lengthy discussion on whether physical injuries, slander, threats, theft, to expect the public to conduct citizen evicition, family or marital relations, arrests or not. According to some collection of debts, damage to property and participants, the police expect the public other petty quarrels amongst neighbors. to exercise their right of citizen arrest Malaysia has “paperless investigation”, because the police can not be everywhere, wherein reporting is only inputted in a everytime. The representatives from computer file. Gambia, India, Pakistan and the Seychelles declared that this expectation Unlike other countries, whereby is appropriate since the laws of their vicitims and witnesses are not legally country provide for this. Any private bound to report crimes, in Pakistan every person may arrest or cause to be arrested person is legally bound to report the any person who in their presence commits commission of certain offences like murder, a non-bailable and cognizable offense, and robbery, dacoity and bribery. without unnecessary delay, shall take any person so arrested to a police officer or The police should make an effort police station. According to the laws of towards ensuring that the public these countries, every person is bound to understands their role in the investigation assist in the prevention or suppression of process, so as to encourage maximum a breach of the peace, or in the prevention participation. The public must assume of any injury. However, Japanese some sort of a shared responsibility in the representatives noted that the police maintenance of peace and order in the should not expect the citizens to make an community, even if the primary arrest. They also noted reservations responsibility of enforcing law and order especially in relation to the issue of “mob still rests with the police. justice” and “arrest without warrant”.
The police expect the public to cooperate B. Hindrances that Impede Public with them specifically at the three stages Participation and Cooperation of the investigation process. As regards The best performance index for the crime reporting, which is considered to be police service is the quality of the the first stage, the police expect the public relationship established between the police to willingly report crimes and unusual and the community they serve. The incidences. The second stage, which perception of the community by the police, involves collection of evidence, the police and vice-versa, accounts for the kind of expect the public to provide information, police-community relations that prevail. be willing to be a witness (by giving police Favorable public perception suggests statements), identifying suspects, acceptable police behavior and ready public recognizing weapons, etc, and by not support. An unfavorable image spells tampering with evidence. During the trouble. It should be noted that public apprehension or arrest stage, the police perception is rather negative in some expect the public to assist in locating countries. suspects, giving information (hideouts etc), providing logistical assistance like Police effectiveness is derived from transportation and communication, if external focus on how the community necessary. perceive their activities, and their willingness to help in enforcing the law. It
260 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE is therefore important that good police- media to access investigation; create community relations be nurtured, as this an atmosphere of fear for the victim; will increase community involvement in prejudge the situation; discriminate crime prevention and control processes. because of race, colour or religion; or The public has valid input for a better work for possible reconciliation police service. without permission from the victim. Some specific examples of secondary 1. Police Factors (Negative Police Image) victimization are: showing (a) Unsatisfactory Police Performance photographs of the family members When the police do not detect and killed, investigating a victim investigate criminal cases sufficiently immediately after undergoing severe and effectively, this prevents the medical treatment, arbitrary public and victims from counting on scheduling of questioning, or having and cooperating with the police. At the victim relate the story too many present, a number of deficiencies times. affect police performance (c) Low Police Morale (i) Police human resources: The morale of police officers affects • Insufficiency of investigative their performance. If they have low skill, manpower and legal morale and do not have the right knowledge. attitude towards their work, the kind • Inflexibility of police officers. of service rendered to the public is • Insufficiency of coordination shortchanged. amongst law enforcement agencies and with other (d) Political Influence government offices. Police fear reprisals as they can be (ii)Logistics: transferred or reassigned to a remote • Insufficiency of not only area or a less important position if modern but basic equipment they refuse to cooperate with and supplies. influential politicians.
(b) Lack of Awareness Regarding Issues 2. Public and Victim Factors of Victims (Secondary Victimization, (Uncooperative Attitude) Victims’ Rights, Sensitivity to the A basic condition for an effective and Plight of Victims etc.) efficient criminal justice system is the Some police officers are not even genuine trust and confidence of the general aware that they commit secondary public. It is this trust and confidence that victimization in the course of their spells the difference between an actively investigation. The routine of police supportive public and an apathetic work sometimes causes them to be community. Encouraging citizens to get indifferent and callous to the plight involved is no easy task. Currently, the of victims. Secondary victimization following conditions of the uncooperative can be committed in the cource of attitude of the public are observed in some police questioning. Such of the participating countries: victimization occurs when the police cause unnecessary delay; ask (a) Uncooperative Attitude due to Fear unnecessary questions; make of Political Interference in the Police unnecessary remarks, allow the Process
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Public and victims in some countries much about the good of society and fear that nothing will come of the think only of themselves. investigation, in spite of their efforts, because someone more “influential” (d) Lack of Incentives for the Public has a hand in things (incidences of The public do not have enough whitewash; political vendetta; incentive to assist in the investigation complaint not being entertained process. They are expected to dole because of the political leaning of the out money for transportation to and victim or witness, etc.) from the police station, and to sacrifice possible earnings because of (b) Uncooperative Attitude due to spending time for the investigation. Pressure from the Community Often times, their efforts go (Traditional Values) unrecognized. In some countries, the concept of justice is heavily culturally laden. (e) Lack of Awareness of Criminal Victims and witnesses are often Procedures reluctant to report crimes for fear Most people are uninformed about that it will affect their stature in the proper way of reporting crimes or society. They are likewise concerned filing a complaint. They are often about less confidentiality in a also not aware of distinguishing the communal society, wherein people various types of offences and such tend to talk about and make fun of situations may discourage them. the misfortunes of others. This situation may bring shame for the 3. Unfavorable Environment Created by victim and their family if the event Mass Media occurred because of their own The Media has to play a positive and negligence or if the offense is delicate constructive role as a channel of (eg, those involving sexual offenses). information and as a line of communication Since most communal communities from the government to the people, and are quite small and people know each from the people to the government. Media other, victims and witnesses often must make the public more aware and fear reprisal from offenders or from conscious of the problems of criminality, the the offenders family and friends. sociology of crime, the machinery of the There are even instances wherein the criminal justice system, the imperfections community would view their and problems besetting the criminal justice reporting or cooperation with the system, and the arduous process of police as a “breach of brotherhood”. prosecution. In the Philippines, this breach of brotherhood is a violation of the value However, untoward events are of “pakikisama”2. In Gambia, this is sometimes caused by the media. Media called “badia”3. sensationalism, unfortunately, creates a negative impact on public trust and (c) Uncooperative Attitude Due to cooperation. Media sensationalism is Materialism and Individualism identified as a common problem in all Another observation is that people countries. Some media practitioners give are uncooperative because they are particular “colour” to issues to add to the too busy earning a living and do not commerciability of the medium. like to be bothered. They do not care Sometimes they go to the extent of
262 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE glorifying crimes and criminals, and countries. However, an independent practice irresponsible reporting. performance evaluation scheme, like that practiced by the Public Safety C. Recommendations Commission of Japan and the 1. Police National Peace and Order Council of (a) Enhancing Police Education the Philippines, seems more Improve the treatment of crime appropriate to truly effect an victims by enhancing police education unbiased evaluation. in the fields of human psychology, victim sensitivity, and crisis (c) Promote Better Relationships with the intervention, especially in handling Public domestic violence cases and sex The police must make a conscious offences. Such training programs are effort towards creating a conducive currently being locally conducted in atmosphere for the public to report Japan, Pakistan, the Philippines, and crimes. One strategy is community the Seychelles. Police officers in policing. Gambia and the Philippines are also trained overseas for this purpose. In (d) Equipment and Supplies Malaysia, training for senior police Provide basic equipment and officers is held every year and an supplies, and procure modern international police training course equipment by tapping available is sponsored by the government resources from the government and which is participated in by private sector. However, conditions neighboring countries like Brunei. In for donations from the private sector the USA, all police officers are given should be properly laid out by each training on victim’s rights, how to country. treat people in distress, crisis intervention and other victim issues. (e) Provide a More Comfortable Proper police education should be Environment for Victims and continuously conducted to meet Witnesses victims with respect and sympathy, Providing a condusive atmosphere for and to make diligent efforts towards crime victims and witnesses means not hurting their feelings, and establishing specific windows/ avoiding secondary victimization. counters for victims, providing receiving rooms, deploying courteous (b) Improved Police Performance police officers to man the counters, The best image-building program is and providing women investigators good police performance. Efforts for victims of sexual crimes or should be made toward achieving domestic violence. higher crime solution rates, promoting better police Japan has provided victims with a accountability and preventing receiving room. Malaysia has corruption. Such effort can be installed ‘Victim’s Counters’ in police maintained by means of the proper stations and has a Mobile Police monitoring of police services. An Complaints Center (bus) which can internal system of inspection and be deployed to the scene of the crime. monitoring in the police force is The Philippines has established currently being practiced in all ‘Women and Children Concerns
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Desks’ nationwide. Policewomen to referral to the family court); (2) in investigate crimes of domestic prosecuted cases, the name of the violence and sexual offenses are court and the date of the trial; (3) the common in Gambia, Japan, Malaysia, result of the judgement, sentencing, Pakistan, the Philippines, and the whether to appeal to a higher court; Seychelles. (4) the summary of the prosecuted offences, the heading and summary (f) Provide Information to Victims and of the non-prosecution, whether to Witnesses detain, bail etc. The police should provide sufficient information to victims and witnesses, (g) Strengthen Coordinative Mechanisms including explanation of criminal with other Government Agencies justice procedures, available services, The police should maintain status of the case investigation, and coordinative mechanisms with other situation of the offender. government agencies. One of the measures recommended is the A victims notification system is deployment of police personnel in currently being practiced in Japan hospitals. A police counter is and the Seychelles. In the Seychelles, recommended at least at the district a Complaint’s Acknowledgement hospitals. This is currently being Form is issued to victims upon practiced in Gambia and Malaysia. reporting a crime. The form consists In these countries, police counters are of the complainant’s name, address, set up in district hospitals so as to date and time the report was made, assist and/or monitor unusual particulars of the compliant, name of occurences which necessitate medical the officer receiving the complaint, attention. By setting up police the case number, relevant telephone counters in the hospital, victims or numbers, date on which the victim witnesses are provided with easier may check back for the outcome of the access to police services and case. therefore encourages reporting. Likewise, the police can also look The notification program to victims after or monitor suspicious in Japan is based on the Code of occurences (i.e patients with gunshot Criminal Procedure, wherein a public wounds, etc). prosecutor should promptly notify the complainant, accuser or claimant of (i) Provide a System for Reimbursing the result of the disposition (CCP Transportation and Allowances for article 260, CJLJ p. 129). Therefore, Victims and Witnesses the notification program to victims In Japan, victims and witnesses are was launched on 1 April 1999. When provided with actual transportation the victims, a bereaved family reimbursement, accommodation member or witnesses desire expenses, and allowances ranging notification, a public prosecutor shall from 5,000-7,000 yen. inform orally or in writing as follows; (1) the disposition of the case (e.g. (j) Victims Complaint Sections or prosecution for the formal trial, Grievance Procedures prosecution for the summary Establish a victims complaints proceedings, non-prosecution or section or a grievance procedure
264 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
within the police station and an (Police Commission), and the independent body for complaints Philippines (National Police against the police (disciplinary body). commission). These commissions The independent body being proposed involve representatives from the can be similar to the Peoples Law public. The purpose of these Enforcement Board of the Philippines commissions is to supervise and or the Public Complaints Bureau in administer the police force, and to Malaysia. People empowerment, as draw out policies for the police. a strategy in the administration of police, finds actualization in the The Public Safety Commission of organization of the People Law Japan consists of a chairman who is Enforcement Board (PLEBs) in the the Minister of State, and five Philippines. Under R.A. 6975, the members. The members of the PLEBS are vested with the Commission are appointed by the jurisdiction to hear and decide Prime Minister, subject to the citizen’s complaints against the approval of both houses of the Diet. police. PLEB members are appointed The National Public Safety by the local executive on the Commission was founded 1954, and recommendation of the local Peace it has since played a significant role and Order Council. PLEB members in securing democratic are acknowledged and respected administration and the political individuals from the community. neutrality of the police. The major tasks of the National Public Safety The Public Complaints Bureau of Commission are administrative Malaysia is under the Public Services supervision over police activities Commission and is responsible to the relating to national public security, Prime Minister’s Department. Its and coordination of the police task is to receive all complaints administration, by the formulation of against public servants. The standards for activities by police complaints will be referred to the personnel. proper department concerned and that department will investigate and The Malaysian Police Commission take the necessary action. The said was formed under the Police Act department is also asked to report it’s 1967. The Commission is chaired by actions to the Complaints Bureau. the Minister of Home Affairs and the The report of the complaint will be members are appointed by the furnished to the complainant. Minister from amongst representatives of the judiciary and (i) Establish an Independent Institution former senior government officers. or Committee to Monitor Police Its role and function includes matters Services of discipline and career improvement Monitoring of police services should (promotion). be done by a separate independent agency. This is being practiced in 2. Public and Victims Gambia (Police Commission), Japan (a) Initiate or Intensify Public (Public Safety Commission), Hong Information and Education Kong (Independent Police Programs (with Particular Emphasis Complaints Council), Malaysia on the Procedural Stages of the
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Criminal Justice System; the Role of public information, to enhance accessibility the Public in the Criminal Justice of information to the media. Process, etc) • Police to conduct public education The criminal justice system can engage programs by community seminars the forces of the mass media, along with or dialogues, and/or by target vigilant citizen action at the local level, in groups (students, office workers, the effective fight against crime. Thus, a housewives, etc). radio, TV and print communication plan • Exhaust the use of radio, TV and on the criminal justice system should be print for criminal justice launched to inform the public of its critical information and education (print role in the prevention and control of crime. and broadcast). Public appearances on radio and television • Work for the inclusion of such programs by law enforcement officials and subjects in school curriculums - other criminal justice personalities serve formal education. to assure the people of the government’s sincerity in cracking down on organized (b) Public Information crime groups and other criminal elements. Initiate moves to institutionalize the police duty to provide necessary III. COMMUNITY POLICING information to the public, especially A. Community Policing Concepts victims and witnesses, on the case 1. Common Understanding progress; information on available Community policing is an activity to services like witness protection, attain the police objectives of maintaining providing information on hotline peace and order, preventing crimes and numbers in case of emergencies, etc. promoting public safety. Community policing works on the assumption that (c) Adopt a Reward System for the Public crimes cannot be adequately met by law The police should always appreciate enforcement and coercion. the efforts made by the public. This recognition can be made by awarding Community policing is both a goal and certificates of appreciation to an organizational strategy that allows the individuals who have rendered police and community residents to work exemplary assistance, specifically closer together in new ways to solve during police anniversaries or problems of crime, fear of crime, physical ceremonies. The reward may also be and social disorder. Community policing a monetary token. Such appreciation envisions the police will actively engage in may encourage more people to larger social issues. become involved. Community policing emphasizes a 3. Media Management cooperative relationship between the police The police must initiate diligent efforts and the community, It is a system of toward giving the public the right policing mobilizing the community to solve information. This can be done by the problem of crime and for ensuring coordinating with the media and by issuing public safety. The objective of community official police press releases, regular policing is to establish a closer relationship conduct of media dialogue, and by with the community to attain better public establishing an office in the police service participation for more effective police work. which is responsible for public relations or
266 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
Community policing is geared towards partnership aimed at solving crime prevention and crime control by community problems. promoting awareness, disseminating information, education and mobilization. It (b) The Community Must Actively should be noted that the flow of information Participate in Crime Prevention is a very vital factor in community policing. Community policing puts a greater Information can be channeled from the degree of accountability and police to the public; from the public to the responsibility on the community. police. Community policing is pro-active Community policing should indicate rather than reactive. a sense of ownership from the community - “this our police”. 2. The Purposes of Community Policing There are four identified purposes of There are three (3) basic types of community policing: crime prevention: • Social/community crime (a)To encourage police/citizen prevention - social development partnerships for crime prevention. programs. (b) To foster and improve communication • Crime prevention through and mutual understanding between environmental planning and the police and the community. design. (c) To promote interprofessional • Situational crime prevention - solutions to community problems, target hardening, reducing and the principle that the response opportunities and temptations to to crime is ultimately a total commit crimes. community responsibility. (d)To enhance participation and There are four levels of involvement in cooperation of the public at all levels community policing: of the criminal justice system (police, •1st level - No objection prosecutors, courts, corrections and •2nd level - Agreement/consent rehabilitation). •3rd level - Support •4th level - Involvement 3. Essential Elements of Community Policing (c) Community and Police Jointly There are three (3) essential elements Responsible for Community Safety of community policing: and Solving Community Problems Community policing adopts a simple (a) Police Must Understand the Needs problem solving model to facilitate and Expectations of the Community the exchange of information between Community policing is the goal that public and private agencies, guides the attitudes of officers when community groups, and all those who interacting with the community. The become part of the problem solving police assume a much bigger role. process. In community policing, the Community-policing is problem police and the community assume oriented policy; officers are more dynamic roles. Crime encouraged to make decisions about prevention is seen as the shared how to analyze problems, develop responsibility of the police and the appropriate responses, and interact community. Fostering effective responsibly with the community in a partnerships to solve problems is
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crucial because of the scarcity of type police outposts called Chuzaisho5, and resources. by those who patrol in squad cars.
B. Community Policing Practices in Neighborhood watch, conducted by Participating Countries citizen patrol groups, is also a significant 1. Situational Analysis (Practical activity of community policing. In the Implementation) Philippines, this community patrol (Ronda) The overall mission of community is conducted by the Barangay Tanod or policing is to carry out community safety village watchmen. In Washington, DC, activities to ensure the safety and peace of USA, this program is called the Orange Hat community residents, and to perform Program, wherein residents patrol the initial-stage police action in immediate streets using orange hats. The same response to any event related to the police. scheme is practiced in Kenya, in which To better accomplish this mission, the residents of an estate organize themselves community police seek to take into account into vigilante groups to perform patrol the opinions, suggestions and requests of duties at night on a shift basis. The City community residents, and to tailor police Rangers in Papua New Guinea conduct the operations to the specific needs of each same type of citizen patrolling. In community. Pakistan, community policing includes a village watch and patrol system, Community policing is carried out by the organization of Citizen Police Liaison conduct of a wide range of activities Committees, Khuli Kacheris6, Khidmat including crime prevention activities and Committees7, Jirga System8, and Union crime solving/exposing activities; and Municipal Councils. maintaining constant alert day and night; patrolling neighborhoods; exercising street 2. Problems vigilance; visiting families and businesses Consequently, the identified problems to give advice on the prevention of crimes encountered in implementing community and accidents, and listening to their policing are the following: troubles and requests; holding traffic safety classes and crackdowns on traffic violators; (a) Resistance of police officers to change. giving counsel to juveniles; protecting the (b)Lack of manpower - the group drunk; protecting lost children; offering realized that effective community counselling on troubles and problems. policing is manpower intensive. (c) Lack of logistics - the group pointed Community policing is considered as a out the problem of resource major project in Canada, Colombia, Japan, maintenance and “sustenance”. Kenya, Malaysia, Papua New Guinea, (d) Lack of leadership and commitment Pakistan, the Philippines, Singapore, on the part of police officers and Thailand and the USA. Some elements of community leaders. community policing are being done in (e) Lack of participation from the public. Gambia and the Seychelles. Community (f) Strong traditional customs and policing will be introduced in Egypt soon. beliefs.
In Japan, community policing is mainly It should be noted that according to the performed by community police officers participant from Gambia, community posted at street corner police outposts policing is unlikely to succeed in some areas called Koban4 police boxes and at resident- in West Africa because of strong traditional
268 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE customs and beliefs which make activities a certain police precinct and gives the of community policing impossible to necessary support like logistics and implement. However, other participants training, and even provides some opined that the principle of “Rule of Law” police benefits like scholarships for should prevail. the children of model cops. In Malaysia, the “Wakaf”8 system is 3. Countermeasures widely practiced. This can be Recommendations for improving exemplified by assistance to community policing are the following: government by private corporations. For example, a private construction (a) Police Organizational re-structuring firm who has built a residential This can be done by: subdivision may donate a police (i) Re-orientation/re-training: station, including a housing area for changing the mindset of the police police personnel. on their role. (ii)Institutionalization of community (d) Continuous Public Education policing as a fundamental aspect Exhaust all possible areas of of basic policing. communication (TV, radio and print (iii)Providing greater job challenge. media) and intensify community contact activities (seminars, (b) Adopting a More Innovative dialogues, home visits, business Deployment Strategy visits, etc). This can be realized by: (i) Internal reorganization: re- (e) Public Education on the “Rule of Law” examining the prevailing In countries where the public are not situation and pertinent issues receptive to any kind of policing, such as decentralization, public education should be initiated development of career generalists regarding the ‘Rule of Law’. rather than specialists, providing more flexibility and discretion to (f) Improving Public Participation in frontline officers (after proper Community Policing training), and evaluating (i) Initiate good public relations recruitment programs. programs - give sufficient, and (ii) Utilize technology to free up proper information to increase the manpower resources. public’s knowledge of police work. (iii)Tapping community volunteer (ii) Initiate measures to have more groups. contact with the public (home visits, office visits, community (c) Tapping Available Resources in the dialogues, school visits, etc). Community (iii) Initiate an integrated crime Liaison with business groups, NGOs, prevention strategy: Homeowner Associations etc, and (a) Identifying community maintain a good level of coordination sectors (core group or and networking. Some programs catalysts). recommended include “Adopt a • Identifying sectors Precinct” which is practiced in the vulnerable to crime. Philippines, wherein a certain civic • Identifying sectors who organization looks after the needs of have influence.
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• Identifying sectors who criminality is not solely a police problem are instrumental in but a shared responsibility. The bringing about change. precipitating or major causes of crime have (b) Identifying target groups: been brought to the consciousness of not • Juveniles only the victims, offenders and the police, • Retirees but also to a wider spectrum of society that • Parents/Teachers includes the media, religious sector/church, • Businessmen legislature and the whole community. (c) Identifying crimes of major concern and work for their IV. VICTIM ASSISTANCE solution. A. Definition of Terms (d) Deployment of more police Based on the UN Declaration of Basic officers on the beat. Principles of Justice for Victims of Crimes (iv) Initiate measures of making the and Abuse of Power. police service more accessible and more friendly (installing 1. Victim structures like the Koban or Persons who, individually or collectively, Chusaissso, neighborhood police have suffered harm, including physical or posts). mental injury, emotional suffering, (v) Adopt a comprehensive and good economic loss or substantial impairment of communications plan (public their fundamental rights, through acts or information program, information omissions that are violations of national and education campaign). criminal laws or internationally recognized (vi) Being more sensitive to norms relating to human rights. community feedback - regular conduct of needs assessment 2. Secondary Victimization surveys, and police performance Victimization which occurs, neither as a and evaluation surveys. direct result of the criminal act nor a further victimization, but through the A lot of ground has been covered by the response of institutions (hospitals, media), combined efforts of the government and the criminal justice agencies (police, community as far as crime prevention and prosecution, courts, corrections) and control are concerned. On a macro-level, individuals to the victim. several measures, like systematic and organizational changes, and new policies B. Effects of Victimization have been introduced to enhance 1. Physical Effects government capabilities to address Physical injuries, physical effects problems of peace and order. On a micro- including insomnia, appetite disturbance, level, the police have shifted from the lethargy, headaches, muscle tension, traditional reactive, incident-triggered type nausea and decreased libido, physical of policing to a proactive, problem-solving, damage - abrasions and bruises, etc. community-orientated policing system. 2. Financial Effects The adoption of community policing has • Repairing property or replacing resulted in a quantum improvement in the possessions relationship between the police and the • Installing security measures community. This has resulted in a new • Accessing health services partnership and increased awareness that
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• Participating in the criminal justice information about the CJS. system, i.e attending trial • Obtaining professional counselling D. Types of Services Provided to • Taking time off to work or from other Victims income generating activities 1. Crisis Intervention • Funeral or burial expenses Crisis intervention should seek to ensure • Relocation the safety and security of victims. At the • Loss of employment same time, it should provide an opportunity for the victims to tell their stories, their 3. Emotional or Psychological Effects reactions to the incident, to be assured of The extent which people may be affected the validity of their reactions and prepare by crime will vary from one individual to themselves for dealing with the aftermath another. At one extreme, people may shrug of the incident. off very serious incidences with no noticeable effects, while at the other Emotional support during crisis extreme, people become “stuck” in a intervention counselling may include particular stage and never move on. People notification of death and occasions for the who suffer from such emotional effects are identification of the body, and notification diagnosed of having Post-Traumatic Stress of the offense to the immediate family. Disorders. Direct assistance can be done by emergency referrals or direct assistance with medical C. Victim’s Needs care, shelter, food, dependent care, property Individual victims have individual repair and substance abuse treatment. needs. There are 5 recognized needs of Meeting the immediate need for clothing, victims. However, some victims may have emergency/protective shelter, money and only one or two needs, depending on the transportation, clean-up of the crime scene impact of the crime on them: and emergency repairs, protection through restraining orders, etc. Information should (i) Emotional need - recognition of likewise be provided to meet the immediate “own” harm from the Criminal needs, and victims rights and concerns, like Justice System (CJS): information about emergency financial • Recognition that there is violation assistance. inflicted. • CJS should initiate efforts so that 2. Counseling the community and the offender The incident may trigger stress reactions can recognize the harm. during the processes of the criminal justice (ii)Emotional need: support from the system, and after the trial. Victims may community (e.g specific sectors of again be traumatized by the verdict, society like religious groups, victims sentence, etc. Some victims simply take groups, etc) as well as from family longer to begin to cope with their and friends. victimization and to reconstruct a new life. (iii)Financial need: reparation for the harm. Emotional support can be in the form of (iv)Protection and security needs: supportive individual and group effective protection from re- counselling. Direct assistance may involve victimization or retaliation. referrals to or direct assistance with (v) Need of being informed: information protective shelters. Information should about the offender, the offense and also be given as to how to prevent further
271 RESOURCE MATERIAL SERIES No. 56 victimization and substance abuse, prevention on further victimization. information and referrals for social, physical health or mental health services. E. Situational Analysis Please refer to Annexure 1, programs/ 3. Advocacy activities on assisting victims currently General advocacy services, in order to being practiced in the participating provide assistance with applications for countries. victim compensation or private insurance, intervention to ensure the continuity of the F. Victims Assistance Programs victims credit, housing or employment, As understanding and awareness of the assistance with protection through effects of crime has grown, so to the protection orders, relocation or shelters for responses to crime have become more victims when needed, in order to ensure complex. Research has brought issues such access to the trial. as re-victimization and harassment to the forefront, and victimization surveys have 4. Examples of Police Support During highlighted different levels of risk and the Investigation problem of witness intimidation. All these (i) Emotional Support developments have illustrated the need for Accompaniment to occasions for the a community response to crime. identification of the accused and to other criminal justice interviews; Victim assistance is committed to accompaniment to evidentiary providing people affected by crime with examinations; accompaniment of appropriate and sufficient recognition, victims for the identification of support and information to help them deal bodies, the crime scene and evidence. with their experience, and to ensuring that their rights are acknowledged and (ii) Direct Assistance advanced in all aspects of criminal justice Assistance with the prompt return of and social policy. property, victim compensation, restitution, protection orders, 1. The Goals of Victims Assistance shelters or safe places available to Programs victims. The goal of a victim service program is to assist victims in dealing with emotional (iii)Information trauma from participating in the criminal At first contact with the criminal justice process, obtaining reparation and justice system, provide information coping with associated problems caused by on the progress of the investigation; the impact of victimization. information on the criminal justice process; information on the rights of 2. The Objectives the victims at the scene of the crime The objectives of the program is to do and later in the criminal justice the following: process; provide information on the (a)Increase the commitment of detention of the suspect, bail, bond, governments and organizations to do measures to assure reparation, the all that is possible to assist victims. protection of evidence for forensic (b) Increase the range and availability examination; information on medical of services for victim from the time of assistance at the forensic the victimization, and throughout the examination; and information on the aftermath.
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(c) Expand the victim’s opportunities to military or high ranking government participate at all critical stages of the officials criminal justice process, and to ensure consideration of the impact of 4. Police Role in Victim Assistance victimization upon the victim in all (a) Onsite-crisis intervention criminal justice systems. (b) Securing medial assistance (d)Increase coordination and (c) Information regarding their rights networking of all appropriate (d) Referrals to services and resources agencies, organizations, groups, and families, kinship and community 5. Evaluation support systems providing services to Evaluating the strengths and victims or affecting the treatment of weaknesses of a victims support victims, in order to develop an program initiated by the police against integrated system of victim those Initiated by volunteer groups. assistance. (e) Improve the quality of outreach to G. Recommendations and treatment of victims in need. 1. Strategies (f) Be aware of the unique needs of (a) Work for the establishment of an under-served and new victim integrated victim’s support system or populations. establish a network of agencies to provide comprehensive services. 3. Special Victims Groups The group members agreed to identify (b) Establish a victim’s support unit special categories of victims’ groups which within the police organization (every need professional and specialized police officer has to have a chance to assistance: work in the Unit - job rotation after (a) Domestic violence victims proper training). Special counters for (b) Juvenile victims women, or women and children’s (c) Victims of organized crime concern desks are established in (d) Victims of sex offences Japan, Malaysia, Pakistan, Papua (e) Victims of crimes involving police or New Guinea, the Philippines and the
Police Volunteer Groups Strengths Strengths • More control and more manageable. • Maximize public involvement. • More specialized personnel trained. • Reducing costs for CJS. • More impartial. • More accessible to specific types of • More accessible for general types of victims (violence against women, victims. violence against children, etc).
Weaknesses Weaknesses • Limited police budget - scarcity of • No guarantee of confidentiality of funds. information. • May lack the needed training . • May have a particular agenda.
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Seychelles. and other publications for companies who see the merit of (c) Encourage the establishment of being associated with such a victim’s support groups initiated by worthy cause. private and non-governmental (b)By investing in services like organizations similar to the Shizuoka training, research and Victim Support Center and Mito information campaigns. Victim Support Center of Japan (c) By becoming a volunteer - (please refer to a more detailed volunteers contribute in a variety explanation in Annexure 3- victim of ways, from offering support programs). administrative services, assisting in publicity and fundraising, (4) Provide specialized programs for helping victims cope with the victims of special categories of crime: effects of crime, and as witnesses (a) Domestic violence victims(e.g in court, etc. Malaysia, Philippines); (d)Becoming a friend - annual (b) Juvenile victims (e.g Philippines); donations. (c) Victims of organized crime (e.g Japan); The issue of victims’ assistance is a (d)Victims of sexual crimes (e.g relatively new phenomenon. A lot of issues Malaysia, Philippines); should still be addressed to improve the (e)Crimes involving police or participation of victims and the public in military or high ranking the criminal justice process. Efforts to government officials (e.g improve the plight of victims, however Philippines - provided by the meager, prove that governments recognize Commission on Human Rights, or the importance of the role they play in the the National Police Commission). justice machinery.
(5) Provide victims with information on V. CONCLUSION the available services by employing The effective, efficient and fair suitable measures, depending on the administration of justice lies in the smooth conditions in the country. Examples: and expeditious functioning of the criminal set up a referral system, employing justice system at different stages and victim’s advocates (USA). levels. The flow of cases at these levels comprise the workload of the machinery, (6) Encourage citizens to get involved in given the interlocking relationships victims support programs. The amongst the components of the criminal community can get involved in victim justice system- law enforcement, support programs by: prosecution, courts, corrections and the (a) Being a sponsor: victim support mobilized community. Each component produces and supplies a growing must strive to be a coherent, efficient and range of information leaflets for effective unit for the whole system to fit people affected by crime. The cost neatly together. Of the five components, of production, translation, and the law enforcement pillar constitutes the distribution of the material is most critical stage, as it defines the sometimes very costly. Victims workload of the entire criminal justice support offers many opportunities system. to sponsor information leaflets
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Public cooperation is vital for the system public discussion with all parties to work effectively. Public trust and involved. confidence is built upon a firm knowledge of a criminal justice machinery that is able Sustained efforts towards providing to deliver justice speedily, accurately, fairly proper avenues for public participation is and accessibly. Encouraging the a good step towards maximizing citizen community to get involved is no easy task. involvement. Public participation can be Certain preconceptions in the minds of the achieved in the investigation process, public have to be reshaped for them to community policing programs and victim’s better appreciate their role in effective assistance programs. Governments have crime prevention and the functioning of the to ensure that these opportunities are criminal justice system. present and that the public is properly informed about them. As regards crime prevention, strategies should include the seven elements ENDNOTES identified by UNICRI (presentation of Dr, 1 Community or village organization; the Uljesa Zvekic), to include: smallest political unit in the Philippines. (i) The promotion of active crime 2 Filipino values pertaining to communal prevention policies to accompany law relationships; expectations on the issue enforcement and criminal justice, of brotherhood. based on international experience 3 Gambian value of brotherhood. obtained through effective projects 4 Japanese police boxes. developed by the United Nations and 5 Japanese residential police boxes. other relevant international 6 Open public gatherings which are held organizations. at various places of a district and (ii) The development of long-term plans, division, chaired by the deputy even though public opinion might ask commissioner and commissioner, for short-term responses to crime. respectively. (iii) Improved coordination between 7 Volunteer committee to assist police in crime prevention activities at the crime prevention. national, regional and local levels. 8 Arabic term meaning ‘generous gift’. (iv) Encouragement of the public to be 9 Council of Elders of a tribe or a tribe or involved in crime prevention, by a number of tribes which settle all strengthening the community’s issues within the region. confidence in the police. (v) The promotion by law enforcement and criminal justice agencies of the safety and security of persons and property. (vi) Treatment of victims with respect and understanding of their needs, and the provision of prompt assistance and information about their rights. (vii) The regular monitoring of crime prevention programmes, based on reliable information, analysis and
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ANNEXURE 1 SUMMARY OF VICTIM PROTECTION AND VICTIM SUPPORT LEGISLATION AND PRACTICES IN THE COUNTRIES REPRESENTED
COUNTRY MEASURE BRIEF EXPLANATION
GAMBIA VICTIM Although there is no victim protection program in PROTECTION Gambia, there is some protection available in special cases. This is offered by the police. In most cases, where a victim fears revictimization or molestation by others, the police provide protection in the form of surveillance of the victim’s residence. When it is absolutely necessary, an armed guard is provided. The victim is also provided with the numbers of the nearest police stations, in case of emergency. At worst, the offender is detained or re- manded in custody for the safety of the victim. The victim is also assigned an investigative officer whose task will be counselling.
VICTIM SUPPORT Victim support is available only during natural disasters such as flood, outbreaks of fire, or heavy storms. Here, there are support group such as the Red Cross and other voluntary organizations. These organizations will provide support to the victims both in cash and kind.
THE SEYCHELLES VICTIM There is presently no victim support scheme in the PROTECTION Seychelles, however such a scheme is deemed important to alleviate the plight of the victims of crime. Similarly, no official witness protection scheme exists, however such protection is carried at the discretion of the commissioner of police, in special circumstances.
PAKISTAN VICTIM Deployment of police contingent or security guards at the PROTECTION residence of the victim. Issuance of firearms license for self protection. Installation of police hotlines. Daraullaman (Female Hostel).
VICTIM SUPPORT Establishment of police counters at hospitals. Many NGO’s have their emergency centers in cities and along the highways where the facilities of hotlines, as well as ambulances, are available. Women at police stations.
MALAYSIA VICTIM Actual Situation PROTECTION • Royal Malaysia Police (RMP) have no specific victim AND SUPPORT units/victim support centers. • We have standing orders/ administrative orders to treat victims with dignity, empathy and information. • The role of RMP in victim protection and support is more of referral to existing agencies such as the Social Welfare Department and NGOs.
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• Protection is given depending upon the merits of the case. The witnesses are given protection when there is a threat on life or property. This must be followed with an official police report. If not, security will be given on an ad hoc basis. • Victim protection and support is given in cases such as rape, domestic violence and child abuse, by the Social Welfare Department with the assistance NGO’s. • Less than 10% of domestic violence cases are being prosecuted because of: (a) Withdrawal of complaint (b) Reconciliation (c) Referred to religious department (for muslim families) • Women police officers have been assigned to such care roles. • There are no major crimes involving big numbers of victims and the record shows that the probability of future violence is less. • Most cases of causing hurt in domestic violence are classified under Sec. 323 pc. This is a non-arrestable case, and an order to investigate must be given by the deputy public prosecutor.
Should Police Organizations Have Victim Units? Strengths • Control of the situation. • Information on who the victims are. • Ability of services; referral. • Emotional support. • Assurance of safety for victims and witnesses. • Assurance that the actions of the victim or witness is normal. • Strengthen the police awareness of avoiding secondary victimization. Weaknesses • Cannot depend on volunteers only. There must be professionals. • Security is not guaranteed. • Specific job creates boredom and no job satisfaction. • Extra job/ manpower. • No specific budget.
Victim Support Unit Must be Under the Deputy Public Prosecutor Office, Why? 1. Legal Implications: • Amendment of laws • Budget • Personnel
2. Order to investigate can be given by e-mail, it is not necessary that the investigating officer submit the investigation paper. Not every district is provided with a public prosecutor.
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Countermeasures Due to a low budget and administrative problems, the existing police personnel of all levels should be aware/ knowledgeable about victim’s rights. This will avoid secondary victimization and unnecessary work pressure.
THE PHILIPPINES LEGISLATION The Witness Protection, Security and Benefit Program The Witness (WPSB), under Republic Act No.6981, is a recent legislative Protection, enactment granting witnesses certain rights and benefits Security and and defining their responsibilities, if admitted into the Benefit Program program. Apart from the primary benefit of security and (WPSBP) protection, witnesses may be given any or all of the following benefits under the program; 1) secure housing facility for high-risk witnesses; 2) financial assistance to witnesses and their dependents, ranging from a minimum of P3,000.00 to about P15,000.00 in certain cases; 3) travelling expenses and subsistence allowance; 4) medical and hospitalization assistance; 5) housing or rental allowance in case of witnesses with manageable risks.
The Department of Justice entered into agreement with different government agencies for assistance and services to be afforded to clients. The Department of Foreign Affairs agreed to render assistance in facilitating/ securing passports and visas for WPSBP covered witnesses, and to initiate negotiations with countries to determine the feasibility of an exchange of witnesses. The Philippine Overseas Employment Authority (POEA) agreed to assist the witnesses in obtaining livelihood abroad through its name hiring or government hiring schemes, or other methods of deploying overseas contractual workers. The Department of Labor and Employment, and the Department of Social Welfare and Development, conduct skills training programs for witnesses.
Republic Act No. 7309 is the law creating the Board of Compensation for Claims under the Department of Justice, granting Victims of Unjust compensation to victims of unjust imprisonment or Imprisonment or detention, and victims of violent crimes. The following Detention and may file claims for compensation before the Board: a) any Victims of Violent person who was unjustly accused, convicted and impris- Crimes- The Board oned, but subsequently released by virtue of a judgment of of Claims acquital; b) any person who was unjustly detained and released without being charged; c) any victim of arbitrary or illegal detention by authorities as defined in the Revised Penal Code under a final judgment of the court; d) any person who is a victim of violent crimes. Violent crimes shall include rape and shall likewise refer to offenses committed with malice which result in death or serious physical and/or psychological injuries, permanent incapacity or disability, insanity, abortion, serious trauma, or acts committed with torture, cruelty or barbarity.
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For the victims of unjust imprisonment, compensation shall be based on the number of months of imprisonment and every fraction thereof shall be considered one month, but in no case shall such compensation exceed P1,000.00 per month. In all other cases, the maximum for which the Board may approve a claim shall not exceed P10,000.00 or the amount necessary to reimburse the claimant’s expenses incurred for hospitalization, medical treatment, loss of wage, loss of support or other expenses directly related to the injury, whichever is determined by the Board.
PRACTICES The establishment of Women’s and Children’s Concerns Establishment of Desks in police stations is expected to further streamline "Women's and and strengthen the efforts of the police in responding to Children's Concern problems of violence against women and children. As a Desk" in Police management strategy, policewomen are assigned to man Stations the desks, or if no female personnel are available, a trained male police officer is assigned. To date, a total of 1,632 WCCDs with 1,763 personnel (1,468 policewomen and 294 policemen) have been established nationwide. In highly urbanized cities, the WCCD handles the investiga- tion of women and children’s cases. A total of 3,463 cases of abused women and children have been reported to WCCD and acted upon appropriately. WCCP officers have been effective tools in providing services to women and children in close coordination with the Department of Social Welfare and Development (DSWD) and concerned women-based NGOs.
279 RESOURCE MATERIAL SERIES No. 56 ANNEXURE 2
OUTLINE OF CRIME VICTIMS SUPPORT CENTER
Networking of Related Agencies and groups such as support centers at the Groups (Japan) prefectural level; through the activities of • October 1996, first establishment of crime victim assistance liaison conferences, crime victim assistance liaison such as the meetings and examination of conference at the prefectural level. the members of crime victim assistance • May 1998, national network of victim liaison conferences and the volunteers to support, consisting of 10 volunteer prepare for the establishment the groups. volunteer groups. • February 1999, last establishment of crime victim assistance liaison Volunteer Groups conference at the prefectural level 12 groups have been established at the (established in all prefectures). prefectural level, such as the Mito Support Center (SC) in Ibaragi Prefecture and the Crime Victim Assistance Liaison Shizuoka Support Center (SC) in Shizuoka Conference Prefecture.
(1) Members (1) Mito Support Center Police, public prosecutors offices, local Established referring to the program of government and related agencies (e.g legal NOVA in 1995 July. There are 5 Programs circle, medical institution, psychological (5 activities): institution, Counseling Institution for (a) Information: explain the rights of Women and Children, social welfare victims and giving the information institutions, Board of Education, business which victims need. world, public-service corporations, mass (b) Referral to related organizations: e.g. media, and so on) and volunteer groups. hospitals, police, lawyers associations, clinical psychologist and (2) Location so on. The Office of Crime Victims Assistance (c) Crisis response; crisis intervention. liaison conference is at the prefectural Two volunteers accept training to police headquarters and the police visit victims and give the support cooperate with related agencies and which victims need. volunteer groups. (d)Counselling: by telephone or by interview. (3) Activities (e) Support groups: support to make the Opening meetings, exchange association (or meeting) of victims or information, training course on their bereaved family. counselling, introduction of the proper (f) Others: there are more than one organizations mutual to crime victims hundred volunteers. Characteristic according to victims needs, various activities of the Mito SC is to escort activities in order to open counseling victims to the courts. centers. (2) Shizuoka Support Center (4) Purpose Established in May, 1999. The One of the aims of establishing crime activities of Shizuoka SC is similar to victim assistance liaison conferences at the those of the Mito SC. prefectural level is to build volunteer
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ANNEXURE 3 COMPARATIVE EVALUATION OF STATE COMPENSATION
JAPAN THE UNITED STATES Eligibility • Report to police; no time limit. • Report to police: usually within Requirements • Filing period: Within 2 years from 72 hours; exceptions are made the day the applicant recognizes for good cause. the crime, and within 7 years from • Filling period: One year is typical; the day the crime was committed. time limits vary from State to State.
Victims of Terrorist N/A Compensation is payable for Acts residents and non-residents who are injured by crimes involving terror- ism occurring within the States or, on the case of US citizens, outside of the US.
Claimants • Victims of crime who suffer • Victims of crime. serious injuries. • Dependents of homicide victims. • Dependents of deceased victims • Relatives of victims of crime. if they legally reside in Japan. • Foreign citizens; eligible in most • Foreign citizens if the victim was States. a legal resident of Japan when the crime occurred.
Procedures The victim must report the crime to The claimant must file an applica- the police, and the police must tion with the compensation agency recognize the victimization. in the State in which the crime A claimant can obtain an occurred. application from any police station Based on information submitted by or prefectural police department. the victim, the agency determines The claimant should send the whether the claimant is eligible and application to the prefectural public has suffered a financial loss. In safety commission through the most States, the victim can appeal police station or the prefectural the agency’s decision to deny or police department that has reduce the award of compensation. jurisdiction over the address of the claimant. It takes approximately 5 months for the applicant to be notified of the decision, and it takes approximately 2 more weeks for the applicant to receive the benefit.
Benefits and Award The maximum award in yen: Most States can pay a maximum of Limits Bereaved Family Benefit: 10,790,000: between $15,000 and $25,000. A few Incapacity Benefit: 12,730,000 states have higher or lower maximums.
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Compensable None. The program provides the All States will cover the following: Costs above lump sum awards. • Medical expenses. • Mental health counselling. • Lost wages for disabled victims. • Lost support for dependents of homicide victims. • Funeral. • Travel for medical treatment. • Services to replace work previously performed by the victim. • Cleaning of homicide scene if a residence. • Essential personal property. • Rehabilitation.
Emergency If the program cannot quickly Some States provide emergency Awards render judgement because the awards or expedite processing for offender is unknown or the degree of victims faced with an extraordinary disability is unclear, the program financial or health crisis. offers provisional benefits to the applicant.
Funding Sources The program is funded by the Most States obtain their funding from National Expenditure. For bereaved fees or charges assessed against children, scholarships are available offenders. Some States receive throught the Crime Victim’s Relief appropriations from general revenue. Fund. OVC provides supplemental funds from Federal criminal fines.
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GROUP 2
PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE EFFECTIVE ADMINISTRATION IN PROSECUTION AND THE JUDICIARY
Chairperson Mr. Alvaro Caro Melendez (Colombia) Co-Chairperson Ms. Emi Yoshida (Japan) Rapporteur Mr. Hideki Igeta (Japan) Co-Rapporteur Mr. Moustafa Ahmed Genidy Abdin (Egypt) Members Ms. Wang Ping (China) Mr. Jyotirmoy Khosla (India) Mr. Darmawel Aswar (Indonesia) Ms. Tokiko Sugawara (Japan) Mr. Hisashi Uruga (Japan) Mr. Yasanath Ravindra Weerakkody Wijegunawardena (Sri Lanka) Advisers Professor Keiichi Aizawa (UNAFEI) Professor Hiroshi Iitsuka (UNAFEI)
I. INTRODUCTION justice system by releasing them from victimization. Victims should be treated with compassion and respect for their dignity. In addition, public participation, mainly They are entitled to access to the as witnesses, is also indispensable for the mechanisms of justice and to prompt same object. This matter is also likely to redress, as provided for by national be neglected because witnesses are legislation, for the harm that they have regarded not as the object to consider, but suffered; as is provided in the Declaration as a ‘means to an end’ in the criminal of Basic Principles of Justice for Victims of procedure. Crime and Abuse of Power (General Assembly resolution 40/35 (1985)). The main subject of this group is the Unfortunately however, victims of crime ‘Participation of the Public and Victims for have received insufficient attention from More Effective Administration in the criminal justice system. Although in Prosecution and the Judiciary’, which is recent years considerable progress has accompanied with the undermentioned 3 been made to improve the situation of sub-topics: victims, many shortcomings and problems still remain. This means that victims still (1) Measures for securing testimony (e.g suffer physical and financial impact, witness protection). psychological injury and, in some cases, (2) Redress for victims through criminal secondary victimization from the criminal justice procedures. procedure. In order to realize more (3) Measures for protection of the rights effective administration in prosecution and and interests of victims. the judiciary, it is important to encourage victims to cooperate with the criminal
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We know that there are a lot of issues of authority, even if arising from other causes, concern with our main theme, an example cannot be separated from the problem of of which is the jury system, but we will not the threat to witnesses. discuss such issues. The focus is on the said 3 sub-topics because, as officers B. Current Situations and Present engaged in law enforcement, we believe Countermeasures that we should address our attention to the As each participant presented the issues that can be resolved in practice, and countermeasures implemented in their the 3 sub-topics are commonly shared respective countries, we have discussed the among us. We are going to discuss our merits and demerits of each system in main subject according to these topics, practice, with recommendations. We came under which the problems and current to recognize that multiple countermeasures situation of each country, and our are compatible in specific countries and, if suggestion, will be discussed. selected and applied properly, to a variety of situations. The brief summary of the II. MEASURES FOR SECURING current situations and countermeasures TESTIMONY adopted at present are given below. A. Problems 1. Witness Securing Program Among most of the group participants, In Colombia and the USA, there are it is well recognized that witnesses are highly developed countermeasures for sometimes exposed to threats by securing witness protection in order to defendants or members of the gangster prevent threats against witnesses. This groups and as a result, are likely to be concept brought us a great model for reticent to answer questions by the desirable countermeasures. It includes prosecutor or change their statement in control over information on witnesses and court. If witnesses are afraid that concrete protection measures. This system defendants or their associates might harm can include providing witnesses with body- them, they will hesitate to attend court and guards, changing their name, identifying will avoid statements against the them by a number throughout the trial, defendant in court, at which the defendants providing them with a budget for moving and their associates (in spectators seats) to safety areas or to a foreign country, and may be present (some participants named so on. In a case where witness examination this situation of witnesses as “hostile”). As is conducted, linking a witness in another the public or victims as witnesses cannot room to the courtroom via video camera is effectively participate in the criminal one measure. This program can be applied proceeding, the pursuit of truth shall fall from the early phase of investigation and into a fatal blunder. The group discussed continue to the end of the danger to the how we are to cope with this problem of witness. These concrete protection threats and reticent witnesses. measures are selected and adopted depending on such elements as the phase It is certain that the reticence of of the case, seriousness of the threat, the witnesses can be caused by other reasons, nature of a witness and so on, or by the such as victims of sexual offenses not judgement of the Attorney-General. wanting to disclose their experience (we will mention this problem later). However, Also in Egypt, special permission for the main and major reason for witness carrying firearms and insurance arranged reticence to assist the prosecution by the government is available for
284 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE witnesses likely to be threatened. Such giving a full statement. Indonesian Judges programs are effective and invaluable to have similar powers too. Although there these countries, in spite of their enormous is a collision between the victim’s rights costs, where the power of gangster groups and the defendant’s right to attend the is so strong that witnesses are likely to court, such powers can be justified under expose themselves to serious harm by specific conditions and are adaptable to opposing the groups. It is a matter of other countries. course that these programs should be implemented without any unfair influence 3. Keeping the Defendant in Custody on testimony from the investigation In such countries as India and Japan, authority. there is a legal mechanism that the accused, who are suspected of destroying 2. Devices in the Examination of evidence or threatening witnesses into Witnesses changing their statements, may be kept in In countries such as Indonesia and custody and refused bail during the trial. Japan, which have their legislative origin In some cases, persons (except for the in the Continent, written statements of defense counsel) are prohibited from witnesses made by the investigating interviewing the defendant, even in a authority can be examined under specific detention house. This can contribute conditions, i.e, as evidence in the trial (if greatly to security for witnesses, as it the prosecutor submits it, the defense makes it impossible for the accused to counsel consents to it and the judge makes threaten the witnesses by themselves. an affirmative decision). In such cases, it However, some participants objected to this is not necessary to summon a witness to idea in terms of the defendant’s human the court in Japan. Unfortunately the rights. Therefore, adoption of this idea accused and the defense counsel are likely seems to depend on the nationality and to refuse consent for the written statement situation of each country, though it is an because they contend the guilt of the effective countermeasure for securing accused. witnesses.
Witness examination through TV 4. The Sanction Against Threat cameras is suggested in order to relieve A threat or unlawful force to a witness witnesses of pressure from defendants and composes another crime, such as spectators, although it has not been intimidation of a witness, and is punishable implemented in any countries of the group. by another criminal procedure in some This measure may well be recommended countries. However this provision seems and adopted, especially where the insufficient as a measure to annihilate such defendants or the spectators scare the activity in the case of specific organized witness extremely, because this can exempt gangster groups, because members of the them from confrontation with the group are likely to threaten witnesses defendants or spectators, while still regardless of this provision. granting an open trial and the right of cross-examination. There is sanction in the sentencing against defendants who threaten witnesses In Japan, judges are authorized to in their case. If such conduct is proved in exclude the defendant from the courtroom the trial of the case, the sentence for the during witness examination when their accused will be increased by 25% in presence would interrupt the witness from Colombia. Similar treatment is reportedly
285 RESOURCE MATERIAL SERIES No. 56 implemented in Egypt. Where an attempt testifies. to control witness’ testimony is impossible, (ii)If necessary, accommodation fees a defendant, knowing that such an attempt be paid or accommodation would result in longer sentencing, will give facilities be available. up on such unlawful conduct. This sanction against the defendant can be effective in 2. Document as Corroborative Evidence preventing threats committed by (a) Problem defendants to some extent. Besides oral evidence, documentary evidence is necessary in cases for In Japan, a judge may have a specific proof, such as medical reports and spectator excluded from the courtroom other expert reports. In cases of when his/her presence would interrupt the misappropriation or criminal breach witness’ statement. Implementation of this of trust, documentary evidence plays countermeasure requires adjustment a great role. It is also possible that a between the authority and the dignity of witness’ testimony is not admissible the court, and the human rights of the or credible without such kinds of threatener, because s/he shall be subject documents. Unless these documents to such disposition by a relatively are preserved and protected, it is simplified procedure. Whether judges can difficult to prove the case. There may be endowed with such power depends on be cases where the offender may try the status of the court in each country. to damage or destroy the documents. Whether this issue should be an item C. Suggestions of this sub-topic was doubted by some Effort should be made to enhance the participants because it is not relevant protection of witnesses during the entire to our main theme. However this criminal judicial process. Introduction of issue was decided as a topic of our comprehensive witness protection discussion by the majority in whose programs would be useful for the fight countries the loss of documents is a against organized crime. serious problem.
D. Additional Problems or Points (b) Current Situation of Each Country 1. Allowance of Witnesses In Japan, the documents which are (a) Problems and Situations of Countries not yet submitted to the court are Although in many countries daily kept in the prosecutor’s office, where allowances and traffic fees for a scientific way of preserving witnesses are supposed to be documents is available. They are provided, in more than few countries inputted into the computers. In they are not provided in practice India, the court takes these records because of the deficit budgets of into the custody. The documents are governments. In Egypt, no submitted by the prosecution and are allowances are supposed to be paid produced only during the trial. In to witnesses. China, evidence involving state secrets shall be kept confidential. (b) Suggestions Seized articles and documents are It is desirable that: properly kept and sealed. Judicial (i) Adequate daily allowances and functionaries take measures for the traffic fees be paid to a witness protection of the documents in who attends the court and Colombia. In many developing
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countries, documents submitted to (ii) Victims sometimes find difficulty in the court by the prosecution authority collecting enough evidence to sustain are sometimes lost or altered without civil actions. the consent of the related parties. (iii) Offenders often lack enough funds to make up for the victim’s damage, (c) Suggestion even if victims win in civil action. Criminal records, especially evidence (iv) Hiring a lawyer for civil action costs including documents, should be kept much in comparison with the amount adequately safe, and if tampering is of gain that the victim may get, so found, the officer in charge of keeping that victims sometimes cannot or do the documents should be blamed for not want to bring actions. this fault. Documents should be (v) In case of payment of fine, this might protected at all costs. Scientific be an obstacle to compensation for devices may be adopted for the same victims. ends. Regarding stolen property, every country III. MONETARY REDRESS FOR has a system in which articles belonging VICTIMS THROUGH CRIMINAL to victims, seized as evidence by the PROCEDURE investigation authority and submitted to the court, shall be returned to the owner A. Problem as soon as possible. If the articles is lost or Victims suffer damages from crime such not found, victims have no choice other as loss of their property, bodily injury, death than to get monetary redress for the and mental suffering. In addition, victims damage. have to pay for medical bills, moving fees and so on. When an offender kills a victim, In addition, from a historical point of the bereaved have to hold a funeral which view, criminal procedure for punishment might cost dearly. Such damages or cost and civil procedure for monetary redress should not be left unaddressed. Therefore were not separated in pre-modernized offenders should, where appropriate, make society. Therefore each country has fair restitution to victims, their families or developed a respective system to realize dependants. Such restitution should monetary redress through criminal include the return of property or payment procedures, other than civil action in civil for the harm or loss suffered, and court (the systems adopted are countries reimbursement of expenses incurred as a are attached in table 1). result of the victimization. B. Current Situation and Firstly, victims of crime can bring a civil Countermeasures at Present action against the offenders in civil court Here we will illustrate state for monetary payment as compensation, in compensation, restitution orders, and civil order to recover the damage of the crime. action in criminal procedure, with the Unfortunately however, victims sometimes experience of practice in each country. cannot get any or sufficient amounts of money with civil action, because it has 1. State Compensation some defects in relieving victims of crime, State compensation means that is: indemnification provided by the state, police authority or Attorney-General (i) Victims sometimes cannot identify or outside and independent of judicial find the offender.
287 RESOURCE MATERIAL SERIES No. 56 procedures. With state compensation, 1995. The scheme is run by state police victims can obtain some monetary redress and is applicable only in the said state. from the government or state. State State compensation requires national compensation does not require the funding sources and mechanisms. There apprehension and conviction of the offender are two primary sources: funding from fees to provide financial relief to the victims. or charges that offenders pay, and funding from General-Revenue appropriations from State compensation can provide victims the legislature. In the United States, at with financial relief, even though the the federal level, fines and penalties are offenders do not have enough money to levied against federal criminal offenders make restitution. In general, and these monies are deposited into the compensation for victims of crime is paid “crime victims fund”, which is used to help mainly to the victims of violent crimes. states support their victim compensation Property loss is typically not covered, with programs. the exception of eye glasses, hearing aids and other medical devices. Adoption or 2. Restitution Orders implementation of state compensation is Restitution order means an order by the likely to depend on the financial situation criminal court, on its own initiative and of the government. discretion, that the offender should compensate their victim’s damages. In Japan, state compensation was Restitution should be used to provide a way introduced in 1980 according to the of offsetting some of the harm done to the enactment of the Crime Victim Benefits victim, and also to provide a socially Payment Act (Law of State Compensation constructive way for the offender to be held for the Victims of Crime). The types of accountable, while offering maximum crime or damages to which this system is opportunity for rehabilitation. Restitution applicable are death or serious disability attempts to establish a relationship that are incurred by intentional conduct. between the victim and the offender in an This includes 2 types of payment, that is: effort to raise the offender’s sense of responsibility to the victim. (i) Payment for the bereaved of victims who were killed. Restitution to the victim of a criminal (ii) Payment for victims who suffered injury can be effective as a punitive serious disability. measure, as well as a financial remedy. If used as a punishment, restitution must In 1997, payment from this system come from the offender’s own resources and amounted to 635 million yen for 259 it must be part of the criminal court bereaved or victims. It is possible that sentence, in that it is tied to the disposition victims who received damage by the of the case. conduct of their relatives, those who are responsible for the cause of the crime or Assessment of victim loss is a complex those who have got official payment, such process, so some device is required to have as compensation for industrial accidents, restitution in the criminal procedure to may be suspended from payment of all or function effectively. In Colombia, both civil a part of the compensation. action in criminal procedure and restitution orders are adopted and enacted. In India, the state of Tamil Nadu The court can consider and order both commenced the Victim Assistance Fund in punishment of the accused and payment
288 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE from the accused to the victims. In have suffered material loss as a result of restitution orders the court is authorized the defendant’s criminal act have the right to decide from which property the to file an Incidental Civil Action during the defendants should raise money for course of the criminal proceeding. An restitution, in order to guarantee Incidental Civil Action is heard together fulfillment of the restitution order. For this with the criminal case. Only for the purpose, the public prosecutor seizes purpose of preventing excessive delay in enough property of the defendant for this the trial of the criminal case may the same payment, after the arrest. judicial organization, after completing the trial of the criminal case, continue to hear In India, restitution orders, that is court the Incidental Civil Action. A party to an authorized orders for offenders to pay to Incidental Civil Action may file an appeal victims, was introduced in 1974. This against that part of a judgment or an order system has been regarded as a substitution of first instance made by a local People’s for fines in India, that is; payment of Court, at any level, that deals with the compensation is at the discretion of the Incidental Civil Action. In practice, a court and is subject to no specific criterion. considerable part of victims’ injury cases The priority of restitution over fine is at or the bereaved of murder cases have tried the discretion of the court and restitution this procedure when the People’s orders cannot be realized by compulsory Procuratorate decided to prosecute the execution. The defendants shall be subject defendants. Victims are likely to get to detention in a workhouse if they fail to insufficient remedy because the defendant fulfill their payment. In practice, the cases is lacking enough money. in which restitution orders have been entered are very few because the public In Egypt, civil action in criminal prosecutor is indifferent to the monetary procedure is also adopted. As the decision redress of victims and does not ask for it in of the criminal court is binding on that of court. the civil court, victims are supposed to make use of this system when cases have 3. Civil Action in Criminal Procedure been prosecuted. In Indonesia, the court Civil action in criminal procedure is is authorized to decide the civil suit for another countermeasure to realize compensation with the criminal case, at the monetary redress in criminal procedures, request of victims. If the injured party where victims can participate in the seeks joinder of their claim with the criminal procedure, seeking monetary criminal case, the district court concerned redress as a party. Many jurisdictions shall consider its competence to adjudicate allow the consideration of civil claims in the said claim, the veracity of the basis of criminal proceedings. This combination of the claim, and the order requiring civil and criminal proceedings has several reimbursement of costs expended by the benefits for the victim and the jurisdiction, injured party. Except where the district ranging from procedural economy to the court declare its incompetence to fact that responsibility for the collection of adjudicate a claim, or a claim is declared evidence and the presentation of the issues, to be unacceptable, the judgment shall only to a large extent, lies with the authorities. set forth stipulation on the order requiring reimbursement of costs expended by the In China, civil action in criminal injured party. Where there is a joinder of procedure was introduced recently as a civil suit and a criminal case, then the Incidental Civil Actions, where victims who said joinder shall continue at the stage of
289 RESOURCE MATERIAL SERIES No. 56 examination on appeal in and of itself. criminal procedure, and propose Where no appeal is lodged with respect to compensation for damage. the criminal case, then a request for an appeal regarding a judgment on In some countries this kind of system compensation shall not be allowed. As in was introduced, but even in those most criminal cases in practice, when the countries, the judges and prosecutors were offender/defendant has no budget for not interested in the system; or even if such fulfillment of the compensation, the victims orders in that system were issued by the may use the civil court to get compensation, judge, the defendant did not have the as the judge of the civil court can seize the monetary power nor intention to property of the offender and enforce its compensate for the damage. For such decision on the offender to pay the victims. instances, a possible alternative is the system of the UK, where if the judge does In Germany, civil action in criminal not order the defendant to compensate the procedure has not worked sufficiently after damage, the reason should be disclosed by it was introduced as “Ancillary the judge. In the system of Colombia, the Proceedings” in 1987. Although this public prosecutor may seize the property system has a lot of merits for victims or of the accused, which can be appropriated the bereaved, ancillary proceedings were for payment to the victims, in order to used in only less than 1% of all judgments prevent the accused trying to avoid the delivered in 1997. Judges, public enforcement of compensation and conceal prosecutors and legal professionals have their property. been reluctant to use the proceedings and the victims were also unfamiliar with this IV. MEASURES FOR THE type of proceedings. The assumed reasons PROTECTION OF THE RIGHTS AND for this are the strict separation between INTERESTS OF VICTIMS criminal and civil law, and the mental As the status or standing of victims in distinction between punishment and criminal procedures has been reviewed reparations. It is claimed that a recently, we discussed some issues which considerable amount of additional work can can be argued relating to our general stem from the proceedings, and the theme. We will explain each problem, the procedural delays resulting from the taking current situation of each country and of additional evidence are considerable. suggestions to each issue according to the flow of prosecution and trial procedure. We C. Suggestions also mention the issue of how to cope with We should continue with our efforts to the dissatisfaction of victims with find how the criminal procedure can best sentencing. contribute to ensuring the monetary recovery of victims of crime. State A. Notification System for Victims compensation could be one of the possible 1. Problem solutions, especially in case the offenders Information is the minimum are not caught or they do not have enough requirement to protect the rights and money. It is also worth considering the interests of victims, because victims cannot feasibility of encouraging criminal courts take any adequate action to participate in to be able to order the defendant to the criminal procedure, exercise their legal compensate the victim’s damage, and rights or apply for special treatment establishing a system in which the victim without knowing basic information such as can participate as a party concerned in the
290 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE on the proceeding or disposition of cases, and the rights and positions of and the existence of and application victims are prepared and available at procedure for their rights and special the police office and the public treatment. prosecutor’s office. The public prosecutor’s office implemented a 2. Situation of Each Country and Present notification program where the Countermeasures prosecutor in charge of a case, with (a) China application of the victim, shall inform The court, receiving inquiries about the victim of the disposition of the prosecution of the case from victims, case, of the court in charge of the case, shall answer and notify persons after the trial dates and so on. the prosecution. On the other hand, the People’s Procuratorate cannot 3. Suggestions explain the case to the victim before In order for the victim to be able to make the phase of prosecution. However if necessary proposals or requests to the the case is privately prosecuted, investigating authorities and the court, it victims are naturally notified of is necessary to provide adequate information regarding the case, as a information on the flow and outcome of the party to the case. criminal proceeding. However providing information to the victim may result in (b) Colombia violating the privacy of third parties Victims have the right to receive concerned with the case, or the secrecy of documents, in which the outcome and investigating information. Therefore, it is disposition of the case is shown, desirable to provide information to the within 12 days when they inquire victim by striking a balance between the about these matters in writing to the necessity of providing information, public prosecutor. protection of the privacy of third parties, and the secrecy of investigating (c) Egypt and India information. In Egypt and India, any special rights or treatment regarding the Specifically, if there is a request from the notification system are not available victim, we should provide the victim with to the victims. Victims shall get information on the disposition of the case, relevant information when they bring trial court, trial date and outcome of the private prosecution by themselves in trial. Another method explaining the flow both countries. of the criminal proceeding, such as pamphlets or brochures explaining judicial (d) Indonesia procedures and the rights and positions of Although a victim may ask for victims, are also useful to victims. information regarding the case from the public prosecutor or the court, it B. Initiative or Participation of is not mandatory to correspond and Victims in Criminal Prosecution answer this inquiry. 1. Problems Victims sometimes feel dissatisfied with (e) Japan the decision of non-prosecution by the Some kinds of pamphlets and public prosecutor. However, generally brochures which explain the outline victims are not provided with the right of of the criminal judicial procedure, participation regarding the decision to
291 RESOURCE MATERIAL SERIES No. 56 prosecute an offender. The need for victims assistance from the state to prosecute to check non-prosecution might be strong the offender. The victims can engage where prosecution is monopolized by the lawyers for prosecution at their own public prosecutor and is discretionary. convenience. So far as legal assistance is concerned, victims can 2. Current Situation of Each Country either receive counseling or lawyers (a) China engaged to assist the victims. While the public prosecution agency exercises the power to prosecute in (e) Indonesia terms of the state, society and the The public prosecutor decides the victim, the victim by himself/herself prosecution of a case at his/her may bring a charge and request the discretion. There is no system to judicial body to investigate criminal check or control this discretionary responsibility by right. decision. Sometimes victims use mass-media to pressure the Attorney- (b) Colombia General into re-investigation and re- The public prosecutor has the examination of non-prosecution authority to decide on the prosecution decisions. of cases. This decision is not discretionary but mandatory when (f) Japan the evidence is sufficient. Special Prosecution of a case depends on the countermeasures for abuse of discretionary decision of the public prosecution power are not available. prosecutor, even though the evidence is sufficient to support the case. On (c) Egypt the other hand, the Inquest of Prosecution of the case is decided at Prosecution in each jurisdiction of the the discretion of the public district court, which is composed of prosecutor. On the other hand, there 11 ordinary people, have authority to is a system of private prosecution check a decision of non-prosecution where a victim, who is not satisfied by a public prosecutor, and provide with the decision of non-prosecution, an opportunity to correct his/her may bring criminal action against an decision. It also serves the function offender by himself/herself. In spite of letting a victim present his/her of its significance for victim complaint. In addition to this, there participation, private prosecution in is a system where a person, who has Egypt does not serve victims made a complaint or accusation of a substantially, for victims can scarcely specific crime, and is not satisfied win in private prosecution. with the public prosecutor’s non- prosecution decision, may apply to (d) India the court to order the case to be tried. Most of the criminal cases in India If the application is granted by the are investigated by the police and court, then a practicing lawyer is prosecution, and are also filed by appointed by the court to exercise the them. However, the victim’s right to functions of the public prosecutor. prosecute an offender is provided under Sec. 200 of the Code of 3. Suggestions Criminal Procedure, 1973. The Under the countries where private victims in certain cases get legal prosecution is in practice, victims naturally
292 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE should be able to bring criminal action We will mention this right later under an against the offender in spite of a independent item. Egypt and India also prosecutor’s non-prosecution decision. It adopt the private prosecution system. In is desirable to check the reasons why the this, the victim who brings criminal action private prosecution system does not work against the accused is naturally authorized effectively and improve it to realize victim’s to be notified of the trial date and attend rights or interests. the court as a party.
Under the countries where private In Indonesia and Japan, victims have no prosecution is not in practice, it is special standing to attend the trial other necessary to study/establish the system than as spectators. In Indonesia, special and to provide victims with an opportunity seats are provided for victims to hear the to be involved in the decision of prosecution trial as spectators, after their witness or non-prosecution, or the indictment examination. In Japan, special allocation process, by being interviewed by the public of spectator’s seat is sometimes provided prosecutor and having a say in the content for victims at the discretion of the court. and degree of damage, and the punishment of the offender. It is worth considering that In the United States, in the Oklahoma victims should have an opportunity to file bomb case, the case was transferred to a complaint and request review of the non- another court far from the residence of the prosecution if they are dissatisfied with the victims. Also the number of victims was decision of the public prosecutors. too large to accommodate in the spectator’s seats of the court. The court allowed C. The Right to Attend the Trial victims to watch the trial by relay- 1. Problem broadcast in special seats set in a Victims sometimes can not attend the gymnasium located in a residential area trial date, even though they want to, near the crime scene. because of non-notification of the trial date, capacity of spectator’s seats, place of the 3. Suggestions court and so on. The situation of victims Regarding the right of victims to attend attending the trial is as follows. First, and hear the trial, it is worth considering victims are summoned and testify as special treatment for victims in some witnesses at the trial. Secondly, victims situations to guarantee their opportunity attend the trial as a party of the case under of attendance or hearing, besides the the private prosecution system. Thirdly, general right to hear the public trial. victims attend the trial as spectators. What matters mainly is the third- standing D. Secondary Victimization as spectators- because sometimes there are Through Witness Examinations obstacles to victim’s hearing the proceeding 1. Problem of the case, although they are interested. Victims have difficulty in testifying in the courtroom in front of a defendant or 2. Current Situation of Each Country spectators in cases of sexual crime, child In China, victims have the right to abuse and organized gangster groups. We attend the court and are granted special focused on victims of sexual crime here. seats beside a public prosecutor in the Victims of sexual crime want to avoid courtroom, and will be notified of the trial witness statements in the trial because date by the court. In Colombia, victims they think it is scandalous or shameful. In have the right to attend court and testify. addition, victims are often afraid of the
293 RESOURCE MATERIAL SERIES No. 56 defendant. for the victim of the crime, and in tune with the legislative intent, but It is generally assumed that the gap is also likely to improve the quality between the actual number of sexual of the evidence of a female witness crimes committed and those reported is because she would not be so hesitant great, and the latter does not reflect the or bashful to depose frankly, as she reality of the situation because female may be in an open court under the victims hesitate to report such crimes. gaze of the public. Victims are sometimes cross-examined severely or humiliated by the defense (e) Indonesia counsel, suffering additional hurt. In Indonesia, the victims of sexual offenses can be examined as 2. Situations of Each Country witnesses in camera, which means a (a) China closed trial without spectators, except In China, examination of witnesses for relatives of the offenders and shall be subject to closed trial in the victims. Needless to say, the case of sexual crime. This is not applicability of this system is limited discretionary but mandatory. to the victims of sexual offenses, but this can also contribute to securing (b) Colombia the privacy of victims generally. Colombia has the Total Witness Security Program which is also (f) Japan applicable to the examination of In Japan, examination of a witness victims as witnesses in sexual may be held outside of the trial date, offenses. Under this system, victims under restricted conditions, without of sexual offenses can be examined spectators. This doesn’t mean denial in a way where their privacy is not of an open trial, but it substitutes invaded, because the victims are written statements of the said exempt from witness examination in examination for direct witness front of the defendant, and written statement as the evidence of the case. statements of the victims can be used This can be very useful in securing as evidence with the medical reports. witnesses’ privacy, as this makes it A detailed explanation of this system possible to keep the identification of was already mentioned earlier. a witness secret and, at the same time, allow a defendant and their (c) Egypt counsel the right to cross-examine. In Egypt, the victims of sexual crime are examined as witnesses under 3. Suggestions open trial before spectators. Devices to relieve the mental suffering experienced by victims of sexual offenses (d) India through witness examination, balanced Sec. 327 of the Code of Criminal with the right of defendants to cross- Procedure 1973, provides for trial in examine, the right of spectators and an camera for any classes of cases open trial, is desirable. Examples of such deemed fit by the magistrate/judge. devices are as follows: In addition, in all rape cases the trial is held only in camera. This would (i) video-linked witness examination not only be in keeping with respect systems.
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(ii) witness examination in a witness box explaining criminal procedure and sheltered from the defendant and witness examination are available for spectators. victims at police stations and public (iii) keeping the name, address and place prosecutor’s offices in Japan. of work of a victim (as a witness) secret during the course of the trial. 3. Suggestions (iv) closed trial in camera without Criminal justice agencies concerned with spectators, scope of which should be the criminal judicial procedure, including limited to specific cases such as rape police officers, public prosecutors and or sexual crime, in order to save any judges, should recognize the mental impact further embarrassment of victims. or suffering that victims of crimes receive. It is worth considering establishing a E. Mental Care and Support for system of orientation to the criminal Victims procedure, escort to the court, or 1. Problem counselling support by government Victims sometimes want to avoid authorities or non-government testimony as witnesses at court, even if organizations, and training to have officers there is no concrete danger or risk of recognize victim problems. humiliation. Victims also sometimes feel uneasy and isolated in testifying as a F. Punishment - Giving Victims a witness, especially when it is the first time Say About Sentencing for them, because victims do not 1. Problem understand the criminal procedure and the Punishment by the court may not be course of examination. Victims sometimes commensurate with the crime committed, do not have access to free legal counsel to and the victims may not be satisfied with instruct them on their rights, and as a the punishment given to the offender. But result, they may not enjoy their rights or we do not conclude that heavier interests. punishment is desirable, as punishment itself does not provide redress to the 2. Situation of Each Country victims. China, Colombia, Egypt, India and Indonesia have no special volunteer Victim’s feelings or victim’s damage organizations to serve for the mental care cannot be neglected in the disposition of of victims. All countries of the group, cases because they are deeply concerned including Japan, have no special systems with the cases, even if they are not a party to support victims to attend and testify at to the trial. Therefore the involvement of court. However it may be noted that: victims in decision-making regarding the (i) There are a private and volunteer sentencing of the offenders can be an issue, organizations which collect money as they sometimes have no chance to give and allocate aid to victims in Egypt. their opinion or state their damages. They do not provide counselling or Generally, such involvement is referred to support services. as “Victim Impact Statements” or “Victim (ii) Some volunteer groups in Japan are Statements of Opinion”. working in the field of the mental care of victims and have started activities 2. Situations which are limited to victim assistance In an increasing number of jurisdictions, (not extended to witness assistance). where the victim does not have the right (iii) Some kinds of leaflets or brochures to prosecute, the victim is allowed to
295 RESOURCE MATERIAL SERIES No. 56 provide information through a victim consider the establishment of a system in impact statement or victim statement of which the victim will have a say in the opinion. With victim impact statements, criminal trial, for example, such as the the victims fills out a form in which they Victim Impact Statements of the USA. indicate what impact the offence has had, what property was lost or damaged, what G. Victim Involvement in Decision- other financial losses resulted and how the making on Appeals event has disrupted their life. It provides 1. Problem the victims with an opportunity to inform Victims are sometimes not satisfied with the court of how the offence has affected the sentencing of the courts, but usually them physically, mentally, and otherwise. whether to appeal or not depends on the In some jurisdictions, victims are given the judgement of the prosecutor. right to allocution, i.e, the right to deliver in person a statement on the impact that 2. Current Situation of Each Country the offence has had on them. In Colombia, (a) China, Egypt and India victims have right to attend the trial and China, Egypt and India have the present their opinion about the crime. In system of private prosecution, but the Egypt, the court often allows victims to status of the victims who have appear in trial and explain to prosecutors privately prosecuted the case are or judges their point of view, even when different. In Egypt, public they are not going to be called or summoned prosecutors have the right to appeal as witnesses, although it is not endowed the court decision if the prosecutor as the right of victims. The court may take who prosecuted the case is not their opinions into consideration in the satisfied with the decision of the punishment of the offender. In Japan, court. Victims can not appeal even victims are allowed to present the damage in the case of private prosecution. In that they have suffered from the crime and India, victims who have brought their feelings in written statements given private prosecution can appeal. In before the investigating officer, or as a China, in a case of public prosecution, witness statement at the trial, if the court if the victim does not agree with a decides to do so. judgement made at the first instance of the Local People’s Court, s/he has 3. Suggestions the right to request the people’s Victims should be allowed to have their procuratorate at the same level to views and concerns presented and propose a counter-appeal, but has no considered at appropriate stages of right to lodge on appeal to the people’s proceedings where their interests are court at a higher level. affected. This should be done without unfair prejudice to the accused and must (b) Colombia, Indonesia and Japan be consistent with the relevant national In Colombia, Indonesia and Japan, criminal justice system. only the public prosecutor, defendants and defence counsels In deciding the sentence of the have the right to appeal against the defendant, some elements presented by the court decision or sentencing. Usually victims could be considered, such as the they don’t ask the victims for their content and degree of the damage, the opinion on deciding whether to effect on the victim, and the punishment appeal. of the offender. It is therefore desirable to
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3. Suggestions under closed trial. It is worth considering giving the victims an opportunity to have their say on the 3. Suggestions decision-making re appeals, to promote Generally, the privacy of victims should victims participation. Usually victims are be taken into account all through the not asked their opinion by authorities when criminal judicial procedure. Especially in deciding whether to appeal. sexual crimes, the necessity of securing the privacy of victims in order to prevent H. Privacy Invasion by the Press victimization through witness examination 1. Problem should be recognized. It is desirable to take Mass-media sometimes reveals the into account the freedom of the press and privacy of victims. The press sometimes balance it with the privacy of the victims. reports details of the case or the privacy of victims; and information that the victims V. CONCLUSION do not want to disclose will be made open Participation of the public and victims to the public. As a result, such victims are in the criminal justice procedure is of vital obliged to suffer another victimization. importance to the fair and effective Mass-media are able to get information administration of criminal justice. Without about the victims’ privacy as a spectator at the active contribution of the public and the court trial. victims, the criminal justice system is unable to fulfill its entrusted mission. In 2. Situation of Each Country this context, we note with pleasure that (a) China, Egypt and Japan growing attention has been given to this The Courts of China, Egypt and issue, not only at the national level, but Japan are authorized to prohibit also in the international forum. broadcasting of the trial. We can say Nevertheless, we recognize that there is that the mental suffering of the still a long way for us to go. victims of sexual crime deriving from the broadcasting of witness Various relevant issues at the stages of examination is diminished to some prosecution and trial have been identified, extent. and extensive discussion was made during our debate. However, these are in no way (b) India exhaustive. There are a lot of other There is no provision for broadcasting important issues to be studied in order to the trial in India. However, the press meet the challenges we are facing. may, with the permission of the court, publish a brief summary of the case Moreover, the suggestions contained in without any invasion of the privacy the present report have not necessarily of the victim, in other words, the been implemented, even in the privacy of the victim is protected. participant’s respective countries. We recognize that it is essential for criminal (c) Indonesia justice personnel to increase their In Indonesia, the court has the power awareness of the importance of the public to restrict the press broadcast of a and victims’ participation, for reaching our trial, but sometimes allow it to do so. goal. Regarding the trial of sexual crime, privacy invasion does not occur as At the same time, the group fully witness examination can be held understands and respects the systems
297 RESOURCE MATERIAL SERIES No. 56 prevailing in different countries. The political, social and economic conditions of some countries may not be conducive to the implementation of some of the measures proposed above. The intention of the group is to make contributions to further current efforts to promote understanding on this issue.
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able 1
T
Return of property belonging to the victim
Civil action by victim in civil case
Victim as civil Victim party in criminal procedure
Order to pay by the judge, upon initia- tive and discretion of judicial system
ictims cannot claim this as a matter of right.
Indemnification outside & independent of judicial system
es" is written. If the country does not have the system, "No" is written.
Yes Yes Yes No Yes Yes
Mediation program; out-of-court payment from offender to victim
REDRESS FOR VICTIMS THROUGH CRIMINAL PROCEDURE
SYSTEM
CANADA Yes Yes Yes No Yes Yes CHINA Yes No No Yes Yes Yes COLOMBIA Yes Yes Yes Yes Yes Yes EGYPT No No No Yes Yes Yes FIJI Yes Yes Yes Yes Yes Yes GAMBIA Yes No Yes No Yes Yes HONG KONG No No Yes No Yes Yes INDIA No No Yes No Yes Yes INDONESIA No No No Yes Yes Yes JAPAN No Yes No No Yes Yes KENYA Yes No Yes No Yes Yes MALAYSIA Yes No Yes Yes Yes Yes PAKISTAN Yes *Yes Yes No Yes Yes PAPUA NEW GUINEAPAPUA Yes Yes Yes Yes Yes Yes PHILLIPINES Yes Yes Yes Yes Yes Yes REPUBLIC OF KOREA SEYCHELLES Yes No Yes No Yes Yes THAILAND Yes No Yes No Yes Yes
*Sometimes the government provides financial assistance to victims of certain offences or acts, like terrorism, from relief funds. This is a discretionary power of the government. V
Note: If the country has the system, "Y
COUNTRY
299 REPORTSRESOURCE MATERIAL OF THE SERIES COURSE No. 56
GROUP 3
THE PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE EFFECTIVE ADMINISTRATION IN THE TREATMENT OF OFFENDERS
Chairperson Mr. John Isaac Odongo (Kenya) Co-Chairperson Mr. Takehiko Mukaigawa (Japan) Rapporteur Ms. Pornpit Norapoompipat (Thailand) Co-Rapporteur Ms. Chikako Nakajima (Japan) Members Mr. Mansa Ram (Fiji) Mr. Tai Kin Han (Hong Kong) Ms. Noriko Komori (Japan) Mr. Mattew Peter Himsa (Papua New Guinea) Mr. Young-Hoon Ha (Republic of Korea) Advisers Professor Akihiro Nosaka (UNAFEI) Professor Hiroshi Tutomi (UNAFEI) Professor Shinya Watanabe (UNAFEI)
I. INTRODUCTION (2)Participation of the public in community-based treatment We know that the effective treatment of (3)Involvement of victims in the offenders cannot be achieved through the treatment system of offenders efforts of governmental agencies alone, we require public participation and co- II. PARTICIPATION OF THE operation in order to effectively rehabilitate PUBLIC IN THE INSTITUTIONAL offenders and re-integrate them into TREATMENT OF OFFENDERS society. At the same time, the treatment of offenders can be enhanced by the A. Prison Labor participation of victims, so that it can It is noted that many countries have satisfy the needs of victims as well as those been facing the problem of overcrowding of offenders. and the supply of inadequate amounts of prison labor for prisoners. Consequently, This group was assigned the topic: it is often seen that many prisoners do “participation of the public and victims for nothing in prison, which brings undesirable more effective administration in the results in the administration of the treatment of offenders.” Since there are treatment of prisoners. The main point two forms of offenders’ treatment i.e, which we have discussed is how prison institutional treatment and community- labor can be stabilized and promoted by based treatment, this topic was divided into means of public participation. three issues: 1. Actual Situation (1)Participation of the public in Some countries have been successful in institutional treatment: increasing public participation in running (a) prison labor prison industries, as a form of the (b) rehabilitation programs stabilization of idle prison labor. In doing
300 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE so, it is believed that public participation across the country, with the participation in running prison industries, inside of private contractors. Industrial work prisons, can contribute to a decrease in the consists of 27 different kinds of work, such recidivism rates of both adults and as carpentry and printing. An average of juveniles delinquents. 21,600 prisoners are working at these factories per day. It is very interesting to take particular note of how religious organizations play an In Thailand, the Department of important part in the stabilization of prison Corrections has promoted offender’s labor in some countries like Fiji, Hong treatment through mass media by Kong, India, Kenya, Malaysia, Pakistan, encouraging the private sector to set up Papua New Guinea, the Philippines, the workshops in prison. Now, most prisons Republic of Korea and Thailand. Another in Thailand have made contracts with interesting situation, which will soon come private contractors for producing goods or into reality, is the establishment of using prison labor. privately managed prisons in both Malaysia and Korea in the near future. 2. Obstacles
Hereunder, we will observe the actual The following points are recognized as situation of public participation in prison problems in public participation in the labor in Japan, Korea and Thailand. stabilization of prison labor, and these are; Making an effort is essential to preparing satisfing prison labor, to make prisoners (a)Lack of public interest and constructive human beings. appropriate information getting across to the general public or In Japan, a style of public participation business sector, to help or assist in prison labor is the CAPIC (Correctional prison administrators in the Association Prison Industry Cooperation). rehabilitation process by way of As a result of the stringent fiscal situation setting up small-scale industries of the State, the raw materials budget for within prisons to stabilize prison the operation of prison work was forced to labor. be substantially curtailed. Consequently, (b) Security risk is a contributing factor the Corrections Bureau of the Ministry of as prison administrators cannot Justice adopted the “third sector system’’ guarantee the safety of the public in as a countermeasure. Specifically, the the prison. Lack of tight security Prison Industry Cooperation Division, allows easy access for prisoners to which provides raw materials for prison attack or take civilian participants as work and markets for these products, was hostages, or to escape from prison. set up within the Japanese Correctional (c)Inadequate land or space for Association (JCA) in 1983, with the State expansion of the prison impedes providing subsidies for five years. Since businesses who are interested in the discontinuance of the subsidies, it is setting up small-scale industries in self-funding and manages its own accounts. prison. (d) Quality of productions cannot be In Korea, the State Use Law for Products competitive in open markets on the by Prison Industry was enacted in 1962. grounds that goods and items Under the Law, industrial plants have been produced in prisons are considered to established at correctional institutions be of poor quality and of no open
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market value, as compared to the prison by making use of limited land same kinds of products produced by as much as possible, to accommodate well recognised manufacturing more public participation in prisons companies. for the stabilization of prison labor. (e) Difficulty in securing qualified and (d) Upgrade the quality productivity of well-trained prisoners constantly prison products through more exists, because offenders may be modernized instruments, with the released: early; on their normal due help of private sectors. date of release after serving out their (e)Teach prisoners, affirmative full imprisonment term; released on guidance, or instruction for work amnesty; extra-mural release or on skills (with the help of the private parole. sector), and utilize the evaluations of (f) Lack of official certificates for a classification system more attainment of certain levels of work effectively. skills, issued by authorized labor (f) Skills gained through prison labor institutes, to help discharged should be geared towards the issuing offenders in securing employment of trade test certificates. with private business firms/ (g) Active movement for appropriate institutions after their release. legislation by appealing to the (g) No legal provisions in place for the necessity of public participation in use of prison labor or liberalization prison labor. of the market in a number of countries. Therefore, it is difficult for B. Rehabilitation Program those countries with no legal basis to The main point of our discussion is how improve their prison labor rehabilitation can be more fruitful and engagement by the public. effective by means of public participation. Rehabilitation programs should be treated 3. Countermeasures as the most important factor because they The following points are thought to be are regarded as one of the most effective the countermeasures for the obstacles to programs for offenders. public participation in the stabilization of prison labor: 1. Actual Situation The search for effective measures for the (a) Strengthen the activities of public rehabilitation of prisoners has led the relations through media and public criminal justice system to look beyond the seminars on the various activities walls of the prisons for programs in the undertaken inside the prison, so that community that effectively complement the they (the public) can meaningfully rehabilitative efforts in prisons. It is noted contribute, in whatever possible form, that prison authorities run rehabilitation to the stabilization of prison labor. programs in two ways, either by the prison (b)Improve security capability or management themselves or with measures in prison in order to assistance (by introducing public accommodate and protect the well- participation in helping with the being of public participants working implementation of programs conducive to inside the prison and its the suitability of a particular prison surroundings. environment). Some countries have (c) Establish intensive and functional developed many effective rehabilitation workshop units (put together) in programs throughout their correctional
302 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE history, and are trying to develop more In Korea, since 1969, public vocational effective rehabilitation programs training centers have been established nowadays. with authorization from the Ministry of Labor Affairs throughout the 30 (a) Vocational Training correctional institutions amongst the Vocational training programs are nation. At each training center, six month organized so as to serve a constructive to two year training courses are provided purpose in the treatment of offenders. The for 54 different types of jobs, such as objective is not only to provide offenders architecture, mechanics, electrical fields, with vocational knowledge, but also to etc. For the training, many volunteers strengthen their individual will to work teach their skills to prisoners with the and learn new skills. On the other hand, assistance of professional vocational vocational training can be seen as part of training teachers. Some religious members prison work. Nevertheless, these should or rehabilitation members financially be more skill orientated in the sense that support the expenses needed for vocational training helps very much in enhancing the training. Amongst the trainees, those who complement of prison and public joint have exceptional skills are selected to venture projects situated in prisons. participate in national and local skills contests, with other students or civil In Hong Kong, the public participates by participants. If they win prizes from the supplying the prison with raw materials contest, occupational guidance is provided and vocational training examination by the prison or public, and they are given documents for the offenders to make priority for such privileges as release on finished products, and to sit for vocational parole. training examinations endorsed and certified by the Vocational Training Council In Thailand, the public supply raw for Offenders, respectively. materials, together with training equipment, for offender rehabilitation In Japan, many vocational training programs. Qualified skilled personnel are programs are conducted with the also sent into the prison to assist in participation of the public who have finishing production of the goods/items qualifications in teaching those programs. supplied to the prison. In Kenya, qualified skilled personnel from the public participate actively with the (b) Educational Training offenders in finishing products. In countries like Hong Kong, Japan and the Republic of Korea, services receive good In the Philippines, the Correctional financial support from their respective Bureau, in cooperation with non- governments, as seen in the form of government organizations, has intensified government-funded basic education/ the conduct of livelihood training programs literacy, English and mathematics for offenders through the effective agro- programs. As far as higher education is industrial livestock productivity program. concerned, a large number of the The continuous conduct of religious participating countries facilitate activities, recreational programs, as well correspondence courses for offenders, with as educational (both formal and non- the assistance of the public. In most cases, formal), and training programs are given the government meets the cost for long- by concerned non-governmental term sentenced offenders who undertake organizations. such correspondence courses. Likewise, in
303 RESOURCE MATERIAL SERIES No. 56 some cases, public assistance also comes a salary according to their work. In from NGOs and church organizations. February 1992, the number of prisoners participating in work release programs was (c) Life Guidance 400 offenders, and this number has Volunteer visitors, psychologists, and gradually increased, so nowadays the respectable religious instructors number of prisoners participating in work participate in life guidance programs to release programs are 1064, from 25 prisons provide counseling, role playing and in 54 private industries. spiritual guidance to offenders. In this way, offenders will know that they are not left In Sri Lanka, according to the alone in prisons without public care. administrative regulation concerned, the Offenders are human beings and therefore work release program is defined as “a they are to be cared for and treated scheme under which selected offenders are humanely as another fellow human being. allowed to get themselves employed in the open community, unescorted during day, (d) Work Release and return to prison for the night”. The In order to facilitate offenders’ smooth work release program may be applied to re-integration into society upon discharge, those offenders who have successfully many countries adopt work release completed part of their prison term (two programs with public participation, years or more) and who have a remainder especially with the help of the private of two years or less imprisonment. Among sector, by employing offenders at their these offenders, some are selected for the workplace outside of the prison. program when resources for implementation are available. This Work release programs contribute to the program was inaugurated in May 1974. reduction of institutional operation costs, Under this program, offenders for whom or allows assistance for victims, when some suitable employment can be found in the amount of offenders wage is paid for prison community are sent to work, either from a food or bed expenses, or remitted to a victim prison or from a work release center, where or his/her family. they return in the evening. Therefore they are technically still a custody. The In Japan, offenders are selected to go on prisoners receive normal wages, which they work release programs in factories can send to their families or which they can producing building materials and ship collect on their discharge. In the process, building. The offenders commute to their the offender gets accustomed to conditions work place either by foot or institutional and regulations prevailing in the transportation, with supervision provided workplace. Prison welfare officers by prison officers. In fact, work release occasionally visit the workplace to meet offenders are selected under strict employers and to monitor the progress of conditions, and work is accorded only to inmates. Offenders who perform poorly can offenders having six months of an be withdrawn from the program. Work imprisonment term left to serve. release is applied to about one hundred offenders each year. In Korea, the work release program has been in force since 1984. Under this 2. Obstacles program, selected model prisoners The following points are regarded as commute to their workplace in the obstacles: community’s (private industry) and receive
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(a)Negative public perception of (a) Strengthen the activities of public participating in rehabilitation relations through print and electronic programs. The public want the media, and public seminars offender to do hard labor for the educating the public on the punishment of the crime committed, importance of their role in rather than be assisted by way of participating and involving education and vocational training themselves in rehabilitation programs given by both the prison programs. and the public. (b)Encourage the participation of (b) Shortage of specialists or qualified experts from private fields, such as staff suitable for implementing the institutes or universities, to make use required rehabilitation programs run of retired staff or reformed ex- in prisons. offenders who have become good (c) Shortage of effective or practical citizens of society. This kind of effort vocational training programs such as can make rehabilitation programs data processing, motor mechanics, more fruitful. welding, electrical work, boiler (c) Introduce more modernized and making and tailoring. practical vocational training (d) Security risks in prison whereby programs which meet the needs of there is less manpower to carry out society, with the assistance of public the supervisory role of offenders participation. undergoing rehabilitation programs. (d)Improve security capability or (e) Protection of privacy of offenders. measures in prison by improving the Offenders privacy needs be protected current prison manpower strength, in at all times whenever public order to encourage the public that participants are participating inside their security is guaranteed if and the prison. when assisting the offenders in (f) Less employment opportunities in rehabilitation programs. work release programs. When an ex- (e) Set up effective regulation for privacy offender approaches businesses protection, describing that violators seeking employment, he/she is out- leaking privacy information to the rightly rejected from employment due public shall be disqualified and given to their criminal background. sanctions. (g)Responsibility for injuries to (f) Find and encourage cooperative prisoners in work release programs employers in cooperation with job makes employers hesitate to accept placement offices, where government offenders. When an offender sustains needs to take the initiative in making any serious or minor injuries while an effort to give private contractors undertaking a work release program, benefits such as reducing corporate there is still difficulty in solving who or income tax. is supposed to meet the medical (g) Give cooperative employers the expenses or workers compensation opportunity to make use of the for the offender. medical insurance system applied to the case of injury in order to reduce 3. Countermeasures their responsibility. Based on examining the actual situation and problems, the following countermeasures are recommended:
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III. PARTICIPATION OF THE custodial measures. The advantage of non- PUBLIC IN COMMUNITY-BASED custodial measures are many and varied, TREATMENT as they range from benefits to the offenders in particular, and to government and the The main task of the group was to community in general. The following were exhaustively explore how participation of considered as some of the most important the public in the community-based benefits derived from non-custodial treatment of offenders could be enhanced measures in the treatment of offenders. to achieve good results. In this regard, the group was to evaluate the performance of A. Advantages existing, conventional community-based 1. The liberty of the individual is methods of treatment of offenders like maximized to prevent the possible probation, parole, halfway houses, violation of human rights. probation hostels, community work 2. It is less disruptive on family life. The programs, mediation and fines, and also to offender is still allowed to continue give an insight into other community-based contributing towards his/her family treatment programs which may be used as in particular, and society in general, supplementary methods of the restorative by working instead of being confined justice system. The group also looked into in prison. the obstacles affecting these methods and 3. The rehabilitation of the offender is the countermeasures which may be used enhanced by continuing normal to secure more public participation in the community life. community-based treatment of offenders. 4. The criminogenic effects of custodial measures are avoided, thus removing In so doing, we opened the discussion by a factor that often complicates the expressing the importance of participation reintegration of the offender into the of the public in the community-based community and avoids offender treatment of offenders as a crime stigmatization. prevention method. The forms of public 5. Non-custodial measures are cost participation may vary from country to effective. They cost much less than country, depending on the diverse socio- custodial measures. cultural and economic practices inherent 6. The number of prisoners entering the in specific countries. Some countries may prison is reduced, thus facilitating have less crime, while others have a greater the administration of prisons and the number and more serious crime. However proper correctional treatment of since the commission of crime is as dynamic those who remain in prison. as technology, the growth of urbanization, 7. It is more conducive to social moral decadence, and economic difficulties integration, thereby reducing take centre stage. Even countries who are recidivism and increasing the crime currently enjoying a situation of public control effects of the criminal justice safety might find themselves entangled in system. an environment where they have to grapple with complicated crimes. The kinds of non-custodial measures in the treatment of offenders, as well as the We further said that in approaching the obstacles and countermeasures of subject of participation of the public in the participation of the public in these community-based treatment of offenders, measures, are considered as outlined below. we need to focus our attention on non-
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B. Probation and Parole vacation and have an interest in assisting 1. Probation probationers. Probation is a community-based method in which a juvenile delinquent or an adult In Japan, the probation officer assigns criminal offender, who has been found a VPO as the day-to-day supervisor of the guilty by the process of judicial criminal probationer. The assignment is based upon hearing or on their own plea of guilt, is the probation officer’s judgement, matching released into the community (particularly the VPO’s personality with that of the the family or halfway house) by a offender, so that the most effective sentencing court, without being sent to supervision of him/her will be materialized. prison or a juvenile institution. Such an Most VPOs are familiar and keep close offender will be subjected to specific relations with community residents, conditions imposed by the court and shall groups and organizations. They utilize be under the supervision of a probation these relationships in helping offenders officer. In countries like Fiji, Hong Kong, rehabilitate. Also there are two forms of Japan, Kenya, Papua New Guinea, the public participation in the treatment of Republic of Korea and Thailand, probation probationers in Japan. First, Big Brothers services have almost similar arrangements and Sisters (BBS) is an organization of and are used as an alternative to youths who befriend juvenile probationers, imprisonment. The application of actual and encourage their desistance from supervision by a probationer seems to be delinquency. Their activities include the same in the above mentioned countries, organizing sporting events and outdoor including the Seychelles and India. activities, accompanying juveniles in volunteer work in homes of the aged and In Hong Kong, Japan, Papua New discussing probationers’ views of their life Guinea, the Philippines, the Republic of and future. Second, the Cooperative Korea and Thailand, the services of Employers Scheme helps probationers by government probation officers are offering stable employment. supported by Volunteer Probation Officers (VPO). However the VPO systems vary In Papua New Guinea, there are about from country to country. 500 active VPOs who assist probation officers. In urban areas, they are retired In Hong Kong, the role of VPOs is minor. public servants, missionaries, NGOs, They may assist the probation officers in Young Men’s Christian Association the overall supervision of the probationers. (YMCA), Young Women’s Christian They accompany the probation officer Association (YMCA). In rural areas, they during the time of actual visits to a are village elders, councillors, literate probationer. In Hong Kong, the middle-aged men/women. probationer directly reports to the probation officer and not to the VPO. The In the Philippines, probation is a VPO may only assist the probationers in disposition of the court that allows a organizing some social activities in the convicted offender to serve their sentence home area of the probationer. VPOs are in the community/outside prison, but under usually members of NGOs under the Social the supervision of a parole and probation Welfare Department. The VPO may also officer and subject to certain conditions be an ex-offender with a proven record of contained in the Parole and Probation good conduct, or university students Order. Dedicated members of the studying behavioural sciences who are on community are tapped as volunteers to
307 RESOURCE MATERIAL SERIES No. 56 ensure the success of the parole and the decision to integrate or not will be probation system. These volunteers are determined by the local conditions screened and trained. Each volunteer prevailing in each country. supervises a maximum of five clients and keeps all information about the parolee, 2. Parole probationer or pardonee in strict Parole is a system which has been used confidence. S/he works in close over the years in many countries as a coordination with the Chief Probation and community-based method of treatment for Parole Officer in providing counselling and offenders. In this system, a prisoner is in placement assistance. given a certificate of discharge from prison to detention in the community under the In the Republic of Korea, previously supervision of a probation officer. While there were three types of VPO groups: the actual application may vary from rehabilitation members, who were in country to country, the principle behind charge of halfway houses; protection parole remains the same. The parole members who assist juvenile offenders; and system is granted to a prisoner who has a crime prevention members, who were remaining sentence to serve, subject to generally acting as crime prevention good conduct, previous criminal record and agents. The coordination of the activities length of the sentence. The parole system of the above groups became fairly is used in Hong Kong, India, Japan, Kenya, cumbersome. Therefore in 1996, the three Pakistan, Papua New Guinea, the Republic groups were integrated into one body called of Korea and Thailand. Crime Protection Members. To make their activities become more effective, and to In Japan, a parolee who has been achieve efficient communication and conditionally released from a prison or a understanding amongst the members. juvenile training school shall be placed under the supervision of the VPO for the In Thailand, there are two types of remaining term of the sentence, as is the VPOs. One works for the Department of case of a probationer. Parolees get Probation. Another works for the assistance from BBS and Cooperative Department of Corrections. The main Employers. responsibilities of VPOs in the two departments are similar, i.e to examine the In Kenya, parole or after-care service is background of offenders and supervise extended to long-term offenders. Long- them. However, their target groups are term offenders are those offenders who are different. The probationers are those who committed to life imprisonment or long have never been imprisoned before and confinement, but on serving part of their have committed minor crimes, but the sentences, usually ten years or above, they parolees and the sentence remissioners are may be considered for early release. For prisoners who are conditionally released. this category of prisoners, the officer in So the work of VPOs in the Department of charge is expected to submit periodical Corrections is tougher and requires more reports on the conduct and behaviour of skill. Moreover, the way they are trained such a prisoner to be placed before a is different. discharge board. The discharge board is composed of the Attorney General as the In general, it is not easy to decide chairperson, Commissioner of Prisons as whether integration of the system of VPOs the secretary, the Director of Probation is better than a separate service, because Services, Director of Medical Services,
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Permanent Secretary to the Minister (b) Active involvement in community Responsible for Prisons, and two other affairs. prominent members of the public who are (c) Maturity and integrity. appointed by the Minister Responsible for (d) Good standing in the community. Prisons. The discharge boards’ main (e) Appreciation and understanding of responsibility is to review the prisoners social issues and problems: interest records with a view to making or background in working with people recommendations for early release under in need of rehabilitation. the supervision of probation officers. The Minister may therefore nominate For ex-Borstal inmates, the law provides the Chairman, who must be a lawyer by that a youthful offender between the age training, another person is nominated by of 15 and 18 years who has committed an the Commissioner of Prisons and another offence punishable by imprisonment, who person nominated by the Departmental may not be rehabilitated by the probation Head. services, is ordered to undergo three years Borstal training. During their residence 3. Obstacles in the Borstal Institution, the offenders are (a) Negative public attitude towards taught some useful vocational training in offenders. addition to academic education. On (b) Limitation of activities like less completion of one year, the inmates are employment opportunities. released on license to their communities (c) Inadequate trained staff and VPOs. under the care of a responsible person, who (d)Some parole board members are is usually a community leader, village elder, incompetent in making useful businessmen, retired public servant or decisions. from organizations like religious groups or (e) Insufficient budget to meet the needs NGOs offering welfare services to needy of VPOs. cases and charitable organizations. While (f) VPOs supervise by means of their on license out of institutional treatment, humane interests and their strong they remain under the supervision of a sense of responsibility, but sometimes probation officer. So the number of it is difficult for them to supervise opportunities available for such youthful offenders like sex offenders and drug offenders to be released on license will offenders. depend on the number of people willing to live with and take care of such offenders 4. Countermeasures in the community. During this period, they (a) Encourage the public to cooperate in may continue with formal education or the community-based treatment of technical training in local polytechnics. offenders. While they are out in the community, they (b) Introduction and improvement of are required to be of good conduct and avoid VPO training in supervisory duties. associating with bad characters. (c) Governments to provide more funds to improve the services of VPOs. The Papua New Guinea members are (d)Diversify community-based appointed from the public by the Minister treatment methods by involving for Justice. Appointment is based on the various community groups like following conditions: NGOs, Drug Addiction Rehabilitation Centers, Alcoholic Anonymous. (a) Experience in social welfare.
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C. Halfway Houses and Probation 12 months. During their stay in the Hostels probation hostel, they are involved in 1. Halfway Houses various occupational training courses Halfway Houses can be defined as under the supervision of probation officers. community-based centers to which The charitable organizations and NGOs offenders are sent with the view to voluntarily donate items like bedding to be maintaining or facilitating social used by inmates and also tools to be used integration. Halfway houses serve those in vocational training courses. placed under supervision following institutional treatment and those who have 3. Obstacles completed serving their sentences. They (a) Inadequate accommodation space in are provided with the basic necessities like halfway houses and probation hostels food, shelter and clothing and, where in developing countries due to possible, help seek employment insufficient funds. opportunities for ex-offenders preparing (b) Lack of community support and themselves for re-integration into the negative public perception. community. In Hong Kong, Japan, the (c) Lack of public awareness due to lack Philippines, the Republic of Korea and of education. Thailand, halfway houses are privately (d) Vulnerable groups like the aged, managed. On the other hand, Hong Kong disabled, and the sick, who may need halfway houses managed by its assistance, cannot be accommodated government. in halfway houses. (e) Inmates with poor records like gang In Japan, all halfway houses are run by members, and drug or sex offenders a non-profit organization called the may not be accepted in halfway Juridical Persons for Offenders houses. Rehabilitation Services (JPORS). The Law for Offender Rehabilitation Services was 4. Countermeasures enforced in 1996 to legally improve the (a) Seek alternative accommodation like financial status of the JPORS by from the church and non-government introducing a tax-reduction specifically agencies. applied to it. (b) Developing countries which are not capable of expanding halfway house 2. Probation Hostels programs should seek donor funds to In Kenya, probation hostels are facilitate the administration of these residential institutions providing programs. temporary residence for some special (c) Community education programs categories of probationers. Some should be provided so that the probationers commit crimes which community gains a better necessitate their removal from society for understanding of community fear of reprisal or revenge as a result of corrections issues to accept and hostility displayed by the victims of their support halfway houses/probation crimes. Other crimes like infanticide or hostels within their localities. abortion, incest or manslaughter may (d)The private sector should be create family hostility among close family encouraged to make contributions to relatives. It is therefore necessary to these programs by way of incentives. remove them, through a court order, into a (e) The programs for the treatment of probation hostel for a period not exceeding residents of halfway houses should
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involve various community resources probation offices or by prisons. Including such as medical officers, teachers, countries, community work programs are psychologists, sociologists, also an alternative to imprisonment and a psychiatrists, community leaders and means to alleviate prison overcrowding. It business executives. is a reparation method for offenders to pay (f) Halfway houses should be more back the community for the offences they vigorous in reciprocating services to have committed. It is a program that the public like cleaning in the enables a prisoner to become accustomed community, actively assisting the to social life within their community, build events held by neighbourhood self-worth, achievement and eradicate guilt associations, renting parking lots to or stigmatization. neighbors at a lower price, and allowing cultural groups to have In Japan, many volunteers like VPOs, meetings in their premises. WARA and BBS participate in this (g)Halfway houses should be program. The effects of the program are: encouraged to make positive contributions to the community by (a)to develop a client’s sense of availing their programs. They should responsibility as a member of society avoid operating as closed institutions. and enhance their sense of self-worth; (h)The government should support (b) to know different types of people in halfway house in recognition of the their living space and learn their way important role they play in the of life and values as identifiable role intensive treatment of offenders in models; the community. (c) to learn about sound relationships (i) Pre-release programs to make with others; integration easier. (d)to learn sound ways of spending leisure time. D. Community Work Programs The community work program is a Community work programs are found in system in which prisoners and Fiji, Hong Kong, Japan, Kenya, Papua New probationers perform public work within Guinea, the Republic of Korea and their community. It is the type of work Thailand (prisoners only). which benefits the whole community. In this program, offenders perform such work 1. Obstacles like the up-keep of the streets, cutting (a) Insufficient trained staff to perform grass, clearing bushes, putting-out fires, supervisory duties. maintenance of school buildings, assisting (b) Lack of equipment like vehicles to the aged or disabled people in social welfare transport probation officers to institutions. The rationale underlying supervise work. Community Work Programs is for offenders (c) Lack of placement like social welfare involvement in community work and for institutions and cooperative such performance to be acknowledged by employers. the community. (d)Negative public attitudes in accepting offenders to work in their Community work programs include communities. community service orders by courts, pre- (e) Unwillingness by the offenders to release by correctional institutions, work in the community where they community participation programs by reside.
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(f) Danger of offenders getting injured offenders who take after-care services are in the course of performing public mainly as follows: termination of execution work. of sentence, granted suspended execution of sentence, granted suspended 2. Countermeasures prosecution. Such ex-offenders are (a) Improve public perception through provided meals, clothing or fares for travel. education programs. The public Some of these services are aided by the should come to understand and Juridical Person for Offenders appreciate offenders as fellow human Rehabilitation. When lodging is necessary, beings who need care and love. A ex-offenders can live in halfway houses run person does not cease to be a human by the Juridical Person for Offenders being by becoming an offender. Rehabilitation. (b) Encourage more public involvement in the community work programs 1. Obstacles through the media, public education (a) Unreceptive community not wanting and public meetings. prisoners. (c) Use the services of part-time (b) Slim employment opportunities for supervisors like retired police, prison ex-offenders. officers, army officers, probation (c) Inadequate supervisory staff - use of officers, churches, non-government volunteers. agencies, and civil servants including (d) Difficulty in coordinating the services university students (studying social of other government departments sciences) during their vacation as and organizations like NGOs and Volunteer Probation Officers. social welfare institutions. (d)Publicity of the work or services provided by the offenders like tree 2. Countermeasures planting, building of temporary (a) Encourage educational activities wooden bridges, digging of water through public meetings, seminars to canals, cleaning parks. create public awareness on the value (e)Motivate offenders to perform of human life. community work and gain (b)Encourage private sector community responsibility. participation by incorporating prominent businessmen and E. Aftercare Services members of the community and The definition may vary from country to volunteers. country, for example with the existance of (c) Set up community agency networks supervision, application or obligation, but through education and a better this form of system was found in Hong understanding of roles and Kong, Japan, Papua New Guinea, the responsibilities. Republic of Korea, and Thailand. In countries like Japan, after-care services are F. Mediation provided only to those who specifically Mediation is a method that has been apply for them in person at the probation used as a means of solving disputes and office. The probation officer will then personal damages in many countries in the conduct a background investigation and world. Mediation has been used in solving screen each individual in light of the minor conflicts in which basically both urgency and priority, and the offenders’ parties, the offender and the victim, come willingness to rehabilitate themselves. The to some form of compromise through a
312 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE neutral group comprising of village elders between parties like land cases, damage or respectable persons in the community caused to crops by cattle, and minor acting as mediators in the restorative disputes within the community. It is justice system, without necessarily seeking absurd that the present generation does the intervention of the judiciary. not appreciate traditional laws, which they presume to be orthodox and authoritative. Mediation programs bring the offender In our view, these methods should be and the victim together in face-to-face revived and activated to settle minor cases meetings to negotiate a restitution in society and avoid offenders being taken settlement. The objective is to appease the to court, and eventually entering prison. social situation which has been disturbed by the offender. Mediation procedures are Mediation may take place in three different from criminal judicial stages, at pre-trial, during trial and at post proceedings. A mediation session is only trial. For the purpose of our discussion, arranged with the consent of both the we focused on mediation at post trial. In victim and the offender. During a our view, we would like to recommend the reconciliation session, the two parties can possibility of mediation as a form of bring up the social conflict which might community-based treatment of offenders. have been the cause of the delinquent act. This approach attempts to address the In the community-based treatment of economic, as well as the psychological, offenders in Japan, it is taken into injuries in such way that the offender is consideration whether the offender makes able to comprehend the full impact that the restitution to their victim or not, and crime has had on the victim. The whether he or she has the willingness to advantages of mediation are: make amends or not. It is important for offenders to apologize with sincerity and (a) The victim is not treated as a mere to make restitution after trial for their witness but has the opportunity to successful entry into the community. When digest what has happened to them by probation officers conclude that it is expressing their shock and necessary for parolees and probationers to bewilderment. make restitution or to apologize to their (b) The offender is made to reflect upon victims, they supervise through the the injuries done to the victim and to following means: accept responsibility by engaging in constructive actions. This is deemed (a) Including victim measures in the to have a high value of rehabilitation. treatment plans made by probation (c) The offender gets less stigmatized. officers. (d) The victim obtains financial and (b) Including victim measures in any emotional restitution quickly and in special conditions to be observed. an informal way. (c) Asking about the progress conditions (e) There is higher involvement of the of victim measures or discussing their community in the solution of necessity. conflicts, which is supposed to have a positive impact on deterrence. Victim measures by offenders reduce the hostility of the public, allowing the offender However, due to modernization, these to re-integrate more easily. Furthermore, systems have been disregarded as this helps the offender to develop the outmoded methods of solving disputes willingness to rehabilitate and, in doing so,
313 RESOURCE MATERIAL SERIES No. 56 continues to prevent crime. That is why of disputes. Before assuming office, the development of mediation after trial mediators receive initial training in has an important role in the treatment of mediation duties, as well as inservice offenders. training. Their training aims at providing for a high level of In many instances, mediation after trial competence, taking into account is not enough. However, from the viewpoint conflict resolution skills, the specific of the re-integration of offenders and crime requirements of working with victims prevention, many countries felt it more and offenders, and basic knowledge desirable that we expand public of the criminal justice system. participation and promote mediation at the (c) Recruitment and appointment of post-trial stage. mediators should be done from all sections of society, and such people 1. Obstacles should generally possess a good (a) No guidelines defining the use of understanding of local culture and mediation in penal matters. There the norms of the communities. are no guidelines to address the (d) The public be educated to appreciate conditions for the referral of cases to mediation as a means to resolve the mediation service, nor procedures disputes. Before agreeing to to handle cases following mediation. mediation, the parties should be fully (b) Mediators lack training, resulting in informed of their rights, the nature unfair and biased decisions. of the mediation process, and the (c) Offenders/victims are sometimes possible consequences of their unwilling to appear and uphold the decision. ruling by the mediator. (d)No selection and assessment G. Fine Payment procedures for mediators. In many countries, monetary penalties (e) Mediation services do not have are usually awarded, and in default of autonomy in performing their duties, payment, the offender suffers making it difficult to issue certified imprisonment. Fines are mostly awarded documents. In India and Pakistan, for petty and traffic offences. That is, if mediation is legislated and required the offender can pay the fine s/he secures as a lawful method of settling a their liberty, but if s/he fails to pay the fine dispute. they suffer imprisonment. Fines are a (f) No public awareness as to the common form of non-custodial sentence. usefulness of medition. Fines are economical because their management involves less money and less 2. Countermeasures manpower. They are regarded as humane, (a) Legislation facilitates mediation in since they cause minimum social damage penal matters. There exists clear to the offenders. Fines therefore aim to guidelines explaining the use of achieve the objectives of punishment in mediation in penal matters. terms of retribution, deterrence and (b)Mediators must have basic rehabilitation. qualifications and receive training in mediation skills. Training programs In a number of cases where fines are should be made available for the imposed, the court may consider the betterment of the mediation system, following basic pre-requisites: for the smooth and effective disposal
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(a) The gravity of the offence and the discretion of the sentencing courts. circumstances under which the offence was committed. 2. Countermeasures (b) The financial ability of the offender. (a) Educate the public to learn to assist (c) The offender’s family background. disadvantaged members of the (d) Offender’s occupation. community by pulling their resources (e) The health condition of the offender. together. (f) The previous criminal history of the (b) Educate and counsel members of the offender. community to be law abiding.
In determining the amount of fine, the H. Summary court may also consider the offender’s In the past, not much attention has been financial position, whether s/he can pay on focused on the community-based treatment demand, be allowed more time for payment of offenders as a mean to achieve the or order the payment by installment. In rehabilitation and reformation of offenders. Fiji, when the offender is given monetary However, considering that governments penalty and the offender does not have are now experiencing huge budget deficits, sufficient money to meet the amount to the extent that not many governments required, s/he may be given more time, can now afford to be over-burdened with usually thirty days, to go and look for the the provision of other than basic services, money, or the offender may be allowed to public participation in the community- pay by installment until s/he completes the based treatment of offenders is vital. There fine. is, therefore, the need to strengthen cooperation between government agencies In quite a number of situations, the like local government, law enforcement offender may not be able to pay the fine agencies and correctional agencies, social due to poverty or other adverse economic welfare departments, non-governmental factors surrounding the offender. In such organizations (NGOs), donors and the a case, we may ask the public to offer the private sector. offender opportunities to pay the fine due. For example, the community can provide IV. INVOLVEMENT OF VICTIMS IN work to the offender so that he/she can THE TREATMENT SYSTEM FOR fulfill the responsibility of paying the fine. OFFENDERS Also the work to be performed by such an Involvement of victims in the treatment offender can benefit the whole community. system for offenders is very important for The community, which is aware that non- both victims and offenders. By involving custodial sentences are better than victims in the treatment of offenders, imprisonment for the re-integration of the offenders can be sensitized to the victims’ offender into the community, can help with feelings and agony. Also, offenders’ genuine the rehabilitation of the offender. feelings of guilt are promoted. Programs previously described in this paper promote 1. Obstacles understanding between offenders and (a) Poor status of the offender in the victims, and prompt reconciliation. Victims immediate community. are encouraged to be more forgiving. (b)Unwillingness by the public to contribute towards the payment of A criminal justice system that is the fine. intended to restore social relationships is (c) Award of fine sentences is at the
315 RESOURCE MATERIAL SERIES No. 56 called ‘Restorative Justice’. The aims of questions answered, and restitution and the restorative justice are: emotional needs are met. The person responsible for the crime is held (i) To repair the harm that has been accountable for his/her actions and given done to the victims and the an opportunity to make things right. The community; community becomes involved in the process (ii) To involve the victims and other of restorative justice. members of the community as active participants in the process; A basic case management process in (iii) To help communities to reintegrate North America and in Europe typically victims and offenders; involves four phases: (iv) To rebuild communities that have (i) Case referral and intake; been weakened by crime and other (ii) Preparation for mediation; social ills; (iii) The mediation itself; and (v) To deal with the needs of the victims, (iv) Any follow up necessary e.g, offenders and community. enforcement of restitution agreements. So, restorative justice systems require the involvement of victims in the treatment Often, a case is referred to VORP after a of offenders. conviction or formal admission of guilt in court; but some cases are diverted prior to A. Restorative Justice Programs such a disposition in an attempt to avoid We classified restorative justice prosecution. Studies have concluded that programs into the following five categories these programs have high client and organized our discussion according to satisfaction rates, victim participation these categories. rates, restitution completion rates, and result in reduced fear among victims, and 1. Mediation (direct/indirect) reduced criminal behavior by offenders. There are two types of mediation programs; one which requires face-to-face (b) Serious Offence Mediation contact between the victim and the offender Program for serious offenders were (direct mediation), and one which does not carried out in Anchorage, Alaska. involve face-to-face contact between the Mediations were conducted with juvenile victim and the offender (indirect offenders and their victims for offences as mediation). serious as manslaughter and attempted murder. While mediation for minor (a) Victim-Offender Mediation property offences has the goal of obtaining Victim-Offender Mediation Programs restitution, the primary goal of serious (VOMP), also known as Victim-Offender offences mediation is to help in the healing Reconciliation Programs (VORP), bring process. Participation in mediation did not offenders face-to-face with the victims of result in more lenient dispositions for the their crimes, with the assistance of a offenders, most of whom were already trained mediator (usually a community serving their penalties at the time of the volunteer). The value of these programs mediation. Most participants reported that in restoring all those affected has been mediation was successful in meeting the proven in communities throughout the goals of reconciliation, accountability, and world. Through the process, crime victims closure. are given an opportunity to have their
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Several projects involving prison-based In France in 1993 and in Germany in mediation have been done with adult 1994, after the assessment of these offenders. As with the young offender experimental programs, victim-offender program, the goals are somewhat different mediation has been fully recognized in from those of community-based programs, criminal procedure. In France, the in that they emphasize sharing information prosecutor is entitled to arrange for and healing rather than restitution. They mediation before the decision of whether involve voluntary meetings held between or not to prosecute. The mediation is victims and offenders in an institutional directed to the compensation of the victim setting. Typically, they explicitly exclude and the rehabilitation of the offender. offender benefits such as parole release. Immarigeon’s (1996) assessment of several 2. Disclosure of Offender’s Information prison-based programs found that Recently, a victims’ need to be notified hundreds of victim-offender reconciliation of their offenders’ information is increasing. meetings have been held with a great deal Since criminal procedures, criminal justice of success, and with no negative systems, and cultures differ among consequences. countries, there is no definite answer to the question “Who/which agency (e.g, police, Such violent offenses are usually public prosecutors office, the courts, mediated upon the initiation of the victim, correctional institutions, probation office, and only after many months (sometimes etc) should disclose the offender’s even years) of work with a specially trained information?”. In principle, victims should and qualified mediator, collaborating with be notified of their right of access to the the victim’s therapist and/or other helping offender’s information, and the agency professionals. Participation must be which is most convenient to victims should completely voluntary, for both the victim be available to them, so that they will have and the offender. the least trouble in requesting the offender’s information. However, such (c) Assessment of Mediation disclosure may endanger the rehabilitation Programs of the offenders, and therefore, the criminal Victim-Offender Mediation Programs justice agencies should be allowed to have been mediating meaningful justice exercise discretionary power, in case they between crime victims and offenders for foresee such a danger. over twenty years. There are now over 300 such programs in the US and Canada, and 3. Involvement of Victims’ Opinion in about 500 in England, Germany, Decision-making Concerning Scandinavia, Eastern Europe, Australia Offender’s Status and New Zealand. Remarkably, consistent In some countries, victims provide input statistics from a cross-section of the North about the impact of the crime (and American programs shows that about two- sometimes parole violation) at the parole thirds of the cases referred resulted in face- hearings, in person, via audiotape or to-face mediation meetings; over 95% of the videotape, by teleconferencing, or in cases mediated resulted in a written writing. Their statements give the parole restitution agreement; over 90% of those authority crucial information about the restitution agreements are completed crime’s financial, physical and emotional within one year. impact on the victim. To make this meaningful however, parole authorities must notify victims and their families of
317 RESOURCE MATERIAL SERIES No. 56 the hearings (in advance), and schedule opportunity for offenders to time during the hearing to allow them to express the impact that drunk describe the crime’s impact on their lives. driving has had on their lives.
4. Education A VOP is comprised of unrelated (a) Victim-Offender Confrontation victims and offenders, linked only Programs and Similar Programs by a common kind of crime, not the (i) Victim-Offender Confrontation particular crimes that involved Programs: Programs in which others. It thus provides an offenders and victims of other opportunity for indirect encounter offenders, usually groups of when either the victim or offender victims or their families, meet in is unwilling or unable to meet the the correctional setting to discuss other. the impact of crime from both perspectives. This program’s goal With the VIP operated by MADD, is to sensitize offenders to the pain for example, judges or probation and suffering of victims and can officers will often require give offenders the opportunity to convicted drunk driving offenders deal with remorse and guilt (for to attend a panel as an element of example, Alberta Seven Step their sentence or probation. “Surrogate Perpetrators Attendance is monitored, with Program”, a program for sex sanctions applied for failure to offenders in Fort Saskatchewan). attend.
(ii) Victim-Offender Panels: Victim- (b) Victim-Awareness Program Offender Panels (VOP) can be This type of program sensitizes offenders attributed to the rise of the to the needs of victims, without direct victims’ rights movement in the contact with them. This type of program last decade, and in particular to is important because we may not be able the campaign against drunk to find victims who are willing to driving. They were developed as participate in programs involving contact a means of giving convicted drunk with their offenders. The following are the drivers an appreciation of the list of programs which are currently human cost of drunk driving on utilized in Japan: victims and survivors, with the intention of decreasing the (i) Essay writing. likelihood of repeat offences. It (ii) Imaginary letter. also offers victims and survivors (iii) Role playing. a forum in which to express their (iv) “Naikan” meditation therapy. experience and thereby restore some sense of power to the victims of crime. 5. Community Service Community service requires offenders to One noteable example of a VOP perform some beneficial community in application is the Victim Impact service. These services are beneficial to Panel (VIP) organized by Mothers victims in several ways. First, some Against Drunk Driving (MADD). victims may want to humiliate offenders This panel provides an by having them engage in community
318 112TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE work. Second, some victims may want awareness programs are implemented in offenders to engage in community work Japan, Papua New Guinea, and Thailand. believing that experience such as working In Papua New Guinea, voluntary chaplains in an elderly person’s home may help come to prisons or juvenile training schools offenders be aware of the plight of victims. and talk about the feelings and agony of Third, since crimes offend the feelings of the victims. In Thailand, meditation is the public, including the victims, implemented as one victim awareness community service works as “symbolic program. Thus, the involvement of victims restitution”. in the treatment of offenders in many of the group’s countries seems to have been B. Actual Situation successful. Table 1 shows the actual situation of the countries of this group. Mediation C. Obstacles and Countermeasures programs (including programs which are 1. Mediation similar to mediation) are implemented in (a) Obstacles Fiji, Japan, Kenya and Papua New Guinea. (i) In some participating countries, Who takes the role of mediator is different programs are being conducted amongst these countries. In Japan, without any legal backup. In that probation officers and VPOs take the role no monitoring system is in place, of mediator. In other countries, mediators the neutrality/quality of the are voluntary chaplains and elderly mediator is not guaranteed. persons who are trusted by the community. Hence, the rights of the victim and the offender can hardly be The disclosure of offenders’ information protected. to victims is implemented in Hong Kong, (ii) In general, the public do not have Kenya and the Republic of Korea. In Hong a full understanding of the Kong, upon the victim’s request, the objectives and the value of these Commissioner of the Correctional Service programs. is required to provide information as (iii) Public opinion is accustomed to needed in respect of the offender. In Kenya the retributive model of justice, i.e, and the Republic of Korea, the offender’s geared to the punishment of information is disclosed to victims by the offenders. As such, public support police and welfare officers. and participation in mediation programs difficult. The consideration of the victim’s opinion (iv) Usually, the victims do not want in decision-making concerning the to meet offenders as they are offender’s status is implemented in Fiji, either afraid of being re-victimized Japan, Kenya, the Republic of Korea and or choose to forget the harm/ Papua New Guinea. In these countries, the trauma that the offender has done victim usually does not attend the parole to them. hearing. Only a document describing the (v) The role of the mediators is so victim’s opinion is submitted to the parole demanding that it is quite difficult board (e.g, the report of probation officers to recruit sufficiently competent to the board). mediators. (vi) Face-to-face contact of offenders Victim-offender confrontation programs with victims can be quite and similar programs are not implemented dangerous, i.e, not easy to control in all countries of the group . Victim (security administration
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problems). to specify suitable types of information disclosable to the (b) Countermeasures victim, and the proper procedure (i) Relevant laws have to be enacted in disclosing this information to in the implementation of victims. mediation programs, in order to (ii) The public has to be made aware protect the rights of the victims of the objectives of providing and offenders. offender information to their (ii) The public has to be made aware respective victims. of the objectives and values of such (iii) Protection of offenders’ privacy programs by providing them with and human rights has to be all the necessary information (e.g, observed. In that, laws should be using the mass media). enacted to prevent the victims (iii) Offenders and victims need to be from misusing the information encouraged to participate in provided to them. programs by educating them on (iv) Cooperation among the police, their objectives and values. public prosecutor’s office, the (iv) Government and NGOs should courts, and correctional take the lead in organizing the institutions has to be secured in training of mediators, and invite order to ensure that all suitable citizens to become information provided to the mediators. victims is updated and given in (v) Appropriate programs, such as good time. psychological counselling, should be set up to assist victims and 3. Consideration of the Victim’s Opinion offenders to be prepared for in Decision-making Concerning the mediation. Offender’s Status (a) Obstacles 2. Disclosure of Offender’s Information (i) Victims do not have adequate (a) Obstacles information about parole (i) In many participating countries, hearings, and thus they are there is no leglistaion to govern unwilling to participate in the whether it is lawful to provide hearings either in person or in offender’s information to their writing. victims. (ii) Most participating countries lack (ii) Offenders may object to having human resources (e.g, probation their information being disclosed officers, etc) to approach the to their victims, as it would victims and explain to them the infringe on their privacy. objectives of the parole hearing, or (iii) Offenders get disadvantaged as to give them counseling in their victims may plan retalitation securing their participation in the against them after their hearing. discharge, by knowing their date (iii) Most of the victims do not wish to of discharge and other information have any further direct or indirect such as place of residence. involvement/contact with their offenders. Some of them even (b) Countermeasures refuse to hear anything about (i) Relevant laws have to be enacted their offenders.
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(b) Countermeasures administration problems). (i) Government should recruit more probation officers and invite (2) Countermeasures suitable citizens to be volunteer (a)Educating the public by probation officers. providing them with all the (ii) There is a need to explain the information (e.g, using mass objectives and values of the parole media) regarding the objectives board hearings to the victims and and value of the programs. the public. (b)Educating offenders and (iii) Education and counselling should victims about the benefits of the be given to victims, informing programs, and encouraging them that they, their offender and them to participate. society would benefit from their (c) Providing appropriate training participation in the parole for serving officers in hearing. implementing and organizing (iv) Victims have the right to attend the programs, and seeking parole hearings so that they can cooperation from private fully realize how the parole experts in providing their hearing is being conducted. professional advice to enhance/ (v) If the offenders are to be granted improve the qualities of these release by the parole board, programs. victims should be protected by (d) Assisting victims and offenders imposing certain conditions for to be prepared for participation. the offenders to observe, such as keeping a certain distance away (b) Victim-Awareness Program from the victim’s residence. In (1) Obstacles such a way, victims may feel safe (a) Serving officers are not trained in participating in the parole to conduct/organize the hearing. programs. (b) Through participation in the 4. Education programs, some offenders may (a) Victim-Offender Confrontation have their guilty feelings Programs and Similar Programs aggravated, i.e, depression. (1) Obstacles (a)The general public do not (2) Countermeasures recognize the objectives and (a)Serving officers should be value of these programs. equipped with adequate (b)Public opinion is deeply knowledge in organizing and entrenched in executing conducting programs through punishment against offenders in-service training. (retributive sentiment). (b)Cooperation with private (c) Victim’s unwillingness. experts should be sought in (d) Offender’s unwillingness. order to obtain their expertise (e) Serving officers are not trained in enhancing the effectiveness to implement and organize of programs. these programs. (c) Future-orientation of programs (f) Offenders can be dangerous to should be emphasized to victims (security prevent offenders from
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becoming depressed. control of justice issues can be a major step in community healing. However, it can be a difficult step because the D. Problems/Challenges in Using community institutions that must do Restorative Justice Programs this - including the family, schools, Through the above processes, crime and religious and economic victims are given an opportunity to have institutions - may not themselves be their questions answered and their healthy. In other words, communities restitution and emotional needs met. The may have too many other problems person responsible for the crime is held to deal with. accountable for his/her actions and given (iii) There is also the possibility that an opportunity to make things right. The community justice may divide rather community becomes involved in the process than unite people. This may happen of restorative justice. in small isolated communities where punishment, even when it is intended However, some research indicates that to reintegrate offenders, may alienate victim participation in restorative justice individuals and their friends and programs places an unwanted burden on relatives from one and other. To the victim himself or herself, beyond what prevent this, everyone must would result from serving only as a witness understand that restorative justice is for the prosecution. In particular, placing in the best interest of the entire the victim in a decision-making role may community. lead to even more harassment and (iv) For programs conducted inside the intimidation by the offender. In some prison setting, such as Victim- jurisdictions that have introduced Offender Reconciliation and Victim- mechanisms designed to give victims a Offender Confrontation Programs, more active role in the process, a they are operated less often than considerable number of victims have expected. This may be largely due to chosen not to exercise such a right. the lack of additional resources. Under a limited budget, such One of the keys to successful restorative programs are not given priority. justice projects is the participation and (v) Also, offenders must want to support of the community. In some cases, participate in these programs for victims have been unwilling to participate them to be successful. Offenders in victim-offender mediation programs, and should not be given rewards (such as some surveys have shown a relatively low reduced punishment) for level of public support for alternative participating, because the offender programs. There are several reasons why must be sincere. public support for these programs is by no (vi) Restorative justice programs may be means automatic : inappropriate in cases of unequal power positions between the victim (i) People accustomed to the retributive and offender (e.g, child abuse). model of justice may be reluctant to Victims might be revictimized by support restorative justice programs. such participation. However, successful restorative (vii) In mediation programs, the mediator initiatives can lead to a change in needs to be well trained so that he/ public attitudes. she can prepare both the victim and (ii) Empowering the community to take the offender. Victims cannot use the
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session to only express grief or anger (i.e, just yell at the offender). Also, mediation needs to make sure that the expectations of both sides are realistic.
V. CONCLUSION Participation of the public and victims is imperative in the overall treatment, rehabilitation and re-integration of offenders into society. In order to achieve the desired results, public involvement in the effective utilization of prison labor, enhancing and resuscitating rehabilitation programs available to prisoners, is indeed vital.
Similarly, for the re-socialization of offenders to be effective and pragmatic, emphasis should be given to community- based treatment methods which can be enormously enhanced by active public involvement. The participation of the public in community-based treatment provides an enabling environment conducive to the speedy re-socialization of the offender.
Lastly, no comprehensive treatment program for offenders will ever be complete without the involvement of the victims in the restorative justice system. The actual re-settlement of the offender into the community will be determined by the ability and readiness of the victim to live in harmony with and restore the hope of the offender.
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New Guinea Korea
program is implemented
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able 1
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Disclosure of Offender to Victims
Involvement of V Decision-making Concerning Offender’s Status Education
324 MAIN ACTIVITIES
PART TWO
RESOURCE MATERIAL SERIES No. 56
Work Product of the 113th International Training Course
“THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS”
UNAFEI
1
113TH VISITING INTERNATIONAL EXPERTS’ TRAINING PAPERS COURSE VISITING EXPERTS’ PAPERS
INTERNATIONAL ANTI-CORRUPTION INITIATIVES Donald K. Piragoff*
I. INTRODUCTION preventive and educational measures and providing technical assistance and Efforts have been ongoing within various cooperation. international fora to combat corruption through negotiating international While acknowledging that the fight instruments, exchanging information, and against corruption requires multi- promoting international co-operation and disciplinary action, this paper will survey technical assistance in the field. The only a number of initiatives undertaken by necessity of States joining together to a number of international and inter- combat corruption has also been promoted governmental organisations, primarily at the highest political levels. This has with respect to legal measures in the been the result of a recognition that criminal law area to fight corruption. corruption weakens democratic institutions and public administration, II. ORGANIZATION OF AMERICAN undermines good governance, fairness and STATES social justice, distorts the economy and competition, hinders economic and social In 1994, at the Summit of the Americas, development and damages a society’s moral Heads of State and of Governments in the fibre. Of growing concern is that corruption Americas endorsed a Plan of Action, which is used as a tool by organised crime to called upon the Organization of American achieve its criminal goals. States (OAS) to develop a hemispheric approach to acts of corruption. After Governments and non-governmental several preparatory meetings, the organisations have become convinced that Specialised Conference on the Draft Inter- the public must become aware of this American Convention against Corruption problem and participate in its prevention, was held in Caracas, Venezuela on March and that governments must exert 27, 28 and 29, 1996. The Convention was coordinated action, both domestically and concluded on March 29, 1996. Twenty-one internationally, to fight it effectively. In Member States (out of thirty-four Member result, in the last decade the issue of States) signed the Convention on that date, corruption has taken priority in the work and the Convention entered into force on programmes of many international March 6, 1997. organisations, both inter-governmental and non-governmental. This work has This was the first international included the negotiation of international convention to be negotiated that provides instruments and other legal measures, for criminalizing the bribery of foreign implementing various regulatory, public officials. The OAS Convention has two purposes: * General Counsel, Criminal Law Policy Section, Department of Justice, Canada. (1) to promote and strengthen within The views expressed herein represent those of the each State Party mechanisms author and do not necessarily represent the views necessary to prevent, detect, punish of the Department of Justice. and eradicate corruption; and
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(2) to promote, facilitate and regulate co- • Fraudulent use or concealment of operation among States Parties to property from any of the acts referred ensure the effectiveness of measures to; and and actions to prevent, detect, punish and eradicate corruption.1 • Participation as a principal, co- principal, instigator, accomplice or The Convention describes a number of accessory after the fact, or in any other acts of corruption which States Parties are manner, in the commission or obliged to criminalize under their domestic attempted commission of, or in any law, and further obligates them to consider association or conspiracy to commit, establishing various preventive measures, any of the acts referred to.2 consider the establishment of other optional offences and provide international The Convention also contains a number co-operation in the investigation of of optional obligations concerning corruption. The Convention is applicable criminalisation, which are conditional and to, and States Parties shall adopt the subject to a State’s Constitution and the necessary legislative or other measures to fundamental principles of its legal system. establish as criminal offences, the following The first of these involves transnational acts of corruption: bribery. Each State Party shall prohibit and punish its nationals, persons having • Solicitation or acceptance, directly or their habitual residence in its territory, and indirectly, by a government official or businesses domiciled there, for offering or a person who performs public functions, granting, directly or indirectly, to a of any article of monetary value, or government official of another State, any other benefit (such as a gift, favour, article of monetary value, or other benefit promise or advantage for him or herself (such as a gift, favour, promise or or for another person or entity), in advantage) in connection with any exchange for any act or omission in the economic or commercial transaction in performance of his or her public exchange for any act or omission in the functions; performance of that official’s public functions. The second optional offence • Offering or granting, directly or involves illicit enrichment. Each State indirectly, to a government official or a Party shall take the necessary measures person who performs public functions, to establish under its laws as an offence “a any such article of monetary value or significant increase in the assets of a other benefit as described above; government official that he cannot reasonably explain in relation to his lawful • Any act or omission in the discharge of earnings during the performance of his duties by a government official or a functions”.3 person who performs public functions for the purpose of illicitly obtaining Such offences shall be considered as an benefits for him/herself or for a third act of corruption, for the purposes of the person; Convention, among those States Parties that have established transnational bribery or illicit enrichment as an offence, 1 Organization of American States, Inter-American Convention Against Corruption (hereinafter 2 OAS, Article VI and VII. “OAS”), Article II. 3 OAS, article IX.
328 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS respectively. However, even State Parties purposes unrelated to those for which that have not established transnational they were intended, for his or her own bribery or illicit enrichment as an offence benefit or that of a third party, of any shall, insofar as their laws permit, provide moveable or immovable property, assistance and co-operation with respect to monies or securities belonging to the those offences, as provided in the State, to an independent agency, or to convention.4 an individual, that such official has received by virtue of his or her position In order to foster the development and for the purposes of administration, harmonization of their domestic legislation custody or for other reasons.5 and the attainment of the purpose of the Convention, the States Parties are also Such offences shall be considered as acts obliged to consider establishing as offences of corruption for the purpose of the under their laws the following acts of Convention among those State Parties that corruption: have established these offences under domestic law. Any State Party that has • Improper use by a government official not established these offences shall, or a person who performs public nevertheless, be obligated, insofar as its functions, for his or her own benefit or laws permit, to provide assistance and co- that of third party, of any classified or operation with respect to these offences, as confidential information which that provided in the Convention.6 official or person has obtained because of, or in the performance of, his of her Each State Party shall adopt such functions; measures as may be necessary to establish its jurisdiction over the offences it has • Improper use by such an official or established (in accordance with the person, for his or her own benefit or Convention) when committed in its that of a third party, of any kind of territory, and may adopt jurisdiction where property belonging to the State or to the offence was committed by one of its any firm or institution in which the nationals or by a person who habitually State has a proprietary interest, to resides in its territory. It shall also which that official or person has access establish jurisdiction over an alleged because of, or in performance of, his or criminal who is present on its territory and her function; it does not extradite such a person to another country on the grounds of the • Any act or omission by any person who, nationality of the alleged criminal.7 personally or through a third party, or acting as an intermediary, seeks to With respect to extradition, each of the obtain a decision from a public offences established by the States Parties authority whereby he or she illicitly in accordance with the Convention shall be obtains for him or herself or for another deemed to be included as an extraditable person any benefit or gain, whether or offence in any extradition treaty between not such act or omission harms State the State Parties, and if no extradition property; and treaty exists between two State Parties,
• Diversion by a government official, for 5 OAS, Article XI para. 1. 6 OAS, Article, XI paras. 2 and 3. 4 OAS, Article VIIIand IX. 7 OAS, Article V.
329 RESOURCE MATERIAL SERIES No. 56 they may consider the Convention as the Bank secrecy shall not be invoked by the legal basis for extradition. State Parties Requested State as a basis for refusal to that do not make extradition conditional provide assistance sought by the on the existence of a treaty shall recognise Requesting State. In reciprocity, the Convention offences as extraditable Requesting State is obligated not to use any offences. If extradition is refused solely on information received that is protected by the basis of the nationality of the person bank secrecy for any purpose other than sought, or because the Requested State the proceeding for which that information deems that it has jurisdiction over the was requested, unless authorised by the offence, the Requested State shall submit Requested State.13 the case to its competent authorities for the purpose of prosecution, unless otherwise For the purpose of the articles agreed with the Requesting State.8 concerning extradition, mutual assistance in general and assistance in respect of States Parties shall also afford one measures regarding property and bank another the widest measure of mutual secrecy, the fact that the property obtained assistance by processing requests either or derived from an act of corruption was through Central Authorities9 or from intended for political purposes, or that it authorities that have the domestic power is alleged that an act of corruption was to investigate or prosecute the acts of committed for political motives or purposes, corruption described in the Convention.10 shall not suffice in and of itself to qualify They shall also provide each other with the the act as a political offence or as a common widest measure of mutual technical co- offence related to a political offence.14 operation on the most effective ways and means of preventing, detecting, Subject to the constitutional principles investigating and punishing acts of and the domestic laws of each State, and corruption. This would include exchanges existing treaties between the States of experience by way of agreements and Parties, procedural co-operation in criminal meetings, with special attention to methods matters may be given with respect to an and procedures of citizen participation in act of corruption that was committed before fighting corruption.11 the entry into force of the Convention. However, the principles of non-retroactivity State Parties shall also provide each in criminal law and the application of other the broadest possible measure of existing statutes of limitation relating to assistance in the identification, tracing, crimes committed prior to the date of entry freezing, seizure and forfeiture of property into force shall not be affected by the or proceeds obtained, derived from or used Convention.15 Likewise, nothing in the in the commission of Convention offences. Convention prevents the State Parties from A State Party may, to the extent permitted providing mutual co-operation within the by its laws, transfer all or part of such framework of other bilateral or multilateral property or proceeds to another State Party agreements or arrangements.16 that assisted in the underlying investigation or proceedings.12 12 OAS, Article XV. 8 OAS, Article XIII. 13 OAS, Article XVI. 9 OAS, Article XVIII. 14 OAS, Article XVII. 10 OAS, Article XIV, para. 1. 15 OAS, Article XIX. 11 OAS, Article XIV, para. 2. 16 OAS, Article XX.
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Additionally, the Convention obligates report acts of corruption, including State Parties to consider the applicability protection of their identities, in of a number of preventive measures within accordance with their Constitutions their own institutional systems to create, and the basic principles of their maintain and strengthen: domestic legal system;
• Standards of conduct for the correct, honourable, and proper fulfilment of • Oversight bodies with a view to public functions, in order to prevent implementing modern mechanisms for conflicts of interest and ensure the preventing, detecting, punishing and proper conservation and use of eradicating corrupt acts; resources entrusted to government officials in the performance of their • Deterrents to the bribery of domestic functions, including the establishment foreign government officials, such as of measures and systems requiring mechanisms to ensure that companies government officials to report acts of and associations maintain accurate and corruption in the performance of public reasonably detailed books and records, functions; which reflect the acquisition and disposition of assets, and have • Mechanisms to enforce these standards sufficient internal accounting controls of conduct; to detect corrupt acts;
• Instruction to government personnel to • Mechanisms to encourage participation ensure proper understanding of their by civil society and non-governmental responsibilities and the ethical rules organisations in an effort to prevent governing their activities; corruption; and
• Systems for disclosing the income, • Study further preventive measures assets and liabilities of persons who that take into account the relationship perform public functions in certain between equitable compensation and posts as specified by law and, where probity in public service. appropriate, for making such disclosures public; On June 5, 1997, the OAS General Assembly adopted a Program for Inter- • Systems of government hiring and American Cooperation in the Fight against procurement of goods/services that Corruption. Among other things, this assure the openness, equity and program calls for a strategy to secure efficiency of such systems; prompt ratification of the OAS Convention. The Second Summit of the Americas was • Government revenue collection and held from April 18-19, 1998 in Santiago, control systems that deter corruption; Chile. Corruption was a featured theme under the Human Rights and Democracy • Laws that deny favourable tax section of the Summit agenda. Among treatment for expenditures made in other things, this section of the action plan, violation of anti-corruption laws; approved by leaders in Santiago, calls upon governments to adopt strategies to achieve • Systems for protecting public servants prompt ratification of the OAS Convention. and private citizens who, in good faith,
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A Symposium on Enhancing Probity in a guide for legislators. These are contained the Hemisphere was held in Santiago, in its report, dated January 29, 1999, Chile, on November 4-6, 1998. Participants entitled “Model Legislation on Illicit included representatives of national Enrichment and Transnational Bribery”. 18 institutions and of international agencies The report was presented to the Permanent involved in the fight against corruption. Council of the OAS in the spring of 1999. Participants explained the underlying legal basis, sphere of competence, and functions III. ORGANISATION FOR of those bodies, as well as exiting ECONOMIC CO-OPERATION AND mechanism of co-ordination with other DEVELOPMENT national institutions. Presentations were Corruption of public officials has been also made by representatives of viewed as a major problem affecting international organisations on how international trade and investment. national organisations could improve their Accordingly, the Organisation for Economic fight against corruption and better co- Co-operation and Development (OECD), ordinate their activities with non- which is a major economic policy forum for governmentnal institutions. The the world’s most advanced industrialised Symposium urged all governments to ratify democracies, has focused attention on this the OAS Convention before the year 2000, issue. The OECD has 29 members, which and produced a number of conclusions and include Canada, the United States, most recommendations. European countries, Japan and South Korea. In 1996, following the negotiations of the Inter-American Convention against In May of 1997, a Ministerial meeting Corruption, the OAS General Assembly at the OECD called for the negotiation of a commissioned the Inter-American binding convention to address the bribery Juridical Committee (IAJC) of the of foreign public officials. Ministers urged Organization of American States to prepare that the convention be finalised by the end model legislation covering transnational of 1997, and recommended that Member bribery and illicit enrichment (Articles VIII countries should submit legislative and IX of the Convention, respectively), proposals to criminalise such bribery to which could be used by Member States as their national legislatures and seek their a guide to implementing those articles of enactment by the end of 1998. On June the Convention.17 The Committee, in the 21, 1997, leaders at the Summit of Seven course of its work, concluded that the Industrialised Countries, at their meeting differences among the legal systems of in Denver, Colorado, issued a statement in Members States, in terms of criminal law, which the leaders endorsed this approach even among those with the same language, and timetable. Negotiations commenced juridical tradition and similar historical with earnest and the OECD Convention on background, were far deeper and more Combating Bribery of Foreign Public varied than those in other branches of the Officials in International Business law. Therefore, the Juridical Committee Transactions was concluded on November drafted a minimum number of basic 21, 1997. On December 17, 1997, the articles (which it acknowledged would Convention was signed by Member States probably not be adopted as they stand by any state), together with a commentary, as 18 Model Legislation on Illicit Enrichment and Transnational Bribery, OEA/Ser.Q, CJI/doc. 21/99, 17 OAS, AG/RES. 1395 (XXVI-0/96). 29 January 1999.
332 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS of the OECD, and by 5 non-Member States, public official of that Party.20 Argentina, Brazil, Bulgaria, Chile and Slovak Republic. On May 17, 1998, in the For the purposes of the Convention, Final Communique of the G-8 Summit, “foreign public official” is defined as held in Birmingham, United Kingdom, the meaning “any person holding a legislative, Heads of State and Government pledged administrative or judicial office of a foreign to make every effort to ratify the OECD country, whether appointed or elected; any Convention by the end of 1998. person exercising a public function for a foreign country, including for a public Five of the ten OECD countries with the agency or public enterprise; and any official largest share of OECD exports were or agent of a public international required to ratify the Convention in 1998 organisation. The phrase “act or refrain in order to trigger its entry into force. from acting in relation to the performance Canada ratified the OECD Convention on of official duties” includes “any use of the December 17, 1998, and by becoming the public official’s position, whether or not fifth country to ratify the Convention (out within the official’s authorised of the ten countries with the largest share competence”. of OECD exports, and representing at least sixty percent of the combined total exports These criminal offences “shall be of those ten countries, which was a punishable by effective, proportionate and threshold condition for entry into force), the dissuasive criminal penalties”, which are other four countries and Canada were able “comparable to that applicable to the to trigger the entry into force of the bribery of the Party’s own public officials”, Convention sixty days after the deposit of including deprivation of liberty sufficient Canada’s instrument of ratification. Thus, to enable effective mutual legal assistance the Convention entered into force on and extradition.21 The bribe and the February 15, 1999. proceeds of the bribery of a foreign public official, or property of a corresponding The Convention obligates each Party to value to such proceeds, are to be subject to take such measures as may be necessary seizure and confiscation or to the to establish as a criminal offence under its imposition of monetary sanctions of law the intentional offering, promising or comparable effect.22 Where a Party has giving of any undue pecuniary or other made bribery of its own public official a advantage, whether directly or through predicate offence for the purpose of the intermediaries, to a foreign public official, application of its money laundering for the benefit of that official or a third legislation, that Party shall also apply the party, in order that the official act or refrain same terms for the bribery of a foreign from acting in relation to the performance public official, without regard to the place of official duties, for the purpose of where the bribery occurred.23 obtaining or retaining business or other improper advantage in the conduct of 19 Organization for Economic Cooperation and international business.19 Likewise, acts of Development, Convention on Combatting Bribery of complicity, including incitement, aiding Foreign Public Officials in International Business and abetting, or authorisation of an act of Transactions (hereinafter “OECD”), Article 1, para. 1. bribery of a foreign official, shall also be 20 OECD, Article 1, para. 2. criminal offences. Attempt and conspiracy 21 OECD, Article 3, para. 1. shall also be criminalised to the same 22 OECD, Article 3, para. 3. extent as they are in relation to bribing a 23 OECD, Article 7.
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Each Party shall also take such provide an adequate period of time for the measures as may be necessary, in investigation and prosecution of this accordance with its legal principles, to offence.29 establish the liability of legal persons for the bribery of a foreign public official.24 In The Convention also provides the event that criminal responsibility is not obligations regarding accounting practices applicable to legal persons under the legal and auditing standards. Within the system of a Party, that Party “shall ensure framework of its laws and regulations that legal persons shall be subject to regarding the maintenance of books and effective, proportionate and dissuasive non- records, financial statement disclosures, criminal sanctions, including monetary and accounting and auditing standards, sanctions, for bribery of foreign public each Party shall take such measures as are officials.”25 necessary “to prohibit the establishment of off-the-books accounts, the making of off- Regarding jurisdiction, each Party is the-books or inadequately identified obligated to establish its jurisdiction over transactions, the recording of non-existent the bribery of a foreign public official when expenditures, the entry of liabilities with the offence is committed in whole or in part incorrect identification of their object, as in its territory.26 Additionally, where a well as the use of false documents, by Party has jurisdiction to prosecute its companies subject to those laws and nationals for offences committed abroad, regulations, for the purpose of bribing it shall take such measure as may be foreign public officials or of hiding such necessary to establish its jurisdiction in bribery.”30 Effective, proportionate and respect of the bribery of a foreign public dissuasive civil, administrative or criminal official by one of its nationals, according to penalties shall be provided for such the same principles. Each Party shall also omissions and falsifications in respect of “review whether its current basis for the books, records, accounts and financial jurisdiction is effective in the fight against statements of such companies.31 the bribery of foreign public officials and, if it is not, shall take remedial steps.”27 With respect to international co- operation, each Party shall, “to the fullest The investigation and prosecution extent possible under its laws and relevant offences regarding the bribery of a foreign treaties and arrangements, provide prompt public official shall be subject to the and effective legal assistance to another applicable rules and principles of each Party for the purpose of criminal Party, but they “shall not be influenced by investigations and proceedings brought by considerations of national economic a Party concerning offences within the interest, the potential effect upon relations scope of this Convention and for non- with another State or the identity of the criminal proceedings within the scope of natural or legal persons involved.”28 Any this Convention brought by a Party against statute of limitations applicable to the a legal person.” Importantly, a Party “shall offence of bribery of a foreign official shall not decline to render mutual legal assistance for criminal matters within the 24 OECD, Article 2. scope of this Convention on the ground of 25 OECD, Article 3, para. 2. 26 OECD, Article 4, para. 1. 29 OECD, Article 6. 27 OECD, Article 4, para. 4. 30 OECD, Article 8, para. 1. 28 OECD, Article 5. 31 OECD, Article 8, para. 2.
334 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS bank secrecy.”32 Bribery of a foreign public following a proposal of the 19th Meeting of official shall also be deemed to be included the European Ministers of Justice (Malta, as an extraditable offence under the laws June 1994), established a Multidisciplinary of the parties and any extradition treaties Group on Corruption (GMC) to examine between them; and, if no treaties exist what measures might be suitable to between two Parties, they may consider the constitute a programme of action against Convention as the legal basis for corruption, to make recommendations, and extradition. Each Party shall also assure to examine the possibility of drafting model that it can either extradite its nationals or laws or codes, including an international that it can prosecute its nationals for the convention, and of organising or promoting offence of bribery of a foreign public official. research project, training and exchanges If a Party declines a request solely on the of experiences. ground of nationality, it shall submit the case to its competent authorities for the In November 1996, a Programme of purpose of prosecution.33 Where dual Action against Corruption, developed by criminality is a requirement for mutual the Multidisciplinary Group on Corruption, legal assistance or for extradition, it shall was adopted by the Committee of Ministers be deemed to exist if the offence for which of the Council of Europe. The Programme the assistance or extradition is sought is of Action, examined the nature and reasons within the scope of the Convention.34 for corruption, and set out a work programme that included examining and Of long term significance is the fact that making recommendations in a number of the Convention provides for a mechanism areas, including criminal law, for monitoring and follow-up. Article 12 administrative law, fiscal aspects, civil law, obligates the Parties to “co-operate in institutions and categories of persons with carrying out a programme of systematic special roles and responsibilities as regards follow-up to monitor and promote the full corruption, prevention, investigation and implementation of this Convention.” sanctioning of corruption, international co- Unless otherwise decided by consensus of operation and a number of areas related to the Parties, this programme shall be financing of political parties, role of lobbyist carried out in the framework of the OECD organisations, role of the media, and Working Group on Bribery in Intentional research, training and exchange of Business Transactions. The OECD has practical experiences.35 The Committee of already embarked on a programme of Ministers mandated the Multidisciplinary evaluation and assessment of Parties’ Group on Corruption (GMC) to develop efforts to implement the convention, and international instruments to give effect to each Party is subject to a review and the Programme of Action and to implement assessment by two other Parties and the the Programme of Action before December results are subject to review by the Working 31, 2000. Group. At the 21st Conference of European IV. COUNCIL OF EUROPE Ministers of Justice, held in Prague, Czech Republic, in June 1997, Ministers In September 1994, the Committee of recommended accelerating the Ministers of the Council of Europe,
32 OECD, Article 9. 35 Multidisciplinary Group on Corruption (GMC), 33 OECD, Article 10. Programme of Action Against Corruption, GMC (96) 34 OECD, Article 9, para.2, and Article 10, para. 4. 95.
335 RESOURCE MATERIAL SERIES No. 56 implementation of the Programme of and sanctions against corruption36 The Action against Corruption, and Committee of Ministers also instructed the intensifying efforts with a view to the early GMC to rapidly complete the elaboration adoption of, among other things, a criminal of an instrument to establish a mechanism law convention that would provide for the to monitor the observance of the Guiding co-ordinated incrimination of corruption Principles and the elaboration of the offences among states, enhanced co- international legal instruments to be operation for the prosecution of such adopted. offences and an effective follow-up mechanism open to both Member States On May 5, 1998, the Committee of and Non-member States. Ministers adopted Resolution (98) 7 authorising the establishment of the At the Second Summit of Heads of State “Group of States against Corruption” and Government of the Member States of (GRECO) in the form of a partial and the Council of Europe, held in Strasbourg enlarged agreement which aims at on October 10 to 11, 1997, an Action Plan improving the capacity of states to fight was adopted which included an instruction corruption by following up compliance with to the Committee of Ministers to adopt their undertakings in the fight against guiding principles against corruption and corruption. GRECO will monitor to secure the rapid completion of implementation of the Convention and the international legal instruments pursuant application of the 20 Guiding Principles, to the Programme of Action against as well as other conventions and legal Corruption. instruments developed by the Council of Europe in the area of corruption. The On November 6, 1997, at its 101st Committee of Ministers invited Member session, the Committee of Ministers of the States and Non-member States having Council of Europe adopted the 20 Guiding participated in the elaboration of the Principles for the Fight against Corruption. Agreement to join the GRECO. GRECO These principles set out a number of goals will come into force when 14 States have that should be achieved to fight corruption, indicated their desire to join it, which and addressed a number of areas such as occurred in early 1999. GRECO started public awareness, co-ordination at the operating in May 1999. national and international level, adequate resources for and independence of those On November 4, 1998, the Committee fighting corruption from undue and of Ministers adopted the Criminal Law improper influences, seizure and Convention and decided to open it for deprivation of proceeds of corruption, signature on January 27, 1999. On corporate liability, transparency of public January 27, 1999, 21 European states administration and procurement signed the Criminal Law Convention, and procedures, appropriate auditing as of September 15, 1999, 30 states have procedures, systems of public liability and now signed. It will come into force when accountability, codes of conduct and rules ratified by 14 States. The Convention is for financing of political parties and open to the accession of Non-member election campaigns, and effective remedies States. The Criminal Law Convention on Corruption seeks to achieve co-ordinated 36 Council of Europe, Committee of Ministers, criminalisation of a wide range of corrupt Resolution (97) 24 on the Twenty Guiding Principles practice by harmonised national legislation for the Fight against Corruption. and improved international co-operation.
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It complements existing legal instruments corruption offences;44 and covers the following forms of corruption and corrupt behaviour: • Accounting offences (invoices, accounting documents, etc) connected • Active and passive bribery of domestic with corruption offences.45 and foreign officials;37 “Active bribery” is defined to mean the • Active and passive bribery of national intentional “promising offering or giving by and foreign parliamentarians, which any person, directly or indirectly, of any exercise legislative or administrative undue advantage “to any public official, for powers,38 and members of the benefit of that official or for anyone else, parliamentary assemblies of in order that the public official refrain from international or supranational acting in the exercise of his or her organisations of which a Party is a functions.46 “Passive bribery” is defined to member;39 mean the intentional request or receipt by any public official, directly or indirectly, of • Active and passive bribery in the any undue advantage, for the benefit of private sector (i.e, active or passive that public official or anyone else, or the bribery by “persons who direct or work acceptance of an offer or a promise of such for, in any capacity, private sector an advantage, in order that the public entities”) ;40 official act or refrain from acting in the exercise of his or her functions.47 • Active and passive bribery of international civil servants;41 “Trading in influence” means intentionally “promising, giving or offering, • Active and passive bribery of domestic, directly or indirectly, of any undue foreign and international judges and advantage to anyone who asserts or officials of international courts;42 confirms that he or she is able to exert an improper influence over the decision- • Trading in influence;43 making” of any public official, member of a public assembly, member of an • Money-laundering of proceeds from international organisation, parliamentary assembly or court within the scope of the 37 Council of Europe, Criminal Law Convention on Convention, in consideration thereof. It is Corruption, (hereinafter “COE”), Articles 2, 3 and 5. irrelevant whether the undue advantage 38 COE, Articles 4 and 6. is for himself or herself or for anyone else. 39 COE, Article 10. The term “trading in influence” also applies 40 COE, Articles 7 and 8. to the intentional “request, receipt or the 41 COE, Article9 (i.e., “any official or other contracted acceptance of the offer or the promise of employee, with the meaning of the staff regulations, such an advantage, in consideration of that of any public international or supranational influence, whether or not the influence is organisation or body of which the Party is a exerted or whether or not the supposed member, and any person, whether seconded or not, influence leads to the intended result.”48 carrying out functions corresponding to those performed by such officials or agents”). 45 COE, Article 14. 42 COE, Article 11. 46 COE, Article 2. 43 COE, Article 12. 47 COE, Article 3. 44 COE, Article 13. 48 COE, Article 12.
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“Accounting offences” refers to the decisions on behalf of, or an authority to following acts or omissions, when exercise control within, the legal person. committed intentionally, in order to Additionally, a Party shall ensure that a commit, conceal, or disguise a corruption legal person can be held liable where the offence within the scope of the Convention: lack off supervision or control by the natural person, who has a leading position, (a) creating or using an invoice or any has made possible the commission of the other accounting document or record criminal offence for the benefit of the legal containing false or incomplete person. Any liability for the legal person information; or does not exclude any criminal liability (b) unlawfully omitting to make a record against the natural person.51 of a payment.49 Each Party is obligated to provide that Under the Convention, Parties are the criminal offences established have obligated to establish jurisdiction over the effective, proportionate and dissuasive Convention offences where: sanctions and measures, including, in the case of natural persons, penalties involving (1)the offence is committed on its deprivation of liberty and in the case of territory; legal persons, non-criminal sanctions and (2) the offender is one of its nationals, monetary sanctions. Likewise, Parties are one of its public officials, or a member obligated to confiscate or otherwise derive of one of its domestic assemblies; or the instrumentality’s and proceeds of (3) the offence involves one of its public Convention criminal offences or property, officials or members of its domestic the value of which corresponds to such public assemblies, or any person proceeds,52 and to adopt such legislative or referred to in any of the articles other measures as may be necessary, establishing corruption offences who including those permitting the use of is one of its nationals.50 special investigative techniques, to facilitate the gathering of evidence and to The third basis of jurisdiction is intended identify, trace, freeze and seize to include the exercise of jurisdiction where instrumentalists and proceeds.53 These the person who is bribed is a national of measures include the authority to order the Party. that bank, financial or commercial records are made available or seized and that bank Parties are also obligated to ensure that secrecy not be an obstacle to any of the corporate liability exists in respect of the measures provided.54 criminal offences of active bribery, trading in influence and money laundering where The Convention also contains provisions the offence is committed for the benefit of to ensure that persons or entities the legal person by any natural person, specialised in the fight against corruption acting either individually or as part of an have the necessary independence to carry organ of the legal person, who has a leading out their functions free from undue position within the legal person. This pressure and are adequately trained and leading position can be based on a power of representation of an authority to take 51 COE, Article 18. 52 COE, Article 19. 49 COE, Article 14. 53 COE, Article 23. 50 COE, Article 17. 54 Ibid.
338 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS financially resourced,55 public authorities communications between judicial and public officials co-operate with authorities in the event of urgency.63 investigating and prosecuting authorities,56 and effective and appropriate protection is V. UNITED NATIONS provided for those who report Convention In 1990, the Eighth United Nations criminal offences or who are witnesses.57 Congress on the Prevention of Crime and the Treatment of Offenders adopted a With respect to international co- resolution on Corruption in Government 64 operation, Parties are obligated to co- which, in addition to inviting and urging operate to the widest extent possible for the Member States to review the adequacy of purposes of investigation and proceedings their laws and procedures to respond to concerning Convention offences, and may corruption, requested that the United use the Convention as the basis for co- Nations organisation provide technical operation where no bilateral or other cooperation and assistance to develop anti- international instrument or arrangement corruption programmes, law reform, exists.58 Mutual legal assistance may be training, etc. The organisation was also refused if the requested Party believes that requested to develop a code of conduct for compliance with the request would public officials and to develop a manual on undermine its fundamental interests, practical measures against corruption. national sovereignty, national security or public order, but shall not invoke bank In 1993, the United Nations published secrecy as a ground of refusal.59 Likewise, a manual addressing practical measures the Convention can be used as the basis against corruption.65 The manual contains for extradition with respect to Convention a number of chapters addressing issues offences, and Parties are obligated to such as penal laws, administrative and recognise Convention offences as regulatory measures, procedures for the extraditable offences. If extradition is detection, investigation and conviction of refused solely on the basis of the nationality corrupt officials, forfeiture of property and of the person sought, or because the proceeds, economic sanctions against requested Party considers that it has enterprises and training, and exchange of jurisdiction over the offence, the requested international experience. Party shall submit the case to its competent authorities for the purpose of prosecution60. At the Ninth United Nations Congress The Convention also contains provisions on the Prevention of Crime and the concerning the provision of spontaneous Treatment of Offenders, held in Cairo, information by a Party to another Party Egypt, in 1995, a special session was when it considers that disclosure might devoted to the subject of corruption. A assist an investigation61, as well as the use Background paper prepared by the of Central Authorities62, and direct
55 COE, Article 20. 63 COE, Article 30. 56 COE, Article 21. 64 United Nations, Economic and Social Council, 57 COE, Article 22. Resolution 1990/23 of 24 May 1990. 58 COE, Article 25. 65 United Nations, “Crime Prevention and Criminal 59 COE, Article 26. Justice in the Context of Development: Realities 60 COE, Article 27. and Perspectives of International Cooperation, 61 COE, Article 28. Practical Measures against Corruption”, 41 & 42 62 COE, Article 29. International Review of Criminal Policy (1993).
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Secretariat on international action against transactions and, in particular, to corruption was distributed.66 The paper criminalise the bribery of foreign public presents various characteristics of officials in connection with an international corruption, as well as its adverse effects on commercial transaction, deny the tax development. Various measures against deductibility of bribes, develop accounting corruption and recent international standards and practices that improve the initiatives are discussed, as well as the role transparency of international commercial of international organisations in the fight transactions, develop business codes, against corruption. standards or best practices, examine the criminalisation of illicit enrichment, afford In the autumn of 1996, the United the greatest possible cooperation and Nations General Assembly adopted two assistance to other States in the criminal resolutions concerning corruption. The investigation and prosecution of corruption first, Action Against Corruption, to which and bribery, and ensure that bank secrecy was annexed an International Code of does not impede or hinder criminal Conduct for Public Officials.67 The investigations. resolution on the Code of Conduct had been prepared by the UN Commission on Crime Pursuant to General Assembly Prevention and Criminal Justice. The resolution 51/59 and ECOSOC resolution Code addresses areas such as loyalty to the 1995/14, a report was prepared in 1997 by public interest, effective and efficient the Secretary General that reviews various administration of public resources, fair and forms of corruption and several anti- impartial performance of functions, conflict corruption initiatives taken by of interest and declaration of possible international bodies and describes possible conflicts, improper use of public property, elements and means to implement the disclosure of assets, acceptance of gifts or above-mentioned General Assembly favours, confidentiality of information and resolutions and to promote the political activity. The resolution called International Code of Conduct.69 While upon States to implement the resolution observing that the fight against organised and Code of Conduct. crime and corruption is predominantly presented as a challenge to the law The second resolution, adopted the enforcement community, it recognises that United Nations Declaration against crime prevention concepts and techniques Corruption and Bribery in International can be employed in the fight against Commercial Transactions. 68 The corruptions and organised crime, Declaration called upon States to commit particularly in limiting the opportunities themselves inter alia to take effective and for corruption. concrete action to combat all forms of corruption, bribery and related illicit At the sixth session of the UN practices in international commercial Commission on Crime Prevention and Criminal Justice (1997), states were called 66 United Nations, Ninth United Nations Congress on the Prevention of Crime and the Treatment of 69 United Nations, Economic and Social Council, Offenders, A/Conf.169/14, 13 April 1995. “Promotion and Maintenance of the Rule of Law 67 United Nations General Assembly, 51st Session, and Good Governance; Action against Corruption, Resolution 51/59. Action against Corruption and Bribery, Report of 68 United Nations General Assembly, 51st Session, the Secretary-General, E/CN.15/1997/3, 5 March Resolution 51/191. 1997.
340 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS upon to commit themselves to take further Agreement, which will express their action further to General Assembly political will to be bound to a technical resolution 51/191. It was also agreed that assistance component to deal with the “combating corruption” would be a theme commercial aspects of corruption and to be a addressed at a workshop to be held bribery in international commercial at the Tenth United Nations Congress on transactions. the Prevention of Crime and the Treatment of Offenders, to be held in Vienna, Austria, Currently, members of the United in April 2000. At the seventh session of Nations are negotiating a Convention on the Commission (1998), a resolution was Transnational Organised Crime. One of adopted to request the updating of the UN the proposals under consideration is to Manual on Practical Measures on include a provision on corruption that Corruption and for an experts’ group to would obligate states to criminalise acts of develop an international strategy against corruption committed by organised groups. corruption. A meeting of experts was held The proposal is similar to that contained in Paris in April 1999, and its in the Council of Europe convention and recommendations were considered and would criminalise the offering or giving to welcomed by the Commission at its eighth a public official of an undue advantage to session in May 1999. act or refrain from carrying out his or her functions or the receipt of such an Recently, the newly structured Centre advantage by the public official. Of some for International Crime Prevention in controversy is the proposal to extend the Vienna, Austria, has prepared a Global obligation to criminalise such acts to Programme Against Corruption which is an include also foreign public officials, outline for action against corruption in international civil servants and judges, and terms of research and technical cooperation officials of international criminal courts. and assistance. The research component Also being considered by the committee is to undertake a global study on negotiating the Convention is the question corruption, including identification of types whether much broader provisions against and the effectiveness of anti-corruption corruption, which address aspects other measures, particularly in the areas of than criminalisation, should be the subject public administration, business and of a future protocol to the Convention or political-financial corruption. In addition, be the subject of a separate international an international database is to be created Convention. The Committee is to report which would contain information on best to the Commission on Crime Prevention practices, relevant national legislation and and Criminal Justice on its regulatory measures of different countries recommendations. and international instruments against corruption. The technical cooperation VI. GLOBAL FORUM ON FIGHTING component, which is to be multidisciplinary CORRUPTION in nature, is designed to strengthen or The first Global Forum on Fighting assist Member States to build and Corruption: Safeguarding Integrity Among strengthen their institutional capacity in Justice and Security Officials was held in preventing, detecting and fighting Washington, DC, from February 24 to 26, corruption. Governments in which 1999, hosted by US Vice President, Al Gore. technical cooperation activities are to be High-level representatives from 89 implemented will be invited to sign a governments and others shared National Anti-Corruption Programme
341 RESOURCE MATERIAL SERIES No. 56 experiences and examined the causes of governmental organizations of limited corruption and the practices that are membership, there is a clear recognition effective to prevent and fight it, that global solutions, including a global particularly as regards corruption of justice convention of some form, is required. It is and security officials. The costs of anticipated that regional and other limited corruption on democracy, economic and international Conventions will continue to social development and the rule of law were be negotiated in the near future, but with noted and participants called on the realisation and goal that a truly global governments to co-operate in appropriate convention is required and that its regional and global bodies to rededicate negotiation is imminent. themselves to adopt effective anti- corruption principles and practices and to assist each other through mutual evaluation.
While there were calls for a global convention to be negotiated, there was no consensus whether such a convention should be negotiated immediately or following the negotiation and implementation of regional anti-corruption conventions. Nevertheless, participants were committed to act and a second Global Forum on Fighting Corruption is to be held in the Netherlands in 2000. Immediately before the Global Forum, Ministers from eleven African countries meeting in Washington, DC, drafted a set of 25 principles on anti-corruption, good governance and accountability. There was a sense at the forum that these principles could be adopted by other African countries and serve as the basis for an African Convention Against Corruption, which could be negotiated within the Organization of African Unity.
VII. CONCLUSION The political priority given to the issue of corruption has resulted in the negotiation of a number of regional and other international Conventions against various forms of corruption. This paper has attempted to survey a number of these initiatives, setting out their major elements. While most of these Conventions have been of a regional nature or of inter-
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GOOD GOVERNANCE: A MERE MOTTO OR A PRAGMATIC ENDEAVOUR FOR A REALISTIC STRATEGY? (THE FRENCH EXAMPLE OF AN ANTI-CORRUPTION AGENCY)
Laurence Giovacchini*
I. INTRODUCTION be prevented simply by norms and laws. The risk of corruption must be evaluated Increasing international awareness of by an overall view of the situation, one the negative impact of corruption is which will facilitate the possible discovery fostering new devices and strategies with of hidden connections, sham processes, a view to protecting the rule of law, forgery, etc. Fragmented information may, threatened by bribery. Appropriate indeed, be as useless as no information at criminalization, adequate offences, all, and can even be deceptive and lead to deterrent punishments and codes of ethics distorted analyses. rank among the customary tools used to tackle the corruption problem. Consequently, monitoring mechanisms, Nonetheless, the use of sentencing training, risk detection techniques, guidelines is not sufficient. Forward- supervisory accountability, whistleblowing, looking methods are needed, from and so forth: all these tracks can be safeguards against the abuse of power to explored in order to improve the enhancing and promoting efficient investigation and the prevention of cases decision-making. Preventive techniques of corruption. The “what-to-do” approach against corruption favor the elaboration of must open the way to the “how-to-achieve- good management tools, far from the the-goal” strategy. The promotion of “anti- various enumerations of misdemeanors to corruption know-how” is crucial. It has be avoided by public officials. three aims: • to dissuade public officials from How can we, other than by the breaching their duties; imposition of a code of behaviour, • to scrutinize the weak points and implement conditions conducive to the loopholes of administrative processes; loyalty of public officials? Conditions which • to put an end to the mistrust of public function positively when, for instance, service - whether justified or based problems related to conflicts of interest on rumor - in the public opinion. arise, when compartmentalized controls risk missing their target, when Corruption is a topic of high priority on misinterpretations of complex data are the international agenda of many likely to occur. institutions. The OECD Convention (December 17, 1997) criminalizing the Excessive regulation and, inversely, lack bribery of public officials in international of regulation both offer opportunities for business transactions is a breakthrough. manipulation and fraud. The latter cannot The United Nations and the Council of * Administration Civil, Service Central de Prevention Europe have also taken significant steps. de la Corruption, French Republic. This new context has triggered the
343 RESOURCE MATERIAL SERIES No. 56 necessary review of the assets and supported by ethical management in order hindrances of anti-corruption strategies. to effectively cope with the risk of pervasive What makes them successful? What are and widespread bribery. Otherwise, the obstacles likely to stifle the efforts however adamant and honest public carried out according to the well-know officials may be, they can feel isolated and “where there is a will there is a way”? A threatened by crooks connected through practical viewpoint is indispensable fraudulent networks. When corruption is because a prescriptive approach is on the verge of taking the upper hand on necessary, but insufficient. Workable administrative channels, its organisational solutions must be tested and their grasp has to be equalled by the same feasibility proved. organisational efficiency on behalf of ethics. Individual commitment must be First of all, we have to dismiss the strengthened by the group’s involvement. objection that corruption is tricky to deal This is not an unrealistic view and the with when public officials in charge of remedy does not suppose that the patient fighting bribery can be bribed themselves. has already recovered. A “leverage Such an argument reduces to a stalemate technique” can be put into practice, whatever attempts are made at curbing allowing a small group (trained in ethical fraud. Practical, workable solutions help management techniques) to defeat a larger avoid the obstacle by a subtle process of one where the loopholes have been checks and balances, quite different from identified. Thus, the negative statement the endless process of “who will control the according to which “nothing can be done, controller and so forth?”. An unbiased because everything is rotten, due to public service requires loyalty and bribery” is not valid. The anti-corruption managerial skills, which, in the framework fight should not be understood as a crusade of the fight against corruption, can be (doomed to failure sooner or later), or as a defined as follows: daunting prospect which entails so many efforts that its costs become unbearable. (i) loyalty: to refrain from acting against the law and keep potential bribe- A leverage process enables its users to givers at bay; make the most of prevention techniques (ii)management: to implement laws by and of scattered sources of information. overcoming obstacles to their “An ounce of prevention is worth a pound enforcement and to make corrupt of cure” and demands awareness of the schemes fail by detecting and existence of problems lurking beneath the disclosing shady deals, and by surface. These problems are not solved by deciphering the moves shrouding mere control-tightening, which, on the them. contrary, is liable to favor red tape. A roadblock can be put on corrupt paths by Since both aspects are complementary, scrutinizing the way corruption operates neither should be overlooked. Individual through various networks. There is loyalty is of crucial importance, because it obviously no cure-all to eradicate it, but a is the core of resistance against attempts professional team specialized in anti- at corruption. An honest public official will corruption techniques (described below), obviously refuse a kick-back and the bribe- has the means to step up action thanks to giver will not be able to succeed, being a pro-active strategy, characterized by two deprived of the bribe-taker counterpart. features: Nonetheless, individual integrity must be
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(i) the ability to transform fragmented approval any faster given the multiple clues into intelligence of an overall bureaucrats involved in the process, yet he problem and its intricacies; willingly offered his services to slow the (ii)the possibility to report right on cue approval process for rival companies”.1 about the very irregularity which, although it may seem petty, is highly B. Promotion of the “Zero relevant for kicking off a whole Tolerance” Argument process of further examination. The damaging effects of corruption are emphasized in the main international fora, II. AN INTERNATIONAL CONTEXT among them: FAVORING THE ANTI-CORRUPTION FIGHT 1. The United Nations “(...) international organizations and A. End of the “Grease-the-Wheels” many industrialized and developing Argument countries have deplored the pernicious This argument is no longer valid, effects of corruption, whether international according to which bribery can be an in scale or national. This is because efficient way of getting around burdensome corruption undermines the legitimacy of regulations and ineffective legal systems. Governments and institutions, and This rationale has not only inspired compromises social and economic sophisticated academic models but has development”.2 legitimized the behavior of private companies that are willing to pay bribes to 2. Council of Europe get business. On closer examination, this “... aware that corruption represents a argument is full of holes. First, it ignores serious threat to the basic principles and the enormous degree of discretion that values of the Council of Europe, many politicians and bureaucrats can have, undermines the confidence of citizens in particularly in corrupt societies. They have democracy, erodes the rule of law, discretion over the creation, proliferation, constitutes a denial of human rights and and interpretation of counterproductive hinders social and economic development regulations. Thus, instead of corruption ...” (cf. 20 guiding principles for the fight being the grease for the squeaky wheels of against corruption, adopted by the a rigid administration, it becomes the fuel Committee of Ministers 6 November 1997.) for excessive and discretionary regulations. This is one mechanism whereby corruption 3. OECD feeds on itself. “... The governments of OECD countries share the conviction that bribery and In addition to some academic writings, corruption undermine democratic one school of “corruption apologists” argues institutions, distort international trade, that bribery can enhance efficiency by investment relations and development co- cutting the considerable time needed to operation. The OECD Public Management process permits and paperwork. The Committee (PUMA) has, since its problem with this “speed money” argument inception, focused on ways to improve the lies in the presumption that both sides will actually stick with the deal, and there will 1 In “Corruption: The Facts”, article by Daniel be no further demands for bribes. For Kaufmann, p. 114 of “Foreign Policy”, Summer, example, one high-level civil servant who 1997. had been bribed could not process an 2 In “Model Law on Corruption”.
345 RESOURCE MATERIAL SERIES No. 56 efficiency and effectiveness of public sector (i) Remedies for Loopholes management. In particular, the Committee Progress has been made in criminal law has addressed the issue of probity in public by agreeing on the definition of corruption sector operations in its work on financial as an offence, instead of relying on mere management, organisational performance individual morality to refrain from and management of the civil service”.3 committing wrongdoings. The very core of corruption is defined, which is not reducible 4. European Union to other frauds or misdeeds. There is, “The Convention on the protection of the indeed, an agreement to regard corruption European Communities’ financial interests as “requesting, offering, giving or accepting was drawn up by the Council and signed directly or indirectly a bribe or any other by the Representatives of the Governments undue advantage or the prospect thereof, of the Member States on 26 July 1995. A which distorts the proper performance of First Protocol to the Convention was drawn any duty or behaviour required of the up and signed on 27 September 1996. The recipient of the bribe.” This rough Protocol is aimed primarily at acts of description involves two actors - the bribe- corruption that involve national and giver and the bribe-taker-and both are Community officials, and damage or are liable to sanctions. The bribe-giver cannot likely to damage the European argue that s/he was “compelled” to corrupt Communities’ financial interests.” a public official in order to gain markets and obtain authorizations. Nor should the The backbone of every draft or bribe-taker explain that “it is routine, international recommendation is that everybody is doing so”, or that s/he had corrupt practices should not be tolerated, been deceived. Responsibilities are clearly whatever the circumstances. defined by law; the bribe-giver and the bribe-taker are equally responsible, all the C. Significant Steps in the more so because the undue advantage can Criminalization of Corrupt be non-material (a promise of promotion, Behaviours for example. The fact that money has not “Laws and customs differ from one been paid directly or immediately is no country to another”. This sort of statement excuse, quite the contrary. The existence is no longer a pretext for governments to of the secret bond between the two neglect corruption in countries where it is protagonists, in order to gain an advantage rampant. Actually, no country is by abuse of power, is sufficient to “corruption-proof”. One can no longer characterize corruption. justify corrupt behaviors by explaining that they are “normal, acceptable” in other From a legal point of view, ways of escape countries. The maze and the haze of vague are blocked. This does not mean that notions (“what can be regarded as offenders are caught and prosecuted, but corruption? where does it begin? ” etc) are rather that, if and when they are replaced by a judicial technical review prosecuted, they cannot use as a pretext designed to shape adequate offences, their ignorance of law and of the criminal entailing predictable and dissuasive consequences of their misdeeds. The sanctions. Two complementary OECD Convention on Combating Bribery orientations can be pointed out: of Foreign Public Officials in International Business Transactions (signed on 3 In “International Symposium on Corruption and December 17, 1997) goes a step forward: Good Governance”, Paris, 13-14 March 1995.
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• not even bribery of domestic private as the possibility to sue their public officials officials is criminalized but also the for the reimbursement of any loss for which complicity in - including incitement, they are judged responsible. Progressively, aiding and abetting - or authorization the stress is put on the necessity of enabling of an act of bribery of a foreign public victims of acts of corruption by public official shall be a criminal offence. officials to have effective procedures and Even the attempt to bribe a foreign reasonable time to seek compensation from public official is criminalized; the State. • accomplices and intermediaries are thus, also taken as responsible for the Such a conceptual evolution deserves to corrupt scheme; be noticed because it entails a demanding • the liability of legal persons for the concept of public service. The risk of being bribery of a foreign public official is sued for corruption, in a civil trial, puts also punishable. Such a provision some kind of pressure on public officials, regarding liability opens a large field combined with deterrent criminal for action and prosecution because sanctions. Of course, such a scenario is a companies, for example, are legal mere prospect, presently. The question is: persons. to what extent and how long will it remain so? The extension of the process of (ii)Corruption Regarded as “criminalization” (the characterization of Victimization misdeeds as wrongdoings, crimes, Contrary to other crimes, corruption is offences), coupled with the surge of the idea often regarded as “victimless” and a short- of “victimization”, allows us to foresee the sighted viewpoint denies seriousness to a tightening up of the anti-corruption fight. fraud entailing neither blood nor violence. Nonetheless, international The fact that corruption can briefly be recommendations aim at requiring each summarized as the misuse of public power party to provide in its internal law effective for private profit should not lead us to remedies for persons who have suffered overlook the sophistication of criminal damage as a result of corruption, in order notions, including other related offences to enable them to defend their rights and such as in France, the trading in influence interests, including the possibility of [a tripartite offence where the person who obtaining compensation for damage. There is actually bribed for exerting real or are, of course, prerequisites for a claim for pretended influence] is different from the damages. In order to obtain compensation, person who is influenced in the decision. the plaintiff has to prove the occurrence of Only public officials (elected politicians or the damage, whether the defendant acted civil servants) can be target persons and with intent or negligently, and the causal the “taking of illegal interest” (the offender link between the corrupt behaviour and the takes or receives a personal interest in a damage. This provision does not give a company, for example, with which they are right to compensation to any person who involved in the administration or merely claims that any act of corruption surveillance task, or where they have the has affected, in one way or another, their duty to carry out payments). Those rights or interests, or might do so in the significant steps in the criminalization of future. However, it is not inconceivable corrupt behaviour lead us to examine the that persons having suffered damage as a critical position of public officials: targets result of an act of corruption should have or shields in respect to the issue of the possibility to sue public officials, as well corruption?
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D. Attempt at Defining rules and of the supposed pressure of Internationally the Notion of circumstances. The very articulation of a “Public Officials” model code of conduct for public officials The above-mentioned OECD Convention does not suppress, of course, the provides that: “foreign public official” possibilities of fraud, but it makes them means any person holding a legislative, more risky and less profitable. This Code administrative or judicial office of a foreign highlights key-notions: country, whether appointed or elected.” • arbitrary behavior; The Council of Europe emphasizes that: • conflict of interest; “public administrations play an essential • declaration of interests; role in democratic societies and that they • advantages; must have at their disposal suitable • reaction to improper offers; personnel to carry out properly the tasks • reporting; which are assigned to them. Public officials • susceptibility to influence by others; are the key element of the public • misuse of official position; administration, they have specific duties • making decisions; and obligations, and they should have the • official information; necessary qualifications and an • public and official resources; appropriate legal and material • incompatible outside interests; environment in order to carry out their • political or public activity; tasks appropriately”. • records; • integrity checking; This recommendation offers a • supervisory accountability; compendium of the rights and duties of • leaving the public service; public officials. It sheds light on the issue • dealing with former public officials; of corruption because bribery intends to • observance of the code and sanctions. alter this very core of rights and duties: “the purpose of this Code is to specify the The above-listed items set up safeguards standards of integrity and conduct to be which protect public officials from undue observed by public officials, to help them suspicion, by avoiding their being placed meet those standards and to inform the in ambiguous positions (conflict of interest, public of the conduct it is entitled to expect revolving door, political interference). The of public officials”. Standards of integrity Code also promotes responsible do exist, can be listed and explained; management (integrity checking, corruption manipulates those standards all supervisory accountability, transparent the more easily when they are only implicit. decision-making and reporting), which Their specifications in a written code, provides a clear picture of the adequate approved by several countries, help the manner of carrying out public duties. The public to be more aware of the risk of abuse Code offers, in a concise text, a review of of power by public officials. Information sensitive problems. These two criteria makes corruption recede. Whimsical, (accuracy and concision) contrast with the arbitrary, odd, self-oriented interpretation blurring modus operandi of corruption, of regulations are no longer valid and are which thrives on the accumulation and replaced by “duties in accordance with the successive stratification of texts eventually law” and neutrality. As a result, the leading to opacity and arbitrary offenders are deprived of any means of interpretations. justification. They can no longer take advantage of the alleged inaccuracy of the
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A framework with solid judicial grounds The stress put on the necessity of is, thus, ready to make corrupt pretexts and evaluation enhances what could be labelled schemes groundless. The credibility of the as a “culture of audit”, the Council of international recommendations is Europe, for example, urging to “ensure that enhanced by monitoring provisions. appropriate auditing procedures apply to the activities of public administration and E. Follow-up Measures are the the public sector” and to “endorse the role Heart of the Matter that audit procedures can play in “Monitoring” and “evaluation” have preventing and detecting corruption outside become key-words. Monitoring aims at public administrations” (cf. “20 Guiding making loopholes less numerous. There Principles for the Fight against can be many kinds of loopholes, such as: Corruption”). Not only is an anti- corruption doctrine taking shape, but also • the lack of criminal penalties (but the practical tools of implementation are being international texts we have referred come up with and assessed: to are a first step to remedy the situation); • How to comply with the law? • the alleged “national economic • How to resist the temptation of interest” (but article 4 of the above- corruption? mentioned OECD Convention is • How to detect corrupt practices? explicit: “Investigation and prosecution of the bribery of a foreign Those three questions may receive some public official shall be subject to the beginning of an answer thanks to the applicable rules and principles of “toolbox” described below. each Party. They shall not be influenced by considerations of III. THE “TOOLBOX” ASPECT national economic interest, the CONNECTED WITH A SYSTEMATIC potential effect upon relations with APPROACH TO THE ISSUE OF another State or the identity of the CORRUPTION natural persons or legal entities A. The “Toolbox” as an Expertise involved”). “An understanding of management principles is required to recognize and This monitoring is coupled with evaluate the materiality and significance evaluation processes, because the of deviations from good business practice. Convention sets up a Working Group on An understanding means the ability to Bribery to monitor national apply broad knowledge to situations likely implementation. This Group is specifically to be encountered, to recognize significant directed to work on a system of “mutual deviations, and to be able to carry out the evaluation” of the effort of each OECD research necessary to arrive at reasonable country. The Council of Europe has solutions”.4 In this definition, many terms established the “Group of States Against can be emphasized, among them: Corruption - GRECO” (5 May 1998), “which aims at improving the capacity of its • recognize, members to fight corruption by following • evaluate, up compliance with their undertaking in this field”. 4 “Normes pour la pratique professionnelle de l’audit interne” by The Institute of Internal Auditors, p.40.
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• broad knowledge, auditor in the same or similar • research, circumstances. Professional care • reasonable. should, therefore, be appropriate to the complexities of the audit being All the ingredients of a diagnosis are, performed.”5 thus, mentioned: recognize (because • The aim is “to promote effective corruption is the art of camouflage), control at a reasonable cost”6, and to evaluate (because problems have to be “include sufficiency of information classified with due consideration of their obtained to afford a reasonable basis potential impact and the risks they entail), for the conclusions reached” 7. So as broad knowledge (because a “reasonable assurance is provided multidisciplinary expertise is required to when cost-effective actions are taken ensure that adequate coverage exists for to restrict deviations to a tolerable the organisation as a whole, with a level”.8 minimum amount of duplication), research (to transform partial data into accurate and We refer to this kind of expertise with reliable information) and reasonable the figurative term of “toolbox” because it (because radical proposals, by their very supposes: fine tuning, monitoring, and exaggerated connotations, may be the directions for use of warning indicators. smokescreen hiding the escape from one’s responsibilities: they are so unrealistic (i) Fine Tuning that they will not be implemented and Controls should not be stifling by corruption will continue to thrive). The overtightness, nor so delayed and term “reasonable” deserves to be stressed: unproductive that the situation gets out of hand when the potential loss associated • It is used in the definition of with any exposure or risk is outweighed accountability supervisory (Code of by the cost to control it. Controls should Conduct for Public Officials - Council be carried out in order to prevent and detect of Europe - above-mentioned): “The irregularities, not to hinder action. public official who is responsible for Consequently, they should be seen as controlling or directing other public instruments of management, ranging from officials has duties as a supervisor. He preliminary assessments to detailed tests. should be required to account for the “Establishing standards for the operation wrongful acts or omissions of his staff to be controlled, measuring performance if they are so serious, repeated or against the standards, examining and widespread that he should have been analysing deviations, taking corrective aware of them if he had exercised the action, reappraising the standards based reasonable level of leadership, on experience”9: this process, which is management and supervision described in the private sphere, is also valid required of a person in his position”. for public administration, especially • The notion of “supervisory regarding the issue of corruption, which accountability” for public officials is matched by the notion of “due 5 Op. cit. ibidem. professional care” for private 6 CIA REVIEW - Certified Internal Auditor - GLEIM, auditors: “Due professional care calls p.86. for the application of the care and 7 Ibidem p. 95. skills expected of a reasonably 8 Ibidem p. 116. prudent and competent internal 9 Op. cit. p. 188.
350 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS must be put under constant scrutiny. such as city planning and zoning regulations, have to be carefully examined. (ii) Monitoring There is conflict of interest when, for “Monitoring encompasses supervising, example, a public official belongs to a observing, and testing activities and commission in charge of allotting funds to appropriately reporting to responsible renovate housing - “home improvement individuals. Monitoring provides an loan” - in the very place where s/he owns, ongoing verification of progress toward real estate. Conflict of interest also looms achievement of objectives and goals”.10 It when this public official participates in the means that factors of risk have to be activity of a non-trading real estate identified. Check-lists help to do so. We investment company, which happens to be can briefly summarize three examples of involved in operations planned by the check-lists, aiming at: general assembly (of a local entity or community), where this public official notes 1. The Transparency of Procedures of or reports. Building permits, generally Tendering in Public Procurements speaking, can be the target of direct corruption (a bribe is given to obtain the • Threats must be identified (especially authorization) or of indirect manoeuvres, the attempt to exert undue influence by influencing the future decision of in the bid process and collusion with constructibility regarding zones which other suppliers to form a cartel); have not yet been classified. Obviously, when a public official finds themself in a • The counter-measures can consist of situation of potential conflict of interest solemnly affirming that illegal (because his spouse, for example, owns arrangements are not tolerated: such some piece of land in this area), s/he a statement can be a deterrent if the becomes a weak link in a chain of prospect of black-listing looms large. responsibility which is, thus, likely to be Obvious irregularities should be moulded by corrupt practices. recognized right away, when, for example, suppliers are constantly It is not so difficult to list the risks of successful in winning contracts. One conflicts of interest in various key-sectors. company has suggested “visiting Public officials can be encouraged to report unsuccessful bidders to provide them on them for fear of getting sanctioned in with an opportunity to air any case of actual deviation. In this grievances”. acceptation, the “toolbox” consists in the inventory of risks and of potential 2. The Prevention of Ethical Risks irregularities. In the third example of It goes without saying that “staff aforementioned check-lists, the stress is assignments should be made so that put on: potential and actual conflicts of interest and bias are avoided. The director should 3. The Detection of Fraud periodically obtain from the audit staff “Indicators of treachery” are elaborated, information concerning potential conflicts such as: “Danger Signs Pointing toward of interest and bias”11. But how is this the Possibility of Embezzlement” (Sawyer information gathered? Sensitive sectors, and Dittenhofer, Sawyer’s Internal Auditing, p. 1189): 10 Op. cit.116. • Borrowing small amounts from fellow 11 Op. cit. p. 61. employees.
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• Placing personal cheques in change used at random. Directions for use are funds - undated, post-dated, - or indispensable, especially insofar as requesting others to “hold” cheques. corruption is concerned. • Personal cheques cashed and returned for irregular reasons. (iii)Directions for Use • Placing unauthorized IOUs in change The need for efficiency of the anti- funds, or prevailing on others in corruption fight should not lead us to authority to accept IOUs for small, overlook the protection of public and short-term loans. individual liberty. Some “warning • Inclination toward covering up indicators” to detect fraud may turn out to inefficiencies by “plugging” figures. be intrusive if used without judicial • Pronounced criticism of others, so as background and safeguards. For example, to divert suspicion. the disclosure by public officials of assets • Replying to questions with and liabilities, coupled with the reversal unreasonable explanations. of the burden of proof in corruption cases, • Gambling in any form beyond ability may be damaging to the fundamental to stand the loss. rights of the accused. This is why an • Buying or otherwise acquiring independent judiciary is indispensable to through “business” channels protect those rights from infringements. expensive automobiles and With such guarantees, efficient methods to extravagant household furnishings. fight corruption can be tested, especially • Explaining a higher standard of when individuals or entities under living as money left from an estate. investigation appear to have in their • Getting annoyed at reasonable possession or availability, directly or questioning. indirectly, goods and means clearly beyond • Refusing to leave custody of records their normal financial standards. during the day; working overtime regularly. The “toolbox” represents an attempt at • Refusing to take vacations and a systematic approach, which is not shunning promotions for fear of reducible to a collection of devices. This detection. systematic approach is intended to match • Constant association with, and the “systemic” nature of corruption. entertainment by, a member of a supplier’s staff. B. The Systematic Approach to the • Carrying an unusually large bank Issue of Corruption balance, or heavy buying of securities. 1. What “Systemic” Corruption Means • Rewriting records under the guise of Corruption is not a transient fraud, neatness in presentation. because it aims at setting up durable networks substituting their own regulation Those indicators quoted from Sawyer for the legal one. Thus, it cannot be tackled should not be used in a simplistic way as a temporary aberration. This pervasive, which might lead to absurd conclusions: a undermining nature of corruption may conscientious employee “working overtime cause reluctance on the part of public regularly” is not necessarily guilty of authorities, who fear that the remedy may embezzlement !. Only the convergence of be so demanding as to be unaffordable and various factors of suspicion can be regarded worse than the evil itself. The problem is as a warning indicator. A “toolbox” is not a to determine how to initiate the process of mere aggregate of instruments chosen and recovery when the whole administrative
352 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS and political body seems to be seriously ill. We have mentioned basic rules on When the roots of corruption are so deep purpose because the review of these and entangled, how is it possible to fundamental principles proves that the eradicate them without turning everything anti-corruption fight does not begin ex upside down? nihilo. Actually, the presence of irregularities does not necessarily mean 2. A Systematic Strategy Based on a that a corrupt scheme is underway on a “Leverage Technique” large scale. However, those very A modest, even down-to-earth, clue can irregularities can be the visible part of a be usefully exploited when it is analysed corrupt iceberg. Thus, the anti-corruption thoroughly, thanks to a multidisciplinary fight should not be regarded as a breaker, technique based on accounting, but as a patient and subtle review of the administrative law, commercial and elementary procedures for checking business law, rules banning unfair irregularities. Of course, this is only a step competition, and tax laws. A systematic to trigger the process off, but it is the first approach to the issue of corruption goes step which is often the most difficult. The beyond criminal law. For example, basic and obvious devices that we have administrative provisions, such as what we alluded to can be used in a sophisticated call in France “le statut général de la and innovative manner, in order to track fonction publique” (“Civil servant status” corrupt practices. The audit method that as a body of rules encompassing the whole we mentioned above is likely to enhance career of a civil servant) offers guidelines the impact and the relevance of those basic about remuneration which can be rules, which protect the public interest and combined with tax law regarding the individual liberty. Basic administrative control of the statement of income. Another procedures become quickly routine, and example may be quoted from the French those who use them, unless made aware of “contrôle de légalité” (control of compliance the fact, are perhaps blind to their capacity with law) for which the “Préfet” (a high- to reveal corrupt practices. Once the ranking civil servant representing all the detection of corruption is defined as a goal, ministries in a district or territorial irregularities immediately become subdivision) is responsible. This kind of relevant. The question is then: what kind administrative control makes it possible to of organisation and management will detect cases of favouritism in tendering, for facilitate this awareness by casting new example, by shedding light on light on the risk of corruption? irregularities such as a secret, preliminary agreement between an elected public IV. “COMMAND-AND-CONTROL official and a company which obtains the PARADIGM” VERSUS THE market without the legal authorization of “LEARNING ORGANISATION the collegial body. Another example MODEL”? concerns the implantation of “Command-and-control management” is supermarkets, which needs the approval on the way out. Its replacement, the of a commission. Generally speaking, “learning organisation model”, contradicts collegiality and the codification of terms all the assumptions about work espoused and conditions (“cahier des charges”, in in the command-and-control paradigm and France) contribute to limiting arbitrary represents a radical transformation of the gratifications. organisation of work”12.
12 “Internal Auditor” review, June 1999, p.29.
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Such an analysis contrasts the object of stigmatised as a corrupt department as a control (which is compliance) and the object whole. Keeping silent about misdeeds, of shared vision (which is commitment). getting rid of the guilty public official by The former supposes a top-down, promoting him/her to another department hierarchical structure, whereas the latter prevent the very issue of corruption from encourages reflection and inquiry among getting to the forefront. Disciplinary all members of the organisation, the group responsibility should be exercised for of people functioning as a whole. This transparency’s sake. This administrative second model suggests that a group of aspect of sanction should not be overlooked, individuals can achieve a level of especially when penal prosecution is time- intelligence higher than any one individual barred, which happens very often in cases in the group. It favors value-added, win- of corruption. Nevertheless, hierarchical win, synergistic solutions, rather than the disciplinary power does not solve the hollow win-lose decisions. “The apparent problem if the supervisors themselves are reactive solution is often no solution at all, manipulated and even involved in corrupt but rather a short-term fix that serves only schemes. to postpone and exacerbate the root problem. When things go wrong it is more B. The “Command and Control likely that the business process has a Paradigm” and the “Learning fundamental disconnect rather than Organisation Model” are somebody failed a specific task. In today’s Complementary businesses, formal controls, such as policies, The “learning organisation model” can procedures, written authorizations, be useful to highlight potential risks of organizational charts, and “chain of wrongdoings. It reverses the well-known command” practices, are less valuable and pretext, “why should I make a fool of myself effective than informal controls, which by refusing a bribe when everybody accepts include intangible attributes such as ethics it? ”, by “why should I keep aloof when and values, corporate culture, trust, team- mutual control and assessment allow me work, open communications, and to know what really takes place in the whole professionalism”. 13 What are the organisation? ”. This is what “a work consequences, for the anti-corruption fight, culture of reflection and inquiry among all of this contrasted vision of management? members of the organisation” suggests, enhancing “each participant’s A. Hierarchy is the Back-Bone of understanding of the total process under Reporting and of Responsibility review”.14 Supervisory accountability explicitly refers to the kind of leadership implied in This overall view favors transparency: the very notion of supervisor. Disciplinary seniority is no longer a protection from sanctions should be taken by the inquiry and, vice versa, supervisors can supervisor, in case of a breach of duty by a rely upon a self-assessed staff. Corrupt public official placed under their authority. schemes are not necessarily disclosed, but Nonetheless, public administration is the contradictions favoring them are composed of various agencies and revealed when, for example, pressures to departments which may turn out to be improve short-run performance promote reluctant to point their finger at “black unethical behavior, or when “emphasis on sheep” inside their staff, for fear of being strict adherence to chain-of-command
13 Ibidem p. 30. 14 Ibidem p. 31.
354 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS authority may provide excuses for ignoring whether, other things being equal, speaking ethics when following orders.” out is in fact in the public interest. This choice is often made more complicated by In the “learning organisation model”, the factual uncertainties: who is responsible emphasis placed upon the issue of for the abuse or neglect? How great is the corruption is not regarded as shameful for threat? How likely is it that speaking out the image of the whole organisation. Quite will precipitate changes for the better? In the contrary, it reflects a means of the second place, a would-be whistleblower achieving greater perspicacity and of must weigh his responsibility to serve the improving performance. True “anti- public interest against the responsibility he corruption engineering” takes shape as owes to his colleagues and the institution risks of corruption are openly analysed and in which he works. A third conflict for discussed through cases studies. This is would-be whistleblowers is personal in not an idyllic conception of training because nature and cut across the first two: even in it requires greater supervisory cases where they have concluded that the accountability and due professional care. facts warrant speaking out, and that their The “I did not know that corrupt practices duty to do so overrides loyalties to were occurring because I could not know colleagues and institutions, they often have the intricacies and far-reaching reason to fear the results of carrying out consequences of the activity I am responsible such a duty. However strong this duty may for, because I am not ubiquitous”, - such an seem in theory, they know that, in practice, argument tends to be less and less valid. retaliation is likely”. Does this mean that every employee, every public official can be a potential The prospect of professional suicide is whistleblower? not particularly attractive. But, from another point of view, the prospect of being V. THE EVOLUTION OF THE accused of complicity by not reporting “WHISTLEBLOWING” FUNCTION suspicions of corruption is not seductive, either. The second possibility is not “‘Whistleblowing’ is a new label theoretical, since there is a growing generated by our increased awareness of the demand, from public opinion, for more ethical conflicts encountered at work. effective prosecution of cases of corruption. Whistleblowers sound an alarm from One may be accused for not having blown within the very organization in which they the whistle. The remedy can be found work, aiming to spotlight neglect or abuses when: that threaten the public interest”. 15 Whistleblowing is the ideal way to alert B. An Institution Plays the Role of those concerned about corrupt practices Whistleblower before they take hold. Nonetheless: Instead of worrying about one’s personal career, instead of risking manipulation A. The Whistleblower Can Feel Ill at (hints of false information that, even in Ease and Manipulated good faith, the whistleblower takes for “Moral conflicts on several levels confront granted and reports), instead of feeling anyone who is wondering whether to speak isolated when the pros and cons are out about abuses or risks or serious neglect. weighed, the would-be whistleblower could In the first place, he must try to decide take advantage in reporting their suspicion 15 p. 292 “Ethical Theory and Business” by Tom L. to an independent institution which will Beauchamp and Norman E. Bowie - Prentice Hall. take the responsibility itself of referring it
355 RESOURCE MATERIAL SERIES No. 56 or not to the judge or any other public (i) The Difficulty of Giving Evidence of authority appointed by law. In France, Corruption such an independent institution exists. It Corruption involves secret dealings and is called the “Service Central de Prévention it is not easy to point to a clear link between de la Corruption” (SCPC). illicit trafficking, for example, and the subsequent profit in money or other VI. THE NEED FOR SPECIFIC benefits. It is difficult to establish a cause- AUTHORITIES FOR THE effect relationship. It may be hard to prove PREVENTION AND REPRESSION the connection between a mere promise and OF CORRUPTION: THE FRENCH the improvement of “life style” in return EXPERIENCE for a favor. Corruption has no “victims”, in the literal sense of the word, and for this A. The Genesis of the French reason, it is rare that an act of corruption Service Central de Prévention de will be reported to the competent la Corruption authorities by a participant in a corruption It is not taken for granted that such a scheme. need exists. Thus, before emphasizing what the “specific authorities” are or what Since the real impact of corruption is to they should be, I would like to shed some a great extent unclear, there is a dangerous light on the target they must hit, on the shortcut: in the absence of diagnosis, process which triggers our analysis. How corrupt practices are either over - or under can such a need be assessed? If I can put - estimated, which entails the same it in this way. It may be a controversial inefficiency: nothing can be done, either issue when the so-called “need” is regarded because the illness does not exist or because as a groundless fancy. Therefore, in order the patient does not exist any longer (s/he to make the most of those specific is dead). We do not share such fatalism. authorities, we have to answer thought- provoking objections regarding their (ii)The Complexity and Sophistication of relevance. One could consider that Corrupt Practices traditional agencies already provide The more technologically proficient the adequate tools. What is the point in society, the more the means of control are creating new ones? Are they likely to simultaneously strengthened and improve efficiency in the absence of any weakened. Criminals are skilled in the process of trial and error? Won’t they be modern technologies of computers, inclined to focus on mere trifles instead of information systems, databases and tackling important issues and cases financial networks. “White-collar involving “big fish”? And so on and so on: corruption” is highly sophisticated. In this list of objections is not exhaustive, addition, there are sensitive sectors, such obviously. as international business transactions. In this field, corruption proliferates by The fact that corruption is a specific manipulating complex rules and problem deserving specific treatment has regulations, as well as commercial and inspired the creation of the French Service financial circuits featuring a combination Central de Prévention de la Corruption, in of traditional operators, new companies charge of coping with: looking for foreign markets and criminal organizations. Financial circuits and bank networks are put to use by the operators of international trade equally for legal
356 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS operations and for operations which are the fraud, makes it more profitable and so either illegal or carried out by illegal forth. means, among which the payments of various types of commissions and These three characteristics make it kickbacks. paramount to go beyond traditional strategies to reduce corruption. The This example highlights the fact that specificity of corruption demands the corruption takes advantage of the intricacy specificity of authorities in charge of anti- of regulations in order to make illegal corruption. What are the requirements processes appear to be legal ones. The they must meet? involvement of an increasing number of operators and intermediary companies B. Objectives and Requirements complicates the issue. Corruption goes (i) The Centralisation of Information beyond individual crimes by setting up real By nature, the crime of corruption is networks which plan even the minor difficult to establish. Sources of details. Nothing is done at random; information are scattered and there is not corruption tends to work as a system. Far necessarily any communication between from being a mere aggregate of cunning the various authorities in possession of and deceitful people, it operates through such information. Furthermore, in certain channels which cannot be called cases, there may be difficulty getting access precarious, quite the contrary. to information. Thus, a system of coordination should be set up between the (iii)Corruption as an “Upstream” various services, administrations and other Phenomenon institutions working under the Public With this image, I mean to convey the Authority, to ensure that all information fact that corruption is not one fraud among sources work together to expose criminal others but the privileged instrument, the acts. lever of other frauds. As we have seen previously, it helps structure networks, (ii)A Global Approach Combining which can be activated for various Prevention and Repression fraudulent purposes. It is for this reason A case by case repressive approach that corruption can be so pervasive and, would only favour new and more without contradiction, perfectly adequate sophisticated techniques of corruption, to the specific aim pursued by dishonest with every chance of escaping the vigilance individuals and groups. Corruption in of the Public Authorities, if there is no will public procurements, for example, or that to take the problem firmly in hand with linked with public health policies (for priority given to the detection of instance the purchasing of expensive new mechanisms favorable to the proliferation equipment such as scanners, the of corruption. introduction on the market of pharmaceutical products) have their own On the other hand, prevention without specificities. repression would be neither reliable nor credible. Dissuasive mechanisms or Corruption is closely linked with “slush deterrence is the goal to reach in order to funds” and this vicious circle operates as make corrupt practices less and less follows: money used to corrupt generates profitable. For example, the ability to benefits which can be invested once again decipher the corrupt practices (they are in corrupt practices, which, by facilitating real “codes”) and describe them in a public
357 RESOURCE MATERIAL SERIES No. 56 report is one aspect of deterrence because committees created to answer a particular criminals will have to invent new problem cannot cope with the complex procedures. It will complicate their “task”: issue of corruption, which is closely they will lose time and meanwhile the connected with other crimes: for example, mission of inspectors, generally speaking, in France, what we call “abus de biens will be facilitated by knowing what to check sociaux” (misappropriation of corporate and the approach to be taken. funds). A long-range policy involves a “template” (what are our aims and how are (iii)Rapidity and Flexibility they to be achieved?), tactic combining legal We have to keep up with the evolution approaches and deep insights into and diversification of corrupting economical mechanisms and, lastly, a kind phenomena. Few cases are dealt with in of “participative management” to make all the courts, and corruption techniques are feel committed. always a step ahead of what is known and has been detected. New professions have There are many biases which can hinder appeared which modify our schemes. Here an anti-corruption strategy: a corporation, I am thinking of lobbying which may be for example, is willing to use any means, conducive to trading in influence. no matter how devious, to secure a contract. Resilience and responsiveness should not Such a “goal-oriented” attitude, in contrast be the privilege of tricky organizations. A with a “moral principle-oriented” question arises as to whether these philosophy, has its ethical justification: the aforementioned objectives cannot be met corporation will indeed explain that the by strengthening traditional departments contract is vital for its future otherwise the instead of setting up additional agencies. threat of unemployment looms large- I think specialization (such as training in cheating becomes a virtue. supposed “abstruse” financial matters) is an important step but not a sufficient one: So, we have to take such “twisted independence and a long-range policy are statements” into account in order to necessary. By independence, I mean that demonstrate that they undermine the the anti-corruption agency should be at the whole economy. A specific authority can disposal of other authorities but also able avoid the risk of oversimplification by to check into possible irregularities. pointing to the social cost of corruption Autonomy is indispensable to aid in the which jeopardizes equality among citizens. carrying out of legal action and of Thus, awareness of the problem must be administrative missions, the combination increased. “Specific authorities” are not of both aspects being indispensable. In the operational if they cannot persuade event of any threat of corruption, the everybody to cooperate, not only public organism can alert Public Authorities and officials, but also corporations, foreign point to loopholes in various regulations. partners and, above all, citizens. Cooperation means the monitoring and By a long-term policy, I mean the ability disclosure of devious procedures and deeds. to identify vulnerable sectors and to It has nothing to do with “denunciation” anticipate trends rather than deal only intended as slander and in which few are with cases. The “anti-corruption fight” is willing to participate. a “full time job” requiring a staff devoted to this specific mission. Being adamant by The Service Central de Prévention de la not tolerating corruption is not sufficient Corruption strives to meet the above-listed if we do not go beyond rhetoric. Watchdog requirements. It is an inter-ministerial
358 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS administrative agency, created by Law No. information, towards the aim of greater 93-122 of the 29th of January, 1993, efficiency in the prevention and repression concerning the prevention of corruption of corruption. and transparency in economic affairs and public procedures. Its overall mission is How is a problem brought to our defined in Article I, Paragraph I of the law attention? We may focus on highly in these terms: “the centralisation of all sensitive sectors (public procurements, information necessary for the detection and international business transactions, public prevention of active and passive acts of health policy, zoning regulations, financing corruption, for any abuse of influence by of sects, merchandising, professional persons exercising an official function or by education and training). We can be individuals, the misappropriation of public requested to check the vulnerability of an funds, illegal meddling or disrespect of activity or an institution. We can also regulations aimed at protecting the freedom examine mere suspicions of corruption and and equality of candidates for public then, if the issue goes beyond suspicion, we procurements”. refer the case to the tribunal. Ours is a preventive agency, which we could refer to The creation of such an agency was as having a “whistleblowing” function. We suggested by a Commission for the work before the case may or may not get to Prevention of Corruption presided over by the judge and our aim is to be ahead of the a former Attorney General, in a report to game, and to point out loopholes to the the Prime Minister in December, 1992. Set responsible authorities so that they can act up by the Minister of Justice on March 9th, before illegal actions are committed. 1993, the Agency began to function in October, 1993. Headed by a high-ranking C. Our Method and Main magistrate, a former Attorney General, the Achievements Service Central de Prévention de la 1. A Multidisciplinary Method Combining Corruption is run by civil servants (one Audit Techniques and a Legal Approach magistrate from the ordre administratif, a “Turning raw information and data into member of the corps préfectoral, a chief of actionable intelligence is fast becoming the police, a chief customs inspector, a tax most critical management tool”.16 Raw inspector, a head of the Service information about suspicion of corruption départemental de la D.G.C.C.R.F., and a is almost useless: it has to be analyzed and head of the administrative service at the filtered to be “eye-opening”. Raw Ministry of Public Works and a information is a juxtaposition of unrelated representative of the Ministry of Defence. opinions with no contextual link. It has no signalling value and cannot be used as a This type of organisation is evidence of warning indicator. The Service Central de the inter-ministerial nature of the agency Prévention de la Corruption does not boast which guarantees its efficiency. Its simple a large amount of raw information because and straightforward structure reflects the it is not a mere “information collector”, so desire to create a team of highly specialised to speak. This agency strives to promote experts. As explained in the preamble to the gathering of relevant and accurate the Law of January 29, 1993, the Service information. For example, falsifying Central de Prévention de la Corruption, was inventories to cover thefts or delinquencies, created to ensure more efficient detection of acts of corruption by means of a 16 “Competitive Intelligence” by Larry Kahaner, systematic processing of centralized Simon and Schuster edition, p.15.
359 RESOURCE MATERIAL SERIES No. 56 or altering dates on deposit slips to cover methods. Whatever attempt at stealing and, generally speaking, petty shedding light on them is stigmatised falsifications and tampering, when as an unacceptable interference; discovered by investigative authorities, 4. Tacit complicity, or at least should sometimes be related to an overall unquestionable agreement, of all the context of slush funds intended for the actors involved (in order to avoid the purpose of bribing public officials. Instead disclosure of irregularities), because of condemning a “bunch of crooks”, a few they are sources of profit and of corrupt individuals, a network could be protracting advantages. disclosed, involving public officials, either appointed or elected. Since corruption is Those four features remind us that strict the art of camouflage, one should not be legislation is of no use when it is weakly satisfied when pointing at various frauds implemented. This problem of enforcement without revealing the corrupt link existing and implementation is brought to our between them. Relevant information attention because we have various reveals unsuspected connections. interlocutors, thanks to:
This expertise regarding the standards 2. The Broad Accessibility which of the information needed, the sources of Characterizes our Agency that information and the ways to obtain it Public and private entities, mayors, has enabled us to carry out a time-and-cost public authorities and administrations, saving activity of assistance: private persons, auditing bodies, investigative bodies, etc, can request (i) Assistance in Detecting Cases of advice, expertise on suspicion of corruption, Corruption assessment on codes of ethics, spotlighting By giving investigators auditing of weaknesses conducive to slush funds, documents that we have elaborated on and so forth. Fundamental debates about various sectors (public procurements, for the financing of political parties or the example), we help them to keep up with tightening limitation of prosecution of cases the pace of “speedy money” or, at least, of corruption due to time-bar: our agency retrace it. has been invited to articulate its analysis. For example, the offence of (ii)Assistance in Anticipating the Risks “misappropriation of corporate funds” is of Corruption often used, as we mentioned above, in place At its peak, corruption may be defined of “corruption” to indirectly prosecute by four criteria: corrupt behaviours. This situation is not satisfactory because the blame is put 1. A mixture of public and private mainly on the bribe-giver, whereas the financing, favoring the opacity of the bribe-taker is no less responsible. The transactions and the abuse of SCPC does not, obviously, favour red tape discretionary power; but insists on the necessary optimization 2. Dissemination of controls because the of controls. activity involves so many regulations in various disciplines and areas that It is difficult to measure a hidden it is almost impossible to encompass phenomenon such as corruption; it is all the whole process; the more difficult to assess the impact of 3. The alleged respectability of the prevention. Nonetheless, the relevant sector, prohibiting scrutiny of its question is not “how many cases of
360 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS corruption have been deterred? ”, but “to Council also requested the Secretary- what extent are detection and deterrence General, inter alia, to review and expand facilitated?”. The SCPC is not an overseer the manual on practical measures against but a facilitator. It makes a point by corruption; to coordinate and cooperate showing that preventive methods work, with other United Nations entities and that they do not necessitate either large relevant international organizations in budgets or excessive administrative effort. anti-corruption efforts; and to keep the The fact that the SCPC is in charge of issue of action against corruption under prevention makes would-be whistleblowers regular review.” more willing to report; the repressive function of an agency bearing a connotation Key-terms can be emphasized: of threat for the reporter, for fear of getting “implement”, “to increase their capacity”, involved to a certain extent. “prevent and adequately control”, “manual on practical measures”, “to coordinate and The creation of specific authorities for cooperate”, “under regular review”. There the prevention and repression of corruption is, actually, a will to achieve feasibility and is advocated by international institutions. practical impact and to elaborate a The Council of Europe, for instance, compendium of anti-corruption provisions recommends “to promote the specialisation enabling the authorities to: of persons or bodies in charge of fighting corruption and to provide them with • review the adequacy of their [the appropriate means and training to perform Member States] criminal laws, their tasks”.17 including procedural legislation, in order to respond to all forms of The SCPC takes part in the corruption and related actions international negotiations about corruption designed to assist or to facilitate issues. corrupt activities, and should have recourse to sanctions that will ensure VII. THE EXPERT GROUP adequate deterrence; MEETING ON CORRUPTION AND • devise administrative and regulatory ITS FINANCIAL CHANNELS (PARIS, mechanisms for the prevention of 30 MARCH TO 1 APRIL 1999) corrupt practices or the abuse of power; A. The Context of This Meeting • adopt procedures for the detection, This meeting was held in Paris, inspired investigation and conviction of by a French proposal presented at the 7th corrupt officials; session of the United Nations Crime • create legal provisions for the Prevention and Criminal Justice Division, forfeiture of funds and property from followed by a resolution of the Economic corrupt practices; and Social Council (July 28, 1998). The • adopt economic sanctions against aim of these United Nations initiatives is enterprises involved in corruption.18 to “urge States to develop and implement anti-corruption measures, to increase their This idea of a compendium stems from capacity to prevent and adequately control concern for coherence and consistency, corrupt practices, and to improve international cooperation in this field. The 18 The items are quoted from the introduction of the 17 In 20 Guiding Principles For The Fight Against Manual on Practical Measures against Corruption. Corruption.
361 RESOURCE MATERIAL SERIES No. 56 required by a systematic approach to the (i) provisions against money - issue of corruption. The purpose of the laundering, so that they cover bribes Manual is to review the most common and the proceeds of corruption: if the problems encountered by policy makers proceeds of corruption were seized and practitioners in their efforts to deal (“forfeiture of the assets of with corruption. The adaptability of this corruption”), there would be less of a Manual to each domestic context and guarantee of personal enrichment...; legislation is a priority. Thus, the process (ii)vigilance and monitoring of financial of review is coupled with a process of transactions: banks could play the revision of the Manual itself, in order to role of “whistleblowers” when faced take into account the evolution of the with suspicious transactions; international instruments devised in the (iii)ways to convince underregulated various fora. financial centres to adopt rules enabling them to trace and take In order to distinguish between what has action against the proceeds of been done and what remains to be done, a organized crime. sustained effort is required, aiming at coordination and cooperation (“the The off-shore places can be characterized phenomenon of corruption has become mainly thanks to the following criteria: transnational in nature as a result of increasing globalization and liberalization • prevailing banking secrecy; of trade. It is no longer possible to deal with • lack of regulations and control; it effectively only through national action. • large possibilities of setting up shell- The international community is in urgent companies which conceal the identity need of a common basis for cooperation that of the real beneficiary of the would promote the values of good transactions; governance and would insure that • restrictive rules of international development and growth are not impeded cooperation in the administrative and by corrupt practices.”). judicial areas.
B. “A Common Basis for The impact of such places cannot be Cooperation” and a Significant ignored; they play a prominent role. Step Forward Experts consider that almost half of the Since corruption is an abuse of power to amount of the international money volume gain undue advantages (on the behalf of uses the channels they offer. They are very the bribe-giver) and to achieve personal often the indispensable instrument of enrichment (on the behalf of the bribe- corrupt agreements. This is why the taker), the core of the matter is the crucial problem of corruption has to be tackled role played by financial channels. Let us from at least three angles: imagine an absurd scenario depriving the bribe-taker of the possibility to profit from • the supply side (the OECD their pecuniary advantages. Bribery would Convention, for example, illustrates become much less attractive. This picture this approach); is not unrealistic thanks to the tracks • the demand side (the ethical code for explored by the Expert Group Meeting on public officials aims at preventing Corruption and its Financial Channels, misdeeds); with a view to strengthening, or at least, • the financial channels (whose role favoring: must be highlighted and scrutinized).
362 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
The detection of criminal financial account in a country belonging to the transactions, the improvement of the European Union; procedures to retrace the proceeds of • The commitment of the United States corruption suppose that the problem of was made clear on the occasion of an financial channels receive due international conference organised by consideration by underlining the necessity the Department of State (from 24 to of: 26 February 1999); • The awareness that corruption 1. Cooperation fosters insecurity at all levels and • 42 countries and 12 international that monitoring and procedures of organisations were represented in declarations of suspicion - if they fail Paris at the Expert Group Meeting; to be put into practice - will entail the • The initiatives of the United Nations, necessity of devising protective OECD, European Union, Council of systems. Europe, and the commitment of G8, International Monetary Fund, World An “international economic order” is Bank...give impetus to an irreversible taking shape, which allows us to synergy which makes, by contrast, contemplate the possibility of forbidding the position of the off-shore places (partially or totally) financial transactions groundless (if I can put it in this way when it is obvious that too many loopholes with no pun intended); exist. The struggle against transnational • Since the problem of financial organised crime and the fight against channels is identified as a priority, corruption bolster each other by a global the urge for transnational strategy of deterrence. Such a strategy cooperation is emphasized. If money can be effective thanks to: crosses domestic boundaries, the international response to the problem (i) Cross-Fertilization has to be coordinated; The exchange of best practices • The strengthening of cooperation between various countries and requires that the same coordination various administrative departments be a reality when involving various to expand the scope of deterrence by domestic administrative showing that those procedures work. departments such as the police, justice and tax offices. (ii)Training and Assistance “Multidisciplinary training and 2. Responsibility educational programmes can be • A sustained commitment can no developed at the international, longer be delayed because political regional or sub-regional levels, in authorities are aware of the threat order to pool expertise and resources represented by corrupt money, using that are often inadequate at the those financial channels which are national level.” Since the anti- likely to endanger the whole financial corruption commitment has become system; a landmark for judicial security, • The need for a clear position is all the endangered by corrupt practices, more important because, for example, technical and financial assistance can Pablo ESCOBAR placed, a few years be provided according to this criteria ago, a very large amount of money in (taking into account the effectiveness a single non-nominative bank of the effort and initiatives
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undertaken).
The path becomes more and more obvious, pursuing “the ongoing development of a comprehensive international convention against transnational organized crime”. It is highly relevant that the UN Commission on Crime Prevention and Criminal Justice “takes note with appreciation of and subscribes to the conclusions and recommendations of the Expert Group Meeting on Corruption and its Financial Channels, held in Paris from 30 March to 1 April 1999, which are contained in the report of the Expert Group Meeting”. This official reference enhances the impact of the conclusions of the Experts Group Meeting, and allows a specialized corpus of coherent rules to achieve completion and coherence.
VIII. CONCLUSION Corruption has been identified by the international community as a serious issue deserving full attention. This is an important step which should not be interpreted naïvely. “Naïvely” would consist of welcoming a “new era” where corrupt behaviors would be progressively banned. This utopian conception is contrasted by the sarcastic comments according to which corruption has been brought to the international agenda, simply because it has reached such proportions that nobody can afford any longer to spend a huge amount of money. Anyhow, whatever the motivations, one cannot deny that the interest in the issue is momentous, and is far from being transient. It is difficult to imagine that the body of rules taking shape presently might be wiped out in the future. Its implementation is at stake, supposing macro-economic initiatives (at a global and international level) and micro-economic vigilance, monitoring and whistleblowing.
364 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
CORRUPTION PREVENTION - THE HONG KONG EXPERIENCE
Thomas Chan*
I. INTRODUCTION of transportation and telecommunications equipment This paper describes the Hong Kong (railway rolling stock, bulk handling); experience in fighting corruption. It briefly • bulk purchases of supplies, such as outlines a number of factors that are petroleum, fertilisers, cement, conducive to corruption and fraud and then chemicals and pharmaceuticals; details some of the activities of the Hong • service and consultancy activities Kong Independent Commission Against (feasibility, land tenure studies, etc). Corruption, better known simply as the ICAC. While the corruption prevention A more detailed examination of cause practices have been developed to suit the and effect indicates that there are a Hong Kong environment, it is believed that number of common factors that generate many corruption problems stem from corruption risk. These generally comprise common causes and may respond to similar of: approaches. • any level of decision-making II. CORRUPTION IN SOCIETY involving the exercise of discretionary Corruption can be found in all walks of power; life ranging from matters involving petty • arrangements involving patronage or and relatively insubstantial issues to those conflict of role; of great significance and value. • approval, licence or permit systems Nonetheless, corruption has commonly which involve granting of a benefit been associated with major development or generating a financial gain; activities such as: • situations involving security or confidentiality that can be • infrastructure projects including compromised; and dams, harbour works, bridges, • situations where the standard highways, airports, railways, and operating rules and procedures are mass transit systems; not clearly defined. • licenses and/or leases for extractive industries and other concessions (e.g These factors bear no relationship to the logging, mining and oil leases, fishing value of a purchase or transaction. Thus, concessions); cases of bribery and corruption may arise • large scale industrial, commercial or from routine licensing arrangements and residential developments (e.g mass approvals as well as from immigration and housing programmes, resorts, new customs breaches, electoral malpractices, towns, theme parks, science parks); and all types of cash collection • the design, specification and supply arrangements. Corruption may involve the leakage of confidential information in * Director, Corruption Prevention, Independent police operations or in procurement; in Commission Against Corruption, Hong Kong. administrative decisions on welfare benefit
365 RESOURCE MATERIAL SERIES No. 56 entitlements and housing allocation; or in most prevalent areas were purchase fraud, the distribution and location of hawkers’ which accounted for 26% of reported cases. stands and market stalls. Twenty percent of the frauds could be categorised as corruption related offences Public attention is drawn to the more such as kickbacks. Similar figures were obvious cases where the incentives for reported in another KPMG International corruption are greater and which entail Fraud Report, which highlighted kickbacks major decisions involving large sums of and procurement fraud as particular money. However, the risk of corruption is problems but also identified employee just as real for everyday transactions where fraud as being the most prevalent source more elaborate protective mechanisms of malpractice. The amount of internal cannot be economically employed. Given employee involvement provides an the number and scope of such pursuits, the indication of where one needs to start with cumulative exposure to risk may well corruption prevention measures. exceed that of the larger contracts, while the moral impact is equally damaging. KPMG’s 1995 Australian Fraud Survey estimated corporate fraud at A$16B to Nonetheless, both motivation and A$20B per year. Another survey by Ernst opportunity must come together in order & Young in 1996 reported that 95% of for corruption to occur. Unless the Australia’s top 500 companies experienced opportunity presents itself to individuals, fraud over the preceding five years, and for corruption will remain just a theoretical 68 % of those cases it was over A$1M. The possibility. This intermingling of Australian Commonwealth Auditor- motivation and opportunity must always General estimates the level of be considered when structuring an effective organisational fraud to be 2-5% of private anti-corruption strategy. sector turnover.
III. THE IMPACT OF CORRUPTION These figures, together with other anecdotal evidence, indicates that What damage is caused by corruption? corruption can add between 2% to 15% to The most obvious effect is to directly the cost of business, depending on the increase the cost of a transaction. If a bribe country and local environment. Despite of 5% or 10% is paid, it seldom comes out such obvious losses, it is disconcerting to of the seller’s pocket. They will merely build note that until recently, firms based in it into the price to be met by the purchaser. some developed nations have been Indeed, the fact that a bribe is being paid prepared to fund corruption in many often makes it possible for the seller to developing nations. inflate the price by considerably more than the bribe amount. The direct increase in cost is by no means the only effect. Once the possibility of It is not easy to find definitive statistics personal gain becomes a factor, it rapidly on the likely economic cost of corruption. becomes dominant - pushing aside quality A 1996 Hong Kong fraud study, published and other legitimate considerations in the by consultants KPMG, estimated a total awarding and performance of contracts or cost (to local respondents) of HKD $230M. in the provision of services. The result is The consultants highlighted that this that economic decisions are skewed; the figure was probably significantly wrong suppliers and/or contractors are understated. KPMG also reported that the selected; and materials, quality standards
366 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS and safety are compromised. Supplies or The Community Relations Department projects that are not needed may be given is responsible for the education, publicity priority over more important projects for and moral leadership roles of the no better reason than the fact that they Commission. Its role is directed towards enable decision-makers to obtain large mobilising public support in the fight bribes. against corruption. In addition to broad community-based programmes using the The moral damage is perhaps more mass media, specific programmes have serious. Bribery involves a breach of trust been developed for various sections of the or a violation of a relationship. The damage community. These activities explain anti- to confidence, reputation and image bribery laws in layman’s language, educate inflicted on a corporation or on public sector the young at schools and universities, and administration is debilitating, while the encourage business organisations to adopt loss of faith in the integrity of decision- appropriate corporate codes and corruption makers can even destroy the social fabric prevention measures. The general of a nation. While seemingly benign on the confidence-building and outreach surface, corruption breeds distrust and programmes are designed to raise the level may contribute to more violent crimes as of public awareness and willingness to the social injustices accumulate and report promptly any suspicion of corruption become more obvious. offences. They also include the operation of a number of regional community offices IV. THE HONG KONG ICAC MODEL that are readily accessible to the public. The end result is that the ICAC maintains The ICAC was established in 1974 in a high public profile and ‘mind-share’ response to rampant corruption within the within the community. police force and other sections of the public sector. It has adopted an integrated three- The Corruption Prevention pronged attack on corruption based on the Department’s mandate is to prevent strategic components of investigation, corruption within organisations by prevention and education. These three examining their internal operations and anti-corruption offensives are reflected in proposing corruption-resistant its structure, which comprises three management and administration systems. functional departments - the Operations This objective has been successfully Department, Corruption Prevention implemented within the public sector by Department and Community Relations the establishment of effective and Department. transparent systems, thus providing an example of the principle that prevention is The Operations Department receives much better than cure. reports and investigates complaints. This investigative and enforcement role is V. CORRUPTION PREVENTION without doubt the most visible activity of ROLE the Commission, attracting intense public and media interest in major cases. The From the time the ICAC was corruption cases are identified from established, maintenance of the integrity complaints received from a number of 1 In “Corruption: The Facts”, article by Daniel sources including a 24-hour hot-line report Kaufmann, p. 114 of “Foreign Policy” - Summer centre. 1997. 2 In “Model Law on Corruption”.
367 RESOURCE MATERIAL SERIES No. 56 of public institutions was considered to be examined in detail, culminating in a a priority. Given our primary role to advise comprehensive report containing a series government departments and public bodies of recommendations. To generate on reducing corruption opportunities, the maximum input and commitment to the legislation therefore empowers us to act process, client (i.e the organisation whose with considerable authority when dealing procedures are being reviewed) with corruption prevention in the public involvement is encouraged at all stages. sector. Draft recommendations are normally discussed with the client prior to release The legislation also provides that we of the report to take account of any practical must give advice on request to any person factors in implementation and thereby and any private sector organisation. For facilitate their adoption. the private sector, the acceptance of our prevention advice is not mandatory. To Strict confidentiality has been strengthen the scope of our scrutiny we can maintained on the report contents to instil apply to have organisations designated as confidence in the process. Accordingly, ‘public bodies’ where they enjoy particular there has been little publication of the monopolies or have significant community recommendations except in general articles roles e.g the Hong Kong Jockey Club, Mass covering anti-corruption issues or as source Transit Railway Corporation, Airport material for the development of “Best Authority, Utility Companies, Universities, Practice” approaches. To date we have Hospital Authority and so forth. In total completed more than 2300 assignment there are currently 85 declared public reports covering a wide range of public bodies. sector activities.
The Department is relatively small with The sources of work are Operations only 59 staff members and is split into Department investigations; areas functional groups that specialise in identified by our own staff or by joint ICAC/ particular areas of work or client groups. client liaison groups; and requests from the A high proportion of the staff is clients themselves. As a liaison strategy we professionally qualified. Staff members are meet regularly with the directorate officers appointed at a relatively senior level since of major government departments and the they must be sufficiently experienced and senior management of public bodies. These knowledgeable to liaise closely with senior Corruption Prevention Group meetings company management and government discuss priorities, explore problem areas officials on corruption prevention matters and review the implementation of previous that can substantially affect operating studies. They have proved very productive. practices. A considerable number of private sector VI. CORRUPTION PREVENTION referrals come through the services of the METHODOLOGY Community Relations Department and their network of regional offices. Our prevention strategy is based on a Previously, much of this work was directed systems approach, with a methodology towards specific problem areas such as founded on operational audit principles. stock control, purchasing, and rules for Our major workload comes in the form of staff on accepting advantages, but the assignment studies where priority scope of work has been expanding with a assignment areas are identified and then greater focus on system risk analysis,
368 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS managerial accountability and corporate is based on the belief, that whilst governance. Ethics development work is corruption may be investigated and typically conducted in association with our offenders prosecuted, unless the Community Relations colleagues as part of underlying management deficiencies are a co-ordinated programme of enhanced corrected, the same or similar corrupt acts ethical and corruption awareness training could easily re-occur. linked with the promotion of Corporate Codes of Conduct. Fact-finding involves identification and assessment of a range of possible risks, An increasing proportion of staff time is along with current controls and possible involved in consultative work. Government control improvements. These observations departments commonly ask the do not imply that corruption is occurring, Department to study the implementation but highlight areas where internal controls of new policies and procedures and we are are absent or deficient and the system is represented on both ad-hoc and standing potentially at risk. Our reviews therefore working groups or committees. extend beyond the scope of financial audits Involvement in the policy development to examine management issues which process enables us to have effective input might allow misconduct such as: at an early stage, where accountability and effective controls are best identified. • misuse of power and discretionary Typical examples include our authority; representation on a treasury review of • neglect of duty or omission; government tendering and procurement • favouritism; procedures and membership of the • administrative deviations and Construction Advisory Board, which breaches of regulations; provides advice to government on issues • inappropriate legislation; related to the construction industry. Other • information and confidentiality examples of our procedural development breaches; and work are the analysis of tendering • conflicts of interest. arrangements for major extensions of the Kowloon and Canton Railway Corporation Various techniques and risk indicators and Mass Transit Railway Corporation; are used in analysing the existing system examination of Housing Authority policies; for weak-points and loopholes that might and involvement in all stages of expose the unit or operation to potential construction of the new Hong Kong Airport corruption. These include: and related infrastructure projects. • internal control weaknesses reported VII. CORRUPTION RISK FACTORS through internal audit reviews or previous corruption cases; Our reviews of corruption risk • discrepancies or deficiencies in the concentrates on areas identified as being implementation of previous remedial prone to fraud and corruption. Assignment action(s); recommendations then focus on • weaknesses in the system chain of mechanisms for reducing or minimising controls; corruption opportunities while optimising • reported deviations from administrative performance, system management controls; controls, transparency and accountability. • role playing and “what if?” scenarios; This strategy of promoting system change • identification of system control
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features able to be bypassed by higher and increasingly stringent quality and authorities or alternative procedures; safety requirements, subject to on-site and supervision and third party testing and • inconsistencies in the matrix of certification. Contractors performing public management authorities and sector construction work are subject to accountabilities. financial and technical assessment and are chosen from approved lists maintained by The report recommendations can be the central policy Works Bureau. wide-ranging and may include proposals for revamping administrative systems; The newly completed Hong Kong Airport review of asset management policies and Project constituted one of the most massive procedures; introduction of enhanced infrastructure undertakings in the world. transparency and procedural The core projects were completed under arrangements for purchasing and very stringent time and cost constraints tendering; better documentation and and contained all of the elements that review standards; new or revised might be prone to corruption such as: management and quality assurance manuals; and the adoption and • sensitive planning and land use promulgation of performance pledges, approvals; ethical guidelines and Codes of Conduct. • selection and appointment of widely divergent consultant teams; While some organisations may initially • complex contracts (hundreds) with feel some trepidation in agreeing to an highly technical specifications; assignment study, the use of competent and • negotiated contracts and value experienced staff and close attention to selection of contractors; detail in formulating the recommendations • use of international and joint venture has resulted in a high level of client contractors; satisfaction. Conducting the study in a • fast-tracking of planning, design and spirit of close co-operation with the client construction; no doubt helps to achieve this outcome. The • large sums of money; work is conducted at no cost for private • numerous variations and claims clients and the acceptance and arising from design changes; implementation of the recommendations • a multiplicity of sites and numerous remains at the company’s discretion. interface issues with contractors and consultants; and, VIII. A CASE STUDY IN • the involvement of diverse skills, CONSTRUCTION nationalities and languages. Engineering construction is an Given the immense size and tight time important element in Hong Kong’s scale for the undertaking, the standard economy and today contributes about 9% form of government contract was modified, of Hong Kong’s gross domestic product. Of and revised contractual, administrative this, public sector construction contributes and claims procedures were adopted. From about 45% and the private sector 55%. the beginning, the procedural Public sector projects are handled arrangements and tendering processes transparently with advance publication of were developed in close consultation with construction programs, pre-qualification the Corruption Prevention Department. and open competitive tendering exercises Particular attention was paid to include
370 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS mechanisms that would ensure greater profitability by any means possible. transparency and equity in consultant and Value assessment and supplier selection is contractor selection, effective contract accomplished by nomination of suitable execution and close monitoring of all assessment criteria that are weighted in performance aspects, including claims and proportion to their importance to the variations. The evidence so far is that this contract performance or specification. We liaison was very successful, with few provide extensive advice on these allegations of corruption. techniques and the attendant procedures.
IX. A PROCUREMENT EXAMPLE Government and public bodies are required to adopt open competitive bidding Procurement is one of the areas most methods, except under defined prone to corruption. In analysing circumstances requiring full justification procurement systems, our objectives are to and documentation. Notwithstanding a ensure: competitive award policy, negotiation can be employed but is normally restricted to • the best possible value-for-money high value contracts because of the outcomes; extensive documentation required and • minimal risk of fraudulent or corrupt time constraints, contractual difficulties, activity in the selection of firms and perceived corruption opportunities and final contract awards through overall costs of the process. structured processes; and, • reinforcement of all legal Other anti-corruption techniques are to requirements and ethical standards restrict the discretionary role of the by incorporating guidelines and procurement officers, to codify the contractual conditions relating to procedures, and to apply separation of Best Practice, Prevention of Bribery functions so as to require greater (and Ordinance, corporate conduct, therefore less likely) collusion if corruption conflict of interest etc. is to occur. Open advertising, pre- qualification exercises, formalised lists of We require that the procurement process suppliers and contractors, adoption of demonstrates the necessary elements of objective selection criteria with advance fairness and impartiality to survive full notice to bidders, detailed tendering and disclosure and critical public scrutiny. The evaluation procedures, balanced selection resulting level of transparency needed to panels, full documentation, monitoring of avoid any potential claims of favouritism purchasing patterns and vendor or conflict of interest may involve very relationships, random checking by senior detailed procedures and extensive management and effective audit documentation depending upon the programmes, are all strongly encouraged. product, service or project. X. THE KEY TO PREVENTION - For many procurement cases the quality TRANSPARENCY AND PUBLICITY of performance is a significant factor, and we recognise that selection may not be We believe the best ally in corruption based purely on price competition. In fact, prevention is the public. When dealing with uneconomic contract prices can provide a the public sector, if people know and further incentive for corruption during understand their entitlements and rights, contract execution, as the participants they will be aware of any shortfalls in attempt to recover costs and achieve service quality. Therefore we consider it
371 RESOURCE MATERIAL SERIES No. 56 essential to ensure that the public is kept XI. OVERCOMING RESISTANCE TO well informed as to the expected time to CHANGE issue licenses; when, how and where to Notwithstanding our progress in apply for services; the costs of services; and introducing initiatives to combat the necessary documentation to be corruption, there is sometimes a degree of submitted. The provision of clear self- entrenched organisational resistance to explanatory forms and supporting change. Key decision makers may refuse documentation forms part of the necessary to accept that the most effective way to publicity and education programme. reduce corruption and other workplace crime is to establish revised practices or All government offices now routinely procedures within the organisation that publicise the key aspects of their have an anti-corruption goal. Powerful operations, with prominently displayed individuals may also resist change because application forms and other public notices. of habit or inertia, or fear of the unknown, We also support the implementation of or because they are afraid they do not have performance pledges that give greater the necessary skills if the changes are transparency and clear guidance as to the implemented and they fear losing some of reasonable expectations of minimum their power. service standards. This principle of transparency extends to everyday events Organisations, like individuals, also and activities. Studies relating to utility sometimes resist change because of fear of works and roadworks have resulted in the cost, or a perception that they do not recommendations leading to notices on have the necessary resources. Sometimes street excavations showing the expected key decision-makers fail to understand the date of completion and other details alternative. Subtle resistance is often enabling identification of the contractor embedded in the resource allocation and contact persons. procedures, with reluctance to adopt new policies or refusal to change an established Another area requiring good and policy. complete public information is where more then one government department is Resistance typically involves affected involved in a process. For example, in groups such as middle managers, licensing a restaurant, the hygiene, fire supervisors, units or groups who are safety, structural safety and ventilation opposed to a given corruption prevention requirements all involve different strategy. In the worst case scenario there departments in the Hong Kong licensing may be active opposition represented by : system. Satisfying these different requirements can be baffling for a licence • denial of the need for an anti- applicant and good publicity to guide the corruption strategy; applicant through the maze of the various • refusal to recognise responsibility licensing processes is essential. To be and accountability; successful, this type of guidance needs to • refusal to implement an anti- be easily available at low or zero cost and corruption strategy initiative that written in plain and non-technical has been adopted by the organisation; language. The Department routinely gives and advice on the structure and development • sabotage or dismantling of an anti- of such information packages. corruption strategy after implementation has begun.
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Such potential resistance must be both monitoring and marking systems for recognised and managed. At the working tender assessment; level, our response is firstly to involve the • adopting a more global approach to client as deeply as possible in the preventing corruption by examining assignment study so that they are not just the symptoms but the committed to a successful outcome. underlying causes such as poor Secondly, we attempt always to set management structures, poor morale, standards, objectives or time lines against lack of information, unenforceable which progress may be assessed so that rules and inadequate legislation; and there is an effective means of monitoring • adherence to the principle of implementation. In addition to formal transparency. monitoring studies, we also have standard follow-up procedures to track the level of XIII. NEW CHALLENGES acceptance of report recommendations and New challenges are emerging as a result their implementation. This process has of economic, social, political and proved very successful and often gives rise technological changes. Hong Kong’s rapid to continuing liaison with the client and transition from a light manufacturing more extensive work. economy to a predominantly service-based economy has made anti-corruption work XII. FACTORS FOR SUCCESS more complex and difficult, while the public The success we have achieved in fighting expectation of effectiveness, transparency corruption and fostering change has been and accountability is rising. based on a number of factors, of which I shall nominate a few: New business structures are being created as the practices of outsourcing and • support from the highest levels of privatisation or corporatisation have government providing the political become more prevalent. Both public sector will, legislative framework and and private sector organisations now funding necessary to ensure our contract out a wider range of services independence and focus on the job at ranging from data preparation and hand; processing, management consulting and • recruitment of staff with the skills human resource functions, to research and and experience to deal with practical development services, professional advice real life situations, such as and the operation of independent business accountants, engineers, quantity entities. surveyors, ex-policemen and experienced public servants; The outsourcing business model • involvement of the client in all phases typically involves a small number of of our studies - from the management professionals responsible for determination of the work to be done contracting, supervising and monitoring through to the development of services provided by external firms such prevention measures and how they as contractors, manufacturers, third-party are to be implemented; sales and distribution networks, and • concentrating on more structured suppliers of corporate and administrative ways to exercise discretion such as services. It represents a desire to focus on inspection check lists, objective core business fundamentals in a drive to marking schemes for performance achieve world competitive practices and
373 RESOURCE MATERIAL SERIES No. 56 realise benefits from improved access to Some systems are undoubtedly well specialist expertise. protected and properly resistant to security breaches, but the relaxed attitude of many Outsourcing brings with it greater organisations to information security demands for overall co-ordination and stands in stark contrast to the procedures closer relationships between the various found necessary by banks and other parties to the contract with a consequent financial institutions. An ever-present shift towards new forms of performance danger is that some computer systems, monitoring and control, and different legal designed many years ago, still remain in and contractual frameworks. Much of this operation and may be potentially subject trend is being driven and supported to new forms of attack as companies move through developments in to embrace e-commerce. telecommunications and information technology. One of the disturbing features is that too few organisations have undertaken any Developments in outsourcing may risk analysis of their own corporate introduce management issues having information systems and may be unable to corruption implications. Close examination tell when or whether or not a crime has of the overall client and supplier alliance been committed. An essential task of the may reveal new areas where corruption can future will be to ensure that the integrity enter the process and affect the outcome. of these systems is not compromised by Since many operational activities are no corruption. Appropriate physical barriers, longer performed solely “in-house”, greater software barriers, system administration emphasis needs to be placed on the controls, functional separation of key development of “self-regulatory” systems, activities and the monitoring of critical with the adoption of appropriate Codes of transactions will be essential. Conduct. Procurement practices are also The computer in its various guises now undergoing significant change as pervades every walk of life. Millions of purchasers and suppliers grapple with best dollars are handled daily over national and practice developments in supply sourcing international networks, and personal and the complexities of international law, information is captured for a myriad of fair trade requirements and the impact of transactions. Vast databases are being new technology. Some of the emerging developed containing extremely detailed technological developments include information on individuals and electronic commerce and electronic funds organisations. Information technology has transfer and payment systems; provided new opportunities for data interconnected materials procurement collection and management, facilitating management and manufacturing systems; demographic segmentation (data mining) corporate card purchasing; and electronic and new and more extensive forms of tendering. The growth of the Internet and management information analysis. With electronic commerce introduces the these developments have come associated prospect of a new generation of information concerns for the privacy and security of the and monetary transfers that are more financial and personal data and attendant difficult to track and could make bribery corruption opportunities in the potential payments less traceable. misuse of this data.
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Each of these developments brings a new widespread introduction of appropriate perspective to the maintenance of system Codes of Conduct is being strongly pursued. integrity. They introduce problems associated with security and confidentiality We have expanded our capacity to assist that commonly form key elements in the both the public and private sectors by typical chain of corruption. Management introducing a quick-response consultancy systems, which once seemed secure, may support system offering advisory services. be prone to attack as organisations adapt Together with this more responsive to these changes. approach, we have introduced a corruption prevention telephone hot-line. XIV. OUR RESPONSES In conjunction with the Community As technology advances and political and Relations Department’s drive for expanded economic boundaries begin to blur, moral and ethical education programmes, corruption has taken on a global we have taken a pro-active approach to perspective and the need to develop enlisting greater support from the private regional and international liaison will sector with extensive mailings, visitation continue to grow. To this end we have programmes and speaking engagements. actively pursued a policy of greater In addition, we have embarked upon a involvement with our colleagues in other series of targeted training and development jurisdictions such as the Royal Canadian seminars directed towards particular Police, the Australian Federal Police and industry areas. the US Federal Bureau of Investigation. The ICAC now acts as the Regional We have formulated no fewer than 15 Information Co-ordination Centre in the Best Practice modules covering key Asia-Pacific region and publishes a regular industries and their operations which are newsletter. This liaison with our now being widely distributed as part of our counterparts will continue and expand. advisory services. These modules are designed to provide guidance to The proven effectiveness of our organisations developing or reviewing their corruption prevention work will ensure its own internal systems. In time, these continuation, albeit somewhat modified to modules should cover the majority of the take account of emerging trends. More key operational areas found to be prone to expertise will be needed in systems and corruption. risk analysis and we have had a policy for some time of recruiting staff for prevention Finally, in the midst of this change we work with strong and up-to date computer have also grasped the benefits of new and information technology skills. technology with revamped internal operational procedures and improved Greater emphasis will be placed on information technology capabilities. This managerial accountability in a more self- will enable us to better analyse trends, regulatory environment. The adoption of perform better research and improve our performance pledges, Best Practice overall productivity. These changes include approaches and quality management and expansion of our Internet Web presence to quality assurance programmes already provide greater public access and enable form part of our armoury. The introduction us to reach a wider audience. of specific probity-related clauses in tendering requirements and the
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XV. CONCLUSION Effective prevention programs will provide incentives for managers to educate The enforcement of a strong anti- themselves regarding the attitudes and corruption law based on a zero tolerance values held by their subordinates, to locate approach, backed by effective prevention the areas in which corruption is likely to and educational programmes, has had a occur, to exert positive leadership and more marked impact in Hong Kong. The quickly curtail abusive and corrupt populace is sensitive to corruption issues activities. Increasing awareness of and acutely aware of the ICAC role and corporate governance principles may see mechanisms for reporting corruption. The greater use of senior management community culture has changed from one performance indicators that include of tolerance of corruption to rejection. evidence of the implementation of effective fraud/corruption prevention plans and risk The nature of much corruption means management strategies. that staff already working within an organisation are responsible for most While the lessons to apply must take failures. Internal access to administrative, account of individual social and work operational and information networks ethics, there are a number of common therefore may present a far greater risk features worth noting. Firstly, complex, than the spectre of physical entry or unnecessary and unenforceable rules external access. Software and system increase the risk of fraud or error with access controls subject to internal attack consequential increase in the likelihood of can easily become ineffective due to laxity, corruption. The solution may be to simplify complacency, under-estimation of risk and the system. undue reliance on trust. Secondly, many licence, approval and Corruption prevention is an benefit arrangements incorporate perverse organisational, as well as individual, actions and seek excessive detail unrelated ethical responsibility. While corruption to corruption or fraud preventive measures. depends on individuals, it may be The answer is to set minimum standards unwittingly encouraged or protected by for efficient and effective administration certain features of an organisation’s and redirect resources to prevention activities or structural deficiencies. Many strategies. problems can be traced back to poor control exercised by senior management. Thirdly, poor co-ordination, communication and co-operation between An organisation can lift some of the various agencies or organisations may burden from individuals, not only by facilitate corruption. Provided the system placing greater emphasis on teams and requirements meet the criteria of simplicity shared decision-making, but also by and effectiveness, the answer is to monitor adopting effective corruption prevention service levels, measure performance practices. The detection of corrupt practices against objective standards and penalise is also a management responsibility, non-compliance through transparent achieved partly by setting up effective mechanisms. supervisory and control systems, and also by managers being alerted to indicators of Prevention, however, involves more than corruption. risk assessment and the introduction of monitoring and supervisory reviews. It
376 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS requires the development of an ethical culture reinforced by a code of conduct to deal with specific issues faced by staff. The code should address a variety of internal and external issues affecting the organisation, including the way it interacts with business associates.
With changing work patterns and increasing globalisation, the principles of individual and organisational integrity and accountability may need to be further reinforced. As governments and business alike strive to achieve their objectives in the most cost effective and efficient manner, business plans will need to take into account suitable corruption prevention strategies.
The Hong Kong experience is that with close co-operation between business, Government and the ICAC, the adoption of a broadly based and integrated preventive approach can realise the objectives of minimising corruption. The message we have given and will continue to send is a simple one. Corruption does not pay and will continue to be driven to the very margins of our society.
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RECENT INNOVATIONS IN TACKLING CORRUPTION IN THE CIVIL SERVICES IN INDIA
R. K. Raghavan*
I. BACKGROUND government funds by federal civil servants, starting with World War II, when large A generally accepted historical fact is military and naval contracts were awarded that, like human deviance, human and there was a need to keep a vigilant eye ingenuity has not known its limits. The on public expenditure. The Delhi Special cruellest crime is also often the most Police Establishment Act, promulgated in bizarre. Deviant behaviour, for their own 1946, lends statutory backing to the CBI, benefit, by those entrusted with the task which acquired its present nomenclature of rendering service to the community, in 1963.1 loosely called ‘corruption’, is a malaise that has afflicted even ancient society, although The birth of the CBI itself was a sequel its dimensions and ramifications have to the report of the Committee on varied with time. The Indian subcontinent Prevention of Corruption (popularly known is no exception. For instance, the classic as the Santhanam Committee after its treatise Arthasashtra by Kautilya in the distinguished Chairman who was a former 4th Century B.C gives a lucid account of Minister and Member of Indian corruption as it prevailed in the Mauryan Parliament) set up in 1962 inter alia with administration. Indian history of the following terms of reference: subsequent times is also replete with graphic accounts of official misconduct. In (i) to suggest measures calculated to this context, we know that just as many produce a social climate both forms of social control have sought to amongst public servants and in the restrain individual proclivity to deviance. general public in which bribery and Civilized and democratic governments corruption may not flourish; and have found it necessary to regulate the conduct of their civil servants in different (ii)to suggest steps for securing public ways, so that there is no dilution of the support for anti-corruption measures. major objective of a free and fair delivery of service to the common citizen. In the first of its two reports submitted in 1963, the Santhanam Committee sought The Central Bureau of Investigation the creation of a Central Vigilance (CBI) of India, a pre-eminent federal Commission headed by a Central Vigilance investigating agency, deals not only with Commissioner (CVC) with considerable anti-corruption matters but major autonomy and status so as to consolidate conventional and economic crime as well. Founded under the name Special Police 1 Establishment (SPE), it was primarily Legal support to anti-corruption work was intended to look into cases of corruption strengthened in 1947 with the enactment of the involving the handling of federal Prevention of Corruption Act, that was replaced by a more Draconian legislation of the same name in * Director, Central Bureau of Investigation, New 1988, which considerably expanded the definition Delhi, India. of ‘public servant’.
378 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS the fragmented anti-corruption work that undertakings concerned, and also conduct was being performed by the various vigilance checks on erring employees. The Ministries of the federal government. In efficacy of CVOs can be argued, but the fact the Committee’s view, the two main tasks remains that internal vigilance has of the CVC were: contributed to a significantly lower rate of corruption than countries which do not (i) prevention of corruption and have this system. ‘Agreed Lists’ of civil maintenance of integrity; and servants who had come to adverse notice are also maintained both by the CBI and (ii)ensuring just and fair exercise of the departments. These serve as a guide administrative powers vested in for career advancement and for placing various authorities by statutory rules them in positions which offer minimum or by non-statutory executive orders. opportunity for indulging in corruption.
The CVC has been performing an In addition, every state - there are 25 in exemplary advisory role since 1963, India - has its own Anti-Crruption Bureau although there is a school of thought that (ACB), manned by police officers and the Commission could have been more headed by the Director-General of Police, effective had it been given legal authority that looks into the conduct and affairs of under a parliamentary statute. Sensitive state government employees. The possibly to this point of view, the Supreme Vigilance Commissioner of each state Court of India, in the celebrated Vineet oversees the ACB’s work and obtains Narain case (1998), issued many directives government sanctions for prosecuting regarding the selection and appointment government officers at various levels before of the CVC and the Director of the CBI. the courts of law. For the first time, the Director of the CBI was to be given a minimum tenure of two II. DIMENSIONS OF THE years in office. The Court also vested the PROBLEM superintendence of the CBI in the CVC. The high level of corruption in public While the two functionaries have been establishments has been a matter of great appointed in accordance with the procedure concern to successive governments. There prescribed by the Court, a bill conferring are indications that the ill is all pervasive, statutory authority on the CVC is pending and afflicts even those who have the in Parliament. authority to take crucial decisions involving large sums of publc money. The CBI is the sword-arm of the federal Transparency International, which ranks government for investigating corruption- countries on the basis of a Corruption related cases. But the fight against Perception Index, in its last report, put corruption is also carried on by a system of India in 68th place. Statistics from Crime Vigilance Officers headed by a Chief in India 1997, an official publication of the Vigilance Officer (CVO) in each National Crime Records Bureau (NCRB) government ministry, as well as functioning under the Ministry of Home government-owned Public Sector Affairs (MHA), are illustrative, though only Undertakings (PSUs). Preventive partially, of the situation (Annexures A and vigilance throughout the country is B). exercised through these CVOs who are expected to scrutinize major contracts entered into by the departments/
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III. MECHANICS OF ANTI- have often proved effective in bringing to CORRUPTION WORK IN INDIA book errant government officials, provided the procedure recognised by the courts is Anti-corruption organizations in India adhered to rigidly. generally adopt two means to combat the evil. Whenever they suspect corruption, IV. SOME RECENT INNOVATIONS or have received a definite report of an instance of corruption in a government A. Elimination of Loopholes in the agency, they initially opt for a Preliminary Anti-graft Law Enquiry (PE) or a Detailed Enquiry (DE), In contrast to the expression ‘civil as it is called in a few states. This is a servant’, we in India use the word ‘public purely administrative action aimed at servant’. In earlier years, this term was unearthing more facts than are available. meant to include only civil servants, but While there is no statutory provision for various court-based interpretations of law this, courts have countenanced this as have brought within its ambit political admissible preparatory work before figures and elected representatives of launching action under the Prevention of Legislatures who are also being prosecuted Corruption Act. Once the PE or DE under the corruption laws in our country. concludes that, prima facie, the facts Indeed, the definition of public servant has collected make out an offence under the been enlarged to such on extent that except Prevention of Corruption Act, a Regular for employees of voluntary agencies, Case (RC) is registered under the Act and anybody who receives a salary from a full-fledged investigation, as set out in government or quasi-government bodies the Criminal Procedure Code (Cr. PC) 1973, and works in the public interest is deemed is launched. Where material unearthed is to be a ‘public servant’ and can be insufficient for an RC, a report is sent to prosecuted for criminal acts of negligence. the head of the government department concerned for such appropriate action, A very significant move against corrupt including proceedings under disciplinary public servants has been the inclusion of a rules which may or may not result in a clause in the Prevention of Corruption Act penalty (such as censure, removal, 1988 which makes it criminally negligent dismissal or reduction in salary or rank), for a civil servant or public servant to cause depending on the evidence adduced in a loss to the government or the state by an domestic enquiry. There are tribunals apparently wrong decision, even though he available to handle these enquiries. or she may not benefit from it directly. Thus, awarding contracts without A direct manner in which brazen acts of following proper procedures, wasteful corruption are tackled is to trap a public schemes and other items of expenditure servant while accepting money or any other and delayed projects could come under the valuable security from a member of the ambit of this clause, and usually it is public. Courts have prescribed certain possible to prove that the civil servant safeguards, such as obtaining a written (public servant) entered into collusive complaint from the aggrieved citizen from conspiracy with non-government officials whom money had been demanded by a to cause loss to the government. The corrupt public servant, before a trap is laid. rationale is that in a developing country This is done with a view to eliminating like India, where public finances are frivolous and motivated complaints that gathered by taxing people who are not very could demoralize the civil services. Traps well-off, it is important to safeguard the
380 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS use and distribution of public funds. altogether to the fight against corruption in high places, and accounts for the large The CVC has also been active in the area number of investigations started lately by of tightening law and procedure with a view the CBI against very highly placed officials. to enhancing the deterrence of anti- corruption measures in the country. Two C. Induction of Specialists significant moves by the Commission are The CBI and State ACBs are now worthy of mention here. One is the request assisted by technical and specialised staff to the government to notify under the who advise them in the course of Benami Transactions Prohibition Act 1988, investigation, particularly in respect of how to confiscate benami property (that is, complex issues of taxation, excise and property held by a person in the name of related matters, as well as banking another in an attempt to conceal his/her procedures. Indeed, in the recent past, the ill-gotten wealth) and also how to empower Reserve Bank of India had set up a the CVC in this connection. Secondly, the Banking Advisory Board to assist the CBI. CVC has forwarded to the Government for This board examines apparent its acceptance a draft legislation called the irregularities committed by bank officials Corrupt Public Servants (Forfeiture of which are brought up for its scrutiny, and Property) Act, prepared by the Law identifies instances of grave criminal Commission of India. These misconduct pointing to malafide, so that recommendations, if accepted by the these are considered by the CBI for Government, are expected to give a new appropriate legal action. The point at issue thrust to the battle against corruption in is that banking decisions cannot be equated the civil services. with routine civil servants’ decisions, and are attended by a degree of commercial risk B. Grant of Autonomy to the CBI which such a board alone can not A traditional criticism of the CBI is that appreciate before offering an opinion on it is toothless in respect of corruption in whether a detailed criminal investigation high places, and that it usually goes after by the CBI is warranted. only the ‘small fish’. There was some substance to this charge till a few years ago, D. Use of Computers because of the so-called single directive The quality of anti-corruption work by issued by the Federal Government, which the CBI and similar agencies in the states required the CBI to secure the clearance has been markedly improved through the of the Government before launching use of computers. Investigators are investigations against senior bureaucrats. encouraged to use computers for There were in fact delays in a few instances maintaining their day-to-day records. As in issuing such a clearance. The Supreme a result, the load of scriptory work has come Court of India, in the already cited Vineet down appreciably, saving precious Narain case, struck down this directive in investigation time. Also, the review of case an obvious effort to streamline anti- pending by supervisory officers has become corruption work and confer greater easier, so that investigators are driven hard autonomy on the country’s most crucial to speed up their work. It should be anti-graft agency. Under the new mentioned here that a major charge, one dispensation, the CBI is free to register that is not without substance, against the regular cases, even against top civil CBI and the ACBs is that their servants, without being bogged down by investigations take enormous time, making red tape. This has given a new dimension their final action pointless.
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Computerisation has contributed at least complaint of corruption to the attention of a little to taking care of this charge, the appropriate department of the although a lot more speed is still definitely Government, or by the CBI itself through called for. a preliminary enquiry, or by registration of a Regular Case (RC). This function of One positive step is the CBI decision to the CVC enlarges the network of create a website for itself. It offers a wide information available to the CBI and spectrum of information on several aspects thereby helps to broaden its operations. of the agency’s work, making it more Moreover, it lends certain credibility and transparent and people-friendly. There quality to information that requires CBI have already been more than 15000 visitors verification, because the CVC officer to the site in the year during which it has applies their mind to such information been operational. The latest decision to before passing it on to the CBI. incorporate a ‘Contact Us’ module in the website offers hope that the public will be One more feature of the CVC that encouraged to pass on information on sharpens anti-corruption work is the corruption in the civil service without fear discussions that the Commission holds of harassment or their identity being with CBI investigators on select cases exposed. referred to it by the government for advice. On such occasions, the CBI officials will E. The Role of the Central Vigilance have to justify their conclusions in an Commission investigation, or else the recommendation The Central Vigilance Commission (either for prosecution of a civil servant in (CVC) in its reconstituted version is a court, their arraignment before a multi-member body. At present, apart from departmental enquiry authority or for its chairman (Central Vigilance closure of a case for want of sufficient Commissioner), there is one more member, evidence) could be overturned by the CVC who is a retired senior police officer. There while forwarding its own recommendation is provision for a few more members to to the government. This procedure assures bring in the required wide-spectrum that a CBI investigator will have to be expertise. A bill outlining its composition objective and thorough in their and powers is pending before the Select investigation, and that only quality cases Committee of Parliament. As per the are pursued for action. In my view, this Supreme Court directive and the earlier enhances both CBI performance and ordinance (since expired) issued to give accountability. effect to the court directive, the CVC was to exercise powers of superintendence over F. Transparency in Anti-Corruption the CBI. This provision was intended to Work give needed insularity to the CBI from The CVC has its own website that packs extraneous pressures in its investigative a lot of information on the crusade against work. At the same time, this mechanism corruption. The site has recently posted was expected to act as a check on possible the names of senior civil servants who have abuse of authority by CBI functionaries. come to the adverse notice of the This new experiment has a lot to commend Commission. This action has generated an for itself. animated public debate and has received wide media attention. The CVC has also In specific terms, the CVC is yet another directed all federal government offices to forum for the common person to bring their display prominently a board to the effect:
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“DO NOT PAY A BRIBE. IF ANYBODY Several experiments in the past have ASKS FOR A BRIBE, COMPLAIN TO proved only modestly effective. As a result, THE CVO/CVC”. This is a novel in the language of the CVC, corruption has experiment that aims at exerting become “a high profit, low risk” enterprise considerable psychological pressure both in the country. More than anything, there on the bribe-taker and the bribe-giver. It appears to be a need to tackle the mindset further seeks to empower the public that has, over the years, afflicted the through transparency. administrative culture and placed a premium on sloth and lack of objectivity. G. Mobilising Public Opinion It is widely believed that new measures, The CVC’s focus on building public such as according statutory status to the opinion in favour of rooting out corruption CVC through suitable legislation; greater in the services is gratifying. Through autonomy to the CBI, including a minimum lectures to a cross-section of the public, the tenure for its Director, and mobilising CVC has been spreading the message that NGOs and the youth in building popular without the community’s active opinion against administrative corruption, cooperation, no anti-corruption campaign could pay rich dividends in course of time. can succeed. An attempt has been made to There is the hope that there will be involve the youth and the Non- increased judicial support of these new Governmental Organizations (NGOs) in strategies. the country in this endeavour. An appeal has been made to draw on the support of REFERENCES bodies such as the Confederation of Indian 1. Government of India (1963), Report of Industry (CII), Federation of Indian the Committee on the Prevention of Chamber of Commerce and Industry Corruption. (FICCI) etc, which represent the private 2. National Crime Records Bureau (1999), sector, the quality of whose interaction with Crime in India 1997. the civil service at all levels is crucial to 3. The Prevention of Corruption Acts 1947 tackling corruption in government. and 1988. 4. The Criminal Procedure Code 1973. V. THE FUTURE 5. Vittal, N. (1999), ‘Corruption as the The future of anti-corruption work in AIDS of the Society’ in Economic Times, India is directly linked to the role of New Delhi, dated May 24. government in the lives of people. If this 6. Vittal, N. (1999), ‘The Corruption shrinks, as it is expected to in India, the Perception Index’, Economic Times, scope for corruption by public servants New Delhi, dated November 18. should correspondingly minimize, although 7. Vittal, N. (1999), ‘The Supply Side of new forms of deviance could emerge. In Corruption’, Economic Times, New the context of the government’s focus on Delhi, December. privatisation and globalisation, there is a definite prospect of the average civil servant having much less say in economic decision making. This could greatly affect the quantum of corruption. Nevertheless, for the present, this is a knotty problem that requires dexterous handling by those heading the administration in India.
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ANNEXURE A
STATEMENT OF COGNIZABLE CRIMES REGISTERED, AND THEIR DISPOSAL BY ANTI-CORRUPTION AND VIGILANCE DEPARTMENTS OF STATES AND UTS UNDER THE PREVENTION OF CORRUPTION ACT AND RELATED SECTIONS OF THE INDIAN PENAL CODE DURING 1997
Pending investigation from previous year 1 3972 Cases registered during the year 2 2788 Total cases for investigation 3 6722 Cases investigated 4 5486 Cases not investigated or investigation dropped 5 335 Cases transferred to local police 6 23 Cases declared false etc during the year 7 95 Cases charge sheeted 8 1586 Cases pending dept. sanction for prosecution 9 1000 Cases sent for trial and also reported for dept. action 10 657 Cases reported for regular dept. action 11 124 Cases reported for suitable action 12 31 Cases in which charge sheet was not laid 13 400 but final report submitted Cases pending investigation at end of year 14 4573 Cases resulted in recovery or seizure 15 257178 Value of property recovered/seized (in Rs.’000) 16 149369 Percentage of cases charge sheeted to 17 28.9% total cases investigated Cases pending trial from the previous year 18 8019 Cases sent for trial during the year 19 1766 Total cases for trial 20 9371 Cases withdrawn/discharged or otherwise disposed of 21 60 Trials completed during the year 22 875 Cases convicted 23 296 Cases acquitted or discharged 24 603 Pending trial at the end of year 25 8569 Percentage of cases convicted to trials completed 26 33.8% Total amount of fine imposed during 27 5751 the year (in Rs.’000) (Source: Crime in India 1997, National Crime Records Bureau, New Delhi).
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ANNEXURE B
STATEMENT OF PERSONS ARRESTED IN COGNIZABLE CRIME CASES UNDER THE PREVENTION OF CORRUPTION ACT AND RELATED SECTIONS OF THE INDIAN PENAL CODE IN STATES & UTS DURING 1997
Persons in custody/bail during investigation 1 3798 at beginning of year Persons arrested during the year 2 3603 Persons released by police/court before trial 3 226 Persons in custody/bail during investigation 4 3853 at end of year Persons in whose cases charge sheets were laid 5 27732 Persons under trial at beginning of year 6 12825 Total persons under trial 7 1416 No. of cases withdrawn or otherwise disposed of 8 588 Persons in custody/bail during trial at end of year 9 12573 Persons in whose cases trial was completed 10 1047 Persons convicted 11 355 Persons acquitted 12 733 Percentage of persons convicted to trials completed 13 33.9% Persons reported for regualar dept. action 14 212 Persons reported for suitable action 15 163 Persons punished departmentally • Dismissed from service 16 9 • Removed from service 17 3 • Awarded other major punishment 18 53 • Awarded minor punishment 19 64 Gazetted or equal status officers involved in public undertakings • Group A officers 20 185 • Group B officers 21 266 Non-gazetted or equal status officers involved 22 2568 in government or public undertaking Private persons involved 23 493 (Source: Crime in India 1997, National Crime Records Bureau, New Delhi).
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STRENGTHENING INTEGRITY: THE IMPORTANCE OF TRANSPARENCY AND ACCOUNTABILITY IN ECONOMIC SUSTAINABILITY
Tunku Abdul Aziz*
I have chosen to discuss strengthening so. On the other hand, Singapore, once a national integrity system because described by Habibie as “ a little red dot on integrity has an important bearing on our the map” was perceived to be among the social, political and economic wellbeing. least corrupt in the world. It has survived Each year, my organisation, Transparency this crisis relatively unscathed. I leave you International (TI), publishes its Corruption to draw your own conclusions about these Perceptions Index.1 The index is based on different countries and the relevance of the the perceptions of the international TI Corruption Perceptions Index. business community about the levels of corruption in the countries in which they While we may not always like the way operate. For a country to be included in we are perceived, particularly by the the TI Corruption Perceptions Index in any international business community, we have given year, that country must have been to agree that although their perceptions the subject of at least 3 or more separate may indeed have no basis in fact, they are, surveys. Eighty-five countries were nevertheless, real. Their effects on our included in the 1998 TI-CPI. How did the regional economies have been devastating, South East Asian group of countries fare? to say the least. How have these negative Singapore was placed at number 7, perceptions come about? Have we not, in Malaysia at number 29, South Korea at 43, this region, been mismanaging our the Philippines at 55, Thailand at 61, and economic and financial affairs, and totally Indonesia at 80. The bigger the number, ignoring best practices? What our foreign the more corrupt a country is perceived to investors and partners have seen of the be. quality of corporate governance in our part of the world has given them neither the Many detractors are quick to dismiss the level of comfort nor the degree of confidence index as being of no real significance. It is they require for the protection of their interesting to note, however, that the investments in the long term. countries which are facing the greatest economic turmoil today are those perceived For a start, the countries in this region, by the international business community almost without exception, consign to be among the most corrupt. Indonesia, transparency to the back seat. The lack of South Korea and Thailand are on IMF life transparency in the disposal of public support systems, while the Philippines has assets through privatisation is causing been kept afloat by the IMF and the World concern and disquiet. Equally worrying Bank, on and off, for the last 35 years or has been the practice in many countries of awarding mega-infrastructure and other * Vice-Chairman of the Board of Directors, contracts on the basis of closed door Transparency International, Malaysia. negotiations, rather than the fairer, and 1 For the Corruption Perceptions Index, please see more democratic, open bidding. What our website
386 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS blanket use of the Official Secrets Act? All affairs that is apparently the cause of the this, in a country such as my own that is jitters in the market place. If this is true, promoting information technology through and I believe it is, then quite obviously the the Multi-Media Super Corridor as an common sense thing to do is to reverse, at article of faith!. once, negative foreign investors, and for that that matter, domestic investors It is this cavalier attitude to best perceptions about our national integrity. practices in both the privatisation and How do we go about restoring confidence? public procurement procedures that has Can we step aside and leave governments given rise to the expression “crony to put matters right? The answer, I am capitalism.” Long before Thatcherism and afraid, quite simply is, no!. This is because, privatisation ever became fashionable, even with the best intentions in the world, another Tory leader, Edward Heath, most governments, including that of my described the sort of behaviour we now country, find themselves falling short of the speak of as the “unacceptable face of level of political will required to finish the capitalism.” Both these expressions share job properly. And without the support of a common characteristic - transparency all sections of society, working as coalition and accountability - the two important partners to address the issue of confidence pillars of good governance, do not form any building as part of a long-term strategy to part of the policy equations of many of the develop and strengthen our national governments of Asian countries. Therein, integrity systems, the task is an impossible I believe, lies the root of so many of our one. The empowerment of civil society and current economic and financial problems. other components of our population, so that they can all play their part in rebuilding Now, let me say straightaway, that our shattered national credibility, is crucial corruption is not an exclusively Asian to the success of this effort. contribution to civilisation. The developed nations of the world, including Japan, are You and I, ordinary men and women, the themselves replete with scandals, great corporate sector, and civil society need to and small, that will make your hair stand. be directly involved in this damage control Worse still, until the recent adoption of the operation because national integrity is too OECD Convention prohibiting the bribery precious a part of our democratic values to of foreign officials, countries such as be left to the tender mercies of politicians. Germany gave tax breaks to those of their Society as a whole must be an active companies that had resorted to bribery in “custodian” if good governance is to become order to win overseas contracts. The a reality in our countries. Without demand side of corruption is fairly well accountability to society, and transparency documented; TI is now focusing on the in government, as well as in the private supply side. Corruption, as my Minister sector, and without integrity in national for International Trade and Industry once life, sustainable human development (of said, was like the tango, because you need the level and quality to which we aspire) two people to dance it. I agree with her, has little hope of finding its true expression. but I have to say in all fairness, unlike the Sadly, in our Asian political tradition of tango, there is nothing elegant about “Father Knows Best”, these apparently corruption. heretical thoughts will probably not sit too well with some people in power in your It is lack of confidence in the way some country, or for that matter, mine. I am not of us continue to manage our economic here to dispute the mandate and legitimacy
387 RESOURCE MATERIAL SERIES No. 56 of elected governments, but... economy and an effective anti-corruption campaign can hardly be sustained against Unfortunately, experience elsewhere has the opposition of the corporate community.” shown all too often that even enlightened governments tend to forget that the Let no one underestimate the power for legitimacy they enjoy is derived from an good that the private sector can wield, if it unspoken social contract with the people. so chooses. It is, therefore, encouraging to In return for the right to govern, a see that the private sector in many of our government agrees to honour and defend countries is beginning to be concerned the constitution. By reason of this contract, about the colossal damage done to our an elected government must be prepared national economies and prestige by to subject its official behaviour, for corruption, a word defined by Transparency example, to public scrutiny and to be held International as the “abuse of entrusted totally accountable for its actions to its power for private profit.” This definition constituents. By implication, the mandate includes also corrupt practices within the given must be applied to achieving one private sector community itself. It is object only - to put, as James Wolfensohn, entirely proper that the desire to reform the President of the World Bank says, “the and bring about transparency and interests of the many over those of the few”. accountability in the way we do business It is under a moral obligation, in carrying has come, in this case, from within the out its functions, to adopt universally corporate community. recognised and accepted “best practices”, consistent with the economic, social and The wide-ranging institutional reforms moral needs of an ethical and caring being undertaken, for example, by the society. In other words, good governance Securities Commission and the banking is a price that a responsible government is sector in my country, and no doubt other be expected to pay, and pay willingly, for Asian economies as well, encompassing all the sacred privilege and trust it enjoys. It of the important areas requiring reform, goes without saying that the principle of such as the desirability of developing a trusteeship is central to the whole concept corporate disclosure policy, the importance of stewardship, both in the governance of of adopting much greater transparency in a nation, as well as (in the case of the corporate financial reporting, the need for private sector) the management of public better banking practice and regulation, and companies. the need to ensure that there is a clear understanding of what international I turn now to the role of the private institutional investors expect and want sector, specifically, in promoting corporate from the companies in which they invest, transparency. In his paper ‘Civil Society are obviously all steps in the right in the Fight Against Corruption’, presented direction. These are only some of the at the 8th International Anti-Corruption examples of the hard-nosed, practical Conference in September, 1997 in Peru, Dr. approach that the corporate sector is Peter Eigen, Chairman of Transparency apparently capable of bringing to bear, as International, after arguing that it is part of its own reform initiatives, on the governments that have a formal economic and financial problems afflicting responsibility to reform national and our countries today. international integrity systems, goes on to say; “The private sector has a unique input One question is should we not, perhaps, to make. It is the dominant engine of the have bolted the financial stable doors
388 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS before the international investors had time must, therefore, strengthen our systems to make a dash for greener pastures? It is, and institutions. of course, pure conjecture, but if we had taken the trouble to recognise their This coming to terms with reality will, I concerns about the way we managed our am sure, help strengthen our resolve and businesses, might we have helped to stem determination to address, in a business- the tide? Perhaps, but the important thing like fashion, the many issues and apparent is that the various individual, as well as distortions and contradictions in our the collective initiatives on sustainable economic management that have brought corporate governance, appear to confirm a about all those negative perceptions in the long-held suspicion that we ourselves were first place. The challenge before us is real, not entirely happy with things as they and so is the world we inhabit. That were, and that we wanted to change our challenge (which will, without doubt, test business culture in a way that foreign, as the true measure of our wisdom and well as local, investors might reasonably maturity) must be taken up if Asia is not expect that the field on which they would to be remembered merely as a footnote be invited to play the “money game” would when the economic and social history of this not only be level, but also guaranteed to be century comes to be written. free of hidden traps; and that the goal posts would not be shifted while the game was It is well to remember that the in progress. Investors value predictability globalisation of our economies means only and detest uncertainty. one thing; the rules are no longer ours to lay down and manipulate according to our The current crisis is, in many ways, a mood. We either play by the new global blessing in disguise. This period of rules, which demand of us much greater economic downturn has given us, the transparency and accountability than we government and the private sector alike, were used to in the past, or remain, at best, an excellent opportunity to look inwards. mere spectators on the sidelines. There is This should be a time for introspection, a no halfway house. We are either in or out time to search our collective soul, a time to of the global economic game. As there is ask all the right, but difficult questions, to really no viable alternative, it makes challenge operating systems, policies and enormous sense to put our house in order, procedures hitherto accepted without a get our act together, and conform to globally murmur, irrespective of their merit or recognised best practices. virtue. It is also now the time to ferret out the real, and not just the politically We have in the last year or so been convenient, reasons for our current continually reminded by leaders that “Our economic condition and, dare I say, stop economic fundamentals are strong”. blaming the likes of Mr. Soros, as my Prime Accepting that they are indeed as strong Minister so often does, because, for the as the authorities say, the question worth most part, the problems are of our own repeating is: why was it that we were so making and he is only doing what he does savagely and mercilessly attacked, leaving best - finding chinks in our financial and us in such a frightful economic and economic armour and cutting us down financial mess? The truth of the matter is ruthlessly and efficiently. That is the name that investors had lost confidence in our of the game. I believe that while external systems and institutions and decided to influences are important, they are only as pull out. They had seen too many instances strong as our internal weaknesses. We of intimate relationships between the
389 RESOURCE MATERIAL SERIES No. 56 government and certain select groups system. Our fundamentals within the private sector. In the case of notwithstanding, they perceived (again my own country, this pattern of economic rightly or wrongly) similar unhealthy behaviour goes under the rather grand trends in all of the countries of East Asia. name of Malaysia Inc., which, in the minds Some of the countries of ASEAN were home of many people, rightly or wrongly, is to some of the world’s greatest proponents nothing more than a convenient formula of Asian values. Sadly today, these values for unfettered cronyism and abuse of public are seen in reality as part of a morally power for private gain. indefensible and decadent heritage, one grounded in complete and utter disdain for All of these might have been perfectly transparency and accountability in the harmless and innocent, but for the fact that management of those matters that have so many deals have been struck under “public interest” implications. circumstances perceived to be less than innocent. In the absence of transparency, In retrospect, Asian values were used to and given the scarcity of authoritative, justify excesses in both human and accurate and timely information, is it any economic terms. They became part of a wonder that the good, old-fashioned political culture that demanded complete grapevine or the equally old-fashioned acquiescence and conformity, regardless of bush telegraph is winning the battle for the damage to the human spirit and information hands down? enterprise. Happily, both Dr. Mahathir and Mr. Lee Kuan Yew are now silent on the In many countries around the world, the much-touted virtues of the Asian values demand for the “democratisation” of that, according to them, had much to do information has assumed battle cry with the Asian economic miracle. So much proportions. The information age has for self-deception. arrived, and societies that are unwilling to accept this new reality, as part of the global Recognising as we do the important role business equation, are inflicting serious of the private sector in national economic economic injury upon themselves. The development, it is entirely proper that we floodgates of global information are should, as part of our quest for corporate opening, and no power can reverse the transparency, consider seriously the urgent process. need to develop a national code of business ethics to regulate our business We Malaysians were upset that foreign transactions, both within our own country investors failed to recognise our special and with the outside world. Such a code of financial economic position. With our eight ethics has to have a clear set of objectives, percent annual growth rate for nearly two and must, among other things, include decades, foreign investors had the cheek measures to combat extortion and bribery to lump us together, somewhat in business transactions. After all, the unceremoniously, with the likes of whole purpose of transparency is to reduce Thailand, Indonesia and the Philippines. opportunities for corrupt practice in society We wondered aloud about those ill as a whole. The ICC (International informed, somewhat naive investors/ Chamber of Commerce), the Paris-based speculators (the words were used world business organisation, issued an interchangeably) who did not see the important and far reaching policy paper, inherently strong fundamentals Document No.193/15 in 1996, setting out underpinning our political and economic actions that needed to be taken by
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“international organisations, governments economy. He said that in the case of his and by enterprises, nationally and own country, the integration into the world internationally, to meet the challenging role economy was far from smooth. For of greater transparency in international example, while the Thais adopted readily trade.” All of us have a major contribution enough Western-style capitalism, this had to make to the process of building and created an internal contradiction because strengthening confidence in the totality of they continued to retain their traditional our national integrity systems. system of patronage networks, a system built on personal connections to allocate In February last year I visited Thailand values and resources. While maintaining on a special Transparency International that personal connections could be mission to assess the impact of corruption innocent, he warned that when they on the state of the economy. It was became a factor in public affairs, they could refreshing to hear the views of a large cross- be deadly, because patronage was not based section of business, professional, academic on merit and tended to breed inefficiency and media leaders who, without exception, and corruption. all agreed that the absence of an integrity system both in government and the private Khun Anand recognised that good sector had contributed enormously to their governance would not bring about some current problems. Refreshing because of idyllic utopia. In fact, it could be rather the candor with which they discussed and messy-the chattering masses could be analysed the role of corruption in bringing difficult to satisfy-but he thought this was about the collapse of their economic base. preferable to the government taking public More important was a willingness, on the policy decisions in secret or by a small part of the Thais, to find a solution and take group of ministers or officials, which in the the bitter pill, if that was required, in order end would compromise and harm the public to put the country back on its feet. I am interest. He went on to say: “To avoid such pleased to note that international occurrences, the decision process must be perceptions about Thailand are improving transparent and open to scrutiny. The each day. Thailand, a proud country, is not people must be given free access to all too proud to admit where it had gone information pertaining to public policies wrong. and projects”. Khun Anand, as you might have gathered, does not subscribe to the In Bangkok I was privileged to be invited “Father Knows Best” culture. He obviously to attend the first annual lecture organised believes in the“People Know Best” by the Asia-Europe Foundation and principle. delivered by Khun Anand Panyarachun on ‘Good Economic Management and It is only through full disclosure of all Governance’. Asia’s best known democrat relevant information that the public could and a man of the highest personal integrity, reasonably be expected make informed Khun Anand, two-time Prime Minister of judgements and decisions about the Thailand who gave his country what is matters that affect their lives. Access to regarded as the best an anti-corruption information would translate into greater national constitution anywhere in the freedom of information across the national world, observed that it had to take a spectrum. I see in freedom of information financial crash to drive home the point that a real victory for transparency and many of the Thai institutions were ill- accountability, because where timely and equipped to operate effectively in the global accurate information is readily accessible,
391 RESOURCE MATERIAL SERIES No. 56 corruption is deprived of oxygen. Information that is freely available is corruption’s worst enemy. Freedom of information will enable the people to judge whether the leaders they have elected are looking after “the interests of the many over those of the few” to borrow, once again, the words of James Wolfensohn.
In conclusion, let me just say this: the fight for good governance is not an easy one. It would be naive in the extreme to suggest otherwise. It has become a major global concern because, as Nobel Peace Laureate, Oscar Arias Sanchez of Costa Rica, reminds us, “Powerful financial organisations have globalised corruption as an accepted tool of business; the fight against corruption must be globalised as well. If people do not act to preserve their democracy, if they lack civic virtue and the commitment of their government, then democracy will fall prey to the vulture of corruption.” Let us therefore ensure that our institutions and systems are strengthened. We must guard their integrity jealously. Corruption takes over when we allow our national institutions and democratic systems to be subverted by unprincipled politicians determined to abuse “entrusted power for private profit”.
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INTERNATIONAL CASE STUDY : STAMPING OUT CORRUPTION IN MALAYSIA
Tunku Abdul Aziz*
I. PUTTING CORRUPTION IN A the efforts made to curb it. HISTORICAL CONTEXT When Malaya became independent in In 1957 when Malaya1 became 1957, it inherited a form of government independent, corruption was hardly an based on the Westminster model which, issue. Both British and Malayan officers with a few local adaptations, remains very maintained the highest standards of much in place. Of equal significance, it also integrity and the proud traditions of the inherited an economy based on British Malayan Civil Service and were, on the colonial mercantile interests, centred whole, incorruptible. They lived well almost exclusively on the export of rubber within their means. Ten years on, in 1967, and tin. Palm oil came a little later. the Government, sensing a gradual shift Malaya boasted the most efficient of attitude towards corrupt practices, an plantation economy in the world, so attitude that could be fairly described as efficient, in fact, that in the immediate ambivalent, felt constrained to create a post-war years, Malayan foreign exchange special bureau to combat corruption, the earnings enabled Britain to repay much of forerunner of today’s Anti-Corruption its American war debt. It was not for Agency. As you can see, the ACA has a nothing that Malaya was known as longer history than, for example, the ICAC Britain’s Dollar Arsenal. Economic of Hong Kong, arguably the most successful prosperity, by the standards of Asia, is corruption-busting organisation in the nothing new to Malaya or Malaysia, as it world today. It all goes to show that age is became later on. But it was a different kind not always everything in fighting of prosperity, an agriculture-based corruption. Political will is! economy, offering nothing like the opportunities on which corruption was able In my experience, it is impossible for us to thrive in the 1970s. to even begin to understand the impact of corruption on a country without our being As a result of the race riots in Kuala acquainted, however superficially, with Lumpur in 1969 between the Malays and that country’s social, economic and political the Chinese, the Government, recognising background. I make no apology, therefore, that economic disparity between the two for delving a little into Malaysia’s recent major races was at the heart of the tension, history, so that we may have a clearer idea decided that unless the politically of the causes of corruption in Malaysia and dominant, but economically deprived, * Vice-Chairman of the Board of Directors, Malays were brought into the mainstream Transparency International, Malaysia. of the nation’s modern economic life, 1 Malaya became Malaysia in 1963 following the prospects for lasting peace and economic merging of British North Borneo, Sarawak and prosperity would be greatly reduced. The Singapore with the Federation of Malaya. prescribed solution came in the form of Singapore was given independence by Malaysia in massive social and economic engineering, 1965. going under the somewhat grand name of
393 RESOURCE MATERIAL SERIES No. 56 the New Economic Policy or the NEP, for the closing years of the 1970s, corruption short. had become a factor of quite considerable significance in the national business A. Opportunities for Corruption equation. Unlimited The NEP was to be implemented over a Corruption and abuse of power had 30 year period. It ran into controversy from reached such unprecedented heights that day one, and was seen by Western liberals the normally staid The New Straits Times, as unwarranted discrimination against a Malaysia’s oldest English language section of the Malaysian population. Its newspaper, was moved to run an editorial motive, though, was wholly transparent; on the subject; it did not pretend to be anything other than positive discrimination, in the interest of “There was a time when a Malaysian national unity. could indulge in a little smile of condescension when stories about The Malaysian Government’s diagnosis corruption in developing countries - was spot on, and the prescribed remedy, other countries, of course-were painful and unpopular though it was, detailed. That pride was entirely produced the desired results. justified: virtually every aspect of Economically, the country took off, and with public administration was clean, it came political stability which Malaysia abuse of power was unheard of, continues to enjoy to this day. In less than departmental morale was high, 30 years, an agricultural economy was public confidence vibrant. Perhaps totally transformed, and, apart from a there was a tendency to take this state hiccup here and there, the country has not of affairs for granted. For whatever looked back. The lesson that Malaysia reason, the present conditions have recognised, and learnt quickly, was that in called forth a litany of exhortation a multi-racial and multi-cultural society, from the various rulers, the Prime extreme economic disparities along racial Minister, his deputy, and a number lines, if neglected, could and would quickly of ministers and departmental create political and social instability, to the heads.” detriment of the democratic values we profess to uphold and cherish. Malaysia had taken the first eager step on the slippery slope of national While the NEP has generally been degradation. successful in meeting nearly all of its main social and economic objectives, the creation II. GOVERNMENT ANTI- of dozens of public enterprises to CORRUPTION MEASURES implement hundreds of socio-economic A. The Early Years measures (enjoying wide discretionary As mentioned earlier, the Anti- powers) produced some not totally Corruption Agency was set up in 1967. Its unexpected results. As with most main function was to combat corruption, government-inspired initiatives anywhere previously handled by the police. It was in the world, more often than not operating thought that with the growing without the benefit of effective central sophistication of the economy, specialists coordination, they soon create enormous were required to deal with white-collar problems of their own; the most pervasive crimes, including corruption. In the initial was corruption, both grand and petty. In
394 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS years, the ACA, with full government vital information.” backing, notched several notable successes, including the prosecution and conviction of I have quoted Harun Hashim at some several political leaders and senior civil length because there are important lessons servants. to be learnt from his pioneering work. The most important lesson is that combating Harun Hashim, the first Director of the corruption requires public support and ACA, and arguably the most effective in a cultivating public confidence in the system long line of dedicated officers, recalled is crucially important. This involves, recently that his first duty was to know the among other things, guaranteeing an extent of corruption in the country - what, informer that their anonymity will not be where and who. Let him tell us what he compromised, and they will not be did in his own words; victimised. Every scrap of information is important, nothing should be consigned to “Initially, pleas for information on the waste paper basket without checking corruption from the public, with the out and verifying the information given. As assurance that their identities would the saying goes, “nothing succeeds like be kept a secret, did not meet with success”, and nothing is more encouraging much response. The people were to the public than a few successful afraid of being victimised by the very prosecutions. The ACA, under Harun people they had bribed. Bribery is a Hashim, was perceived to be free to act. secret transaction between two The fact that he also had the power of a individuals and if the secret is not deputy public prosecutor was not lost on kept, it must have been revealed by the corrupt. the giver. Victimisation is a natural consequence. But I had to know. So I B. Methods of Stamping Out established P.O Box 6000. The public Corruption in Malaysia were invited to write to me on In the 1970s, when the NEP was anything they knew about corruption installed, the Government intervened in government, or by any of its actively in economic activities, setting up servants, without having to disclose large numbers of agencies to regulate and their identity if they did not want to. control every aspect of commercial and Postage was free. The response was industrial life. Licensing, in particular, was tremendous. Sometimes I received the key instrument used to enforce the new about 200 letters in a single day from requirements of the NEP. It is said that all over the country. I read them all. the British invented the red tape and the I was then able to implement a plan Indians subsequently improved it by tying of action of instituting measures to it up in knots. The Malays, ever prevent corruption (the primary resourceful, turned it into a profitable objective of the Agency) and where personal revenue service. there was sufficient evidence, to sanction criminal prosecutions. The Without naming names, the public would not have kept writing to departments of government that exploited the Agency if they did not see any the opportunities presented to them by the result. Indeed the Agency could not need to obtain various approvals before a have functioned without the manufacturing license was granted, were assistance rendered by the thousands those with powers to grant or withhold of anonymous letter writers who gave specific approvals. The approval process
395 RESOURCE MATERIAL SERIES No. 56 was complicated and extremely time public servants (a recent Hong Kong based consuming. Several departments were survey put Malaysia just behind Hong involved and many businessmen were Kong and Singapore in a public service forced by circumstances to oil the wheels efficiency poll. The comparison of two tiny of bureaucracy. I speak from personal city states with vastly different problems, experience as a former businessman of the is not, in my view, strictly valid. Malaysia procedures involved, though not, is placed ahead of Japan, Taiwan and mercifully, of having to bribe anyone. South Korea in terms of efficiency). Foreign investments soon dried up, and the Government, recognising the need to In 1993, the Public Officers (Conduct reduce opportunities for corrupt practices, and Discipline) Regulations came into streamlined the procedures and introduced force. Disciplinary Board Regulations were what came to be known as a one stop introduced. In December 1994, the Judges’ approving authority. The new system Code of Ethics was put in place, followed worked like magic; foreign, as well as local in 1995 by the adoption of Ethics in the investments, poured in and, the rest, as Administration of the Institution of His they say, is history. Majesty the King. The recently retired head of the Anti-Corruption Agency, Dato’ In time, various administrative reforms Shafee Bin Yahaya, believes that “all these were put in place to improve civil service measures have made the Malaysian Civil discipline. Among the more visible ones: Service more efficient and less prone to corruption. This has definitely contributed (i) Clocking-in and clocking-out, towards Malaysia’s high rate of growth in involving every member of the civil the last eight to nine years.” service, the police, the armed forces and members of the cabinet, III. FURTHER MEASURES including the Prime Minister. Even AGAINST ABUSE OF AUTHORITY & judges are not exempt. FINANCIAL MISMANAGEMENT As early as 1988, the government (ii) The wearing of name tags by civil recognised the need for a high-level servants so that they can be national body to address weaknesses in identified. public service financial administration. For this purpose, a Special Cabinet (iii) The introduction and improvement Committee on Government Management of the desk file and office procedures was set up under the chairmanship of the manuals. Minister of Finance. Matters highlighted by the Auditor-General, the Anti- These measures were intended to Corruption Agency and the Treasury, are improve time management, accountability given serious attention, and remedial and facilitate work and decision-making action taken. Compliance by heads of processes. Subsequently, other departments is crucial to the success of the innovations, including quality control Committee’s work. Creative switching circles, total quality management, clients’ from one expenditure head to another goes charter, and more recently, the ISO 9000 on all the time, and eternal vigilance is the were introduced. While the emphasis has name of the game as far as the Committee been on making the civil service more is concerned. efficient, attention has also been given to improving the conduct and discipline of
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In Malaysia, members of the public who General, ACA, August 1997. are aggrieved by bureaucratic misconduct may take their complaints to the Public IV. INTEGRITY - A NEW FOCUS Complaints Bureau or PCB. The PCB A. New Legal Framework & Greater comprises of the Director-General of the Resources Public Services Department, the Director- In April 1997, the Government took General of the Anti-Corruption Agency, the another important step to develop and Senior Secretary-General of the Prime strengthen its own integrity system by Minister’s Department and the Director- setting up a high-powered Cabinet General of the Malaysian Administrative Committee on Integrity in Government Modernisation and Management Planning Management. It is significant that the Unit. The PCB is responsible to the Chief Government has chosen to embrace Secretary of the Government, the country’s integrity, a word first used widely in the top civil servant. To date, more than 70% context of good governance when TI started of the complaints received have been to be active in Malaysia with a series of successfully resolved. integrity seminars, as part of its anti- corruption public awareness programme. A. Conflicts of Interest in the Public Coalition building is TI’s strong point; Service working with individuals, civil society and The Federal Constitution prohibits a organisations, both government as well as member of the Executive Council from the private sector, fighting the same battle. engaging or taking part in any decision of In Malaysia, we have been able to develop the Executive Council respecting any trade, an active, and effective, professional business or profession which may have a relationship with the Anti-Corruption bearing on their pecuniary interests. Agency. Members of the Administration and Public Officers who abuse their position in order To give practical effect to public concerns to obtain financial or other advantages will about the damage caused by corruption to be subject to criminal proceedings, as national life and prestige, the Government provided under the Emergency (Essential passed the Prevention of Corruption Act Powers) Ordinance No. 22/70. The 1997, the most important weapon in the Ordinance has been enacted “to widen the Government’s legal arsenal with which to campaign against bribery and corruption, deal with the new, more sophisticated and now makes a penal offence any practice forms of corruption the country was facing. that comes within the definition of corrupt For the first time, the ACA was given wider practice in the Ordinance, which previously investigative powers. Other features new would have escaped the net of the Penal to the corruption-busting scene are: Code”, Mr. Justice Chang Min Tat in a Federal Court ruling. In practice, the (i) Minimum of 14 days mandatory Ordinance has proved to be an important imprisonment and a ten thousand instrument in preventing corrupt practices ringgit fine or 5 times the amount or among members of the Administration, value of the bribe received, whichever Members of Parliament, both State and is the higher. Federal, as well as public officers. “Over the years, the Anti-Corruption Agency has (ii) Requiring a suspect to explain how been fairly successful in taking action s/he has acquired their assets to the against the corrupt practices of public satisfaction of the Public Prosecutor. officers and politicians....”, Director
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If s/he fails to do so, s/he will be more inclined... to come forward to give presumed to have acquired their information on corruption and other wealth by corrupt means. The court malpractices when their identities are may order forfeiture of the assets in concealed and protected.” such circumstances. The relevant provision in the Act states: As part of its ongoing “cleaning up” process, the government has established, “Except as hereinafter provided, no in departments and agencies in a position complaint as to an offence under this to engage in corruption, a departmental Act or any prescribed offence shall be Committee on Integrity, Quality and admitted in evidence in any civil or Productivity. Quite apart from improving criminal proceeding whatsoever, and efficiency and transparency, the inculcation no witness shall be obliged or of “high moral values and good work ethics” permitted to disclose the name or is an important element in preventing address of any informer, or state any corruption in the public service. The ACA matter which might lead to his has been revamped. Its functions have discovery.” been expanded, and it is now required to: I have taken you through a maze of (i) Examine the practices, systems and methods, measures and legislation which procedures of public bodies in order have been put in place to minimise to facilitate the detection and opportunities for corruption in my country. discovery of corrupt practices and to You may well ask, at this juncture, how secure such further improvements as effective the various measures have been to make it difficult for corruption to in stamping out corruption in Malaysia? rear its ugly head. V. CONCLUDING REMARKS (ii) Instruct, advise and assist any The measures I have described, person, upon request, on ways in unfortunately, have not succeeded in which corruption can be prevented. stamping out corruption. No anti- corruption measures known to man, and (iii)E ducate the public against no country in the world, can claim to have corruption. succeeded in stamping out corruption. All that we can hope to do is contain it, and (iv) Enlist and foster public support in make corruption a risky and an combating corruption. unprofitable business. The ACA is committed to working in That is precisely what Malaysia has partnership with civil society, and is been doing since the ACA was first prepared to ensure, under the law, that established in 1967. The seriousness with members of the public reporting corruption which the Government views corruption is cases, are protected against victimisation. evident in the range of legal and In this context, the Director-General has administrative measures and resources said “Through public support, cases of that it has put at the disposal of the ACA. corruption could be brought to light, the The political will is apparently there, but perpetrators prosecuted, and punishment it is important for the Government to meted out accordingly. The ACA also accept that corruption is not just about believes that members of the public will be
398 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS bribery; corruption is about the abuse of entrusted power for personal profit, a definition widely used by Transparency International. Corruption thrives in the absence of transparency and accountability. A grave shortcoming in the Malaysian anti- corruption mechanism is that the ACA is not an independent commission. It is a government agency, and members of the public suspect its impartiality, reporting as it does to the Prime Minister.
Happily, for the present at any rate, the Government has taken to heart the lessons of good governance, and the days of crony capitalism, the misuse of public funds for rescue operations of politically connected corporations and negotiated contracts are numbered. Malaysia, therefore, remains a good place in which to do business precisely because corruption, unlike in many countries, is not a major factor in our business equation.
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CURRENT PROBLEMS IN THE FIGHT AGAINST CORRUPTION AND SOME POSSIBLE SOLUTIONS: US PERSPECTIVE
Anthony Didrick Castberg*
I. INTRODUCTION powers of government between the national government and the states. Thus, the US Official corruption occurs and is fought became a country with some powers at several different levels of the criminal reserved to the national government, some justice system in those nations using a powers reserved to the states, and some federal model. The levels may generally powers that are concurrent. Article I, be labeled as enforcement, prosecution, and Section 8, gives Congress the power to trial, which in the US occur at both the establish tribunals (courts) inferior to the federal level and the state level. There are Supreme Court, while Article III delineates fifty-one criminal justice systems in the US. the powers of the judicial branch of This decentralization offers perhaps more government. The power to establish state opportunities for corruption, but at the courts and state criminal codes was left to same time provides more agencies to fight the states. But because many of the more against corruption. The US has law influential figures of the time felt that the enforcement agencies at the federal level1, Constitution established a national the state level2, the county level3, and the government that was too strong, there was local level4. Prosecution takes place at the great debate about ratification, with the federal level (US attorneys), the state level major factions being the federalists (who (attorneys general), and the county level supported the Constitution) and the anti- (prosecutors)5. Trials take place at the federalists (who wanted the power of the federal level and the county level, although national government limited). In a the courts in a county are generally state compromise that allowed ratification to courts and the judges, state judges. This take place, the federalists agreed to support rather complicated system may sound amendments to the Constitution that strange to those unfamiliar with the US would limit the powers of the national system of justice, and in fact, very few government. These 10 amendments, which citizens of the US have a good became known as the Bill of Rights, were understanding of it. ratified in 1791. Amendments 4, 5, 6, and 8 directly affect the criminal justice This system of government was created process, but until the middle of the 20th during the Constitutional Convention that century these rights applied almost met in Philadelphia, Pennsylvania, in exclusively to the national government. 1787. The delegates to the Convention Through a series of Supreme Court originally met to revise the Articles of decisions however, almost all of the rights Confederation, which had established a enumerated in the Bill of Rights have been league of states with a relatively weak applied to the states through the due national government, but ended up writing process and equal protection clauses of the an entirely new document that divided the 14th Amendment. Prior to this * Professor of Political Science, University of Hawaii incorporation, different standards applied at Hilo, United States of America. to federal and state law enforcement.
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II. PROBLEMS OF INVESTIGATION the availability of resources8 and by the political considerations. The resource Investigation of corruption depends on problem in the US is frequently a function a number of variables, the first of which is of the federal system and its decentralized detection. As official corruption is by law enforcement. While the US has more definition committed by government law enforcement officers per population officials, its detection may be difficult than most other countries,9 60% of all local because of its hidden nature, but also by police departments employed fewer than the ability of government officials to 10 full-time, sworn officers.10 Few local law intimidate subordinates who are in a enforcement agencies in the US then have position to reveal the corruption or to the capability to investigate significant threaten the funding of law enforcement cases of official corruption. Political agencies which have jurisdiction over them. influences may range from threats of The federal government and most states retaliation by those targeted, to fear of have “whistle-blower” laws6 which protect exposing community influentials; but it is those who reveal corruption, but there are safe to say that there are virtually always no protections against retaliation by political factors in any decision to corrupt politicians against law enforcement investigate official corruption. agencies who investigate them. Whistle- blowers are responsible for many There are, of course, legal considerations investigations into corruption, both by when undertaking an investigation of providing information directly to law official corruption. Law enforcement enforcement agencies and by contacting the agencies must observe all constitutional media, which may launch its own and statutory guidelines, with particular investigation. However information from emphasis paid to search and seizure, which an informant is only the beginning, as may include electronic eavesdropping, and many tips do not result in investigation, entrapment, frequently an issue in “sting” let alone conviction. operations.11 Law enforcement agencies normally consult with prosecutors on such Official corruption may range from free legal issues. There are 50 different state restaurant meals provided to police officers penal codes, the US Code, and precedent to bribes paid to high-ranking federal (common law) from appellate courts in each officials by stock manipulators. In the US, state, federal circuit courts of appeal, and many corruption investigations involve the US Supreme Court, all of which must illegal contributions made to political be considered when undertaking an campaigns. In such cases, detection is investigation. Thus, the legal preparation frequently accomplished by agencies and monitoring of a major corruption created for that very purpose7, in contrast investigation is frequently complex and to other types of corruption that are lengthy, and often involves search warrants investigated only after tips provided by which must be approved by judges. A whistle-blowers and other citizens. Thus, successful investigation, therefore, is detection may take place in a proactive or highly dependent upon adequate resources a reactive manner. Regardless of how the and the quality of and cooperation between alleged illegal activity is detected, a law enforcement, prosecution, and the decision must be made to investigate or not. judiciary. And they are all dependent upon Such decisions should rest solely on legislation that clearly delineates what sufficiency of evidence, but in practice are constitutes official corruption.12 influenced not only by evidence but also by
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III. POSSIBLE SOLUTIONS such as the internal affairs units commonly found in US police departments. Finally, Corruption must be clearly defined in law enforcement must be apolitical. Law the law, citing specific acts, the elements enforcement agency heads should not be of which constitute a violation. The popularly elected nor directly appointed by example cited above of a police officer a political figure, but rather selected by a receiving a free meal from a restaurant is non-partisan commission of experts in the a typical example. This practice is very field, with the commission also deciding common in the US, with some fast-food whether the head is reappointed. chains apparently having policies of providing free or discounted food to on-duty Law enforcement agencies should be police officers. In this corruption? If so, accredited by a national accrediting body what is the quid-pro-quo? What does the which makes periodic visits to the agency, restaurant receive in return for the free and there should be minimum standards food provided to the police officer? At best, for hiring and training at the state level. the restaurant encourages police officers Within agencies, recruitment of new to eat on the premises, thereby affording personnel and promotion of existing some form of security. But is this the kind personnel must be done according to strict of behavior that should be made criminal?13 rules with merit being the only criteria for And if so, how much effort should be made both. Regular rotation of personnel is also to enforce such laws? The law, then, must an effective method of reducing the clearly define what acts are criminal and likelihood of corruption. Agencies should must make distinctions between breeches also have probationary periods after initial of ethics on the one hand and true crimes hiring during which time they can assess on the other. Ethical standards can be the abilities of their new employees and be enforced administratively without invoking able to fire for cause without civil service criminal sanctions. All government protection. Pay must be such that officers agencies should have standards of conduct, do not have to resort to payoffs to support and it is important that such standards be a spouse and children, although it is clear rigorously upheld, as a lack of such that high ethical standards, rather than enforcement may well lead to violations pay, are the best deterrent against that are truly criminal in nature. corruption. Retirement pay should be enough that officials will not feel the need Redundancy must be built into law to engage in corruption to prepare for enforcement so that the lack of resources retirement. will never jeopardize detection or investigation. Jurisdictional jealousies IV. PROBLEMS AT THE TRIAL must be put aside in the interests of LEVEL effective law enforcement, and this may require a higher level coordinating agency. In some nations, investigatory authority Thought should also be given to an rests almost solely at the law enforcement independent agency at both the state and level of the criminal justice system. Where federal levels in a federal system, and at this is the case, the prosecutor relies almost the national level in a unitary system, that entirely on the police to carry out specializes in the detection and investigations, making prosecution highly investigation of official corruption. dependent upon the ability of the law Governmental agencies themselves should enforcement agency in whose jurisdiction each have a specific internal unit devoted the corruption occurred. This issue is to detection and investigation of corruption, discussed in the previous section, but
402 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS inasmuch as inadequacies in law impossible to remove politics from enforcement may affect prosecution and prosecutorial decision-making. Would, for therefore the likelihood of conviction, it example, a prosecutor approve prosecution must be mentioned here as well. In those for corrupt business practices of a major nations where investigatory authority rests campaign contributor? Or would a in both law enforcement and prosecution, prosecutor prosecute a corrupt member of there is a redundancy that usually the cabinet of the mayor who appointed enhances the chance of conviction. While him or her? To what extent will public virtually all prosecutors in the US have the opinion affect prosecutorial decision- authority to investigate, lack of resources making? Public outcry over a particularly frequently prevents them from doing so. terrible crime may bring about a rush to indict and try a suspect or suspects, and There may, however, be poor relations the result may be a poorly prepared case between law enforcement and prosecution, that results in a not guilty plea, the trying a situation than hinders successful of the wrong people, or an ill-advised plea prosecution. There may be corruption and/ bargain. The failure to obtain a conviction or incompetence in either or both. And in one high profile case may be a major there may be political considerations that issue when the prosecutor runs for re- affect prosecution. While it is probably true election or is up for re-appointment. that corruption is more likely to be found in law enforcement agencies than in It should be noted that only about 10% prosecution, there are exceptions. In of defendants charged with a felony in the Orange County, California, for example, a US go to trial. The vast majority of cases former deputy district attorney is being are settled through a guilty plea by the held without bail on charges that he was defendant, almost always as a result of plea part of a nationwide methamphetamine bargaining. Plea bargaining involves distribution ring.14 Prosecutorial consideration given by the prosecution in corruption in the US is , however, quite return for a guilty plea, with the rare,15 and we must be careful to consideration often consisting of a distinguish official corruption from simple reduction in the charges or a sentence law breaking; in the Orange County recommendation.17 Plea bargaining is a incident, for example, the deputy district very low-visibility activity, and except in attorney used his official position to obtain high-profile cases, is rarely reported by the information on law enforcement efforts to media. As a result, the public can only investigate the ring. evaluate a prosecutor on the basis of a few well-publicized cases rather than on the Local chief prosecutors in the US are vast majority of cases handled by the office. either elected or appointed.16 Elected prosecutors may run in either partisan or There are no national standards for non-partisan races, while appointed prosecutors, nor are there standards in prosecutors are almost always members of most states beyond having been a member the same political party as the person or of the bar for a specified period of time. group who does the appointing. Terms of Thus, the quality of prosecution varies office of elected prosecutors are usually 4 considerably from county to county. This, years, while appointed prosecutors serve coupled with the fact that prosecutors at the pleasure of the appointing individual generally earn less money than an attorney or group. Whenever prosecutors are in private practice, does not lend itself to elected or appointed it is virtually having the best legal minds as
403 RESOURCE MATERIAL SERIES No. 56 prosecutors.18 Many, if not most, and courtrooms. When there are not, there prosecutors however, choose that position is great pressure to plea bargain, resulting out of dedication to the administration of in many criminals receiving less justice rather than out of financial punishment than they would have gotten considerations. At the same time, the had they been convicted at trial. If the turnover among junior prosecutors tends defendant refuses to plea bargain and the to be high in most offices, so that the prosecutor must try a case without percentage of career prosecutors in any adequate preparation, the likelihood of a given office is not great.19 Many not guilty finding increases substantially, prosecutors’ offices in the US, then, are as the state must prove the defendant simply not capable of investigating or guilty beyond a reasonable doubt. The prosecuting major corruption cases. alternative is not to charge the suspect Because most official corruption is also a until the prosecution’s case is solid and federal offense, prosecution is frequently thereby run the risk of the suspect’s fleeing undertaken by US attorneys. the jurisdiction. State and local governments can rarely afford the number State judges are also either appointed of judges, prosecutors, and courtrooms that or elected in the US.20 Regardless of the are necessary for the effective method by which a judges reaches the administration of justice, so the system is bench, however, politics are involved. constantly compromised. Terms of office for judges generally range from 4 to 10 years, with the longer terms There is a tendency in the US to restrict providing greater judicial independence. the sentencing discretion of judges. Federal judges, by contrast, are appointed Federal judges must use a sentencing grid for life. As is the case with prosecutors, that has six criminal history categories judicial salaries are not competitive with along one axis and 43 categories of offense those in large law firms, so those attorneys level along the other, while state judges are who aspire to a judgeship do not do so for often restricted by penal codes that specify economic reasons. As is the case with mandatory sentences for certain offenses prosecutors, there are virtually no or have a “three-strikes” provision.23 qualifications for becoming a judge other Judges in Hawaii, for example, must than having been a member of the bar for sentence a felon to the maximum term as a specified number of years (normally 5). prescribed by law, with the Paroling Judges in the US are not required to have Authority setting the minimum term.24 any training beyond that of law school, and This is part of a “get tough” policy toward a judge can be elected or appointed to the crime and a backlash from what many bench and handle criminal cases without perceive is a tendency on the part of too ever having had any criminal law many judges to hand down lighter experience. The quality of judicial decision- sentences than are justified. In some cases, making, therefore, varies considerably however, light sentences are a function of from county to county and state to state. prison overcrowding.25 In other cases, the sentences reflect the philosophy of the Defendants in US, criminal cases have judge. But without flexibility in the right to a speedy trial.21 Generally this sentencing, judges cannot hand down means that they must be tried within 180 sentences that sufficiently distinguish, for days of being charged.22 In order to assure example, between free meals for police the right to a speedy trial there must be a officers and payments to police chiefs to sufficient number of prosecutors, judges overlook methamphetamine laboratories.
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Because corruption is such a broad appointing both prosecutors and judges. category that encompass a wide variety of What is needed is a non-partisan criminal acts, it is especially important that commission, perhaps composed of the punishment fit the crime. This is not experienced attorneys, which solicits possible when a judge lacks flexibility in names from the public, evaluates sentencing. candidates, and makes the appropriate appointments. Members of the commission V. POSSIBLE SOLUTIONS themselves could be popularly elected. While some may criticize this process as Prosecutors must have the legal undemocratic and elitist, it must be authority to investigate, an authority realized that neither the judiciary nor shared jointly with the police. Where prosecution is democratic by nature, as prosecutors do not have such authority, or decisions may have to be made by both where they have it but rarely exercise it, it which are not supported by the majority. is not unusual for cases to be returned to The judiciary is a check on the tyranny of the police for further investigation. the majority, the third branch of Because prosecutors must prepare a case government which, among other things, for presentation to a grand jury or protects the rights of minorities. The preliminary hearing, and ultimately for a prosecutor represents the people, not in the trial (even if ultimately settled through same manner as a legislator, but rather as plea bargaining), their perspective is on an impartial and relatively independent admissibility of evidence and proof beyond legal authority. Popularity, then, should a reasonable doubt. Police, on the other not be the criteria for appointment or hand, tend to focus on obtaining evidence election of judges or prosecutors but rather sufficient to charge, or a standard of independence and legal ability. probable cause. Prosecutorial investigation, therefore, should be Legal ability is not a requirement for supplementary to police investigation in appointment or election as a prosecutor or order to best use scarce resources. a judge in the US, but prosecutors must be Nevertheless, additional resources will be familiar with criminal law and criminal needed by prosecutors who gain procedure, while judges, because they investigatory authority, generally in the rarely specialize26, must be familiar with form of non-lawyer investigators. In the all areas of substantive and procedural law. US, prosecutorial investigators are This presents the dilemma of seasoned frequently former police officers. criminal law attorneys facing recently elected prosecutors (who have never Election, or appointment by elected practiced criminal law) in a case heard by officials, of prosecutors necessarily makes a judge (who specialized in real estate law the process, and therefore the position, before appointment to the bench). There political. The same is true with respect to must, therefore, be minimum qualifications judges. In the latter case, however, longer for appointment as a prosecutor or a judge. terms of office to some extent offset the With respect to prosecutors, minimum influence of politics, but this influence can qualifications should include at least 5 never be completely eliminated. Even years experience practicing criminal law or those systems combining election and one year post-law school training in appointment by a commission have not criminal law and procedure, as well as completely avoided politics, but they may public administration.27 hold the key to a better method of
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For judges to be truly professional, and offices and a court in each federal circuit. therefore free from political influences and resulting corruptive enticement, they must The problem of inadequate resources to have training above and beyond that of provide speedy trials for all who do not other members of the bar. This training waive that right can only be solved by could take the form of post-law school allocating substantial sums of money to the education or an institute dedicated to 51 different judicial systems in the US. Any training potential judges.28 Because the increase in the number of courts and judges penal code of each state and the federal would, of course, have to be met by government varies, and because criminal additional prosecutors and public procedure also varies from state to state defenders, again a costly proposition. The and from the federal system, a national alternative- more corruption, lighter institute for training judges would have to sentences and dismissal of cases due to 6th teach principles rather than the law of each Amendment (speedy trial) violations. state and the federal system. This would be more economical and efficient than Plea bargaining is, at the same time, a having separate training institutes in each standard practice and a hotly debated topic. state, and would have the added benefit of The system could not operate without it, bringing together potential judges from the yet there are acknowledged abuses of it and entire nation. Specific training in the law injustices in its application. It can be of individual states and the federal system particularly controversial in corruption could come from an apprenticeship cases, as it leaves prosecutors and judges program whereby national institute open to charges of favoritism as well as graduates spend a specified period of time their own corruption. Part of the problem as assistants to veteran judges. with respect to plea bargaining is that it is a low visibility process, or a process that Just as specialized training is important lacks transparency, and a process that the in preparing prosecutors and judges to fight public does not completely understand. It corruption, so too may be specialization is also a problem because it may be used to within those professions in the handling avoid, rather than as an alternative to, of corruption cases. Where possible, one trials. There is very little case law on plea or more prosecutors should be assigned bargaining and it is rarely dealt with in solely to corruption cases, and reporting rules of procedure. The solution, then, is directly to the chief prosecutor. This not to institutionalize plea bargaining while at only allows dedication to only one type of the same time making it more transparent. case, but some degree of independence as There should be specific rules of procedure well. In smaller offices, however, this may about plea bargaining and all plea bargains not be possible. One possibility that does should be judicially approved prior to a not depend upon the size of prosecutors formal change of plea. Some plea office or court system is to centralize the bargaining involves consideration given to prosecution and adjudication of corruption defendants in return for their testimony cases at the state level, with prosecution against collaborators or co-conspirators. handled by a special unit of the Attorney This is frequently true in corruption cases, General’s Office and adjudication by a court and may result in those guilty of multiple established for that purpose, with branches felonies serving no time in prison in return in the largest cities of the state. The same for testimony against high ranking corrupt could hold true for the federal system, with officials. While this may not sit well with dedicated units in larger US attorney’s the public, it is essential for the effective
406 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS administration of justice that such associated with these efforts will be bargaining not remain hidden. Finally, all justified. There are other methods, of parties to the case, including victims, course, that might not directly involve should have the opportunity to make deterrence but would be more effective in formal input on any and all proposed reducing corruption.31 bargains. Susan Rose-Ackerman suggests the VI. MEASURES TO PREVENT following approaches to reduction of CORRUPT ACTIVITIES OF PUBLIC corruption:32 OFFICIALS 1. Program elimination (of corrupt Many of the suggestions discussed above programs) constitute measures that would help to 2. Privatization (of current government prevent corruption among public officials, services) but there are more that should be 3. Reform of public programs (revenue considered. The primary focus above has collection, regulation, social benefits) been on the criminal justice system, but 4. Administrative reform (make measures are necessary to deter corruption administration competitive) among all public officials. The primary 5. Deterrent effect of anti-corruption measures are laws and codes of ethical laws (increase deterrence and reward conduct. In the US there are numerous whistleblowers) sections of the US Code which contain such 6. Procurement systems (improve the provisions, while at the state level there efficiency of government purchasing) are generally codes of conduct and statutes 7. Reform of civil service (substitute prohibiting bribery and other abuses of civil service for patronage and ensure power.29 In short, then, there is no shortage that it is apolitical) of laws prohibiting official corruption nor codes of ethical conduct. But do they serve Rose-Ackerman’s suggestions tend to be as effective deterrents? societal in scope, and while institution of such reforms would clearly reduce Deterrence is difficult to measure, corruption, their implementation would be although one study found that it is a difficult, costly and lengthy. This is not to function of likelihood of conviction and say that the effort should not be made, but length of prison sentences.30 Bribery of, or rather that initial reforms must start at acceptance of a bribe by, a public official, the micro rather than the macro level. for example, is punishable under 18 USC Most of the recommendations I suggest §201 by a fine and up to fifteen years in above can be made with a minimum of prison. Is the fine and prison sentence a disruption and political controversy, and a deterrent to bribery? The answer, of course, modicum of money, but allow me to suggest depends upon the personalities of those several more. involved, the amount of money of the bribe, and the likelihood of detection and Just as punishment may deter conviction. It very likely deters some and corruption, rewards may achieve the same does not deter others. So the question is result. Awards or salary increases could whether increased efforts at detection and be given to employees and officials who prosecution accompanied by increased detect and report corruption and to those penalties will deter more than the current who themselves are examples of integrity penalties, and whether the increased costs and honesty. Supervisors should be held
407 RESOURCE MATERIAL SERIES No. 56 more accountable for the actions of their regulators to detect and prevent such subordinates, so that both rewards and laundering calls for reform of some kind.36 punishment would flow to supervisors as well. Strict laws regulating post- International cooperation is essential in government employment should be fighting these types of criminal activities. implemented and enforced.33 While one can correctly say that the supply Transparency, or openness in government, of drugs from South America to the US must be increased. The public must be would not take place were there not a allowed access to all government meetings, strong demand for drugs in the US, that documents, rules, regulations, etc, with does not mean that the problem is solely restrictions only when national security is that of the US. The corruption that is threatened. Public reporting laws should present in Mexico and Columbia, for require all agencies to make available data example, is damaging to the citizens of on corruption and efforts to prevent it. those nations while at the same time Coupled with this is the importance of a facilitating corruption in the US. The free press. Only when the press is free from problem of drugs if far too complex to government restrictions and censorship discuss in this paper, but it is an excellent can access to information on the operation example of corruption that must be fought of government be widely available to through international cooperation, citizens. The press in the US has cooperation that must take place at every traditionally been the primary watchdog level, from law enforcement to heads of over government corruption.34 state.
VII. INTERNATIONAL International cooperation in fighting COOPERATION IN COMBATTING official corruption, while in the best CORRUPTION interests of all nations concerned, is unfortunately affected by politics, both Corruption has become a truly internal and international. Effective international phenomena, thanks to cooperation cannot exist, for example, organized crime, modern transportation, between nations which have no diplomatic and computers. Perhaps the most relations. Foreign trade issues may be corrupting international commodity is mixed with anti-corruption efforts. drugs, as the money involved in its Political change within a nation may affect transportation, distribution and sale is international cooperation. And cultural astronomical. Bribes to law enforcement differences may cause disagreements over officials constitute pocket change for large what constitutes official corruption as well drug cartels, but for the corrupt official the as the appropriate punishment for it. This, bribe may be many times that person’s in turn, may affect extradition. Nations annual salary. Despite the best efforts of jealously guard their sovereignty, and in governments, the international the end, one cannot compel another to fight transportation of drugs continues at a high official corruption. Only through mutual rate.35 International money laundering is understanding, frequent dialogue, a multi-billion dollar business as well, and exchange of officials, and a shared while there seems to be little official understanding that official corruption is corruption in the US associated with this not in the best interests of any nation, can activity, that is not the case in many other international cooperation prosper. nations. And while perhaps not a result of corruption, the failure of government
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NOTES campaign spending laws, assess administrative fines, and refer criminal 1. Although the FBI (Federal Bureau of cases to the appropriate prosecutor. Investigation) is the best known federal See HRS §11-191 - 11-229. law enforcement agency, there are many others: Immigration and 8. Small law enforcement agencies rarely Naturalization Service, US Marshals have the resources to pursue large- Service, Federal Bureau of Prisons, scale corruption. Where these Drug Enforcement Administration resources are not available, the case is (DEA), Internal Revenue Service, US usually turned over to a larger agency Postal Inspection Service, US Customs in the same jurisdiction or to federal Service, and the Bureau of Alcohol, law enforcement officials. Tobacco, and Firearms (BATF). 9. The Bureau of Justice Statistics of the 2. All states except Hawaii have “state US Department of Justice reports that police”, but their duties and there were 25 sworn officers per 10,000 responsibilities vary considerably. In residents in 1996: Census of State and California, for example, the largest Local Law Enforcement Agencies, 1996. state law enforcement agency is the NCJ 164618, June 1998, p.2. California Highway Patrol, which, as the name implies, is primarily 10. Ibid, p.5. responsible for traffic enforcement. 11. In the 1978 “Abscam” operation, for 3. Traditionally, sheriffs are responsible example, the FBI used agents posing for law enforcement in counties. In as wealthy Arabs who offered bribes to practice, sheriffs generally exercise US legislators. All of the meetings their law enforcement in between the undercover agents and the unincorporated areas of the county and legislators were videotaped, and one in those cities and towns which contract senator and four representatives were for services from the county. ultimately convicted for bribery and conspiracy. The conviction of one 4. Law enforcement authorities in cities representative was overturned, and towns are usually called “police”, however, due to entrapment. although other terms may be used as well. 12. Federal legislation on corruption is much more comprehensive than that 5. “Prosecutor” is a generic term for those found in state penal codes, which who prosecute. Actual titles include generally deal with bribery and codes district attorney and state’s attorney, of ethics that prohibit conflicts of among others. Prosecutors generally interest, acceptance of gifts, etc. And enforce state laws as well as local all legislation is subject to judicial ordinances. interpretation - a recent US Supreme Court decision held that in order to 6. See, for example, 5 USC §2302. establish a violation of 18 USC §201, bribery of public officials, the 7. In the state of Hawaii, for example, the government must prove a link between Campaign Spending Commission may the gift conferred and a specific official investigate alleged violations of act for which it was given. US v. Sun-
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Diamond Growers of California, 98-131 20. The are many variations on election (1999). and appointment, such as “merit” plans that provide for a nominating 13. Most, if not all, police departments commission to supply a set number of have administrative rules prohibiting names for each vacancy to the governor, officers from accepting gratuities, with who then selects one for appointment. food defined as a gratuity, but they are After a relatively short period of time rarely enforced. on the bench, a retention election is held and the public is allowed to decide 14. The Orange County Register, whether the judge shall be retained on Wednesday, July 14, 1999, p.B04. the bench or not.
15. Prosecutorial corruption, such as the 21. Amendment 6 to the US Constitution, Orange County case, must be as applied to the states through the 14th distinguished from prosecutorial Amendment. misconduct, which, while not common, is more frequent than corruption. 22. The Speedy Trial Act of 1974 (18 USC §3161) requires indictment within 30 16. Those deputies working under the chief days of arrest, arraignment within ten prosecutor may be civil service days of indictment, and trial within 60 employees or may serve at the pleasure days of arraignment in federal cases. of the chief. State requirements vary but do not exceed 180 days. 17. Plea bargaining is facilitated by the nature of penal codes in the US, where 23. “Three strikes” is a baseball analogy a given offense may have as many as (“three strikes and you are out”) which four or five degrees. In Hawaii, for in criminal law refers to statutes which example, there are five degrees of require, for example, that a felon be sexual assault and four degrees of theft. sentenced to life in prison for the third A plea bargain may involve the violent felony. prosecutor reducing the charge from first degree sexual assault to third 24. There are some exceptions to this, degree sexual assault; the first is where, for example, a judge may impose punishable by 20 years in prison while a term of probation or grant a deferred sexual assault in the third degree is acceptance of guilty plea. punishable by 5 years. 25. Judges may hand down light sentences 18. The average salary for a chief because they are aware of prison prosecutor in 1996 was $64,000. overcrowding or, in states where parole “Prosecutors in State Courts, 1996,” boards determine sentence minimums, Bureau of Justice Statistics, US. that this body will play the same role. Department of Justice, July 1998, p.1. Prison overcrowding may constitute a violation of the rights of the prisoner, 19. The median size of prosecutors offices so states run the risk of lawsuits or in 1996 was 9, 4 of whom were federal supervision if they allow prosecutors, and the median length of overcrowding. service was 6 years. Ibid.
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26. In small jurisdictions a judge will 34. The Watergate scandal is perhaps the normally hear every type of case, from best known example of the role of the criminal to civil to equity, while in media in exposing official corruption, larger jurisdictions a judge may be but media exposure of official assigned to a criminal court, or a corruption takes place frequently at the probate court, or another court dealing state and local level in the US. with specific areas of the law. But even in the latter, it is normal for judges to 35. See, for example, “Peru’s Drug Success be rotated from one court to another. Erode as Traffickers Adapt,” The New York Times, August 19, 1999, via
29. See, for example, 18 USC §201 - 211, and 18 USC Chapter 31, for criminal provisions, and 5CFR2635.02 for standards of ethical conduct for executive branch employees.
30. Rajeev Goal and Daniel Rich, “On the Economic Incentives for Taking Bribes,” Public Choice, 61:269-275 (1989).
31. It is unreasonable to expect that corruption can be completely eliminated; at best we can reduce it to a tolerable level.
32. Susan Rose-Ackerman, Corruption and Government: Causes, Consequences and Reform. Cambridge: Cambridge University Press, 1999, pp.39 - 88.
33. See 18 USC §207 is a good example of this type of legislation.
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CAMPAIGN FINANCING AND CORRUPTION IN THE US
Anthony Didrick Castberg*
I. OFFICIAL CORRUPTION IN THE reduced significantly. The reform UNITED STATES movement was frequently aided by outrageous scandals, such as the Teapot Corruption was common in the US in the Dome scandal during Harding’s 19th century. Patronage was widespread, administration, and by the press, which and although the spoils system was created often played a crusading role in bringing with the intention of diversifying scandals to public attention. bureaucrats, it became clear that corruption continued to increase. Rapid The nation suffered a setback during the industrialization and westward expansion prohibition era, 1919 - 1933. Prohibition not only expanded the role of government, was the result of the 18th Amendment to but also of corruption in government. the US Constitution, which prohibited the Although there was considerable manufacture, import and sale of corruption at the national level and intoxicating liquors. Although well- scandals affecting the presidency, such as intentioned, the Amendment was ill- those involving the Grant administration conceived, as it sought to make illegal what in the 1870’s, most of the corruption in the many, if not most, of the citizens not only US at the time was found at the local level. enjoyed but felt was their right. Although Most famous, perhaps, was New York’s the Amendment tried to eliminate the Tammany Hall, which involved political supply of alcohol, it clearly did not party leaders, politicians, and business eliminate the demand for alcohol. As a interests in collusion to control lucrative result, a thriving underground enterprise government contracts. This corrupt sprung up virtually overnight to supply the activity centered on kickbacks, extortion, demand. This enterprise established the election fraud, and bribery. But a growing Mafia as a major criminal force in the US, consensus among reformers and the and with it, widespread corruption of law population as a whole saw this corruption enforcement. Such corruption was not only as ultimately detrimental to both politics accepted by many citizens but encouraged, and the economy. This consensus led to as it made access to the forbidden the Pendleton Act, which created the first intoxicating liquors much easier. The end federal civil service system in the US. As of prohibition in 1933 did not mean the end a result of this movement, bribery and of organized crime nor the end of corruption other forms of corruption decreased in law enforcement, as organized crime substantially, although it was still to be merely shifted its activities and corruptive found at the city, county and state levels, influence to other forbidden but desired often through political parties. commodities and activities, such as Nevertheless, the reform movement spread gambling, loansharking, prostitution and to all political jurisdictions and, by the drugs. The US has never completely early part of the 20th century, the more shaken loose of the corruptive influences blatant forms of corruption had been of the era of prohibition. But political corruption and scandals at the national * Professor of Political Science, University of Hawaii level, at least, decreased; there were no at Hilo, United States of America. major scandals during the Roosevelt,
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Kennedy or Johnson administrations. Act was passed in 1977, and the Ethics in Government Act in 1978. The movement The US has not, of course, eliminated led to a significant increase in the number political scandals. Perhaps the most of state and local officials charged under famous political scandal involving federal law with corrupt practices, a corruption in high offices in recent history number that reached almost 500 in 1986. was the so-called “Watergate” affair involving President Richard Nixon. This Despite reform, corruption continued. scandal started with what, at the time, The “Abscam” scandal of 1978-80 involved seemed to be a simple burglary of FBI agents posing as Arab sheiks who Democratic Party headquarters in the offered various government officials, Watergate building in Washington, DC. including senators and representatives, The burglars were caught in the act and money for help in obtaining favorable an investigation soon connected them to immigration rulings. Most of this was Nixon’s re-election campaign staff (the recorded on videotape. Six representatives burglars had been trying to obtain and one senator were convicted of bribery. information on Democratic campaign And in 1986-89 two representatives and strategy). President Nixon ordered that many other officials were convicted of money be given to the burglars so that they racketeering, tax evasion, bribery, fraud, would not talk about his involvement in the grand larceny, and perjury for accepting crime. There then followed one cover-up payoffs from military contractors in what after another. The President used the was called the “Wedtech” scandal. In 1987, Internal Revenue Service, the FBI, and five Senators obstructed federal regulators other federal agencies against those he in their investigation of a savings and loan thought were leading the efforts to involve company that had been had been looted by him in the conspiracy. He had a very long its owner, Charles Keating, of $2 billion. “enemies” list. Largely due to an Those senators received a total of $1 million aggressive press, all of the details of in campaign donations from Keating. But corruption in the office of the President the senators, called the “Keating Five”, were brought to public attention. were never charged with any crime or Congressional hearings not only brought ethical violation because, while they could to light the many details of the burglary influence federal regulators, they had no and cover-up, but also of illegal campaign direct control over them. One of those contributions made to Nixon’s campaign senators, John McCain, is now a committee. This ultimately resulted in the Republican candidate for the presidency. House Judiciary Committee voting for impeachment, and the President’s More recently, President Clinton was resignation soon thereafter - the first time accused of accepting large campaign in US history that an American president contributions from several Chinese resigned from office. businessmen in return for favorable treatment of China on a variety of matters, As is often the case in major scandals, including the sale of satellite technology. some good resulted in the form of tougher US intelligence agencies allegedly laws and new protections. The Federal intercepted information in early 1995 Election Campaign Act of 1971 was indicating interest on the part of the strengthened after Watergate, and the Chinese government in spending money to Federal Elections Commission was support certain candidates for office in the established. The Foreign Corrupt Practices coming election, an issue raised by
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Republican legislators but not proven until for being appointed an ambassador. subsequent indictments and trials. The money, however, seems to have bought little The examples cited above are, of course, other than access to the President. high level corruption. Just how much corruption is there in the US at all levels? Early this year, the New York Times We only have official figures on reported reported that China had stolen highly corruption, so the amount of unreported classified nuclear weapons information corruption remains unknown, but the data from the Los Alamos laboratory, we do have gives us some idea of how cases information that allegedly allowed the of corruption compare to other offences. It Chinese to make rapid advancement in is interesting to note that the most their nuclear weapons program. Although widespread crime reporting system in the the theft allegedly took place in the mid US, the FBI’s Uniform Crime Reports 1980’s, during the administration of Ronald (UCR), does not even list corruption or even Reagan, it was charged that the theft had bribery it either Part I offences, those not been detected until 1995, that the deemed to be the most serious, or Part II President had not been informed until April offences, those less serious. Nor does data 1996, and that nothing was done to from state courts list corruption or bribery investigate the alleged theft until 1997. in its data. When we look at data collected Congress was not informed until 1998. by the Department of Justice’s Bureau of Republicans charged that the failure of the Justice Statistics, however, we do find cases Clinton administration to follow up on the of bribery and of other forms of corruption. theft and to promptly notify Congress was Under the general category of “other,” a due to campaign contributions funnelled category that also includes racketeering through Chinese businessmen in the US and extortion, we find that in fiscal year by the Chinese government. To date, none 1996 there were a total of 405 federal of these allegations have been proven, and bribery suspects, of whom only 168 were it would seem to be a highly partisan issue. prosecuted in US District Courts. Of the remainder, 212 were not prosecuted and 25 Earlier this month, it was revealed that were dealt with by federal magistrates (the Secretary of Labor, Alexis Herman, was equivalent of a misdemeanor case). It is under investigation for influence peddling difficult to determine the exact reasons that and soliciting illegal campaign 212 suspects were not prosecuted. Using contributions for the Democratic National slightly different data, for the 232 Committee when she was a White House defendants whose bribery cases were aide during Clinton’s first term. She was terminated in fiscal year 1996 we find that appointed to her current post by Clinton 90.1% of the defendants were convicted, in May 1998. Although the investigation most of them by a jury, and 16 of the 23 is still under way and she has not been who were not convicted had their cases charged with any crime, this is an example dismissed, with only 7 going to trial and of how working for a campaign can result being found not guilty. in appointment to a high post. If she did solicit large campaign contributions, it may Using data from fiscal year 1998, we find well have been a factor in her being that official corruption cases have been appointed to her present position. It is well broken down into separate offences. known, for example, that individuals who Corruption in federal law enforcement make very large contributions to a resulted in 52 cases and 74 defendants, and presidential campaign may do so in return of the 46 terminated during this period, 44
414 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS were through a finding of guilty. One of national legislators have belonged to one should also note that there were significant or the other party. In both parties one can numbers of state and local corruption cases, find the wealthy as well as those from the vast majority of which ended in findings modest backgrounds, but over the past 30 of guilty. While these figures are alarming, years some things have changed. they must be viewed in perspective. A total of 902 officials were convicted of offences Running for political office, or for re- involving abuse of public office in 1996. election thereto, in the US is now very These figures should be compared to the expensive. The average cost of a winning total of over 53,000 defendants convicted campaign for the US Senate in 1996 was in federal courts alone in FY 1996. $4,692,100 and $673,739 for the House, Corruption in the US, then, is a problem, with the most expensive campaigns for but it is not as much of a problem as many each house costing $14.5 million and $5.6 other crimes, and as a consequence, does million respectively. The 1996 Clinton and not alarm the public as much as other Dole presidential campaigns spent over crimes, especially crimes of violence. $230 million, not including almost $70 million in ads paid for by the Democratic II. ELECTIONS IN A DEMOCRACY and Republican parties. All of the campaigns nationwide in 1996 cost an A fundamental tenet of a democratic estimated $2.7 billion. A great deal of this society is free and open elections, with few money is spent on television restrictions on access to political office. advertisements - the Democratic National Age, citizenship and residence are the Committee alone spent about $44 million primary limitations on candidacy for on such ads (this does not include the political office in a democracy. The United money spent by the Clinton campaign States is a democracy, and prides itself on itself). Television advertising can be very the diversity of its elected politicians, expensive - up to $500,000 per minute. diversity measured in terms of gender, age, ethnicity, race, religion, and political Needless to say, only millionaires can ideology. A democratic political system may finance their own campaigns for national be multiparty, or it may consist of two office. This means that most aspirants for parties, which is the case of the US. office and incumbents running for re- Although over the past two hundred years election must rely on contributors, third parties have elected their candidates contributors who usually expect something to local, state and national office, the US in return for their contributions. That is considered a two party system, “something” may be as simple as a dominated by the Democrats and the politician whose political views are Republicans. Most agree that neither party consistent with those of the contributor, it is ideological in nature, but it is also true may be access to the politician not enjoyed that the Democrats are more on the liberal by lesser contributors, or it may be an side and the Republicans on the explicit quid pro quo - paying for favorable conservative side of most issues. The consideration on an issue over which the Democrats, for example, support social politician has substantial control. In the welfare programs and government last century and early part of the 20th regulation of business, while the century, the practice of selling votes was Republicans tend to favor less government fairly common. Today it is practically and more free enterprise. Over the last 100 unheard of, but many argue that campaign years, all presidents and the vast majority contributions amount to the same thing.
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III. SOURCES OF CAMPAIGN the letter but not the spirit of the law. FINANCING Because this money is supposedly used to promote issues, it need not be reported, While political opponents may try to unlike other contributions. influence voters by alleging foreign influence on domestic politics, in fact the Money contributed to political parties vast majority of campaign funds come from and not specified for a particular candidate domestic sources. The single largest is called “soft money,” and there are contributors are corporations and Political virtually no limitations on how much can Action Committees (PACs). In the 1996 be given or how it is spent, as long as the campaign, for example, a tobacco company spending is on “issues,” voter education, - Phillip Morris - contributed $4,208,505 party building, etc. Soft money raised by million, 21% of which went to Democrats the two major parties more than tripled and 79% of which went to Republicans. The from 1992 to 1996, where it amounted to second largest amount - $4,017,553 million over $260 million. There are, nevertheless, - came from the American Federation of restrictions on soft money contributions, State, County and Municipal Employees, and the Democratic National Committee 99% of which went to the Republicans. admitted that it accepted $2.8 million While large individual donors and PACs illegally or under questionable accounted for almost 32% of all circumstances for the 1996 campaign; it contributions, 31% came from small subsequently returned the money to its donations (under $200). Political parties donors. may legally solicit and receive an unlimited amount of funds. These funds must, under IV. CAMPAIGN SPENDING LAWS a 1979 amendment to federal election laws, be used to publicize the party or present The Federal Election Campaign Act, as issues, and may not be used for the benefit amended in 1974, established strict of specific candidates. This law was upheld disclosure requirements, set limits for by a 1996 Supreme Court decision that said donations, and provided for public that political parties could spend unlimited financing of presidential campaigns. amounts of funds on congressional races Campaigns must list all contributors who as long as they act independently of the give over $200 per year, and cash candidates. This has resulted in party contributions of over $100 were prohibited advertisements that devote a great deal of (as cash contributions are almost time to a candidate and only discuss impossible to trace). Limits for donations “issues” in passing, a method of meeting were set as follows:
To a candidate or To a national To any other Total committee per party per year political contribution primary or committee per per calendar general election year year Individuals $1,000 $20,000 $5,000 $25,000 PACs $5,000 $15,000 $5,000 No limit
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These limits also applied to candidates V. ISSUE-SPECIFIC themselves - they could not even spend CONTRIBUTIONS their own money in excess of the specified Contributions to politicians are not limits. All of the reports by candidates are always made specifically for campaigns but public, and are available on the Federal frequently for favorable treatment on Elections Commission website, and at least issues of interest to the contributor. The one candidate for the presidency, George money contributed, however, must be W. Bush, has provided detailed placed in the politician’s campaign fund contribution information on his own and must be so used. The large amount of website. Bush so far has raised over $50 money contributed by Phillip Morris noted million - the largest amount ever raised by above, for example, was very likely a candidate in a primary election. intended to influence votes on tobacco issues, including an impending The public financing provision allowed government suit against tobacco companies taxpayers to indicate on their federal tax for misleading the public about the dangers return whether they wanted $3 of the of smoking. Issue-specific money was also money they owe the government to be put contributed in great quantities over the in the Presidential Election Campaign proposed Telecommunications Competition Fund. The Fund would then match up to and Deregulation Act of 1995. As the title $250 of each contribution made to eligible of the legislation implies, the act was candidates in primary elections. In order intended to deregulate the to benefit from this, the candidate had to telecommunications industry and thereby agree to spend no more than $50,000 of increase competition, which would their own money. Public funds would not presumably reduce costs and increase be available to candidates who exceeded options for the consumer. Although the Act the limit. Public funding is not available passed Congress and was signed by the to candidates for congress, although limits President, the intended benefits to were set for campaigns for those offices. consumers have yet to appear. The Provisions of the law limiting a candidate’s campaign funds of many legislators, own expenditures, as well as total especially those on the House and Senate expenditures, were challenged in a suit Commerce Committees, benefited greatly, filed by a broad coalition of candidates and however. political organizations in early 1975, and a year later the US Supreme Court handed The benefit to legislators of controversial down its decision in the case of Buckley v. issues that affect large industries should Valeo. The Court found that both the seem obvious: such issues provoke overall spending limits and the limits on a significant increases in campaign candidate’s own spending were contributions. It should be noted as well unconstitutional as a violation of free that most such money is not soft money but speech. The Court recognized that a rather money from PACs, and therefore balance had to be struck between free limited to a total of $10,000 per campaign speech and the prevention of corruption, ($5,000 for the primary and $5,000 for the and stated that contributions to a general election) per person. Because hard campaign are less protected than money is accountable and limited, it is expenditures made independent of preferred for specific issues. But one campaigns. Therefore, contribution limits wonders whether some issues are invented were upheld while money given to political as a means of creating controversy and parties or PACs could not be restricted.
417 RESOURCE MATERIAL SERIES No. 56 therefore increased campaign The same law applies to lobbying, but to contributions rather than for the public get a conviction under the law, 18 USC 207, good. Many of these issues are highly the government must prove, among other complex and, while they have a significant things, that it had a direct and substantial impact on the public as a whole, are often interest in the matter and that the former buried beneath more sensational but official had direct responsibility for the ultimately less important legislation. For particular matter within one year of their the most part, only large corporations, retirement (except for executive branch interest groups, and legislatures play this officials, where the time period is two years game - the “little guy” is left out. if the matter was pending under that person’s official responsibility). There are VI. INDIRECT SPENDING: many laws that govern the activities of LOBBYING current and former government officials. Some of them are listed below: There are methods by which legislators can be influenced on particular issues in 5 USC 2302 Prohibited addition to campaign contributions, the personnel practices most important of which is lobbying. 5 USC 7353 Gifts to federal Lobbying is an important but low visibility employees process, and it can be highly lucrative for 18 USC 201 Bribery of public the lobbyist himself or herself. There are officials and witnesses at least 12,000 registered lobbyists, a 18 USC 203 Compensation to number of whom are former legislators or members of congress, political appointees. While there is nothing officers, and others in illegal or necessarily unethical with matters affecting the individuals and organizations trying to government influence legislators, many feel it is wrong 18 USC 207 Restrictions on former for former legislators and staff members officers, employees, and to get rich as a result of their former status elected officials of the and the access that it brings. The lobbyist executive and is supposed to provide information to the legislative branches legislator as well as argue for a particular 18 USC 208 Acts affecting a cause, but the lobbyist can also help bolster personal/financial a legislator’s campaign fund indirectly by interest bringing together those who want 18 USC 211 Acceptance or something from Congress with those who solicitation to obtain can provide it. Thus, the former legislator, appointive political now a lobbyist, continues to practice the office fine art of seeking campaign money as well 18 USC 666 Theft or bribery as influencing legislation, but now for concerning programs somebody else. receiving federal funds 18 USC 1510 Obstruction of criminal Federal law prohibits most federal investigations employees and elected officials from taking positions in private industry that they These are only a few of the many federal might have been in a position to benefit laws dealing with crimes of official from through their prior position until at corruption. In addition to these criminal least two years after they have left office. laws, there are standards of ethical
418 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS conduct, such as 5CFR2635. unlikely that he would consider money spent on a ‘campaign’ as an investment - VII. WHY THE GREAT DESIRE TO he could never recoup the money spent on GET ELECTED? the campaign, legally or illegally. Why would a person who has such a fortune It is likely that many people run for office want more? What he wants, and what because they genuinely want to serve the many people who run for office want, is not public. They may feel that the many money but power. As chairman of Goldman problems of their constituency are not Sachs, Corzine made important decisions being adequately addressed, or they may and controlled billions of dollars, but he still simply want to be in a position where they had to rely on his elected representatives have a greater impact on society than just to make the decisions that affected the voting. There are those however who seek economic environment in which he worked. office because of selfish motives. The latter It is often the same motivation that makes are probably a minority, but social and attorneys in the US want to be judges - they political commentators are saying that will very likely make less money as a judge, there seems to be an increase in these types but they will have far more power and of people running for office. Note the titles influence. of two recent books on the subject: The Buying of the President, by Charles Lewis, If we accept, then, that many, if not most, and The Corruption of American Politics, candidates for office or for re-election are by Elizabeth Drew. Some politicians are motivated by power, not money, what then deciding either not to run for re-election or of those who make large contributions to for higher office. Christine Todd Whitman, these politicians? As suggested at the governor of New Jersey, recently changed beginning of this paper, it is safe to say that her mind and decided not to run for the many of the contributions are made with US Senate seat being vacated by Senator economic motivation. Corporations, PACs Frank R. Lautenberg. She said the and individual contributors who spend demands of fund raising would interfere large sums of money on those running for with her duties as governor. It also seems political office expect something in return clear that she would have a very difficult for their investments, and this puts time raising enough money to match the pressure on the winning candidate to funds available to Democratic candidate reciprocate. As long as that politician Jon Corzine, the former chairman of wants to be re-elected, s/he must act in the Goldman Sachs & Company, who has a best interests of those contributors. As long personal fortune of about $300 million. as the politician and the contributors do Corzine has already put $500,000 of that not violate any laws, there has been no fortune into his campaign spending fund, corruption as defined by law. But hasn’t while Whitman had raised over $2 million. the political process been corrupted? Nevertheless, Corzine has said would Haven’t the interests of the rich and spend as much as necessary to be powerful been put above those of the poor competitive, and it was clear that Whitman and powerless, the very people who most could not match her fund raising against need the assistance of government? The his fortune. answer, of course, is yes. This also raises the interesting question VIII. WHAT CAN BE DONE? of why a person like Corzine would spend so much to win an election. It is highly The answer to many of the problems
419 RESOURCE MATERIAL SERIES No. 56 cited above is campaign finance reform. There are already enough laws and ethical standards to take care of criminal and unethical behavior, but the fundamental problem - the corrupting influence of money in election campaigns - needs additional attention. There is no shortage of reform proposals, but despite public pronouncements by many political leaders, little progress has been made. Part of the problem is partisanship. The Democrats generally support limits on soft money, while Republicans do not, unless there are restrictions on spending by labor unions (which traditionally support Democrats). Republicans argue for raising the limits on individual contributions, in part because large individual contributions are most frequently made to Republican candidates. But the fact is that the status quo favors those in office, those who are the only ones in a position to bring about change. One current bill, which is backed by Democrats and some Republicans, would prohibit political parties from raising or spending soft money, and would make a clear distinction between issue advocacy and advocacy of a particular candidate. The limits on hard money would also apply to soft money, and there would be stricter disclosure requirements and higher penalties for violations. It is unlikely, however, that this bill will pass before Congress adjourns in October. It is, after all, difficult for those who benefit from existing law to change them, even though a majority of voters want such reform. In the end, we come back to the people, the voters. They elected the current politicians who benefit from an essentially corrupt system and only they can throw them out of office. But will they? Only time will tell.
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ILLEGAL DRUGS: THE CHALLENGE TO LAW ENFORCEMENT
Anthony Didrick Castberg*
I. INTRODUCTION of banning it again is virtually impossible, it nevertheless is responsible for may ills That illegal drugs are a major problem in society, ills that would be compounded in the US is not news, nor is the corruptive with the legalization of other drugs. And, influence of drugs on law enforcement the opponents say, drug use is largely news. Nevertheless, few people really responsible for the spread of AIDS in the grasp the true impact of drugs on American US. society, in part because there is a great ambivalence, and even hypocrisy, about Despite the public support for keeping drugs. Drug offences have frequently been drugs illegal, there is nevertheless called “crimes without victims,” and there ambivalence among the public that freely is an active movement in the US to legalize uses legal drugs (alcohol, tobacco and drugs. It is argued that those who use caffeine) and considers illegal drug use a drugs harm only themselves, that some crime without a victim. Most citizens see drugs (primarily marijuana) have no inconsistency between an abstract moral medicinal benefits, that legalization would belief that drugs are harmful and should reduce the cost of drugs and therefore the therefore remain illegal, and their own use necessity of committing other crimes to of legal drugs. So not only is there a great support a drug habit, and that a great deal demand for drugs by those who use them, of money is spent on detecting, prosecuting there is little public support for a criminal and incarcerating drug offenders, money justice system that places too much that could be better used for drug education emphasis on combating drugs. What the and for the reduction of violent offences. public fears most is violent crime, and while They point to the widespread use and abuse many understand that a great deal of of alcohol and tobacco, both legal drugs. violent crime is associated with drugs, few fear that this crime will affect them, as they The argument against drug use is based are not involved with drugs. The public primarily on social, moral and medical perception is that violent drug-related grounds. Many drugs, the opponents crime is primarily directed at those argue, are harmful to the body. As a result, involved in the illegal enterprise, not the drug users are not productive members of average citizen. At most, the average society, are poor parents, require citizen fears he or she will be a victim of a disproportionate social services of the property crime committed by a drug addict government, and account for much of the to support his or her addiction. So while crime in society. There must, they say, be not entirely ‘victimless’, drug-related someting wrong with people who violent crimes are primarily directed at constantly desire the kind of feeling those involved in drug activity. Without induced by drugs. They use the alcohol widespread and strong public support, it argument as well, saying that while is very difficult for criminal justice prohibition was a failure, and the likelihood professionals to make much headway against well-organized and financed drug * Professor of Political Science, University of Hawaii organizations. at Hilo, United States of America.
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Regardless of the arguments of the Forum in Davos, Switzerland, by stating proponents of drug decriminalization, that it was a global crime threat. In the however, public policy in the US is clearly US, he said, it was both a social and and firmly against the legalization of drugs, economic problem: with the possible exception of marijuana for medical use. There is currently a legal (i) Law enforcement agencies in the US debate between the State of California and spend approximately $25 billion the US Government over this issue, with annually on drug control efforts. California upholding an initiative approved (ii) Drugs cost an additional $67 billion by voters that decriminalizes marijuana for each year in terms of crime, medical, medical use, and the federal government and death-related expenses. arguing that federal law on drugs prevails (iii) The annual costs of drug abuse to over state law. This debate is currently in businesses in terms of absenteeism, the courts. California, however, is not industrial accidents, insurance typical of the United States as a whole, and premiums, and lack of productivity in most states marijuana remains illegal was estimated at $60-$100 billion. for any use, a situation that is not likely to change in the foreseeable future. The GAO (Government Accounting Office) has estimated that the total cost of The opponents and the proponents of illegal drugs in the US amounts to $110 drug legalization, however, rarely point to billion. Whether it is $60 billion or $110 the corruptive influence of drugs on law billion, these amounts are greater than the enforcement and how this corruption GNP of many countries in the world. The affects society. Nor do they often discuss figures listed below further illustrate the the international implications of drug problem: abuse in the US. The Asian Wall Street Journal recently (September 27) ran an (i) In FY 1996, US attorneys dealt with editorial entitled “The Cokeheads’ 30,227 suspects in drug cases, or Country,” placing much of the blame for 31.7% of all suspect in federal crimes. problems in Columbia on the thirst for (ii) In 1998, there were 1,559,600 state cocaine in the US : “If it weren’t for the fact and local arrests for drug crimes, a that so many Americans working for figure 1% higher than in 1997, 17% Fortune 1000 companies think the most higher than in 1994, and 20% higher important thing in life is sucking cocaine than in 1989. up their noses, the sovereign nation of (iii) DEA drug arrests in 1998 increased Columbia might not be on its way to 11% over the previous year, and becoming the world’s first drug republic.” nearly doubled since 1995. Most of The international implications of the US these arrests, 45.5%, were for cocaine drug problem will be explored in more offences, while 20.7% were for detail below, but it there is no question that methamphetamine crimes. The rest the Journal has raised an important point were for heroin, dangerous drugs, in its editional. and marijuana. (iv) Slightly over 20% of state and local II. EXTENT OF THE PROBLEM drug arrests were for the sale or manufacture of drugs, while the Louis J. Freeh, Director of the Federal remaining arrests were for Bureau of Investigation (FBI), addressed possession. the problem of drugs in the US at the 1996 (v) In 1997, 98% of the 1,451 illegal drug Annual Meeting of the World Economic
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laboratories seized by federal a local anesthetic, but development of more authorities were used for the effective anesthetics, as well as abuse of manufacture of methamphetamine. the drug, led to its being made illegal. (vi) Also in 1997, the Drug Enforcement While previously used primarily in its Administration’s (DEA) program for powder form (cocaine hydrochloride) by marijuana eradication destroyed inhaling, it is currently most often used in 241,000,000 plants in 69,665 plots, its crystalline form, usually called “crack”. with 17,070 arrests, seizure of 4,713 Crack cocaine is smoked using a pipe, and weapons and $39.5 million in assets. results in an almost immediate intense, (vii) In 1998, the DEA seized 2,568.5 euphoric feeling that soon passes. The kilograms of methamphetamine, effect is very much like that of 70,440.9 kilograms of cocaine, 624.6 methamphetamine. Because of the short kilograms of heroin, and 364,081.1 duration of the feeling, users crave kilograms of marijuana. additional doses frequently. (viii)In 1996, 15.8% of all jail inmates said they committed their offence to get Heroin, derived from the opium poppy, money to buy drugs. In the same was also used as an anesthetic, and later year, 15,289 homicides, or 5.1% of all criminalized. It has traditionally been used murders, were drug-related. by subcutaneous injection, but recent (ix) In 1997, 33% of state prisoners and availability of very pure heroin, as well as 22% of federal prisoners said they the fear of HIV/AIDS transmission via used had committed their current crime needles, has led to smoking and snorting while under the influence of drugs. (direct inhalation of the powder). While (x) In 1996, 82.4% of all state and local most heroin today comes from Southeast jail inmates and 73% of federal Asia, an increasing amount of the Mexican inmates said they had used drugs in “black tar” variety is being smuggled into the past. the US. Heroin, too, produces a feeling of euphoria, and while it is not as intense, it The figures listed above leave no doubt lasts longer than that of cocaine. It is a that drugs are a major law enforcement central nervous system depressant, and problem in the US. What they do not show therefore overdose can be fatal. is the human misery caused by drug addiction, nor do they show the strain on Methamphetamine, derived from law enforcement agencies, prosecutor’s amphetamine, a drug used as a nasal offices, the courts, and the correctional decongestant, is a stimulant that produces system caused by efforts to contain the a “high” that lasts for up to 8 hours. It has problem. The drugs that cause the most been used to treat attention deficit disorder harm, both social and medical, are cocaine, and obesity, but has been supplanted by heroin and methamphetamines, all have more effective drugs, and currently has few long been drugs of abuse in the US, but legitimate uses. In its pill form it is know which are now appearing in new forms or as “speed” or “meth”, while in its crystalline purity. form it is called “ice” or “crank”. In this latter form it is particularly intense and Cocaine is derived from the cocoa plant, addictive and is ingested by smoking. It which is indigenous to the Andean has quickly become a drug of abuse in Mountain areas of South America. In the epidemic proportions in some parts of the late part of the 19th and early part of the country. 20th centuries, cocaine was widely used as
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Marijuana is the mostly widely abused likely to change in the US. It also creates drug in the US today, but does not have many opportunities for corruption. the severe effects, both personally and socially, as those discussed above. It Corruption of criminal justice personnel, produces psychoactive effects which peak by those involved in illegal drugs, primarily 10 to 30 minutes after smoking, and which takes the form of bribery. While the bribe may last hours. In low doses it gives the may be in the form of drugs themselves, it user a relaxed, dreamy state of well being, is most often in the form of cash. With the while in higher doses it heightens the vast amounts of cash available to drug senses of sight, smell, taste and hearing. dealers and organizations, the money used It has, according to some proponents, to bribe criminal justice personnel medical use in relieving nausea for those constitutes petty cash. Yet that money may undergoing chemotherapy and in be highly attractive to those whose annual increasing the appetite of AIDS patients. legitimate income is relatively small, It also has some negative effects in high attractive enough that they will risk losing doses and/or long-term use. their jobs, family, freedom, and perhaps their lives, for the enrichment it provides. There are, of course, a number of other What is given in return for bribe may take drugs of abuse, and new or “designer,” a number of forms. Among them are: drugs are being created ever year. Those listed above are the most widely used and, (i) Information on law enforcement with the exception of marijuana, create the intelligence. greatest damage to the individual and to (ii) Overlooking drug possession, sale or society as a whole. manufacture. (iii) Protection of drug dealers. III. DRUG RELATED CORRUPTION (iv) Elimination through arrest of rival IN LAW ENFORCEMENT dealers. (v) Elimination through murder of rival Drug crimes are investigated by law dealers. enforcement agencies at the local, state and (vi) Overlooking or facilitating federal level. This amounts to over 700,000 smuggling. sworn personnel at the state and local level, and over 13,000 federal law enforcement In addition, criminal justice personnel may officials whose duties involve the be blackmailed in order to obtain the above investigation of drug offences (FBI and services or considerations. DEA, amongst others). The 700,000 plus sworn law enforcement officers at the state The targets of corruption include all of and local level are employed by those working in the criminal justice approximately 19,000 different agencies. system: local police and sheriffs; state In addition, there are 2,343 state narcotics officers; federal Customs, prosecutors’ offices, employing over 71,000 Immigration, and Coast Guard personnel; personnel and 93 US attorney’s offices in FBI, DEA, BATF (Bureau of Alcohol, the US. The large number of different Tobacco, and Firearms) personnel; local, agencies and jurisdictions involved in the state and federal corrections personnel; investigation and prosecution of drug local, state and federal regulatory officials; crimes creates logistical and coordination and prosecutors and judges at all levels. problems, but this system of law While there is no agency that has the enforcement is well-established and not responsibility of accumulating data on the
424 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS drug-related corruption of public officials, the investigation. the FBI does provide an annual report on (iv) Aggressive investigative techniques corruption cases opened and officers like undercover operations and convicted each year, and the GAO provides electronic surveillance are often studies for Congress and the public on the needed to make a provable case, but issue. A 1998 GAO report not only points these techniques can destroy the out the lack of any database from which to morale of honest judges, prosecutors determine the extent of drug-related or police officers. corruption among law enforcement, but (v) A code of silence or a culture of non- also states that drug-related corruption cooperation frequently keeps police cases may not always be identifiable as officers from coming forward with such, since they may be listed as perjury, information or otherwise cooperating (for lying as a witness during a trial), or with investigations involving theft (for stealing drugs from seized corruption by fellow officers. evidence). (vi) Decisions not to investigate or prosecute allegations of judicial or In FY 1997, for example, there were a law enforcement corruption are often total of 190 cases of law enforcement difficult to justify publicly and can be corruption opened by the FBI (often in perceived as efforts to cover up participation with state and/or local enbarrassing misconduct. agencies), 48% of which were drug-related. In the same fiscal year, 150 law Despite the difficulties cited above, enforcement officers were convicted of criminal justice personnel are investigated, corruption-related offences, 53% of which prosecuted and convicted. Here are some involved drugs. To put these figures in recent examples: perspective however, those law enforcement officers convicted of drug- (i) An Orange Country, California, related corruption constitute .02% of all law district attorney was arrested in June enforcement personnel. for being part of a major drug distribution and money laundering While official corruption cases are ring. inherently difficult to investigate, those (ii) Thirteen corrections officers in involving drugs pose particular problems. Miami, Florida, were charged, along As Deputy US Attorney General, Eric H. with 30 others, with running a drug- Holder, Jr., stated at an international dealing operation in the Miami-Dade conference in February, 1999: County jails. (iii) A county sheriff in Texas was arrested (i) Prosecutors are often reluctant to for stealing almost $12,000 in seized investigate and prosecute police drug money and trying to replace it officers or other prosecutors with by selling marijuana. whom they regularly associate. (iv) A veteran Chicago police officer was (ii) Police agencies sometimes cannot be among 10 people charged with trusted to investigate themselves. running a drug ring that transported (iii) Judicial corruption investigations can millions of dollars of cocaine and cause judges to distort their decision heroin between Chicago and Miami. making process in unrelated cases to (v) Three corrections officers in curry favor with their investigators California were charged with or otherwise influence the outcome of smuggling marijuana,
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methamphetamine, cocaine and trucks to drive through ports of entry, heroin into state prisons. coordinating the movement of drugs across (vi) A Pennsylvania State trooper, the border, transporting drugs themselves addicted to cocaine, was charged with across the border, selling drugs, and stealing 2.5 kilograms of cocaine from providing confidential information to drug the State Trooper evidence locker. dealers. Of the 28 convicted, 19 were INS (vii)Two INS (Immigration and employees and 9 were Customs employees, Naturalization Service) inspectors and they were stationed in California, and one former inspector were Arizona and Texas. charged with taking bribes amounting to hundreds of thousands IV. WHY DOES THIS CORRUPTION of dollars to allow Mexican drug TAKE PLACE? dealers to smuggle cocaine across the The simple answer to this question is border. money. One might well ask, using the (viii) Six local sheriffs in Texas were examples cited above, whether the risk charged with helping to smuggle 800 taken by these officials was worth $32,500, kilograms of marijuana across the or even hundreds of thousands of dollars. border. To the vast majority of criminal justice (ix) A former INS inspector in Arizona officials the answer is clearly “no”. But all admitted to accepting a $75,000 bribe it takes is one corrupt officer to allow drug for allowing 585 kilos of cocaine to smuggling and distribution to take place, cross the border when he was on duty and given the huge profits made by these in 1996. Another officer is charged criminals, money spent on corrupt officials with attempting to import, possess, is an excellent investment. One can point and distribute cocaine in return for to low salaries, poor morale, inadequate accepting bribes totaling $32,500. training, amongst other factors leading to corruption, but it is often a complex series The border between the US and Mexico of factors in each event that leads to an poses a particular problem. It stretches actual crime. from Brownsville, Texas, to Imperial Beach, California, a total of 1,962 miles Law enforcement salaries in most police (3,157km). It is manned by approximately and sheriffs offices is quite low-often less 1,300 INS and 2,000 Customs inspectors than $35,000 per year for experienced at the numerous points of entry, and personnel, while prosecutors rarely earn patrolled by over 6,300 INS Border Patrol over $75,000 per year and judges $100,000. agents at points in between. Even with all Bribes equal to or several times these of these inspectors and agents, assisted by salaries are a small part of the operating high-tech surveillance devices, it is expenses of major drug operations. This virtually impossible to prevent the money can be very attractive, especially to smuggling of drugs from taking place; and, those who are in debt or already living it would seem, from preventing corruption beyond their means. It is also difficult for of these personnel. law enforcement personnel when they compare their lifestyle to that of those they A 1999 GAO report details the cases of arrest-honesty and integrity don’t buy the 28 INS and Customs personnel convicted luxuries that those in the drug business for corrupt acts related to drugs between have in quantity. But there are many other 1992 and 1999. Among the offences reasons as well. committed were the allowing of drug-filled
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A May 1998 study by the GAO identified operations is especially troublesome, as it a number of factors that are correlated with not only exposes the officers to seamy, but drug-related law enforcement corruption; often exciting, drug culture. It may, under and distinguishes this type of corruption some circumstances, require that the from other forms of police corruption. officer actually use drugs as part of the Drug-related corruption, for example, often undercover operation. That, in turn, may involves protecting criminals or ignoring lead to addiction. their activities, as noted above, as well as active involvement in the commission of a B. Recruitment Standards number of crimes, including drug theft, The large number of law enforcement robbery, selling of drugs and perjury. It also agencies in the US is due to historical and has in common with other forms of traditional decentralization of that corruption the police “code of silence” and function. That in turn means that each cynicism about the criminal justice system. local agency enjoys a great deal of independence from both the state and The report lists a number of factors that federal government. While there are state are associated with drug-related standards for police training in most states, corruption: and minimum requirements for recruitment in some, there is no national (i) Opportunities. standard for either. Nor is there any widely (ii) Recruitment standards. accepted accreditation process for law (iii) Training. enforcement agencies. So recruitment (iv) Police culture. standards vary widely. As a result, (v) Supervision. departments may hire those totally (vi) Code of integrity. unsuitable for police work. Few law (vii) Internal affairs. enforcement agencies at the state or local (viii) Police brutality. level require either a community or four- (ix) Family or neighborhood pressures. year college degree, although some are starting to require “some college And, I would add, the decentralized nature education”. Some agencies give preference of law enforcement in the US. to veterans, but few, if any, require prior military service for hiring. Psychological A. Opportunities testing varies greatly, from none to The nature of law enforcement extensive background investigations. necessarily involves many opportunities to Federal agencies, such as the FBI and the engage in illigal acts, ranging from DEA, have higher standards, requiring a accepting $5 not to write a traffic citation, minimum of a bachelor’s degree as well as through taking small amounts of passing an extensive background check, merchandise from burglarized stores, to psychological testing, and a polygraph (“lie protection of organized crime. With respect detector”) examination. to drugs, there are opportunities to keep some of the drugs seized, or to keep some C. Training of the cash seized, during arrest. A recent As noted above, training standards vary scandal in the Los Angeles Police from state to state and from department Department involved, among other things, to department. Some departments, the theft of a substantial quantity of especially the larger ones, do their own cocaine from a police evidence locker. The training, training which may be quite use of undercover officers in narcotics comprehensive and last for one year or
427 RESOURCE MATERIAL SERIES No. 56 more. Smaller departments may pay for military in several important aspects. Most training at a regional academy, frequently importantly, perhaps, is that police officers run by a university or community college. tend to either work alone or with a partner, Other may essentially use on-the-job rather than in squads or platoons as in the training, putting virtually all of the military. This means that they often work emphasis on learning through experience. without direct supervision. Supervisors Regardless of which method of training is respond only when needed, and rarely have used, police departments or regional the opportunity to directly observe their academies tend to place more emphasis on subordinates carrying out their normal techniques of arrest, firearms training, functions. They most often rate their crime scene investigation, routine patrol, subordinates on the basis of written etc, than on moral and ethical issues. reports, number of arrests made, number of citizen complaints, and other such D. Police Culture numerical criteria. The higher in rank one The GAO report listed the following rises, the less that person is aware of or characteristics of a police culture that primarily concerned with the day-to-day supports corruption : aspects of policing. Instead they must deal with budgets, purchasing and political (1)A code of silence with grave functions. consequences for those who violate it; these cosequences may include the F. Code of Integrity failure to “back up” an officer in There are a number of codes of conduct dangerous situations if that officer is or codes of integrity in law enforcement. perceived of as having violated the What is lacking, however, are effective code of silence, even if that silence methods and efforts to teach and enforce covers up serious crimes. them. Most professional law enforcement (2) Loyalty to other officers above all agencies teach ethics in their academies, else-your life may depend on it. but they rarely have in-service training of (3) Cynicism about the criminal justice ethics and integrity, nor do they use system and public support for law integrity as a criteria for promotion. enforcement - a common Integrity training is especially important characteristic of veteran police for officers assigned to units responsible for officers, especially those in large, drug enforcement. urban, high-crime areas. (4) Indoctrination on the job as to what G. Internal Affairs is acceptable behavior - “forget what Most law enforcement agencies have you learned in the academy - this is internal mechanisms for dealing with how it is really done”. In general, violations of procedures, as well as police officers feel that only other violations of the law. These internal affairs officers can understand their job and units, as they are called, are tasked with that they can only trust other officers; investigating citizen complaints about all other citizens are by definition officers, as well as taking proactive means “suspects”. to ensure adherence to procedures and the law. This duty is, however, generally E. Supervision distasteful, and officers assigned to Although police departments virtually internal affairs units are frequently all have military-like command and rank referred to as “headhunters”. They cannot structures, they are very unlike the adhere to the code of silence, nor can they
428 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS cover up for officers guilty of violations. But to live in that city. in practice in many departments, internal affairs units are less than effective. Many J. Decentralized Law Enforcement of the police departments of the larger cities The very nature of law enforcement in in the US, such as Los Angeles, Chicago the US lends itself to inefficiency and lack and New York, have failed over the past of oversight. State and local law ten years to effectively deal with corruption enforcement agencies in the US are and brutality, among other offences. Due essentially self-governing and are rarely to the nature of their work, officers subject to the oversight of a higher assigned to drug enforcement often tend authority. There is tension between local/ to be immune from internal affairs state agencies and federal agencies that is investigations. long-standing, and while the FBI, for example, has statutory authority to H. Police Brutality investigate corruption in state and local Police brutality is one of the most law enforcement agencies, it is frequently frequent complaints investigated by difficult to carry out that authority due to internal affarirs units, and one of the most political pressures and lack of cooperation widely publicized by the media. The among local or state officials. State Rodney King incident in Los Angeles took agencies, such as the Office of the Attorney years, and a violent riot, before it was General, rarely investigate local law finally resolved. Similarly, the recent enforcement agencies and rarely prosecute brutalizing of an African immigrant by local law enforcement officials who are New York City police officers made suspected of being corrupt. Drug headlines worldwide. Several studies have enforcement units within police found that officers involved in drug-related departments tend to be isolated and corruption also have histories of complaints insulated from the rest of the department, made against them for the use of excessive in large part for the purpose of force. confidentiality. Therefore, corruption in these units it rarely detected. I. Family or Neighborhood Pressures V. INTERNATIONAL IMPLICATIONS Although many law enforcement As noted above, the sources of the most agencies have policies that effectively place abused and dangerous illegal drugs in the their officers on duty 24 hours per day, by US are primarily foreign. Columbia is the requiring them to take action in any serious source of most of the cocaine used in the crime, even when off-duty, the practical US, while heroin comes from Southeast reality is that police officers are citizens Asia and Mexico, the latter also being the like everybody else. They have families and source of much of the methamphetamine they live in neighborhoods. But sometimes consumed in the US. Mexico, in addition families and neighborhoods create conflict to being a source of many of the drugs in with their duties to enforce the law. In the US, is also a major transit area as well several of the cases cited above, law - just last week 1,290 people were arrested enforcement personnel were enticed into in Jamaica, the Dominican Republic and corruption by family members. In other Haiti, for drug trafficking. In the same cases, neighborhood norms may put the week, 30 drug traffickers, including a officer in conflict with the norms of law number of major figures in Columbia’s drug enforcement. This is especially a problem cartels, were arrested. The Colombian in those cities which require their officers
429 RESOURCE MATERIAL SERIES No. 56 operation is said to have been shipping 30 the resultant corruption of police, tons of cocaine into the US each month, or prosecutors and judges. about $60 billion a year worth of cocaine. The Colombian cartel used sophisticated Columbia and Mexico are poor countries, communications equipment with and the amount of money available through encryption devices, but authorities were drug manufacture and trafficking is able to intercept the messages and break enormous. Neither nation has industries the encryption. Whether the Colombians or government jobs that can offer salaries will be extradited to the US, however, is that pay a fraction of what one can earn not clear, even though they were arrested from illegal drugs. Who can blame poor based on indictments handed down in farmers for growing cocoa or marijuana, or Miami. Columbia restored extradition with peasants for making methamphetamine, the US in late 1997, which means that even when other jobs are virtually non-existent? if the drug traffickers are extradited they Similarly, who can blame poorly paid cannot be tired in the US for crimes criminal justice personnel from taking committed prior to December 17, 1997. It bribes, when obeying the law and should be noted that the penalties for drugs maintaing one’s integrity does not put food in the US are much more severe than those on the table? The real dilemma is that in Colombia. just as citizens of these countries are seduced by drug money, high officials are As The Asian Wall Street Journal seduced by US aid or by drug money, or editorial cited above indicates, however, the both. All because of the enormous appetite real problem lies in the US. The US is for illegal drugs in the US. giving Colombia $289 million in anti- narcotics aid this year, but Columbia claims This drug appetite has created an that this figure is not enough and has international disaster - politically, socially, recently asked for $1.5 billion over the next and morally. The US should be working three years. Much of this money is for with its Latin and South American eradication of cocoa plants and payments neighbors to achieve economic and political to farmers for alternatives to this form of stability for the welfare of all its citizens, agriculture, as well as for equipment but instead all three nations find ranging from high-tech surveillance themselves working to stamp out drug devices to helicopters. It is also safe to say manufacture and trafficking, neither of that some of that money will be used to which results in much stability. It is fight left-wing guerilla groups that support thought by many that US efforts against the drug traffickers. Colombian drug traffickers have helped the rise of the leftist guerilla movement in that The situation in Mexico is no better. country, and of large organized crime Mexico is rife with drug-related corruption, groups in Mexico. While both countries corruption that has reached to the have historically suffered from corrupt presidency of that nation. It is estimated public officials, money associated with the that about 60% of the cocaine in the US drug trade has increased corruption comes across the US -Mexico border, with significantly. much of the rest coming through the Caribbean. As noted above, Mexico is also The huge appetite for drugs in the US, a major source of methamphetamine, therefore, has created significant heroin and marijuana. This has resulted international problems for all of the in very large drug cartels in Mexico and Americas. Issues of sovereignty are raised
430 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS by the presence of US drug agents B. Recruitment Standards operating on foreign soil and flying in The President’s Commission on Law foreign skies. Economic development of Enforcement and the Administration of these countries suffer because of the energy Justice in 1967 issued a massive report and money that goes toward fighting drugs. which, amongst many other issues, There is no question that fighting drug addressed the recruitment issue. It traffickers is an international problem that suggested that all law enforcement requires international efforts, nor is there agencies in the US start phasing in any question that this effort is necessary - increased educational requirements for the US cannot adequately guard its recruitment, eventually requiring a coastlines and borders against smugglers, minimum of a bachelor’s degree for hiring. so it must try to reduce or stop the flow of This has not happened. The debate still drugs from the countries of origin. But the rages over whether a college education price is high and there is no light at the makes a person a better police officer. At end of the tunnel. the same time, however, it is widely recognized that the federal agencies, VI. SOLUTIONS especially the FBI, have far less corruption and are better trained than the vast Solutions to the problems discussed majority of state and local departments. In above can be divided into two categories: large part this is due to higher recruitment law enforcement and the rest of society. standards, which not only include a college The first category is perhaps the easiest to degree, but a comprehensive selection solve, but only in comparison to the second. process as discussed above. Despite the decentralized nature of law enforcement in the US, it is possible to C. Training significantly reduce corruption in those It used to be thought that the emphasis agencies, whether drug-related or not. So on training prospective law enforcement the question is not whether it is possible, officers should be in the areas of the use of but rather when there is enough public force - how to subdue an opponent and how pressure and official commitment to see to shoot accurately - as well as other that it happens. Let us, then, examine the operational requirements. Thinking has problems listed above and seek solutions gradually shifted, however, so that more to each of them. emphasis is placed on interpersonal communication, psychology, sociology and A. Opportunities other “academic” subjects. What is lacking, The nature of police work will always however, is extensive and ongoing integrity involve opportunities to engage in corrupt training and the use of integrity measures activities. But that is true of other for promotion. It is essential that this professions and occupations as well. Bank training takes place, and that it be tellers work with large sums of money supported by appropriate operational daily, physicians have access to many policies and by all supervisors. In addition, drugs, and office workers have access to law enforcement officers should be required office materials. So there is always the to make full and complete disclosure of all temptation to embezzle, use drugs and income, assets and debts. Departments steal. Opportunities can be reduced should consider integrity testing, although through effective supervision, and it is recognized that this is controversial temptations reduced through effective and may well be opposed by law recruitment and training. enforcement unions.
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D. Police Culuture supervisors can be handled by civilian This is one of the most significant personnel. Ranking police administrators problems facing those those who are trying belong where they can effectively supervise to reduce or eliminate corruption in law those under them. Police supervisiors must enforcement. It is even more of a problem be held strictly accountable for the actions among narcotics officers, as narcotics units of those they supervise. are cultures within a culture. Narcotics officers tend to associate only amongst each F. Code of Integrity other, and are generally under much less As noted above, there are numerous supervision than patrol officers or codes of law enforcement integrity, but they detectives. While some separation from the are meaningless unless they are effectively rank and file may be necessary for reasons inculcated into the agency itself. Integrity of confidentiality, too much separation is training must be a continuous process, not healthy. Nor is long-term assignment taking place both in the classroom and the to undercover narcotics work. It is true field. It should be one of the criteria for that major drug investigations may take evaluation and promotion, and years, and undercover officers may have administrative practices must make it to maintain that status for years, but as clear to all officers that the agency does not soon as arrests have been made and the tolerate breaches of integrity. Whether a officer’s identity known, the officer should law enforcement agency has an internal be transferred to another division or unit. affairs unit responsible for maintaining Rotation of personnel, then, is important integrity, or depends on an external unit, in general in law enforcement, and is not as important as the effectiveness of especially important in drug units, as a the unit itself. There has been a great deal means of reducing corruption. of controversy over civilian review boards in the US. These boards have been E. Supervision established to serve as a watchdog agency As noted above, police supervisors over law enforcement, which would reduce (generally, sergeants and above) actually or eliminate police brutality and engage in very little direct supervision. corruption. But they have not been very The vast majority of supervision is done effective, primarily because they rarely get on paper, and subordinates are evaluated much cooperation from the agency they are by paper (reports, arrests, traffic tickets, supposed to be monitoring. This is another etc). Corruption in US law enforcement example of the police culture, which says is, for the most part, at the lower levels of that “only a police officer can understand police departments. The higher up in the the actions of another police officer”. So chain of command one gets, the less likely internal affairs units are more likely to be that person will be corrupted for the simple effective, but only with the total support of reason that those administrators are not supervisory personnel. in a position to make decisions that will benefit drug dealers. In very small G. Police Brutality departments, of course, this is not the case, This problem has been addressed above, but most of the corruption in the US is to some extent, but the problem is a serious found in larger departments. Therefore, one. Police are faced with many dangerous supervision of those in the lower echelons and volatile situations where their lives is vital to effective law enforcement and the and those of innocent civilians may be at elimination of corruption. Many of the risk. The majority of uniformed police functions of higher ranking police patrol officers and detectives in the US
432 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS routinely wear body armour because the staightforward: when one pins on the threat of being shot is very real. Given this badge, one’s primary loyalities shift to the perceived constant threat that can come citizens he or she serves. A police officer from anybody - male or female, young or may well find that his or her pre-police old - police are justifiably apprehensive, friends and social groups are no longer especially when involved in a situation that appropriate. An old friend may drink too could result in violence. Just where to draw much and then drive home, or somebody the line with respect to the use of force may may take out a marijuana cigarette in a be clear in academy training and general social setting. What is the off-duty police orders, but on the streets in the fast- officer supposed to do under these moving, confusing situations that officers circumstances? This, unfortunately, gives in many cities face every day, it is not that rise to the police culture, but as noted clear. Police officers are usually taught to above, there are ways that this problem can use an escalation of force which is be minimized. It must be clearly necessary to control the situation - use understood when one applies to become a pepper spray to control a violent, unarmed police officer that certain sacrifices must person; use a baton to control a violent be made, and that may include some person who is not affected by the spray; use alienation from family and friends in the a firearm only when necessary to protect higher interest of protecting society as a your own life or that of an innocent civilian, whole, protection that cannot occur if a etc. police officer gives his or her primary loyalty to family and friends. In theory this is a good policy, but in practice it is not always so easy to adhere I. Decentralized Law Enforcement to. It is quite difficult, for example, to in the US handcuff a suspect who resists. Even two This is the one problem that does not officers may not be able to cuff a resisting seem to have a solution. The historical and suspect. If more than one officer is political roots of this form of law involved, it may well seem to a civilian enforcement are so firmly embedded that bystander that police are acting in a brutal change is virtually impossible. Therefore manner. The suspect himself may sustain the inefficiencies caused by it must be made injuries in the process, which he will later up for through better communication and claim were caused by police brutality. coordination. There is no easy answer to this problem, but it is clear that with good supervision VII. CONCLUSION police brutality will be minimized. The It is realized that even though solutions Rodney King incident in Los Angeles is an are suggested, there are no easy answers excellent example of this - Sgt. Stacey Koon to any of the problems enumerated above, did not exercise good leadership and as a and implementaion is never easy because result, Rodney King was treated in a brutal there are always economic and political manner by officers under Koon’s considerations. Nor will the same problems “supervision”. So we come back to the and solutions be applicable to law supervision issue, which is of primary enforcement agencies in all nations. The importance in law enforcement. principles involved, however - integrity, honesty, ethics, morality, and lawfulness - H. Family or Neighborhood apply to all cultures, even though they may Pressures not present in all cultures. These solutions The solution to this problem is quite
433 RESOURCE MATERIAL SERIES No. 56 cannot work without the support of the society as a whole. From the highest elected officials to the lowliest voter, there must be support for a corruption free society, and with it, corruption-free law enforcement. A good place to start is to have no tolerance for drug use, for as long as the great thirst for drugs remains, there will be people willing to pay large sums of money to obtain those drugs, and that will in turn create a ruthless and well-financed group of people who supply the drugs to those who demand them. Bribing law enforcement officers or anybody else in the criminal justice system becomes part of the cost doing business, and creates problems that are international in scope. Until every society rejects this vicious cycle, until drug use becomes unacceptable, there will be police corruption. And as long there is police corruption, we will all suffer.
434 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
CORRUPTION IN JAPAN AND THE US
Anthony Didrick Castberg*
I. INTRODUCTION numerous definitions. Finally, while Japan keeps detailed statistics on corrupt acts, Comparing corruption in countries is the US has no centralized record keeping always difficult, and this is no less true for corrupt acts. This paper will, therefore, when the two countries are Japan and the discuss differences in types, causes, and United States. While both countries are efforts to reduce, rather than amounts. advanced industrial democracies, the similarities generally end there. Japan’s II. CORRUPTION IN JAPAN legal system is based on French and German models, and is therefore a civil law Corruption in Japan generally takes the system, while the legal system of the US is form of bribery of high officials in the based on the English system, making it a various ministries or prefectural governors, common law system. Japan has a multi- or those of lesser rank. This bribery can party parliamentary political system, while take the form of direct payments of cash the US has a two-party, republican for favorable consideration, of federalist system. The list can continue entertainment (“wining and dining”) of almost indefinitely, but let us remember officials by those currying their favor, of gift that not only are the systems of memberships in expensive golf clubs, or it government quite different, so too are the may take the form of unlisted stocks whose cultures. Thus, one would expect the types value will rise once they are offered to the of corruption, if not the amount, to vary as public as a whole. In recent years there well. have been cases of corruption involving the Ministries of Labor, Education, Finance, This paper will not attempt to determine International Trade and Industry, and the relative amounts of official corruption Health and Social Welfare, as well as in each country, but rather the nature of politicians in a number of prefectures in such corruption and the measures used to Japan. counter it. Measuring corruption is particularly difficult in this case because Corruption in the US tends to take place “corruption” is not a crime, but a general at lower levels than in Japan. There are classification for a variety of criminal acts, very few recent corruption cases involving including bribery, abuse of authority, high officials, although several cabinet breach of trust, and misappropriation of officials during the Clinton administration public funds. The definitions of these were investigated but not charged. criminal acts differ between Japan and the Corruption among law enforcement US, and more importantly, all of Japan is officers, at both the local/state and federal subject to one penal code, and therefore a levels, occurs with some regularity, just as single definition, while the US has 50 it does in Japan. In neither nation is such different penal codes (one per state) as well corruption extensive. From time to time a as a national (federal) code, resulting in state public official is convicted of committing a corrupt act, but it is rare for * Professor of Political Science, University of Hawaii anybody at the secretarial level (equivalent at Hilo, United States of America. to ministerial level in Japan) to be
435 RESOURCE MATERIAL SERIES No. 56 convicted of a corrupt act. Henry Cisneros, the relative lack of corruption of high former Secretary of Housing and Urban officials in the US, and relative prevalence Development, pleaded guilty earlier this in Japan, requires some discussion. High- year to a misdemeanor charge of lying to ranking officials, secretaries of cabinet the F.B.I about payments he made to a agencies in the US and ministers of former lover. The payment was not from agencies in Japan, are appointed by the public funds and the case had nothing to chief executive in each country. In Japan do with his official duties. The this is the Prime Minister, and in the US it investigation took 4 years, cost $10 million, is the President. In Japan, a Prime and was seen by many as motivated by Minister may remain in that post for as partisan political concerns. Former long as his party, or a party coalition, is in Secretary of Agriculture, Mike Espy, was power. Over the past ten or 15 years, the charged with bribery and acceptance of longevity of Japanese prime ministers has favors, but was found not guilty. not been great, with some administrations lasting less than one year. In contrast, Corruption in the US is most prevalent presidents in the US enjoy a minimum of in political campaign financing, where laws four years in office, and frequently eight. are violated with regard to individual and High-ranking appointed officials generally corporate campaign contributions, but remain in their positions for at least the where the candidate rarely personally first term of the president who appointed benefits financially. What is sought is them, and it is not unusual for them to stay election or re-election rather than cash, longer if the president is re-elected. In although election or re-election may have Japan, however, short administrations clear financial implications. As noted in mean short terms in office for political an earlier paper, those who contribute to appointees. With little job security, the political campaigns, legally or illegally, temptation of bribes must be strong, expect something in return, so one could especially when the bribe includes argue that politicians who accept such promises of future employment in the contributions are in effect accepting bribes. sector overseen by the minister. In the US, It would, however, be extremely difficult as in Japan, political appointees lose their to connect such acceptance to subsequent positions when the administration specific acts of favoritism by the politician. changes, but many of these high-ranking So the corruption that is seen in such officials obtain jobs in private industry, situations is a generalized corruption of the universities, or run for elective office. political process, rather than specific Because they know when their term will corrupt acts by specific public officials. end, they can plan their futures. When one Problems of the corruptive influence of never knows when one’s term will end, it campaign contributions also are prevalent is difficult to plan a future and there may in Japan. As the Asahi Evening News noted be, therefore, the temptation to obtain as in a recent (September 12) editorial, “The much money as possible while in office, as heavy dependence of parties and politicians well as set one’s self up for a lucrative on corporate donations has been a breeding position in private industry as soon as ground for corruption.” possible, perhaps through favours given to private industry. What explains the differences in the nature of corruption in the two countries? As we have seen, campaign financing corruption is common in both nations, but
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III. MEASURES AGAINST as judges feel that public exposure may be CORRUPTION enough punishment. So rather than increased penalties in the Penal Code and Both Japan and the US have numerous other relevant legislation, perhaps judges laws against corrupt acts. In Japan, these should treat such corruption more seriously laws may be found in the Penal Code, the by imprisoning corrupt officials. National Public Service Law, the Local Public Service Law, and in the Unfair In the US, by contrast, the penalties for Competition Prevention Law. In the US, corrupt officials are usually quite severe, the penal codes of all fifty states contain especially if the case was tried as a federal provisions against such corrupt acts as crime. Federal US judges have little bribery, abuse of power, and embezzlement, discretion in sentencing, so those who are and the federal codes contain numerous convicted normally serve a prison term. provisions against corrupt acts by both There is not as much consistency in state federal and state/local officials. A cases, as state sanctions vary, as does significant portion of the federal laws judicial behavior, but it is still safe to say against corrupt acts in the US is of recent that the vast majority of public officials origin, the result of the “Watergate” convicted in state courts of felonies scandals in the Nixon administration. In involving corruption will serve some time addition to state and federal penal codes, in prison. US law contains codes of ethical conduct, administrative regulations, and IV. PROSECUTION AND presidential orders. Under many of these ADJUDICATION laws, regulations, codes, and orders, administrative, civil, and criminal One finds major differences between sanctions may be imposed. The US also prosecution and adjudication in Japan and has the Foreign Corrupt Practices Act, the US. This is due to differences in the which makes the paying of bribes to foreign nature of those offices, differences that are officials (private or public) a crime; it is the reflected in the manner in which cases are only nation with such a law. There is, then, prosecuted and adjudicated. In Japan, both no shortage of laws against corrupt acts in prosecutors and judges are career public Japan or the US. officials. Both have been trained in the elite Legal Training and Research Institute It is doubtful that either nation needs (Shihoo Kenshousho), the only law school additional legislation to deal with in Japan, to which only about 3% of its corruption of public servants, although applicants are admitted. In the US, Japan might consider a law similar to the however, the only requirement to become Foreign Corrupt Practices Act. More severe a judge or a prosecutor is to have graduated sanctions in Japan for corrupt acts may from an accredited law school, of which serve as a deterrent, but the widespread there are hundreds with significant publicity given to past and current differences in quality, and to have passed scandals, and the resulting sanctions the bar exam of the state in which the imposed on former high-ranking person is to serve. Many states require that politicians, would seem to serve that those who aspire to a judgeship be a purpose. If one examines the sanctions member of the bar for a minimum period- given to these former officials carefully, usually five years- but no special training however, one finds that they are not that is required. State judges may be either severe. Imprisonment is often suspended, appointed or elected, while federal judges
437 RESOURCE MATERIAL SERIES No. 56 are appointed by the president with the Those prosecutors who choose to make consent of the Senate. State judges have a career in public office tend to be either terms of office ranging from 4 to 10 or 12 highly dedicated to law enforcement or years, while federal judges serve “during incapable of getting a better position good behavior,” meaning for life. elsewhere. This is quite different than the status of prosecutors in Japan, whose Judges in the US, therefore, must be status ranks with that of judge, and is concerned about politics. If they want to overall quite high. More importantly, be re-elected or re-appointed, they must however, is the fact that prosecutors in the make certain that their decisions will not US are politicized, while in Japan they are work against them when the time comes not. That is not to say that there are no for re-election or re-appointment. Even politics in prosecutor’s offices in Japan, but where terms of office are lengthy-10years, that the office itself is not political and for example- decisions can be held against prosecutors do not have to run for re- a judge or a prosecutor by those who are election or worry about re-appointment. politically powerful. Federal judges do not Prosecutors in Japan are also more have such concerns, as they can be removed cohesive than those in the US - they tend from office only by impeachment. But to have the same values, use the same political considerations play a major role methods and approaches, and have a in their initial appointment, so the result collegiality that is not found in most offices may be the same. Many of President in the US. Clinton’s judicial appointments have not been approved by the Senate because of What this means is that there may be ideological differences between clear political considerations in the conservative Republican members of the decision-making of many prosecutors and Senate Judiciary Committee and the judges in the US, as their careers may President. In order to make sure an depend upon making the correct decisions, appointee is confirmed then, a president whereas such is not the case in Japan. This must select candidates whose political is not to say that most prosecutorial ideology will pass muster in the Senate. decisions in the US are political decisions, Thus, the federal judiciary is shaped by as most criminal cases are routine, but partisan politics. rather that in major corruption cases involving prominent suspects, political Chief or head prosecutors in the US are considerations are more likely to play a role either appointed or elected at the state than in Japan. level, while US attorneys at the federal level are appointed by the President. V. CONCLUSION Lower ranking prosecutors may also be Volumes could be written on the appointed by the chief prosecutor, or may differences in official corruption between be hired through a civil service system. Japan and the US. This paper has only Only a small percentage of prosecutors in scratched the surface, but I hope that the the US make prosecution a career, however, essential differences between the corrupt and turnover is frequent. Good prosecutors acts themselves and the manner in which can almost always make more money in they are dealt with by the respective private practice, and their status in the criminal justice systems is apparent. It is legal community is generally lower than not likely that the corruption experienced those in private practice, especially private in Japan will become common in the US, practice in large firms.
438 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS although the reverse may happen. Nor is it likely that the successful structural aspects of the Japanese criminal justice system will be adopted by US prosecutors. But there is no reason why the US cannot insist that its prosecutors and judges be better qualified and better trained, nor that the role of politics in prosecutorial and judicial decision-making be reduced significantly. I hope that by comparing the two systems both will benefit, and as a result, official corruption will be minimized and the citizens of both countries will have more confidence in and respect for their political leaders.
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PREVENTION AND REPRESSION OF CORRUPTION WITHIN A LAW ENFORCEMENT AGENCY
Michael A. DeFeo*
I. INTRODUCTION problems and how they solve them. My remarks today will begin with a Because we are a multinational group, description of the FBI’s system of internal it would be helpful to begin our discussion investigation, discipline and ethics with a comprehensive explanation of the instruction. Please understand that this FBI’s jurisdiction, to provide a context for method of presentation is not intended to a description of its integrity mechanisms. present the FBI system as a model to be Unfortunately, a comprehensive and logical imitated. Even if it were my intention to explanation of that jurisdiction is not persuade an audience to adopt one or more feasible, because the allocation of law elements of the FBI’s internal enforcement responsibilities between the investigative, disciplinary or ethics state and federal governments in the instruction approach, the most United States has developed as a result of unpersuasive and counterproductive historical accidents, rather than in any argument possible would be an arrogant coherent fashion. Accordingly, the FBI is assertion that our system is a model to be responsible for an odd mix of violent crimes copied. In my opinion, the organizational, and offenses against national sovereignty, legal and social realities between countries for espionage investigations and health are so different that a proposal to copy care fraud offenses. Its drug trafficking another country’s system would be not only jurisdiction is shared with other agencies, insulting but also technically unfeasible. and it investigates brutality and corruption We do believe that our system functions by local police agencies. well for us, but only because it is custom designed to serve our agency population In an effort to sort some sense out of a and organizational culture, as any system very confused jurisdictional situation, the should be. The reason why my remarks FBI’s strategic plan establishes three first focus on the FBI system is that it is priorities. Primary importance is dedicated always safest to begin a discussion with a to terrorist, espionage or organized subject you know well, and then to expand criminal activities which threaten the the discussion from that point of departure. national security, such as computer Describing how the FBI conducts internal intrusions into sensitive systems. investigations, imposes administrative Secondary importance is given to criminal discipline and provides ethics instruction enterprises that impact significantly on to its employees will provide a convenient public safety or government integrity, such frame of reference for discussing how other as street gangs and public corruption. The law enforcement agencies address common least emphasis is assigned to the crimes traditionally associated with the FBI in the * Assistant Director, Office of Professional popular imagination, which are crimes Responsibility, Federal Bureau of Investigation, US against individuals and property, such as Department of Justice, United States of America. kidnaping persons for ransom and bank robbery.
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The FBI currently has about 11,700 operational funds to support his gambling Special Agents with full law enforcement habit; and a young agent in New Orleans powers and 16,800 non-law enforcement who tried to extort a drug dealer to support personnel who perform clerical, technical, his spending habits. scientific, legal or linguistic duties. Reports reflecting disciplinary actions against our While not numerous, these employees for Fiscal Year 1997 and 1998 embarrassing prosecutions and the several have previously been distributed. To hundred administrative punishments summarize their content, we investigate imposed yearly reflect that FBI about 500-600 employees each year for management does not suppress misconduct allegations of crime and serious for public relations motives. A criticism misconduct, screened from among alleged against former FBI Director thousands of insubstantial or minor Hoover, during his tenure from the 1920s complaints, which are left to our field or to the 1970s, was that an FBI agent caught other headquarters divisions to address. committing a crime would be allowed to About half of those serious misconduct resign rather than be prosecuted, to avoid inquiries are at least partially embarrassing publicity which would substantiated, meaning that we investigate damage the image of the organization. about 2% of our employees per year and That is certainly no longer the practice, if discipline about 1%. Among the matters there ever was any truth to the allegation. investigated, the incidence of criminal As a practical matter, we recognize that the cases is low. 60% of our employees are non- proportion of reported to unreported agent support employees, with varying misdeeds is an unknowable mystery. What degrees of skill and education, and a is important to us is that, to the extent number of those will be dismissed each year misconduct does go unreported, the reason for commission of state offenses, such as is because it is concealed by the guilty theft, assault and fraud. However, the parties and not because of negligence, number of such cases is probably less than tolerance or concealment by the institution. 10 per year. The title of our course is “The Effective For agents, criminal offenses are Administration of Criminal Justice for the sometimes spectacular, but rare. One Prevention of Corrupt Activities by Public agent murdered an informant/girlfriend in Officials.” Corrupt and criminal activities the late 1980s. Others have been convicted are at the low end of the range of for stealing drug evidence, travel voucher probabilities for FBI employees because of fraud, bribery and using informants to a number of integrity-reinforcing factors commit cargo thefts. Counting both and processes. Some of those factors and offenses prosecuted by state authorities processes are criminal in nature and some and crimes relating to corruption in office, administrative, but they will be discussed which are investigated internally and together in this presentation because we prosecuted as federal offenses, only two to regard them as inseparably intertwined three agents per year are prosecuted and means of preventing corrupt activities. dismissed. In the last three years we have had highly publicized federal convictions II. INTEGRITY REINFORCING of three agents for crimes related to their AND CONTROL FACTORS RELIED official positions: an agent who spied for UPON BY THE FBI Russia for money; a supervisor in Miami Among integrity-reinforcing features, who stole $400,000 in seized currency and the first which comes to mind is personnel
441 RESOURCE MATERIAL SERIES No. 56 selection. Despite the many other manager. Agents are eligible for retirement opportunities available in a boom economy, at half pay at age 50 after 20 years of the FBI still receives 30 applicants for service, and can reach a maximum every position, and enjoys a wealth of retirement benefit near 80% with an choice. Every applicant selected, from exceptionally long career. Few stay longer entry level clerical staff and maintenance than 25 years because they enjoy workers to senior executives, must undergo outstanding prospects for a second career a full background investigation justifying or part-time employment in the business, the granting of a security clearance. That financial services or private security fields investigation includes criminal record and or in local law enforcement. Support credit checks, verification of family, employees are also well compensated, and education and employment history, as well value the status conferred by their as interviews of classmates, former co- employment so much that many have workers, relatives, neighbors, ex-wives and careers of 35 and even 40 years. Despite former romantic interests about the cynicism in our society about most candidate’s honesty, reliability, institutions, employment by the FBI is still truthfulness, work ethic, alcohol one of the most respected occupations in consumption, drug use, and any the United States and confers significant vulnerabilities. One condition of social status on employees and their employment is successful completion of a families. pre-employment polygraph, or lie detector, examination on issues such as drug use and Our employees almost universally do contacts with foreign intelligence services. value and appreciate their positions, and fear the possible loss of both position and The age of new Agent Trainees now respect. That fear is reinforced by the averages between 29 and 30, depending on realization that our disciplinary system the training class, so every one is a known deals severely with any conduct which may quantity with a proven record of bring discredit on the institution, and is accomplishments as a law enforcement or admittedly draconian for integrity offenses. military officer, as a professional in law, We operate under what is called the Bright teaching or accounting, or in the fields of Line policy - that lying under oath, business, science or technology. cheating, stealing and similar integrity Admittedly, even the most rigorous offenses, whether committed on or off duty, background investigation cannot are inconsistent with the values of the FBI guarantee good character, but it can ensure and can be expected to result in dismissal. that a candidate has achieved a successful If an off-duty employee is caught stealing adult career without demonstrating bad a small amount of merchandise in a store, character, which is as good a predictor of what we call shoplifting, and the evidence, future conduct as can realistically be such as a confession or a videotape, proves achieved. that the employee committed attempted theft, that employee will be dismissed, even Once an agent or support employee is if no prosecution results. If an agent hired into the FBI, it is very much in their commits an offense which normally would financial and psychological self interest to be punished by a suspension from duty avoid misconduct. A senior agent can earn without pay for five or 10 days, but then more than USD $75,000 per year in a lies about the facts during the disciplinary metropolitan area with a high cost of living, inquiry, we will normally dismiss that with salaries of $100,000 for a mid-level agent for having lied under oath, absent
442 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS some exceptional mitigating additional employees were terminated for circumstances. One drunken driving disciplinary reasons during their period of offence, whether involving a government probationary employment or resigned or or personally owned vehicle, results in a retired after receiving notice of proposed suspension of thirty days without pay, and discipline. 32 dismissals and 26 other a second offence results in dismissal. involuntary departures from FBI service Everyone knows the rules and demands total 58 persons, which is approximately that they be enforced even handedly. Like 10% of the number of persons investigated the Central Intelligence Agency and other yearly. intelligence agencies in our government, we are exempt from the civil service laws Perhaps surprisingly, there is very little which can make it very difficult to employee protest against the system and successfully discipline most of our policies which produce these results. One government employees. With the exception reason why our employees accept such rigor of a small percentage of employees who without complaint is that they take pride have combat military veteran status, our in their reputation and competence in employees have no recourse to the courts holding citizens criminally responsible for against a disciplinary action, including their actions and are not particularly dismissal. sympathetic to wrongdoing, even by their co-workers. Collectively, if not always Employees are required to report individually, they consider it a point of wrongdoing and are disciplined for failure honor to hold themselves and their to do so, particularly if they have colleagues responsible for any deviation supervisory responsibilities. If the from established standards of integrity and wrongdoing constitutes a possible crime, performance. They may sometimes we immediately inform a prosecution office disagree with the sanctions we impose for and warn all possible subjects that they performance errors, for exercises of bad need not talk to our investigators because judgment or violations of administrative anything they say may be used as criminal rules, but they are not in the least tolerant evidence against them. Once the of intentional wrongdoing or dishonesty. prosecutors have decided that no criminal When we discuss disciplinary statistics prosecution is possible and the inquiry with our employees’ advisory and focuses on whether administrative professional groups and explain that a high discipline should be imposed, we compel percentage of dismissals involve integrity employees to respond to questioning under offenses, their typical reaction is agreement oath and will dismiss them for failure to that we need to remove from the do so. We also regularly use polygraph organizations those persons who will not examinations in aid of both criminal and uphold its standards and character. administrative inquires. Obviously, cleansing the ranks of dishonest persons as soon as they demonstrate lack The July, 1999 Report for the Fiscal Year of character is far preferable to allowing 1998 by the FBI’s Office of Professional them to continue as employees until they Responsibility, reveals that 301 employees commit some criminal abuse of their office. were disciplined, of whom 32 were dismissed. Of those dismissed, 11 were Referring again to the July 1999 report Special Agents, or law enforcement officers, for Fiscal Year 1998, it reveals that and 21 were Support Employees, that is inquiries were initiated on 517 employees, non-law enforcement employees. 26 which is slightly less than 2% of the present
443 RESOURCE MATERIAL SERIES No. 56 total workforce of 28,500 employees. The answer is that the entire FBI Inquiries were closed on 615 employees, of environment is focused on encouraging whom 301, or nearly 50%, received some conformity with clearly recognized form of discipline. Those 301 employees standards of integrity and professionalism, represent approximately 1% of the total enforced by detailed administrative employee population, meaning that the FBI procedures and safeguards, so that deviant investigates approximately 2% of its behavior is immediately recognized and employees each year for crimes or serious corrected or punished, preferably before it misconduct and imposes discipline on escalates to criminal conduct. We feel that approximately 1%. Among the 2% of the if we can succeed in motivating our population who are investigated, the employees to observe the administrative statistics demonstrate that the most rules, both by appealing to their self- common offenses are administrative rather interest and to their idealism, then than criminal violations. The most criminal or corrupt behavior will be so common offense is unprofessional conduct, unusual that it will quickly be recognized which covers a multitude of sins not and eradicated. Rather than concentrating otherwise specified, such as becoming our resources on corruption once it occurs, involved in a traffic altercation and the traditional approach in the FBI has drawing a weapon, or a domestic assault been to identify and deter administrative not resulting in an arrest. The next most misconduct, such as falsification of reports frequent offense category involved false or or covering up minor violations by co- inaccurate statements or documents, with workers, before they lead to or can be used 42 persons disciplined and four dismissed. to facilitate corruption. Former Director Hoover may have been a difficult Another unfortunately common offense personality, but he was unquestionably an was driving while intoxicated. 27 out of administrative genius. During his nearly the 31 persons investigated for driving five decades heading the FBI he created a while intoxicated were disciplined, 25 of seamless, even obsessive, system of manual whom were suspended for more than 15 provisions and performance and quality days without pay and two of whom were controls. Particular attention is paid to dismissed. I should explain here, that controlling the riskiest operations - while we use this report for public weapons handling, dealing with information purposes, its primary goal is informants, seizing drugs, custody of to educate our employees and thereby deter evidence and handling of money. misconduct. Statistics like those involving driving while intoxicated are powerful Immense resources are invested in the arguments to persuade our employees to Inspection Division. The inspection system control their alcohol consumption, because acts as a Headquarters control on local field drinking to excess is quite obviously a very office’s supervisors and managers, auditing high risk proposition which will be treated and checking every important operational with unforgiving discipline. Of course, and administrative aspect of a division’s while excessive alcohol consumption may operation at least every three years, or lower inhibitions and lead to misconduct, more frequently when warranted. it is not in itself corruption, so you may ask- Particular attention is paid to areas of why is it being discussed in a lecture about possible misconduct, once again using how to prevent law enforcement administrative controls as an early corruption? warning system and defense against corruption and criminal conduct.
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Informant payments are verified. conscientious supervisory attention, Financial and evidence audits are consistent disciplinary enforcement and performed. Outside contacts are made with peer pressure from honest colleagues of judges, prosecutors and local law strong character. The predatory meat- enforcement executives to uncover any eater, on the other hand, is both identified information which may have come to their and made vulnerable by a comprehensive, attention about misconduct or deficiencies well-supervised administrative system. by our employees in the performance of Carnivores need the freedom to roam. By their duties. Both agents and support nature they are unlikely to have the personnel are interviewed and any patience and self-control necessary to avoid indication of sexual harassment, conflict with rigorous supervisory mishandling of evidence, falsification of enforcement of a multitude of records or concealment of wrongdoing is administrative regulations. Ultimately reported to our Office of Professional these meat eaters are likely to leave the Responsibility. While this comprehensive organization, sometimes voluntarily and if system of controls and double and triple necessary by dismissal, because they checks has undoubted costs in cannot conform to an environment administrative resources, and arguable specifically structured to deny them all costs in frustrated creativity, it produces those illicit pleasures which the predatory an immense integrity dividend, as I will animal seeks. explain. III. INTERNAL INVESTIGATION A commission which investigated AND DISCIPLINE corruption in the New York City Police Turning now to a discussion of how our Department years ago categorized corrupt Office of Professional Responsibility officers as either grass-eaters or meat- performs its investigative and disciplinary eaters. The grass-eater designation was functions, our practice is to respond to any used to refer to situational offenders, police specific and credible allegation of criminal officers who knew right from wrong but or administrative wrongdoing. Sources were weak-willed and engaged in include citizen, judicial or legislative corruption when exposed to temptation or complaints, anonymous allegations, pressured by corrupt associates. The meat- referrals from the Inspection Division, eater was the predator with no moral reporting by management or individual scruples or conscience, who saw a law employees, accusations by hostile ex- enforcement position as a means to exploit spouses or lovers, or derogatory opportunities for profit, sex or other ego information turned up during the gratification, and who often compromised mandatory five-year security re- entire groups. investigation to which all of our employees are subject. A rigid system of internal transparency and close supervision serves as a defense If an allegation suggests that criminal against misconduct by both types of conduct is ongoing and merits a covert offenders. The grass-eaters who might inquiry, we utilize the operational yield to temptation when left to their own resources of the entire Bureau, bringing in devices, may, precisely because of their surveillance squads and technical more malleable character, perform assistance from distant offices to apply creditably in a structured ethical whatever resources and tactics are environment with clearly enunciated rules,
445 RESOURCE MATERIAL SERIES No. 56 appropriate to resolve the allegation, agent was recorded agreeing to provide the including electronic surveillance, ruses or information for money, and after decoys. To furnish an example, we received overwhelming evidence was secured of his an allegation several years ago through a corrupt efforts to secure the information defense attorney in New Orleans, from our records and to trade it for money, Louisiana that his client, a suspected drug he was arrested, convicted and has been dealer, was being extorted by the imprisoned. investigating agent. We approach such allegations with great care, because The reality in the FBI is that such meat- defendants and their lawyers sometimes eater cases are rare. The vast majority of fabricate them to provoke an internal the misconduct we investigate is the investigation which can be manipulated to product of human frailty rather than damage the credibility of the investigator aggressive venality. Most inquiries are at trial and cast suspicion on the reactive and administrative rather than prosecution. So that we cannot be easily convert and criminal. In overt inquiries manipulated, or accused of rejecting we inform our employees promptly when potentially meritorious allegations based they come under investigation so that they upon subjective judgements about their can secure the assistance of counsel, if credibility, we utilize a standard procedure desired. Interviews are conducted under in such situations. That procedure is to oath, and polygraph examinations are used first ask the person making the allegation to eliminate suspects and to resolve to voluntarily submit to a polygraph, or lie credibility issues, particularly because such detector examination, to screen out examinations frequently result in pre-and unfounded complaints. In the New Orleans post-polygraph admissions of misconduct. case, even though this agent had a good record and reputation and was not believed Our staff of approximately 70 in the to be engaged in any impropriety by the Office of Professional Responsibility management of that division, we followed delegates all cases of minor misconduct and this standard procedure and requested the 75% of our inquiries into serious drug dealer to submit to a polygraph administrative misconduct to field examination. divisions or to other headquarters divisions for investigation. We feel that it would be To our surprise, the drug dealer’s a waste of taxpayers’ money to send a team assertions that he had received from Washington to Chicago or Los Angeles extortionate demands for money from our to investigate a drunken driving arrest of agent showed no indications of deception. a non-supervisory employee or the theft of We then made arrangements to monitor $100 from someone’s purse. We reserve our telephone and personal contacts between headquarters investigative resources for the witness and our agent. We brought in cases in which the credibility or sensitivity a surveillance aircraft and a special of the inquiry requires that it be conducted surveillance squad from other cities, both with independent resources, such as an to limit knowledge of the investigation in allegation against a member of the the local office and because the agent might management of an office or involving recognize fellow agents conducting criminal activity. surveillance of his movements. A scenario was orchestrated at our direction in which Because we delegate cases to other the drug dealer requested certain divisions, and levy on field resources from confidential information from FBI files, the throughout the country when we conduct
446 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS a criminal inquiry, one must make certain The costs of controlling that risk quickly projections and calculations to estimate the escalate once action is taken based on the total resources dedicated to the FBI’s information being generated or the internal integrity program. Adding personnel who initially organized and together Headquarters personnel operated the program rotate out of internal dedicated exclusively to the disciplinary affairs duties into other operational or function, the number of Headquarters’ and managerial assignments. field resources which we levy upon to support our efforts, and the resources used Nevertheless, our choice not to use such by the field and other Headquarters techniques up until now is not a moral divisions to handle delegated conclusion that such tactics might not be investigations would yield a total of about necessary if one had to confront pervasive 140 - 150 work years, or about half of one corruption. While we are always concerned percent of our total personnel resources. about the constant risk and sometimes serious incidents which occur with drug We consider ourselves unusually and undercover investigations, and with fortunate and believe that for the moment informants and money, the FBI has simply our system seems to be working well and not yet experienced or perceived integrity cost-effectively, insofar as we can problems serious enough to persuade us determine. The current scarcity of that random integrity testing tactics would dangerous internal criminality permits us be cost-effective. We hope that vigilant to concentrate resources on deterrence prevention will make recourse to without having to resort to tactics which extraordinary tactics unnecessary, but if would erode employee support for our the incidence of corruption escalated, we integrity enforcement efforts. We conduct would be compelled to consider more random and reasonable suspicion drug dramatic remedies. tests as a condition of continued FBI employment, but we do not use random IV. COMPARATIVE DISCUSSION integrity testing without some specific At this point it may be helpful to investigative predicate. By integrity compare our system with how other testing I mean such techniques as planting American law enforcement agencies deal information through an informant that a with comparable issues. With respect to particular apartment contains large personnel recruitment and selection, the amounts of illegal drugs and money, and FBI is blessed with an unusually adequate installing a concealed video camera to personnel budget which permits the hiring determine if agents steal drugs or money. of persons with professional degrees. By We do not recruit convert agents-in-place way of contrast, many police departments among New Agent Trainees or infiltrate in the United States and elsewhere recruit them into the field divisions, both because employees who have barely passed their of the considerable morale costs of such teenage years and have minimal tactics and their immense logistical educational qualifications. Such hiring difficulties. When agencies are tempted to policies by a police organization are not set up such programs, one must consider necessarily inappropriate, because hiring the problems of documenting and reporting authorities have to balance the financial intelligence and information, and of resources provided by political authorities disclosure risk. The longer such an with the available labor pool, the nature of operation runs, and the more operatives it the duties to be performed, and many other utilizes, the greater the risk of compromise.
447 RESOURCE MATERIAL SERIES No. 56 factors. Nevertheless, the public and the experienced cadre. There are sociological mass media should recognize that the less studies which speculate about what selective a police organization can afford percentage of immigrants a country can to be in choosing its candidates, the more assimilate without social disruption and integrity problems the community should friction arising from frequent clashes of expect. Law enforcement agencies will diverse or inconsistent value systems and never be able to outbid drug organizations customs. We are similarly concerned about for the loyalty of an officer, but to maintain the assimilation of large numbers of new their integrity they must be able to pay recruits, many of whom come in with years salaries which allow them to build up a of experience in other law enforcement cadre of persons with maturity and agencies or the military, where they have demonstrated good character, who can set already formed certain values and habits. a moral and professional example for the organization. Similarly, we are concerned in the FBI whether we can do an adequate job A current concern to us in the FBI is the communicating and ensuring the adoption experience of police departments which of our existing value system when more have encountered serious integrity than 20% of our agent population have less problems as a result of too much urgency than three years experience, and 35% have in hiring. This typically happens when a less than five years experience. When budgetary increase or resolution of a three or four new recruits are assigned to litigation dispute, which are unfortunately an office with a complement of 100 agents common in our society, presents the per year, it is relatively easy to find veteran opportunity or the need to hire a large agents with eight or 10 years experience number of officers within a short period of to serve as mentors, what we call a field time, which several years later leads to an training agent. That training agent has increase in integrity problems among those the official responsibility to offer practical hired in haste. Because our Congress has instruction to the new recruit and to authorized the hiring of additional FBI oversee their professional development. agents during the last several years to Normally, that training agent and the combat domestic and international recruit’s supervisor will be important terrorism and computer crime, we are influences in communicating taking pains to identify and avoid the organizational culture and values. Finding factors which cause an increase in three or four experienced agents who also corruption and misconduct to result from are good moral examples to serve as a rapid increase in hiring. The most mentors is not difficult. However, when obvious factor is that many departments the number of new agents to be trained lower standards in order to secure enough each year increases to six, seven or 10, acceptable candidates quickly. We hope there are obviously fewer veteran agents that our increased hiring has been gradual available who are not fully occupied with and selective enough to avoid that risk. other duties, and correspondingly even However, we are also concerned that there fewer veterans who can serve as may be a more subtle risk, a form of outstanding examples of both professional organizational indigestion which makes it competence and good character. difficult for an institution to assimilate, train and properly indoctrinate new One response to this concern is our ethics recruits with its values if there are too training program, which in the past was many recruits in comparison to the administered by our Training Division, but
448 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS early this year was placed under the Similarly, we urge them to think ahead management of our Office of Professional and to discuss the thousand ethical Responsibility. The purpose for that dilemmas which may arise in the course of change was to better integrate our practical their career. It is not enough to avoid disciplinary experience into what we teach personal wrongdoing. If colleagues falsify our recruits. FBI New Agent Trainees the hour at which they begin or leave work, undergo 16 weeks of law enforcement should a new agent make a report to a training, and those 16 weeks include 16 superior? Perhaps not, because we should hours of ethics instruction. We recognize not concern ourselves with de minimis that one cannot teach an adult to be honest. violations, because the primary What we do communicate during our 16 responsibility for enforcing time and hours of instruction are the ethical attendance rules lies with a supervisor, and standards which are important to a federal because one agent may not know if law enforcement officer and what our someone who leaves work early is being duties are under our Constitution and our given compensatory time off for a night legal system. We insist that our agents surveillance or extra-long work days, or has understand why society has authorized experienced a family emergency. On the them to lie in an undercover assignment other hand, if colleagues falsify the chain but not as a witness in court. We also try of custody for a piece of evidence or testify to inform our employees about the practical falsely in court, what should the new agent problems they will face in reality, so that do? If fellow agents or a police officer were they will not make mistakes or be to strike a handcuffed prisoner, and the compromised through failure to foresee the victim filed no official complaint, what consequences of their actions. should an agent who witnessed the violence do? We remind our agents that any personal or professional compromise with an We want our people to think through informant, such as accepting gifts or these problems so they will not make a engaging in a sexual relationship, places wrong decision based on panic or a failure the agent at the mercy of that informant to recognize what duties are paramount. or of others who may learn of the We attempt to educate them about what relationship. Some confidential sources are ethical values are most important. We sincerely motivated citizens, but those with would consider it normal that an agent did the most knowledge of underworld not report another agent leaving work activities are usually seeking personal early, absent some personal knowledge of advantage by betraying their criminal serious intentional abuse. Because our associates. It should come as no surprise agents work such long hours, particularly that a person who would betray their in emergencies, even proof of an isolated criminal associates for personal advantage intentional abuse would normally be would do the same to the officer who is their considered primarily a performance issue contact in law enforcement. Consequently to be addressed by the agent’s supervisor, we urge our agents to focus on the practical and we in the Office of Professional risk, as well as the moral consequences, of Responsibility would not be greatly allowing their integrity to be compromised interested unless a pattern of abuse in any way by a personal relationship with existed. We insist, however, that our a confidential source. agents recognize their individual and independent responsibility to protect our citizens and the integrity of our criminal
449 RESOURCE MATERIAL SERIES No. 56 justice system. That responsibility means or technical team to work four or five that they must intervene to stop any clearly corruption cases a year, when that number unnecessary use of force, must immediately of cases can be staffed far more efficiently report conduct which they believe may by commandeering field resources from constitute a falsification of evidence or another office. The second related reason brutality by their colleagues, and that they is that we have no history of investigations will be punished for failing to do so. being jeopardized by security breaches from within, resulting from the use of Returning to a discussion of differences resources borrowed from field divisions. between FBI practices and those of other Utilizing the operational resources of the large American law enforcement agencies, entire system is also consistent with our a significant distinction exists with respect organizational philosophy, which regards to the staffing and conduct of internal a vigilant response to any suggestion of investigations. While the FBI’s Office of corruption as an overriding responsibility Professional Responsibility devises the of every field and Headquarters division. strategy for a corruption inquiry, selects the Even though our office exercises decisional resources to implement that strategy, authority in an internal investigation, the oversees its tactical execution and normally operational managers in our field divisions conducts the crucial interviews, we do not normally want to be involved to hesitate to levy upon operational assets demonstrate that they individually, and the from our investigative divisions. That divisions which they head, are intolerant approach differs from most American police of any form of corruption. departments and other federal agencies, which create wholly self-sufficient internal Moreover, involving the management of investigative units. Such units are staffed an FBI field division when we must conduct with sufficient personnel and resources, an investigation of one of that division’s including technical equipment and employees parallels the way the FBI expertise, to conduct investigations approaches its responsibility to investigate without the knowledge or participation of corruption in state and local police personnel from the operational divisions of agencies. The FBI functions as an the organization. The United States Drug oversight mechanism for other police Enforcement Administration and Customs agencies because, by federal statutes, we Agency Service have internal affairs field are assigned the legal competence to offices distributed geographically investigate brutality and other abuses of throughout the country, and do not rely on civil rights. Moreover, almost any form of investigative assistance from operational police corruption would violate federal offices to the same extent as we do in the racketeering, extortion, fraud, bribery or FBI. other laws. In combating police corruption, our field divisions regularly encounter The FBI has never felt the need to create situations wherein corruption involves a a standalone operational capability to number of police officers, and may reach conduct disciplinary inquiries without the up the chain of command within an assistance of field resources for two organization. In such circumstances, one reasons. The first is that cases of serious, must assume that anyone in that agency meat-eater type corruption are still could be a potential conduit of information comparatively rare. It would not be cost- back to the subjects of the inquiry, not all effective to staff, equip and pay the travel of whom would be known in the early costs of a Headquarters surveillance squad investigative stages. Despite that need for
450 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS secrecy and caution, our field executives necessary, and aggressive tactics may be normally make great efforts to find a required, including decoys, integrity trustworthy representative of that testing, surreptitious electronic organization at the executive level, or if surveillance, forcing colleagues to spy on necessary at the political oversight level, and incriminate each other, and all the who can safely be notified of the existence techniques used to secure evidence against of the investigation, and who can ordinary criminals. Ultimately, however, eventually be given public credit for that police agency needs to regain the cooperating in the investigation. confidence of the citizens in its community in order to gain their cooperation and You may ask, why is that symbolic assistance. Yet citizens cannot realistically contact considered important? There are be expected to have confidence in a police a number of reasons to enlist someone at force if they are led to believe that it is the executive or political level of a target totally corrupt and that only the FBI or agency. If a responsible executive can be some other outside agency can be trusted trusted, the investigation thereby gains to effectively confront its corruption. That information and access to the internal is why we try, whenever feasible, to mechanics of the target group, which may preserve an image of cooperation with some be crucial in creating investigative element or representative of a local police opportunities, protecting evidence and agency being investigated, in order to witnesses, and focusing the inquiry along communicate the message that there are productive lines. The courteous gesture of trustworthy elements within every sharing credit with a representative of the organization in whom citizens can place organization whose members are being their confidence. Maintaining some degree investigated also helps to avoid or to heal of public confidence in a police agency is the resentment which otherwise may come the first step toward its rehabilitation in from prosecution of well liked local police public opinion, which ultimately will be officers and impede future cooperation with necessary for that agency to stand on its that department or agency. Perhaps most own in protecting the community. important, however, is the fact that sharing credit with an honest representative of the This approach of attempting to preserve local police agency expresses our some degree of public trust in police institutional belief that public confidence agencies whose officers are under is essential to the performance of a law investigation by the FBI is unquestionably enforcement agency’s mission. influenced by the reality that the FBI only intervenes occasionally against police Even if a local police organization is corruption in a given community. Our being investigated for systemic corruption oversight role is essentially episodic, a part- by an FBI field divisions, organizationally time endeavor with regard to any we recognize that at the end of the particular community or police agency, prosecution, our agents will move onto because we are a general purpose law other cases, and that the local police enforcement body with many other department will still be responsible for responsibilities and priorities. We also public security within its jurisdiction. recognize, however, the emergence of a When the FBI is confronted with evidence trend in other contexts toward single- of corruption in a local police agency, it purpose control agencies with the full-time would be foolish to expect spontaneous mission to monitor, displace or even totally reformation. Outside intervention is replace the internal integrity mechanisms
451 RESOURCE MATERIAL SERIES No. 56 of a particular police organization. Often current incidence of corruption and modeled on the Hong Kong Independent criminality in the FBI, but recognize that Commission Against Corruption, these an influx of new agents could upset the agencies may also have powers of public ethical equilibrium of the organization and education and program auditing for the cause more serious problems in the future. police and other government agencies. In If that were to occur, we would have to Australia, the Police Integrity Commission consider techniques which we now do not of New South Wales and the Criminal employ, but which have been successful Justice Commission in Queensland, when used by other police organizations. together with Ombudsman offices and For example, we use integrity testing only other bodies, have been given substantial on the basis of reasonable suspicion. The jurisdiction over police corruption and London Metropolitan Police Service has misconduct. Such bodies are typically used such tests to uncover corruption created after a governmental investigative among experienced detectives and retired commission has revealed entrenched officers, and is now considering their use corruption of such a magnitude that the on a routine basis. Such an approach public loses trust in the integrity of the requires new and innovative thinking and offending police agency. In such expectations. The goal of targeted integrity circumstances, drastic measures are testing is to come very close to a 100% necessary to neutralize the citizens’ success rate, since only persons seriously suspicion sufficiently so that public order implicated in corruption by confidential can be maintained and some minimal information or circumstantial evidence will respect for governmental authority be tested, and numerous tests which restored. revealed no corruption would be both expensive and would cast doubt on the The measures chosen to reassure public intelligence or evaluation techniques of the opinion in Hong Kong and Australia were integrity unit. to subject the police to extremely close oversight by a permanent independent and To the contrary, the institutional goal of parallel authority with sufficient routine testing is to devise a cost-efficient competence and investigative resources to manner of random, universal testing with oversee or take over any significant police the ultimate goal of achieving a high rate investigations of internal criminality or of non-incriminating results as a result of misconduct. My impression in studying ethics training and the deterrent effect of those institutions is that they also try to publicizing the routine testing technique. work in partnership with the police agency To my surprise, I understand the employing the suspected officer. There are Metropolitan Police Service labor many practical reasons which may call for organization has received this proposal cooperation, but it would be interesting to favorably, which would be a farsighted know if those Independent Commissions response. If a police organization could also consider a need to maintain public demonstrate to a policymaker and to the confidence in the agency they oversee as a public that nine out of 10, or 95 out of a reason to work in partnership with that hundred officers will refuse the opportunity agency’s management or internal affairs to steal or to be bribed, I think that much component. public cynicism and suspicion about the police would be cured. As indicated previously, we consider ourselves fortunate to have a relatively low
452 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
The concept of integrity testing can be to our sorrow that even well-paid FBI also expanded to other contexts. The New agents have betrayed their country and York City Police Department has suffered their institution for money. At the same terribly in the last year from adverse time, police officers who are paid much less publicity about brutality and the use of generously resist opportunities for excessive force. In response, it has corruption, undergo hardships daily, and experimented with an imaginative forego many pleasures and advantages for approach of brutality testing. As the themselves and their families, because they technique has been described to me, an believe that serving and protecting their officer whose record demonstrates repeated fellow citizens is valuable, important work. use of excessive force is assigned to respond A decent living wage is essential to honest to a violent domestic dispute in an law enforcement, but it is not enough to apartment. On arrival the officer is achieve integrity. confronted by a subject who is verbally abusive but neither uses nor threatens The old proverb, that man does not live violence, and who in reality is an by bread alone, expresses the concept that undercover Internal Affairs Division officer material considerations cannot explain all attempting to learn if the officer will human decisions. That concept is overreact to verbal abuse by using extremely relevant to police work. Rational unnecessary violence. The scene is recorded persons cannot be paid enough money to and carefully monitored in a way so as to make a purely financial choice to risk their minimize the risk of serious injury to the life by confronting armed robbers. There undercover officer, with other officers ready is no monetary calculation which explains to intervene immediately if the suspect why an honest law enforcement officer is officer begins to use unnecessary force. immune to bribe offers worth many times Fortunately, the nature of our work in the a year’s salary. The only reasons which can FBI does not require us to confront routine justify such dedication and honesty are allegations of physical brutality, but non-material ideals. Such ideals can result difficult and dangerous techniques are in unselfish, altruistic sacrifices, and can sometimes necessary to confront serious inspire whole institutions. Different abuses. societies at different times have recognized codes of conduct which rose above V. CONCLUSION individual self-interest, ennobled the humans who observed them, and benefitted Earlier in this paper reference was made all of society. Those codes of conduct may to the inability of any police organization have been called chivalry in Western to compete financially with a drug dealer Europe, Bushido in Japan, or honor and in bidding for the loyalty of an officer or duty in military organizations, but their agent. We are public servants and we common element is that they recognize and recognize that the taxpayers will never pay harness the idealism of the human spirit. their guardians as much for our honest My observation of police organizations is services as criminals would pay to corrupt that the most successful are those which us. The officers or agents of some law capture that idealism, both to stimulate enforcement organizations are performance and to avoid misconduct and comparatively well compensated, but most corruption. No system of internal affairs are not so fortunate. However, financial and discipline can realistically hope to calculations alone do not determine the repress misconduct among persons with ability to resist temptation. We have found the power, discretion and investigative
453 RESOURCE MATERIAL SERIES No. 56 training and practical experience of police officers, absent some system of shared values and the internal motivation to observe those values. Accordingly, the concept which I would like to emphasize in closing today’s presentation is the importance of pride, self-respect, community status, and a sense of honor and duty in preventing corruption. Very frankly, my impression is that many other societies traditionally recognize and appreciate this concept much more than we materialistic Americans do. Consequently, I hope that during our discussion time we can explore examples of how other countries foster an esprit de corps, a sense of pride and even elitism, to bring out values and performance in their law enforcement officers far beyond that which can be accounted for by mere material rewards.
454 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
PREVENTION AND REPRESSION OF CORRUPTION IN NON-LAW ENFORCEMENT AGENCIES
Michael A. DeFeo*
I. INTRODUCTION Prevention and Criminal Justice Branch, which was published as Numbers 41 and My previous paper dealt with how law 42 in the UN International Review of enforcement agencies, including the agency Criminal Policy entitled Practical which I represent, the FBI, attempt to Measures Against Corruption. prevent and repress internal corruption. The focus in this paper will be on how our II. LEGISLATION law enforcement agencies can deal with corruption in the non-law enforcement The UN publication began with the agencies of government. Phrasing the focus observation that a prerequisite of any in that way involves an initial definitional campaign to effectively combat corruption decision, which is that we will not discuss is an adequate body of penal law corruption which takes place exclusively prohibiting those forms of official within the private sector. Some countries misconduct most harmful to honest do penalize the corruption of a purchasing government and to the citizenry. A number agent of a business corporation or of a bank of commonly penalized corruption offenses loan officer with the same substantive were described in some detail because that statutory provisions applied to penalize the publication was written for a general corruption of a government purchasing audience. Since this audience is composed agent or a cabinet minister with the power of experienced criminal justice to issue government grants. It can be practitioners, we need not spend a great argued that in many ways the economic deal of time discussing what penal statutes and social harms of private and public are desirable to combat corruption, other corruption are similar. In my opinion, than to mention a few common problems. however, the preventive and repressive Obviously, a theft statute, or some mechanisms available to deal with public comparable legislation, must be broad corruption are much different from those enough to include intellectual property, needed to combat private corruption, so the computer crime and information, and other arbitrary decision has been made to limit government assets worth being stolen or this discussion to public corruption. misappropriated.
To avoid violating copyright laws, should Common law systems which have not they be applicable, I also wish to make it modernized the traditional offenses of clear that the basis for this paper is a bribery and extortion generate troublesome publication which I prepared for the United questions about who introduced the corrupt Nations Centre for Social Development and suggestion, which determines whether a Humanitarian Affairs and its Crime payment is a bribe or an extortion. All of these offenses become problematic when * Assistant Director, Office of Professional the public official acts for improper motives, Responsibility, Federal Bureau of Investigation, US but not for a quid pro quo or any material Department of Justice, United States of America. advantage.
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The problem of a public official favoring to be favorably impressed. The public, family, friends, clan or political party however, and particularly the news media, members rather than taking action or should also examine whether those same distributing benefits impartially, to the legislators have rejected all feasible means extent that it is addressed in penal of collecting the evidence necessary to prove legislation, is usually regulated by statutes corruption offenses. Penal anti-corruption defining abuses of position or conflicts of statutes can easily be emasculated by interest. Because of the powerful political failing to authorize electronic surveillance and social interests involved, what is for the crime of bribery, or to provide an prohibited as an abuse of position or a immunity procedure to compel one party conflict of interest tends to be narrowly to the bribe transaction to provide evidence defined by legislatures and courts. In many against the recipient, or to fund an anti- countries it is assumed that elected corruption unit to investigate such crimes. officials, and politically appointed executive officials, will favor their own Indeed, the most commonly overlooked constituents and supporters, rather than element of penal legislation is how it can be scrupulously impartial. Penal be enforced in practice. For example, the prohibitions sometimes only prohibit action most cost-effective way of enforcing a penal on behalf of a family member or when the statute against consensual criminal official has some direct financial interest activity, like bribery, may be to utilize in the matter, and do not reach other forms undercover agents and so-called “sting” of favoritism and cronyism, which are left operations to make such crimes visible and to be dealt with by the political process. punishable. To make an undercover approach feasible, it is necessary to In my experience, it is rare to find a total anticipate technical defenses, to plan ahead failure to penalize anti-corruption offenses, and to penalize an offer or agreement to but it is common to encounter a lack of perform an official act, even if that act could operability because anti-corruption never be performed in reality because it is statutes are antiquated or practically only part of an undercover scenario. unenforceable. For example, a theft statute today which applies only to tangible objects One type of anti-corruption statute without penalizing unauthorized taking of which comes into fashion periodically is a information is not worthless, but it is financial disclosure law, requiring elected certainly inadequate unless supplemented or appointed officials to declare various by a specific law protecting intangible assets, income and business transactions. information. A common deficiency, Those statutes can function effectively if a sometimes intentional, is a grand sounding monitoring government agency, political law with no means to collect the evidence opponents, or the news media devote necessary for enforcement. sufficient energy to expose discrepancies between what is reported on the form and Bribery is a covert, consensual activity what the minister or official really which will not be spontaneously revealed possesses or controls. However, at least in and as to which there is normally no our American government, so many career complainant and no means to identify government officials, some at very low witnesses. If a legislature penalizes the levels, are required to execute disclosure crime itself, or increases the penalty for statements that the forms are normally bribery in response to some highly filed with only a cursory review. There may publicized scandal, the community is likely be a designated ethics officer, frequently
456 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS located within the General Counsel or structures? With regard to police, Legal Advisor’s office in each agency, who prosecutors and magistrates there are both checks to see that all the blanks are filled advantages and disadvantages to separate in and that the information looks regular units. Among the disadvantages are on its face, but there is rarely an effective rivalries and barriers to communication control on the accuracy of the information between a new authority and existing being disclosed. Without an effective structures, greater administrative costs control entity which actively checks the and personnel rigidities, and a diminution disclosures against the reporting in the prestige and morale of the general employee’s life style, expenditures and jurisdiction organization by the loss of anti- holdings, disclosure can be what doctors corruption authority and resources. A call a “placebo,” a sugar pill, a harmless separate anti-corruption unit is likely to but totally ineffective remedy administered create greater administrative costs and to patients for test purposes or to keep them personnel rigidities. It is also likely to happy, but without any curative effect. provoke or continue controversy over what organizational factors should determine Typically, legislatures enact disclosure whether specialized units should be set up requirements, or executives impose them with respect to drug trafficking, gang on subordinates, because filling out a form violence, art theft, environmental crimes is a low cost initiative which sounds as or any other crisis of the moment, and if so though some dramatic monitoring what relationship that unit should have to mechanism is being established which will existing structures. Finally, the question prevent and/ or reveal corruption. A useful of a separate specialty unit frequently litmus test which can help reveal the raises serious issues relating to reporting sincerity and significance of any disclosure relationships and organizational loyalties, program is to ask what budgetary all of which can be very disruptive to resources are being provided to control the morale and the esprit de corps of an accuracy of disclosure forms. If those institution. resources consist of file clerks, storage cabinets and perhaps one or two The advantage of a separate unit are professionals to verify the procedural specialization, greater security and control regularity of the forms, with no and control of information, and direct investigative resources to test the accountability. Accountability may well be truthfulness of the disclosures, then do not the greatest of these virtues, as it permits expect any integrity dividend unless the policy makers to measure what success is news media, or political or bureaucratic being achieved with given resources and opponents, target the disclosures of places anti-corruption responsibility on particular officials. identifiable persons. This highly visible responsibility and ability to identify and III. ORGANIZATIONAL measure results is particularly important STRUCTURES because of corruption’s nature as a covert criminal activity which may never be A fundamental question with regard to detected without aggressive law corruption control relates to the structures enforcement efforts. At least in American necessary to effectively implement anti- government, there is a distinct tendency corruption measures. Is a specialized anti- for corrupt situations to continue until corruption unit necessary or can that someone is made accountable for function be handled within existing combating the phenomenon. Whether that
457 RESOURCE MATERIAL SERIES No. 56 accountability is best achieved by creating implicate other organizational frictions and separate or even independent police, costs. Creation of a specialized anti- prosecutorial or magistrates’ units, or by corruption unit overcomes the core problem fixing the responsibility within existing of diffused responsibility which results entities, should normally be determined by when a multi-functional bureau or office is local bureaucratic conditions and institutionally responsible for combating traditions. Given the organizational corruption, together with multiple other inertia which must be overcome to create competing demands, but that responsibility a separate unit, the natural bureaucratic is not fixed in any one individual with compromise would be to create a defined resources. When no individual is specialized capability subject to existing assigned dedicated resources with which program management, such as anti- to work corruption cases, a lack of cases corruption units within the overall criminal may be justified organizationally because investigative division, or perhaps within its no indicia of corruption were reported or fraud section. because higher priority cases of fraud, subversion or other threats were being An overriding factor, however, is often pursued. Because of its covert, consensual, crucial in determining whether a separate mutually profitable nature, a corrupt anti-corruption unit will be created, and situation or practice may continue for that is political or public pressure resulting decades without coming to the attention of from a highly publicized scandal. law enforcement. Only when an aggressive Announcing the creation of a new anti- investigator is assigned a quantity of corruption unit is a splendid diversion for dedicated resources and a defined mission a political figure beset by continual bad and held personally accountable to produce publicity about a scandal. Viewed from a useful intelligence or evidence on more positive perspective, such scandals corruption, will an agency be likely to have present a rare opportunity for an alert law any kind of reliable appraisal of the extent enforcement executive to secure resources, to which corruption exists. jurisdiction or political consent for the creation of an anti-corruption capability, at Another interesting organizational a time when the political powers are question, which perhaps might have been unusually motivated to be seen as leading covered in my first presentation, is the law enforcement efforts to combat exclusivity of anti-corruption jurisdiction. corruption. When a quantity of resources is dedicated exclusively to a corruption matters, it is Normally, management by crisis is a tempting, as a matter of managerial and very ineffective technique, but the creation logical clarity, to give the entity which has of anti-corruption units in reaction to been created to operate those assets a scandals may be one of the rare exceptions monopoly over development of all relevant to that rule. One reason is that political corruption investigations. This would motivation to dedicate any resources to mean that a police or investigative agency combating corruption is frequently lacking assigned the competence for drug control until a scandal erupts. Another reason is would have exclusive jurisdiction to that while resources may be dedicated to a investigate drug trafficking, or that an separate specialized anti-corruption unit Inspector General within a ministry primarily for public relations purposes, the distributing agricultural subsidies would existence of that unit achieves the essential be given exclusive jurisdiction to value of accountability, although it may investigate fraudulent subsidy claims and
458 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS associated bribery or prohibited IV. PROCEDURAL transactions. The exclusive assignment of IMPLEMENTATION OF AN a function has the virtue of being easily ANTI-CORRUPTION PROGRAM understood, and if other agencies or When an investigating authority, be it a elements are permitted to pursue police unit, a prosecutor or an investigating allegations or instances of corruption there magistrate, is initially faced with an anti- probably will be failures to share necessary corruption task, certain fundamental information, investigative overlap and management questions may need to be other indicia of inefficiency. However, the resolved. If the investigator’s jurisdiction demonstrated susceptibility of human is previously defined, and the matter arises nature to the corrupting influence of power within that jurisdiction in a routine and to the temptations and wrongful manner, such as a police report to a opportunities which come with authority prosecutor or investigating magistrate, argues against the orderly logic of exclusive then little discretion or room for maneuver competence. The Latin maxim of quis is left in defining or managing the task. In custodiat ipsos custodes reminds us to non-routine cases, however, policy level always ask who will watch the watchmen. authorities often feel the need to make new A little redundancy and even competition or special arrangements. Sometimes this can be a healthy antidote to corruption, is not because the existing structures are because no one person or entity has the necessarily deemed inadequate on the power to protect or license illegal activities. merits, but simply because a clamorous It may be inefficient to allow both scandal tends to dictate a politically headquarters and local police units, or both decisive, aggressive-appearing response. national and state prosecutorial Creating a new unit or assigning a new authorities, or both the police and an leader to an investigating authority may Inspector General’s Office, to investigate be of absolutely no substantive advantage allegations of the same type of corruption. in terms of improving performance of the Indeed, an obligation to refer or report all unit, but it can have an undeniable short- corruption investigations to a primary or term publicity and public relations value, central anti-corruption authority may be which may be the policy-maker’s appropriate, with some flexibility as to the immediate interest. In other situations, timing of the reporting obligation. the existing investigative authority may Nevertheless, just like multiple engines on need to be replaced or supplemented a passenger aircraft, redundancy in a high because of inefficiency, lack of risk situation is generally a worthwhile trustworthiness, or simply because a new investment. The legislative and form or method of corruption is forcing a managerial challenge in this area is to new response. To use the example allow just enough redundancy, and even mentioned before, if the Inspector General rivalry, to deter corruption or to expose it of a ministry distributing agricultural if the primary anti-corruption authority subsidies has failed to prevent or identify fails to do so, without disproportionately illicit bribe payments associated with 25% reducing the flow of intelligence and of or 30% of the funds expended, and that prosecution opportunities to the primary degree of corruption is revealed by a authority. parliamentary inquiry, then executives of the national judicial police should begin planning for the eventuality that they or some new entity may be called upon to
459 RESOURCE MATERIAL SERIES No. 56 assume organizational or individual bedeviled by media and legislative responsibility for investigating that type of inquiries and criticism can announce some fraud. decisive action. Once a tentative selection of a new or specially appointed anti- A law enforcement executive called upon corruption authority has progressed to to assume a new or extraordinary discussions with the candidate about responsibility to deal with a corrupt execution of the task, a policymaker situation or an anti-corruption program experiences a temporary loss of bargaining will often find the situation very fluid. power vis-a-vis the candidate, even if that Occasionally a timetable will have already candidate is an organizational subordinate. been announced for a report or the Most policymakers would be loath to refuse conclusion of the inquiry, perhaps by a the resources or powers which were policymaker with little grasp of considered necessary to a successful investigative realities, while other investigation, for fear that blame for policymakers will realize that eventual failure of the inquiry would be laid investigations often dictate their own at their door. Also to be feared would be timetable. However, even a policymaker the embarrassment and suspicion which who has announced an unrealistic would result from a disclosure that the completion date for the inquiry will be candidate declined the appointment or happy to transfer not only the investigative responsibility because denied adequate responsibility, but also the responsibility resources to do an effective and for placating news media and public professional job. interest, to the newly designated anti- corruption authority or executive. On the other hand, once the media and Policymakers may well be unaware of and legislative fixation on a scandal has passed, relatively uninterested in how a corruption once a new crisis has claimed the public’s inquiry will be conducted or what will need attention, there is very little reason to re- to be done, and may be willing to agree to evaluate or enlarge the resources or power any reasonable sounding terms or previously assigned to the anti-corruption conditions, so long as the terms do not unit or investigator, and even a resignation threaten to provoke an adverse media or or request for transfer by the unit’s leader political reaction. is unlikely to be as feared as it would have been initially. Therefore, questions of the Consequently, a new or specially scope, power and configuration of the anti- appointed anti-corruption authority or corruption unit which require external executive may have the unaccustomed action and assistance should be resolved luxury of negotiating or self-defining the at the moment of the authority’s creation scope, resources and configuration of the or unit leader’s designation. If special task or entity. The executive who thinks decrees must be issued to create the and plans ahead, and promptly analyzes authority, the leader-designate should the anticipated needs of the inquiry to be insist on the ability to review them to conducted, may have unprecedented ensure that all necessary provisions are leverage to secure desirable resources and included. Special attention should be paid powers. In the midst of a public clamor to potential overlap and conflict with other that effective actions be taken against agencies. Those types of problems are recently exposed corruption, many rarely satisfactorily resolved by two bureaucratic concessions may willingly be independent competing entities without made simply so that the policy maker intervention of a superior power at the
460 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS ministerial or political level. To resolve executive may be created or appointed as bureaucratic problems it is advantageous much to abate a public relations problem to seize the momentum of the moment for a political administration or a when political interest and sympathetic policymaker as for the law enforcement attention are engaged and motivated by the goal of prosecution and incarceration. The need to contain a scandal. unpleasant political consequences of a successful corruption investigation, which A request to investigate an act of alleged renews negative publicity, will not bribery in one small aspect of a massive necessarily be welcomed by policymakers. and highly suspicious contract, may deal only with the tip of the iceberg, with a huge Bluntly stated, the foregoing discussion mass of other corrupt practices and is intended to convey that an anti- payment lurking just beneath the surface. corruption authority or executive should The investigator must then make some arm itself at its strongest moment, which educated guesses, and take some risky will almost always be its moment of gambles, about the desired scope of the creation or selection, or at whatever authority’s desired mission. Should that subsequent moment when public attention mission be narrowly defined to the initial to its work is at its highest. If requests for corrupt act of bribery or embezzlement of foreign evidence, tax or personnel records, government program resources, which may or other official documents present thorny be proved without encountering serious legal issues or could be subject to political resistance because only low level obstructive delays, the moment of greatest persons are involved and the existing bargaining strength should be exploited to publicity has made them expendable? Or, gain guarantees of expeditious cooperation. recognizing the probable breath and depth If high-ranking officials are potential of corruption in the program, should a witnesses but can be expected to evade broad mandate be sought? The first, more testifying or producing records, an order conservative approach may permit the at a sufficiently high level of government investigating authority to build a record of should be sought requiring that all public success by proving the suspected bribery employees will cooperate in the inquiry. and identifying the indicia of more widespread corruption, leading to an Of course, many other realities of expanded mandate. organizational and supervisory relations and of legal limitations will dictate what However, one must recognize that powers and resources an anti-corruption policymakers may not grant that expanded authority can secure at the time of mandate, requiring consideration of the appointment. Diplomacy may well dictate second, riskier course of insisting on a that more can be gained by polite requests broad mandate initially. If it is chosen, and and patience than by the making of the inquiry develops evidence that the demands and the setting of conditions. initial allegation was indeed representative However, it would normally be highly of systemic corruption at the highest levels, desirable to create a written record which initially supportive policymakers may would demonstrate that the powers in become less enthusiastic supporters of the charge of responding to corruption were put inquiry. This lack of enthusiasm may not on notice as to what resources and powers necessarily be an indicator or result of were necessary to its exposure and corruption. Rather it may simply reflect prosecution. Subsequent inquests and that an anti-corruption authority or attempts to impose accountability, or
461 RESOURCE MATERIAL SERIES No. 56 political blame, are common consequences sensational, even though a realistic of corruption scandals. A written record prognosis is that a successful outcome is will protect the personal and professional most unlikely. When a high profile inquiry reputation of the anti-corruption executive, is unproductive, those who are prone to who asked for but was denied adequate believe in grand conspiracies and those who tools to do a professional and successful job, can profit in a political or journalistic way and will not enhance the reputation of the by alleging a cover-up can be expected to policymaker who rejected or ignored those do so. Consequently, the executive requests. directing a high risk corruption inquiry should think defensively, documenting V. PROFESSIONAL REPUTATION requests for resources and instructions received from political superiors. The Law enforcement professionals who inquiry may need to be conducted even have dedicated a lifetime to upholding the more exhaustively than may be cost- values of honesty and integrity naturally effective to preclude or provide a response value their professional reputation and to allegations of laxity or compromise. In need to be concerned about protecting their certain communities accusations against individual reputation and that of the anti- investigating authorities of misconduct, corruption investigation unit to which they abuse of position, and even insubordination belong. The problem of protecting those and dishonesty are a routine aspect of anti- reputations looms particularly largely in corruption inquiries. If such a those situations wherein it is highly counterattack is foreseeable, it may be wise probable that a corruption inquiry will be to seek an understanding with political inconclusive or unsuccessful, giving rise to superiors in advance as to what procedure media or politically inspired accusations of will be followed in the case such allegations incompetence or of a cover-up. are made, and who will have the competence to investigate the Some types of cases, such as efforts to investigators. trace suspected international bribery activity, may face almost certain failure, VI. TARGET SELECTION particularly after memories have or can be STRATEGIES FOR AN claimed to have faded, records have ANTI-CORRUPTION UNIT disappeared and defenses have been fabricated. An anti-corruption authority To effectively counteract corruption, must realistically evaluate the probable information from a variety of sources inability to uncover the true facts due to should be developed, including citizens, the the consensual nature of bribery, the media, other criminal justice agencies, and passage of time, the often subtle ways in perhaps most efficiently, honest members which corruption may occur, and the of management or of the work force within sophistication and resources available to an agency whose programs or executives shield the criminals. In such situations any are being corrupted. Yet an anti-corruption appearance of impropriety on the part of agency can be overwhelmed by the sheer the anti-corruption investigator is number of complaints and the mass of data proverbially as damaging to public being received from governmental auditors, confidence as is impropriety itself. dissatisfied citizens, anonymous allegations, news media exposes, and from One’s professional duty may require that its own inquiries. Accordingly some an inquiry be conducted which will be coherent principle or plan is called for to
462 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS organize an anti-corruption agency’s which are simple to solve or interesting and application of its limited resources. exciting to investigate, but which have Obviously, any management strategy must little programmatic impact. Apprehension take into account political and legal and conviction of laborers stealing realities. If a cabinet minister has inventory from a government storage depot appointed an anti-corruption authority to may deter some similar thefts among those respond to a scandal over bribe payments who learn of the prosecution, but probably in the granting of large military contracts, not as much as would sound inventory that minister is not likely to support a control and security procedures. diversion of anti-corruption resources to Meanwhile, the consumption of numerous investigate agricultural subsidy workdays and expensive overtime pay corruption. If a country’s legal system necessary to secure evidence of such thefts embodies the principle of mandatory through physical surveillance may prosecution, then an anti-corruption unit preclude pursuit of more tedious must mandatorily open at least a formal documentary inquiries into alleged inquiry for every allegation which legally kickbacks on the purchasing of all qualifies, as notification of a crime. government supplies. If the level of However, even in systems of mandatory inventory leakage due to employee theft is rather than discretionary prosecution, 5%, whereas the typical kickback on the choices must be made as to which matters materials being purchased is 10%, the can be sent to the archives without action distortion of priorities is evident. because of a lack of an identifiable suspect, and which cases merit investment of VII. TRIAGE investigative resources. Various A more defensible and efficient reactive investigative targeting strategies may be strategy evaluates externally presented considered, including reactive strategies, referrals and complaints in order to intelligence-based targeting, and a decoy perform some form of triage, which is a and integrity testing approach. In judgment of whether to apply resources to American police science the last-mentioned a case depending on its potential value integrity testing approach would be called according to conscious criteria articulated proactive, to contrast it with reactive. in advance and consistently applied. For obvious reasons, inquiries and complaints Beginning with reactive strategies, from the legislative branch or arising from probably the least effective long-run mass media sensationalism may be approach is a practice of responding to the accorded immediate attention rather than stimulus of a complaint or a news media inquiries which are still covert and not in story based upon the resources available the public domain. Some inquiries can be at the moment, without any objective declined immediately or with minimal selection criteria or master plan. This action if the offender cannot be identified approach may lead to frequent without disproportionate expenditure of reassignment of investigative resources. resources. Other inquiries may demand Such a response allows investigative immediate action before crucial evidence resources to be applied in an uncontrolled is lost, or while the offense is ongoing, such fashion depending on what seems like the as the investigation of the corrupt FBI most vulnerable or newsworthy target of agent in New Orleans which I described in the moment. This approach, which can be my first paper. Wrongdoing falling on the labeled a “default” strategy, risks the borderline between criminal and absorption of substantial resources in cases
463 RESOURCE MATERIAL SERIES No. 56 administrative misconduct, such as petty allocate some fixed percentage of resources theft and cheating, can be made subject to to be applied in a reactive fashion against internal guidelines, if applicable legal targets of opportunity. However, its principles permit, to permit the employee’s principal focus is upon the application of a prompt discharge from government service significant percentage of investigative and a bar from re-employment, thereby resources to the collection, analysis and saving criminal investigative and generation of criminal intelligence prosecutorial resources for more important identifying targets with substantial cases. programmatic impact. The majority of resources are then applied to the Both of the above targeting strategies, a development of cases targeted as a result default strategy or some form of response of this intelligence gathering and based upon classifying the urgency, evaluation process, with careful attention severity and probability of solution, are being paid to the verification of intelligence reactive to outside stimuli. Such reactive sources and methods, and the development strategies may not achieve maximum of new intelligence as a result of the efficiency, but they have the negative virtue agency’s own investigations. Using of being non-controversial. When it is intelligence methods to identify cases to be apparent that an anti-corruption agency is investigated may involve sophisticated, simply responding to a public controversy computer matching of multiple databases or to an official referral, it is much better or simply identifying any public officials at equipped to defend itself from accusations social functions hosted by a local crime or of partisanship, bias or seeking publicity drug boss. Review of passports, by targeting public figures. The immigration control and air travel records, disadvantages of reactive strategies derive may reveal public officials who should be from the consensual and covert nature of held to explain the source of funds for their corruption. Reactive strategies are likely expensive foreign travel. Sources in public to reach only the most blatant and accountancy firms may provide their unsophisticated forms of corruption, evaluation of the integrity and motivation thereby perpetuating the status quo, for the award of certain construction placating public opinion without really contracts or issuance of city bond issues. threatening high-level corruption. Intelligence based targeting may also focus Reactive strategies invite the cynical on the integrity risk of a program, rather conclusion that the system is designed to than on the conduct of an individual, protect the corrupt but powerful elite by concentrating on vulnerability to abuse, sacrificing clumsy, petty thieves to convey effectiveness of internal and external the appearance that corruption is being controls, audit results, degree of discretion controlled. These anti-democratic granted to program officials, number of consequences of reactive strategies and complaints, amount of competition in the their obvious inability to ever reach well market regulated, comparative costs, and hidden corrupt practices suggest the need similar criteria. to develop alternative target selection strategies. IX. DECOYS AND INTEGRITY TESTING VIII. INTELLIGENCE BASED While intelligence-based targeting can TARGETING never be free from allegations of improper One such alternative strategy may motivation because its selection criteria are
464 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS discretionary, at least the means of It was planned that the operation would investigation tend to be fairly routine. Far use the cooperating criminal’s underworld more controversial is a targeting strategy associations to purchase stolen artworks which employs decoys and integrity testing and securities, and ultimately to base tactics. The criticisms of these devices are prosecutions on evidence gathered during substantial. They arguably express an the operation. These goals were soon intolerably cynical view of how the police achieved, and in the process, the should operate, which damages public cooperating witness and later an respect for law enforcement. Some undercover FBI agent, were introduced to societies may categorize such tactics as the the mayor of a New Jersey city, who offered impermissible use of an agent provocateur to arrange the payment of a $100,000 bribe manufacturing imitation crime when none to the Vice-Chairman of the New Jersey really exists. It can be argued that the State Gambling Commission to influence weakness of human nature permits law the issuance of a gambling casino license. enforcement to target, trap and destroy As the corrupt mayor and his associates almost any political, personal or ideological spent time socializing with the undercover opponent which it chooses. FBI agent, they talked about other matters consistent with the undercover scenario Notwithstanding these objections, involving wealthy Middle Eastern integrity testing devices are employed investors. One topic was the desire of the because law enforcement executives know mythical Arab sheik to guarantee that he that hidden corruption can continue would be allowed to immigrate to the indefinitely unless exposed, and that no United States if a revolution occurred in other technique is as cost-effective in his country. Since immigration is within penetrating bribery and other secret the competence of our national or federal abuses of office. Allow me here to introduce government, the corrupt mayor offered to a case study about a corruption inquiry introduce the undercover team to friends which was a very controversial event in the who were members of the United States United States of America when it occurred Congress and who would accept bribes to and which still provokes widely different ensure that a law was passed to allow the reactions among audiences. This case Sheik to reside in the United States. study involves what was called the ABSCAM investigation in the United The corrupt mayor suggested a $100,000 States in the 1ate 1970s. This inquiry payment to guarantee that one began with an FBI undercover operation Congressman would introduce legislation utilizing a cooperating witness with a long to admit the Sheik to the United States, criminal record. The cover story was that on the grounds that such private bills were a business representing Arab royalty usually passed without controversy. The sought opportunities to invest some of the undercover agent refused to pay more than fabulous wealth accumulated during the $50,000, arguing that the help of several then-recent oil shortage and embargo by Congressmen might prove necessary. In the Organization of Petroleum Exporting one day a Member of our House of Countries. The FBI’s internal code name Representatives was videotaped personally for the case, which eventually became know accepting $50,000 and filling his pockets to the public, was ABSCAM, a combination with the currency after agreeing to of the notional business front for the introduce the legislation, and a US Senator investments, called ABDUL Enterprises, was recorded promising to help with the and the word “scam” meaning trick. legislation in the Senate in exchange for a
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20% concealed interest in mining all were videotaped. The videotapes corporations for which he promised to help showed the greed of the accused secure government contracts. As the congressmen, stuffing envelopes in their investigations progressed other Members pockets and grabbing at bags or briefcases of Congress took bribes in a brown paper full of money, and boasting that in deciding bag, in briefcases, in person and through how to vote they listen to money, not words. intermediaries, all in exchange for promising to support legislation to allow B. Is Integrity Testing a Law the Sheik to immigrate into our country. Enforcement Technique Which Should be Used Against Elected When the investigation became public Representatives? in 1980 the publicity was enormous. The dangers of allowing the executive Prosecutions and convictions of a United branch of government to tempt legislators States Senator and six Members of the are obvious. The moral independence of House of Representatives, and numerous individual legislators and the institutional local officials, lawyers and businessmen independence of the legislative branch are followed. At the same time, both houses of at risk when their integrity is tested, as our Congress conducted hearings to we are all imperfect human beings subject critique the propriety of the investigation. to temptation. Fortunately, the It may be stimulating to discuss some of Congressional hearings on the ABSCAM the issues debated during those operation established a complete absence Congressional hearings. of political targeting, and in fact all of the defendants were from the party in power A. Were Innocent Persons at the time. Entrapped? There is no juridical difference between Moreover, those same hearings revealed the way an American judge and jury decide that ABSCAM was not a moral crusade the guilt of a trafficker who sells drugs to against corruption in Congress. None of an undercover agent for money and a the persons responsible for the operation Congressman who sells a promise to would have disputed the principle that it support legislation for money. In both cases is the electorate, the voters, and not the common law legal tradition permits a criminal justice authorities who are possible defense of entrapment. The jurors primarily responsible for the moral caliber are instructed by the judge that they should of our elected representatives. The original absolve the accused if they believe that he intent of the operation was to recover stolen had no predisposition, intent or willingness property. When a demonstrably corrupt to commit the crime and was entrapped local mayor offered to arrange bribes to into doing so by government persuasion. Members of our Congress, the offer was Despite strenuous efforts to find any accepted because none of the investigative possible vulnerability in the ABSCAM or prosecutorial executives involved could operation, neither the Senate nor the suggest any persuasive reason why we House of Representatives committees should use the operation to buy illegally claimed that the accused officials were possessed artwork and securities but not innocents lured into the perpetration of to buy illegally promised votes. We crimes which they had no predisposition Americans are an intensely pragmatic to commit. Such a claim would have lacked people. Public opinion was greatly public credibility because the crucial impressed by the very high percentage of encounters were all recorded, and almost elected officials who came into contact with
466 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS
ABSCAM who were willing to promise payment. The standard for authorizing a their votes for money. During the meeting with an elected official was that Congressional hearings an argument took an intermediary with proven criminal place over whether 80% or only 63% of the credentials had represented that the intent elected representatives accepted illegal of the public official in attending the payments. The calculation depended on meeting was to seek a bribe. Once a how one counted persons who died before meeting took place, no bribe could be prosecution or were convicted for other offered until recorded preliminary offenses. The argument ended when one discussions confirmed the elected of our prosecutors reminded the Senatorial representative’s awareness that an illegal committee that either percentage transaction was to be discussed. These suggested that the operation was amply precautions had the desired effect of justified. With the issue phrased in that persuading public opinion and responsible context, and with public opinion solidly in Members of Congress that the defense of favor of the numerous prosecutions and entrapment and the internal law convictions, our Congress shifted its focus enforcement for undercover operations from whether undercover tactics could be adequately safeguarded legislative used in investigations of elected independence. representatives to examine what appropriate controls should be in place. D. Did the ABSCAM Experience Establish a New Regime in Which C. What are the Appropriate Investigative Authorities Now Controls for Undercover Use Integrity Testing at Will Operations Testing the Integrity Against Elected Officials? of Elected Representatives? Despite the numerous convictions Our House of Representatives proposed resulting from ABSCAM, all upheld on a change in federal law to require that all appeal, and the reluctance of our Congress future undercover operations should to risk voter displeasure by limiting require judicial authorization, but no such undercover operations or integrity testing legislation was ever enacted, primarily techniques, no operation of similar scope because our citizens felt that Senators and has taken place since 1980. When I last Representatives should accept the risk of researched the issue several years ago, only walking into a meeting and being offered a one additional conviction of a Congressman bribe for a vote, since they could and should and one of a federal judge had resulted from refuse the offer, and could even go so far as decoy or undercover tactics, although it is to report it to the proper authorities. now used routinely against elected and appointed officials in state and local Frankly, our investigative and governments. prosecutorial authorities were much more conservative than the public in their view If the ABSCAM operation were such a of what kind of testing was allowable. The statistical success, if its convictions were Director of the FBI and the prosecutors at affirmed against all legal challenges, and the politically appointed policy level of the if Congress did not pass legislation limiting Department of Justice applied controls to law enforcement powers as a result, one avoid random integrity testing, and to offer may ask why it has not been repeated. My bribes only to a selected group of persons opinion, which is strictly personal and does to whom there was founded suspicion of a not reflect any official position or analysis, corrupt predisposition to accept an illegal is that various factors are at work. One
467 RESOURCE MATERIAL SERIES No. 56 could be called the scorpion factor. For law There may also be a fear that integrity enforcement authorities, initiating another testing is simply too effective a technique. ABSCAM project would be like a scorpion We know the ABSCAM percentage of 63% entering a bottle with a stronger and more to 80% is not statistically representative poisonous scorpion. If the weaker strikes of the Members of Congress willing to the stronger, the weaker will suffer serious promise their votes for money, because injury or worse, with no means of escape. strenuous efforts were made to deal only The Congressional reaction after ABSCAM with a preselected, corrupt population. teaches that if law enforcement authorities However, our society may not want its law were to again test the integrity of our enforcement agencies to determine exactly Congress, multiple convictions might result what percentage of our elected but restrictive legislation would be almost representatives would be willing to take inevitable. illegal payments under the constant pressure of political fundraising and Other factors also discourage the campaigning. It may be that in ABSCAM repetition of an ABSCAM operation. One we looked into the abyss and were is recognition of the sensational manner in frightened by what we saw, and that our which the news/entertainment media treat society will not willingly approach the edge criminal investigations. One of the painful of that abyss soon again. aspects of the ABSCAM investigation was that it was terminated after an innocent Senator was introduced to the undercover agent by an intermediary who misrepresented that the Senator wished to trade his vote for money. No bribe was ever even discussed, because the undercover agent realized that the Senator thought he was there to receive a legitimate campaign contribution. This probably occurred because the criminal intermediaries had exhausted their contacts with corrupt office holders whom they knew were eager for bribes and arranged a speculative meeting in the hope of receiving a percentage if the Senator were offered a bribe and decided to accept it. Whatever the reason for the event, the result was painful and terribly unfair. Because of the mass media coverage when the investigation became overt, the Senator suffered damage to his reputation. Law enforcement executives with a sense of public responsibility cannot pretend to be blind to such realities. The consequence is that the number and scope of undercover operations must be severely restricted to eliminate any involvement with innocent persons whose reputations might be unfairly ruined by such contact.
468 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’PARTICIPANTS’ PAPERS PAPERS
INVESTIGATION OF CORRUPTION IN JAPAN
Tamotsu Hasegawa*
I. CORRUPT PRACTICES BY circumstances, bribes are offered to secure GOVERNMENT OFFICIALS IN special business favors from government JAPAN officials in connection with the granting of government licenses or the awarding of Japan’s prosecutor’s offices handle and government contracts for public works. process bribery offences committed by government officials. According to These kinds of bribery cases receive statistics for 1997, there were about 170 public attention. In one such case, the Vice- government officials under arrest, of whom Minister of Health and Welfare took a bribe 150 were accused of taking bribes. from a business owner in return for the According to a breakdown by public office granting of a construction subsidy for an of the accused, the largest number recorded aged persons welfare facility. In another was: 80 for local government officials, case, an executive director of a securities followed by 50 assembly members of local company provided a high-ranking official government. The remainder consisted of of the Ministry of Finance with luxurious 10 police officials and 10 officials in the business entertainment, which constitutes National Tax Administration. the offence of taking a bribe for favors given in relation to government approval of a In Japan, as mentioned above, the financial product. number of cases in which public servants are exposed as being involved in bribery In Japan, nomination is made for are few, but such crimes are carefully selection of contractors under a competitive planned and are secretive in nature. So bidding system. Contracts to carry out the proportion of cases that remain hidden public works are awarded by local are rather more than with other criminal governments to the successful bidder(s) cases, and the actual number exposed among the nominated contractors. through the courts is rather small. Thus Prospective contractors have offered bribes in Japan, finding out illegal actions by to government officials in return for public servants, such as bribery, is quite favoritism during the selection of an important issue for investigating nominated bidders. Government officials authorities. have taken these bribes from prospective bidders to disclose the lowest bid price in There are typical examples in which the bidding procedure. These corrupt bribery is committed by government officials were accused of bribery. officials in Japan. Administrative bureaucrats exercise their administrative In addition to bribery offences committed rights at their own discretion, in a broad by administrative bureaucrats, there are sense. Information on decision-making many recorded occasions of members of the processes is inadequately disclosed by Diet being involved.1 Diet members have administrative organizations. Under such strong business connections with particular industries. They have been * Public Prosecutor, Tokyo District Prosecutors Office, Japan 1 The Diet is the Japanese parliament.
469 RESOURCE MATERIAL SERIES No. 56 known to approach an administrative II. BRIBERY INVESTIGATIONS OF organ to formulate an industrial policy that GOVERNMENT OFFICIALS is advantageous to one particular industry. A. Public Prosecutor’s Involvement In this process, the particular industry in Bribery Cases that are offers inducements to the Diet members to Exposed by Police Officers influence political decisions in its favor. In Japan, the police force is the primary investigating authority in criminal cases. Here are some examples of members of In principle, public prosecutors conduct the Diet being involved in bribery. In recent supplementary investigations of criminal years, the Fair Trade Commission cases referred to them by police officers, attempted to accuse certain construction before determining whether or not to companies of consulting among themselves institute prosecution. A public prosecutor’s to orchestrate predetermined exaggerated office is an independent investigating bids for public works before the bids were authority, as are police stations. As a opened. The chairman of the Fair Trade general rule, these two investigating Commission was subjected to political authorities work in close cooperation with pressure from a member of the Diet, who each other. was consequently accused of receiving a bribe from the construction companies to In bribery cases, police officers conduct prevent the proposed accusation. Similarly, the criminal investigation if they in a tax evasion case, a member of the Diet themselves expose the leads. To perform was accused of receiving political donations effectively during the investigation of a from many construction companies, with bribery case, police officers require a solid the sole aim of collecting the money for his understanding of investigative techniques personal use. and legal interpretation. As the courts make ever more complicated rulings that In Japan, those in government service expand the rights of the defendants, the should never accept, for themself or their legal requirements for the admissibility of family, favors or benefits under confessions may appear different in certain circumstances which might be construed jurisdictions. Public prosecutors are often as influencing the performance of his or her involved at the initial stage of criminal governmental duties. In general, investigation, thus exercising control and government employees, including supervision over the police work. This is officeholders, adhere to the Code of Ethics to rectify improperly handled for Government Service. Bribery is not investigations and ill-advised conduct on necessarily rampant as a social custom. On the part of law enforcement officers, the other hand, Japan’s social structure especially incomplete interpretation of the and the environment surrounding law and evaluation of physical evidence. government employees contains many factors that could be seen as a hotbed for Good cooperative relations are corruption. In Japan, investigating maintained between public prosecutor’s authorities are under great pressure to offices and police stations. Public expose corrupt practices by government prosecutors and police officers often hold employees, especially by office holders in meetings to discuss a particular case in the national government - high-ranking detail before an identified suspect is government officials and members of the transferred from the police station to the Diet. public prosecutor’s office. Even after the
470 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS case is referred to the prosecutor’s office, Minister of Justice, without reasonable the police maintain a close liaison with the cause. Moreover, the Law stipulates that, prosecutor’s office for competent collection for the purpose of protecting the exercising of physical evidence. of prosecution rights, especially for the purpose of eliminating any political B. Independent Investigation by pressure and interference of the Public Prosecutors investigative procedures of a public In Japan, a public prosecutor is prosecutor, the Minister of Justice may only authorized to conduct a criminal command the Prosecutor-General of the investigation into any type of crime as he/ Supreme Public Prosecutor’s Office with she sees fit. In addition to cases referred respect to investigations or prosecutions of to them by the police, public prosecutors individual cases. This means that the identify particular cases and conduct their Ministry of Justice cannot interfere directly own criminal investigations. with criminal investigations or the solving of crimes conducted by any public Statistics for 1997 show the number of prosecutor. In this way, the independence people questioned by police officers of the public prosecutor is secured. Public compared with suspects interrogated by prosecutors remain neutral in exercising public prosecutors. The police officers their prosecution rights against political questioned about 150 suspects, rather more groups. than the 20 suspects interrogated by public prosecutors. The number of criminal III. ORGANIZATION OF PUBLIC accusations is small on the part of public PROSECUTORS OFFICES prosecutors, but the majority of bribery As described earlier, public prosecutors offences committed by government officials are authorized to conduct criminal or members of the Diet were exposed in the investigations at their own discretion, a course of independent investigation by factor that is characteristic of the Japanese public prosecutors. public prosecutors system. Criminal investigation relies heavily on the Public prosecutors are expected to investigative duties of public prosecutors, conduct preliminary investigations of including the institution of public bribery offences committed by office prosecution and the maintenance of public holders in the national government - high- trials. ranking government officials and politicians. In practice, public prosecutors In Japan, the public prosecutor’s office perform their investigative duties during has a special investigative department that investigation of bribery cases. This is takes charge of investigations into bribery partly because the public prosecutor is a and economic crimes committed by skilled practitioner of such diverse skills government officials. These special as legal interpretation and investigative investigative departments are established techniques for white-collar crimes, and at the District Public Prosecutor’s Offices partly because the public prosecutor’s office in Tokyo, Osaka and Nagoya. In addition, is independent. special criminal departments have been established at 10 district public prosecutors The Public Prosecutor’s Office Law offices throughout Japan. provides that no person in the office of public prosecutor can be removed nor disadvantageously treated, even by the
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At the Tokyo District Public Prosecutors available for examination by public Office, the Special Investigation prosecutors. Department has a total of 125 legal officials, comprising of 40 public Secondly, a public prosecutor’s office prosecutors and 85 public prosecutor’s accepts complaints or accusations from a assistant officers. These 40 public complainant or accuser for crimes of prosecutors are made up of one director, corruption. The Special Investigation three deputy-directors and 36 Department has a public prosecutor who subordinates. All 36 public prosecutors are takes charge of accepting written professionals with four to 18 years of complaints or accusation and letters from experience since assuming office. They are informants. Suspicious situations worthy grouped into three special investigative of investigation are detected from teams headed by the three deputy- information contained in written directors. complaints or accusations and anonymous letters. In recent years, an employee of a The following sections address the corporation accused an executive director current situation of independent of a wrongful act. An executive officer of a investigations conducted by the Special politician’s support association revealed the Investigation Department and the corrupt practices of the politician. These problems of investigative procedures. insider accusations are a major source of information for detecting leads into ongoing IV. DETECTION OF A BRIBE IN bribery cases. PROGRESS Thirdly, public prosecutors look for signs The Special Investigation Department of suspicious activity during investigations employs three investigative techniques to into the crime in question, thus adding find leads for suspicious activities while a weight to the suspicion that some other bribe is in progress. Firstly, public crimes have been committed. In a tax prosecutors examine news coverage, such evasion case, seized account books are as in newspapers and magazines. Another examined to identify the flow of funds, thus source of information is the question and revealing whether bribes were offered to answer proceedings during the Diet or local government officials who could then be government assembly sessions. Public accused of bribery. When an identified prosecutors look for any suspicious activity suspect or witness is questioned with conducted by government officials or respect to cases of embezzlement or breach politicians. Extensive interviews and of trust by executive directors of a background investigations are initiated to corporation, statements are obtained identify suspects. In particular, unexpectedly to detect corrupt practices, examination of the contents of speeches thus leading to the prosecution of bribery- made by Diet or local government assembly in-progress. members is one important investigative technique to solicit leads in a bribery-in- V. INVESTIGATIVE TECHNIQUES progress case. Public prosecutors always USED BY THE SPECIAL monitor trends in the Diet and local INVESTIGATION DEPARTMENT government assemblies. If a matter of business interest is discussed at a meeting During the course of investigation of a held by a particular corporation or bribery case, the Special Investigation organization, the minutes are made Deparatment conducts a thorough search
472 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS for evidence to collect as many physical determine the truth about a fact in items of evidence as possible. Seized question. Bribery is a carefully planned and evidence is examined to prove an alleged concealed crime, making it difficult to prove offence of corruption. A search for evidence because physical evidence is not easy to usually begins in the area to be raided, gather. So a statement made by an while the suspect is under arrest. In a identified suspect or witness is extremely serious crime, all people present are vital to ensure that successful evidence is mobilized while the raid is conducted and presented in court. Moreover, the fact that physical evidence searched for. The the money received was a bribe is quite number of people mobilized during the difficult to prove without a confession. conducting of specific tasks often exceeds Public prosecutors do their best to make 100. All evidence recovered is seized during preparations by collecting objective the raid, including account books, business evidence before beginning any diaries, and any other items related to the interrogation. This procedure assists the alleged offence. Seized evidence is often public prosecutors in obtaining a statement packed in hundreds of corrugated from an identified suspect or witness. A cardboard boxes during a raid on the offices statement obtained from an identified of a big company. The seized evidence is suspect or witness is checked against any then examined by public prosecutors in available background information on the detail. They are then used as evidence that suspect or witness, thus establishing the a crime was committed. credibility of the statement. Finally, the public prosecutor’s record of oral Secondly, during an investigation into statements is prepared and presented as bribery, it is important to clarify the source evidence in court. of funds offered as bribes and how they were used. To locate the source of funds As described earlier, the Special for bribes requires a thorough analysis of Investigation Department follows basic account books. To this end, the Special investigative techniques and procedures for Investigation Department dispatches detecting leads during the course of public prosecutor’s assistant officers to the independent investigation into bribery National Tax College and a Regional cases. No special authority is delegated to Taxation Bureau to develop skills in the Special Investigation Department. No making an analysis of account books. Some special investigative techniques are used public prosecutor’s assistant officers for criminal investigations. In a bribery receive instruction in bookkeeping at case, criminal investigations conducted by vocational schools. These public the Special Investigation Department prosecutor’s assistant officers, who have reflect the breadth of practical experience, acquired a working knowledge of working knowledge, and investigative bookkeeping, are assigned to special tasks methodologies on the part of each public - the analysis of bank deposit slips, prosecutor. vouchers used for business transactions, and ledgers, thus playing an increasingly VI. CHALLENGES TO BRIBERY important role in conducting financial INVESTIGATIONS investigations. Public prosecutors in today’s society face many challenges. Serious crimes such as Thirdly, public prosecutors conduct bribery often results in lengthy, exhaustive, intense questioning of suspects or and highly complex criminal witnesses to obtain their statements to
473 RESOURCE MATERIAL SERIES No. 56 investigations. This requires a heavy This situation would cause another allocation of manpower. As described problem in Japan. The investigation’s earlier, the Special Investigation progress is often hindered by the suicide of Department of the Tokyo District individuals being questioned or important Prosecutor’s Office - the largest prosecution witnesses, a contributing factor that has team - has only 40 public prosecutors significant effect on criminal assigned to criminal investigations. As an investigations. In Japan, a person being effective way of managing a complex questioned often commits suicide to avoid investigation into serious crimes such as any inconvenience being caused to their bribery and large-scale economic cases, the organization or immediate supervisor if he/ manpower shortage is replenished by the she belongs to an organization. In recent dispatch of additional public prosecutors years, news media tends to disclose the from other departments or other District nature of an alleged offence and the Prosecutors Offices throughout Japan. In investigation’s progress. The suicide of a a world of frequent and dramatic changes person being questioned is often in information technology, social attitudes attributable to the disclosure of and legal opinion, criminal offences are investigative information through news likely to become more and more complex media. in the future. Conducting complex investigations in an efficient and proper In a bribery case, a confession obtained manner requires improvement of from an identified suspect or witness investigative methodologies, as well as an constitutes extremely important evidence. increase in the number of public Another problem is how to establish in prosecutors in office. court the voluntary nature and credibility of a confession. In a bribery case, a In addition, criminal investigation into confession obtained from an identified bribery poses a major problem - how to suspect at the criminal investigation stage secure the appearance of an identified is often revoked by the accused, who denies suspect or witness. As Japanese citizens the voluntary nature and credibility of the become increasingly aware of their legal confession in court. When the criminally rights, the suspect has full opportunity to accused challenges the voluntary nature contact their defence counsel prior to and credibility of the confession made questioning. If identified suspects or during investigation, their arguments is witnesses are summoned by the that he/she was intimidated into confessing investigating authorities, they often refuse because he/she was locked in the to appear. Such suspects or witnesses interrogation room during intensive refuse to talk during questioning. To cope questioning. with these new trends requires consideration to be given to the If the voluntary nature and credibility introduction of new investigative of confessions is tested at trial, any public techniques, such as an immunity system. prosecutors who conducted an In contrast, Japanese citizens have strong investigation of the case in question will inhibitions about adopting new be called to testify in court to establish the investigative techniques, such as facts about the circumstances under which exemption from legal proceedings and the interrogation was conducted. The entrapment. admissibility of a voluntary confession obtained during interrogation is established in court by a public prosecutor
474 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS who testifies that the contents of the voluntary confession match the objective evidence and statements made by all the parties involved. If there is a possibility that the voluntary nature and credibility of a confession is tested in court, consideration should be given to the use of video or tape recorders for transparency of the investigative process.
To prevent the investigating authorities from placing over-reliance on a confession, and to facilitate prosecution of a bribery crime, the burden of proof should be changed or presumption regulations should be provided for. These effective procedures should be taken into consideration.
VII. PREPARING FOR COURT In a bribery case, the defence counsel and defendants have a legitimate right to test the admissibility of physical evidence presented in court by public prosecutors. When prosecuted bribery or economic cases often involve complex fact finding and require a comprehensive list of all physical evidence, the public investigator’s record of oral statements and witnesses interrogations. These procedures require enormous effort to establish in court that the alleged crime was committed. The Tokyo District Public Prosecutor’s Office has a Public Trial Department and a Special Public Trial Department - an additional department assigned to bribery or economic cases. These departments present truthful, objective information that is effective in establishing the guilt of criminals.
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THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS: THE NIGERIAN POSITION
Onuoha Emmanuel Ifeanyi*
I. THE PHENOMENON OF Olusegun Obasanjo aptly captured the CORRUPTION scenario in a speech he made on the day of his inauguration as President of the In a world where man’s wants are Federal Republic on Nigeria on 29 May, insatiable and the resources limited, it is 1999; an excerpt of which is reproduced not uncommon for individuals and interest hereunder: groups to compete for the control of these resources as a means of satisfying their “Corruption, the greatest single bane needs. This exercise becomes corrupt if the of our society today, will be tackled competitiors employ foul means to achieve head-on... No society can achieve their objective. anything near its full potential if it allows corruption to become the full- In Nigeria, we are genuinely worried blown cancer it has become in about corruption which, though a universal Nigeria’’. phenomenon, seems to have become so endemic in our body politic that most II. REASONS FOR CORRUPTION discourse about Nigeria, at home and in international fora, centers on the high In various literature, corruption in ascendancy of corruption in our public life. Nigeria has been alluded to as an improper development strategy resulting in politico- According to the Communique on the economic and administrative inefficiency 1988 National Conference on Corruption which, in turn, leads to inadequacy or and other Economic Crimes in Nigeria, scarcity of goods and services. Thus, the corrupt activities are not the exclusive acquisition of such goods and services preserve of a particular section of the becomes a special privilege, rather than a society, but rather an ill-doing that cuts normal entitlement. across all social barriers and strata. It is not only the politicians and the executives Adedokun Adeyemi, in a paper entitled that are corrupt in our society, but the “Corruption in Nigeria: The Criminological bureaucrats, public servants, bankers, Perspective’’, linked corruption to the insurance brokers, officials involved with upbringing and socialization process. He the administration of justice in the country, opined that in a society whose traditions law enforcement agencies, the press, permit polygamy, children of polygamous religious leaders and other members of the homes do not enjoy adequate paternal public. contact resulting in emotional insecurity and stability. The combined effect of * Officer-in-Charge, Management Informarion scarcity of goods and services tends to Systems, Interpol Section Criminal Investigation produce in such children exaggerated fear Department, Nigeria Police Force, Nigeria. for the morrow. The result is that they develop a strong propensity to acquire
476 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS wealth to satisfy their exaggerated fears. were set up for instances of discovered or revealed large-scale Further reasons adduced for the growth corruption, especially those involving of this national canker-worm include mass high-ranking government officials. illiteracy, general poverty and frustration, conflict of values, weakness of social and (iv)At other times educational governmental enforcement mechanisms, institutions, religious bodies and tribal sentiments and nepotism. So also traditional rulers, and human rights are the acquisitive propensity of a society groups have joined the combat where people are judged and accepted by against corruption. what they have and not that they are, the use of political office as the primary means IV. CRIMINAL LAW PROVISIONS of acquiring wealth, lack of patriotism and AGAINST CORRUPTION general disregard for the laws of the land. A. Official Corruption Section 98 of the Criminal Code of Obviously, corruption on the part of Nigeria provides: political office-holders, bureaucrats, public servants, the press and the general public “Any person who: has tended to stigmatize the image of government, weaken its credibility and (a) being employed in the public service, reduce the effectiveness of the development and being charged with the programs and policies and also, to a great performance of any duty by virtue of extent, weaken the economy of the nation. such employment, not being a duty touching on the administration of III. EXISTING MEASURES AND justice, corruptly asks, receives, or MECHANISMS FOR CONTROL OF obtains, any property or benefit of CORRUPTION any kind for himself or for any other The existing measures for the control of person on account of anything done official corruption in Nigeria include: or omitted to be done, by him in the discharge of his office; or (i) The criminal/penal codes, the police and other enforcement agencies, and (b) corruptly gives, confers, procures or the courts are the formal promises, or offers to give or confer, conventional instruments for or to procure or attempt to procure, controlling corruption. to, upon or for, any person employed in the public service, or to upon, or (ii)Another set of existing measures and for any other person, any property or mechanisms for controlling benefit, of any kind on account of any corruption may be categorized as such act or ommission on the part of “target-directed efforts’’. These the person so employed is guilty of a include the defunct Corrupt Practices felony, and is liable to imprisonment Investigation Bureau, the Public for seven years’’. Complaints Commission, and the Code of Conduct Bureau. B. Extortion by Public Officers Section 99 of the Criminal Code (iii)I n t h e p a s t a l s o , j u d i c i a l / provides: administrative tribunals of inquiry
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“Any person who, being employed in to any such judicial officer, the longest the public service, takes or accepts term of imprisonment is seven years. from any person, for the performance A prosecution for any of the offences of his duty as such officer, any reward firstly defined in this section cannot beyond his proper pay and be begun except by the direction of a emoluments, or any promise of such law officer’’. reward, is guilty of a felony, and is liable to imprisonment for three Sections 151 - 121 of the Penal Code years.’’ applicable in the northern states of Nigeria made similar provisions on corruption. C. Judicial Corruption Section 114 of the Criminal Code Part of rule 8 of the ten specific rules or provides: prohibitions provided for past and present public officers and their agents by the Code “Any person who: of Conduct Bureau provides inter alia:
(a) being a judicial officer, corruptly asks, “No person shall offer a public officer receives or obtains, or agrees or any property, gift or benefit of any attempts to receive or obtain any kind as an inducement or bribe for property or benefit of any kind for the granting of any favour or for the himself or any other person on discharge in his favour of the public account of any thing already done or officer’s duties’’. omitted to be done, by him in his judicial capacity; or The Constitution charges the Code of Conduct Bureau with the responsibility of (b) corruptly gives, confers, procures or referring cases of breach of the Code of promises, or offers to give or confer, Conduct to the Code of Conduct Tribunal, or to procure or attempt to procure, which is to be appointed in accordance with to, upon or for any judicial officer, or the recommendation of the Federal Judicial to, upon or for any other person, any Commission. property or benefit of any kind on account of such judicial officer, is The Public Complaints Commission is guilty of a felony and is liable to an administrative body charged with the imprisonment for fourteen years. responsibility of investigating abuse of administrative power, and it is recognized The offender cannot be arrested as existing in law under section 274(5) of without a warrant. The term the 1979 Constitution. Its main functions, “judicial officer’’ in this section specified in section 4(2), provides that a includes a member of a native commissioner shall investigate either on tribunal, an arbitrator or umpire, and their own initiative or following complaints any person appointed to act as lodged before him/her by any other person, commissioner under the any administrative action taken by federal Commissions of Inquiry Ordinance, and state ministries, local governments, or before whom (under the provisions statutory corporations or companies of any Ordinance) proceedings are incorporated pursuant to the Companies taken in which evidence may be Decree 1968, or other public institutions taken on oath; but in the case of an including the office or servants of these offence committed by or with respect bodies.
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TABLE 1 Extract from Summary of Crime and Offence Figures 1987-1998
Year Total Number of Number of Cases of Percentage of Cases Known to Official Corruption Official Corruption Police to Total Number of Cases (%) 1987 280,879 424 0.15 1988 320,411 329 0.1 1989 309,771 268 0.09 1990 285,859 297 0.10 1991 253,741 314 0.12 1992 271,614 136 0.05 1993 295,878 139 0.05 1994 247,038 224 0.09 1995 241,916 390 0.16 1996 240,354 579 0.24 Source: The Nigeria Police Abstracts of Crimes and Offences Statistics
V. DATA REGARDING THE investigation of cases of corrupt activities DISCOVERY OF CORRUPT in Nigeria: ACTIVITIES BY POLICE RECORDS (i) The Official Secrets Act often stands Available crime statistics over a ten-year between the investigator and the period (1987-1996) show that the incidence information necessary for the of official corruption is insignificant in prosecution of a case of official relation to the national crime level (see corruption. Table 1). This is at variance with the public opinion on the subject, as manifest in (ii)The agencies charged with the newspaper reports and the daily experience investigation of corrupt activities of the ordinary citizen in society. Some of often lack the required manpower the reasons adduced for the low rate of and financial resources necessary to reported cases includes the lack of effectively monitor the phenomenon confidence in the administration of or perform their job. criminal justice, the fear of prosecution (since a victim is equal to an offender in (iii)Sometimes members of the security terms of rights, as required by law) and agencies do not have the requiste lack of a clear understanding of what training and equipment to perform constitutes official corruption. effectively.
VI. PROBLEMS MITIGATING (iv)Low morale among some ACTION AGAINST CORRUPTION enforcement agencies arising from A. At the Investigation Level poor salary structure, harsh working The following factors constitute conditions, inadequate facilities and unnecessary obstacles to efficient lack of adequate residential
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accommodation. There is no doubt that the said law is subject to misuse, especially by a (v)Corruption is an offence of low corrupt regime. reportability. Factors responsible for this range from the fear of (v)Most courts still use manual prosecution arising from the fact that recording systems which are both the offender and victim are strenuous and time-consuming. criminally liable, to lack of confidence There is a general lack of know-how in the system of administration of in the area of information systems criminal justice. management.
(vi) The law on the subject of corruption VII. STRATEGY TO PREVENT THE is far from clear. Because neither CORRUPT ACTIVITIES OF PUBLIC “corruption” nor “corruptly’’ is defined OFFICIALS in the Criminal Code, their The following strategy is recommended interpretation has been left to the for the control of official corruption: wisdom of judicial officers. Also, the emphasis of the provision is (i) Corruption should be attacked exclusively on public or judicial simultaneously in both the public and officials and only for “bribery’’ and private sectors of society. “extortion’’. Furthermore, there are no provisions making corporate (ii) It is important to delineate the ambit bodies criminally liable. of the offence. As much as possible, the definition should not be B. Problems at the Trial Level amorphous. (i) During the recent military regimes, independence of the judiciary (iii) There is the need to establish a suffered setbacks such as arbitrary National Corruption Control removal of judges from office, the Commission as the various agencies promulgation of decrees with currently handling issues regarding provisions ousting the jurisdiction of official corruption have too much to the courts on the subject. do, with too little resources. (ii)Due to inadequacy in the number of Already, the President of Nigeria has judges/magistrates, the courts are presented a bill to the National Assembly often congested thereby causing which, if passed into law, will address the delays in the disposal of cases. issues raised in the recommendations above. (iii)In the past, there was lack of will on the part of government to review laws VIII. INTERNATIONAL relating to corruption to make them COOPERATION IN CORRUPTION comprehensive and effective. CASES (iv) There is a provision in our criminal There are problems associated with the law that empowers the Attorney- provisions relating to corruption under the General to discontinue any case at domestic jurisdiction when it assumes an any point before judgement is international character, because hitherto delivered, in the “public interest’’. the Constitution of Nigeria does not permit
480 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS trial of an accused in absentia. In the circumstances, the investigators can only rely on rules of international criminal procedure if there is any existing legislation or treaty in that sphere.
The procedures of extradition, judicial assistance, recognition of foreign panel judgements in domestic courts, and the transfer of offenders and execution of sentences of foreign courts within domestic jurisdiction, are long and painstaking to follow, even where a treaty is in existence. Efforts of the government to secure co- operation with other foreign countries have led to the promulgation of Mutual Assistance in Criminal Matters Within the Commonwealth (Enactment and Enforcement) Decree No.13 of 1988. Under the Decree it will be possible to co-operate with Commonwealth states in areas dealing with the location of witnesses, tracing, seizure and forfeiture of the proceeds of crime.
Also in 1984, Nigeria entered into a Criminal Investigation Co-operation Agreement with the Requblic of Benin, Ghana and Togo. There is also an Extradition Treaty between the Republic of Benin, Ghana and Togo with Nigeria.
The exploitation of the provisions of these co-operation agreements, and the expansion of such relations to accommodate relevant countries, will assist in the retrieval of the proceeds of corruption, thus controlling the menace.
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THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS
Sadar Muhammad Raza*
I. INTRODUCTION the officials became bold and the transactions became open, with the result Corruption in different forms and shapes that corrupt elements in government, has existed in this World since time public, trade and industry went on immemorial. It exists in the form of human becoming powerful, rich and resourceful, deceit, wrong, treachery, unfaithfulness, controlling and dominating every outlet, intrigue and cunningness that has changed opportunity and activity of life. the destinies of human races, dynasties and kingdoms. II. DEFINITION OF CORRUPTION When Pakistan came into existence in Bribery or corruption among public the year 1947, the evils of corruption and officials has multifarious manifestations bribery were of course there, but in a mild and styles, like paying money to get undue form. As the Nation was fighting for advantage, creating friendship, causing independence, there was a missionary undue influence and indulging in praise spirit in every citizen, particularly the and undue respect to get undue advantage; public servants. Before 1947, the CID used having underhand connections, to have an eye on government officials, understandings or dealings; to overcharge, their social contacts, general reputation hoard, smuggle or adulterate; to exploit, and efficiency. With the increase of swindle, misappropriate or earn population and with the increase of the fraudulently; to evade any tax or evils, the Special Anti-corruption Police government due; to take any personal force was created, which expanded with the advantage or benefit from power, position expansion in the government and public or post; to give undue advantage, benefit life. With the passage of time, as is natural or facility for any consideration monitory with a nation achieving independence, or otherwise; to neglect any duty, waste there started a struggle for richness, and time, money and public property; to therefrom emerged selfishness. The desire prejudice, mutilate, misguide and spoil; to to attain riches and power gave strength intentionally give wrong and unjustified to pulls, fights, cliques and intrigues for decisions, opinions, verdicts and comments; promotion and for holding posts of benefit to get favour or remuneration prejudicing among the officials. Such a race for power the right of fellow citizens; and hundreds and wealth was obviously at the cost of of similar actions and omissions, are honesty and morality. corruption.
In the early stages there was lot of III. INTERNATIONAL REMEDIES precaution, secrecy and shyness in the With the passage of time and with giving and taking of bribes, but gradually society becoming complex at the international level, and with the world * Judge, Peshawar High Court, Pakistan. becoming smaller and smaller day by day,
482 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS the octopus of corruption in every country becoming increasingly global, the effects of has gone beyond previous frontiers. The bribery can no longer be restricted to the proceeds of corruption, the payment of confines of a particular country. In 1994, bribes, kick-backs and commissions the Organization of Economic Co-operation obtained through corrupt practices are and Development (OECD) recommended often transferred abroad in safe deposits, six different areas of reform for its member away from the public view. Swiss bank countries. These included the accounts are used for the transfer of ill- criminalization of bribery; terminating the gotten wealth by corrupt officials, as well system of tax deductibility for foreign as by drug traffickers, arms smugglers and bribes; changing the banking laws to make money launders. Kickbacks and banks the instrument of fighting commissions are offered by the multi- corruption, rather than being an nationals and management officials of the instrument of corruption. Such developed countries to their counterparts recommendations asked the Member in developing countries, for the allotment States to take specific steps to deter, of contracts or procurement of goods. prevent and combat the bribery of foreign public officials in connection with The first resolution on corruption in international public transactions, and government was adopted in 1990 at the 8th further to report to each other on the efforts United Nations Congress on the Prevention and meaningful steps which they have of Crime and Treatment of Offenders. The taken in reviewing/reforming their laws resolution concedes that the problems of and procedures, to realize the objectives of corruption in public administration are the recommendations. universal, which may have deleterious effects on nations with vulnerable IV. NATIONAL REMEDIES economies. The resolution known as the The Constitution of Pakistan contains resolution of fraudulent enrichment was specific provisions for disqualification of passed in 1992 by the United Nations public representatives who indulge in Human Rights Commission and considered corrupt practices. Article 62 provides that such corruption to be a human rights a person intending to become a public problem. The Council of Europe introduced representative should be of good character, a framework for mutual legal assistance must abstain from major sins and be which provides for mutual assistance to righteous, honest and trustworthy each other in identifying persons and (Ameen). Article 63 provides that a person seizing evidence, so as to combat found guilty of corrupt or illegal practice corruption. This procedure, having been would be disqualified from or from being adopted by the Commonwealth countries elected as a member of the legislature. in 1986, attempted to facilitate the quick Honesty, selflessness, resistance to disposal of cases and punishment of influence against their official conduct or offenders. In terms of combating decisions, are the necessary ingredients of corruption, provisions have been the oaths prescribed for the president, incorporated concerning the freezing, governor, prime minister, chief ministers, seizing and forfeiture of proceeds of the federal/provincial ministers and members crime corruption. Similar procedures were of parliament/provincial assemblies. devised in the United Nations Convention Eradication of social evils and the against Illicit Trafficking in Narcotics, promotion of social justice are sanctioned Drugs and Psychotropic Substances 1988. by Article 37 of the Constitution, while As business, trade and commerce are
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Article 38 guarantees the promotion of the B. The Prevention of Corruption Act social and economic wellbeing of the people. 1947 This is so because corrupt and illegal This Act provides for the prevention of actions affect the citizen’s right to life and bribery and corruption by a public servant. the enjoyment of the quality life enshrined A public servant who accepts or obtains, or in Article 9 of the Constitution. Our agrees to accept or attempts to obtain, any Supreme Court in Shehla Zia vs. Water and gratification, or anything valuable without Power Development Authority (PLD 1994 consideration or for inadequate SC 693) and Employees P.I.C. vs. Ministry consideration, or dishonestly or of Housing and Works (1994 SCMR 1548) fraudulently misappropriates or converts held the view that the right to life does not for their own use any public property simply mean vegetative or animal entrusted to their care, or by corrupt or existence, but the enjoyment of all illegal means or by otherwise abusing their amenities and facilities essential for position, obtains any valuable thing or quality of life and a dignified existence. pecuniary advantage, or if s/he or any of their dependents, are in possession of Corrupt practices are also violative of assets/property for which s/he cannot give Articles 23 and 24 of the Constitution, as reasonable account, or possesses property any loss of national resources amounts to dis-proportionate to known sources of depriving people of their right to enjoy income, shall be guilty of criminal property rights. It is thus obvious that the misconduct, punishable with Constitution of Pakistan does not imprisonment as well as fine. Though countenance any corrupt deed or practice stringent, the law provides for an adverse by public representatives, state officials or presumption against the public servant if a member of the public. Laws exist which it is proved that the public servant accepted criminalize corrupt practices and prescribe or obtained any gratification or valuable stringent punishment for infringement. thing, or the same was given or offered to them. A similar adverse presumption is V. LEGISLATIVE MEASURES drawn against them if his/her property/ AGAINST CORRUPTION assets are found to be disproportionate to their known sources of income, the A. Pakistan Penal Code 1860 presumption being that s/he had acquired Section 161-171 of the Pakistan Penal such property/assets illegally or through Code (PPC) contains a specific chapter corrupt means. In case there is any prima related to offences committed by or in facie evidence against such a public relation to public servants. Offering or servant, the burden shifts on them to prove taking gratification or anything valuable that s/he is not guilty, i.e did not acquire without consideration are declared as penal the property/assets by illegal and corrupt offences, punishable with imprisonment as means. The punishment prescribed for the well as fine. Sections 171A-171-J of the offending public servant is imprisonment PPC provide for offences relating to for and upto seven years, as well as fine. elections. Thus, the grant or acceptance of a bribe, with a view to induce the exercise C. Public and Representative Office of electoral right, undue influence or (Disqualification) Act 1949 (Proda) personation at elections, and illegal This Act provided for the debarring of payment in connection with an election, are public and representative office holders declared as actionable wrongs, punishable found guilty of misconduct. Misconduct by imprisonment as well as fine. includes bribery, corruption, robbery,
484 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS favouritism, nepotism, wilful mal- were also to be declared disqualified. The administration, wilful mis-application or accused person may volunteer to retire diversion of public money or any other from public life, in which case s/he stands abuse of official power, position or any disqualified but is not proceeded against. abetment thereof. The Act applies to the In case the person is found guilty, the prime minister, chief ministers, federal/ tribunal, besides declaring him/her as provincial ministers, parliamentary disqualified, may also oblige him/her to secretary and members of the federal/ make good any loss which s/he may have provincial legislature. References for this caused by their misconduct. Again, the purpose are filed by the Governor General jurisdiction of the ordinary court is ousted. or Governor in the Federal Court or a two- member tribunal established for the E. Holders of Representative Office purpose. The jurisdiction of other courts (Prevention of (Misconduct) Act is ousted. Persons found guilty of 1976) misconduct are debarred from holding This Act provides for the prevention of public office or availing representative misconduct amongst the holders of capacity for a period upto ten years. representative offices, like federal/ provincial ministers, ministers of state, D. Effective Bodies (Disqualification) parliamentary secretaries and members of Order, 1959 (EBDO) parliament or provincial assembly. The This law applies to persons holding any Prime Minister and chief ministers are office, post or position including excluded from the domain of this law. membership of any elective body (federal/ Misconduct is defined as accepting or provincial assembly or local government obtaining any illegal gratification, institutions), or in connection with the anything valuable without consideration or affairs of the federation/province. for an inadequate consideration; dishonestly and fraudulently In this law, misconduct includes all the misappropriating public property by offences mentioned in PRODA, in addition corrupt, dishonest or illegal means; to indulgence in subversive activities, the obtaining any valuable thing or pecuniary preaching of any doctrine or the doing of advantage and possessing pecuniary any act which contributes to political resources or property disproportionate to instability; abuse of power; any attempt, known sources of income. An adverse act or abetment of such misconduct. The presumption is to be drawn against such reference is to be filed by the President or holders of representative office. Offences the governor, and the case is to be decided are triable exclusively by a bench of the by a tribunal consisting of three members High Court, comprising of two judges. appointed by the President or the governor, References are to be filed with the approval as the case may be. The punishment of the Prime Minister. The guilty stand prescribed is disqualification from holding disqualified from being or from being membership of an elective body for a period chosen to be a member of parliament/ of seven years. Persons who are dismissed, provincial assembly until the holding of the removed or retired from service on a charge next general election. other than inefficiency, or are detained under the preventive detention law called F. Parliament and Provincial the Secrecy of Pakistan Act 1952, or Assemblies (Disqualification for convicted for any offence and sentenced to Membership) Act 1976 imprisonment for more than two years, This Act provides for the disqualification
485 RESOURCE MATERIAL SERIES No. 56 of a person holding the office of federal/ H. Parliament and Provincial provincial minister, members of Assemblies (Disqualification for parliament/provincial assembly, Membership) Order 1977 (PPO 17 parliamentary secretary, attorney general of 1977) and advocate general. Misconduct includes This law is applicable to the persons and all those Acts already defined in the former misconduct as defined in the laws laws. Cases are decided by a division bench mentioned previously. Offences are triable of the High Court, comprised of not less by Special Courts consisting of a judge of than two judges. References are filed for the High Court, with the right of appeal to this purpose by the Prime Minister or Chief the Supreme Court. The reference is filed Minister, with the prior approval of this by the president or the governor, and the Prime Minister. Persons who volunteer to punishment prescribed is disqualification retire from public life are not tried, but for/up to seven years from being elected as stand disqualified. Persons found guilty a member of parliament/provincial of the offence stand disqualified from being assembly. The jurisdiction of the other or from being chosen to be a member of courts is barred. parliament/provincial assembly, until the holding of the next general election. I. Martial Law Regulation No. 21 (MLR 21) G. Holders of Representative Promulgated in September 1977, it Offices (Punishment for applies to persons who remained members Miscomduct) Order, 1977 (PPO 16 of the national assembly, senate or a of 1977) provincial assembly during the period from This law was promulgated during December 1970 to July 1977. Such Martial Law in 1977, providing severe members were required to submit detailed punishment. It applies to the president, statements of their properties and assets governor, prime minister, chief ministers, to the Martial Law Administration. After federal/provincial ministers, ministers of making an investigation as to the state, advisors, parliamentary secretary, correctness of the statements, it was members of parliament/provincial determined whether such property or assembly, attorney general and advocate assets were acquired by lawful or unlawful general. It defines misconduct as before. means. Furnishing false or incorrect Offences are triable by Special Courts information was made punishable with consisting of a judge of the High Court, with imprisonment for/up to seven years, as well the right of appeal to the Supreme Court. as with fines, and the possible forfeiture of The punishment prescribed is the whole or a part of the property and disqualification for/up to seven years from assets. An option was given to members to being elected as a member of parliament/ voluntarily surrender lawfully acquired provincial assembly. Persons convicted for property/assets, in which case no further any of the offences listed in the schedule, action was to be taken. Any failure to e.g offences under the Income Laws, surrender such property/assets was Foreign Exchange Regulation, Official punishable with imprisonment for/up to Secrets Act, Customs Act, Pakistan Arms fourteen years, in addition to fine and Ordinance etc are also disqualified for a forfeiture of all or any part of the property. period of seven years from being elected as A person found to be in possession of a member of parliament/provincial property/assets disproportionate to known assembly. sources of income stood disqualified from being elected as a member of parliament
486 113TH INTERNATIONAL TRAINING COURSE VISITING EXPERTS’ PAPERS or provincial assembly. and public officials. Repeatedly raised by the political parties, vehemently stressed J. The Representation of People Act by the pressure groups and the public at 1976 large, the demand for accountability This deals with the conduct of elections became more pronounced. The government to the national/provincial assemblies. The responded by introducing a bill called the emphasis is on the conduct of elections Fifteenth Constitutional (Amendment) through a fair and impartial manner, Bill, 1996. It sought to enforce the prohibiting any use of illegal or corrupt accountability of public representatives, practices. The law placed an embargo on public servants etc. It provided for the persons from contesting elections who have creation of a special committee of either written-off any loan or have parliament to send references against defaulted in the payment of a loan, taxes corrupt persons to court, to be decided by a or utility expenses like telephone, two-member bench of the High Court. The electricity, gas and water charges. punishment prescribed included imprisonment for/up to seven years and the A successful candidate is to submit a imposition of a fine. Such persons also statement of the assets and liabilities in stand disqualified from being or from being respect of themself, their spouse and any chosen to be a member of parliament/ dependent family members. Any candidate provincial assembly for a period of five to the election can inspect such a statement years. The bill proposed the constitution furnished by another candidate. All of an Ehtesab (Accountability) members of parliament/provincial Commission, consisting of a serving judge assembly are required to submit a yearly of the Supreme Court as chairman, and two statement of their assets and liabilities. serving or retired judges of the Supreme Court or High Court as members, to try A candidate returned to an assembly is and decide cases of misconduct. required to submit a statement of expenses incurred in connection to their election Due to acrimony and confrontation compaign. A ceiling of one million rupees among the government and the opposition, is fixed for the election to national assembly no consensus could be reached in and six lacs rupees (six hundred thousand) parliament on either of the two bills, and for provincial assembly. Candidates found consequently no legislation could be to have incurred expenses beyond the enacted. prescribed limit stand disqualified for a period of five years. The newly installed care-taker government responded to public pressure K. Ehtesab Act 1997 for accountability by promulgating an For the effective administration of ordinance called the Ehtesab criminal justice, in order to check corrupt (Accountability) Ordinance 1997. Just activities, the promulgation of the Ehtesab before the ordinance promulgated by the Act 1997, was a milestone in the history of care-taker government could lapse (in 120 the laws of accountability in Pakistan. days), the government quickly moved and adopted the Ehtesab (Accountability) Act The public clamour for accountability 1997. became louder as the media revealed scandals and stories of the plunder of With some variations, the Act borrowed national wealth by public representatives the provisions of the Ordinance; it applies
487 RESOURCE MATERIAL SERIES No. 56 to the holders of a public office, including a The Ehtesab (Accountability) Act assigns former president or governor, present or the responsibility of conducting enquiry past prime minister/chief minister, federal/ into and investigating exclusively the provincial ministers, ministers of state, Ehtesab (Accountability) Cell; to be advisors, consultants, political secretarie, completed within one month and its special assistants or holders of a post or findings to be communicated to the Chief an office with equal rank or status, Ehtesab (Accountability) Commissioner. secretary, members of parliament/ The Ehtesab (Accountability) Cell is provincial assembly, speakers, deputy headed by a chairman who is appointed by speakers of the national/provincial the governor. assembly, chairmen and deputy chairmen of the senate, attorney general and law It provides for the establishment of the officers of the federal government, auditor Ehtesab (Accountability) Commission, general, advocate general, additional headed by the Chief Ehtesab advocate general and assistant advocate (Accountability) Commissioner, appointed general. by the Federal Government in consultation with the leader of the opposition in the The law also applies to a public servant National Assembly and the Chief Justice of the federal/provincial government or a of Pakistan. Qualifications for local council in basis pay scale (BPS-18) appointment as Chief Ehtesab and above or equivalent thereof in (Accountability) Commissioner, requires corporations, banks, financial institutions. the person to be a serving or retired judge The Law is further extended to chairman/ of the Supreme Court. S/he is appointed vice chairman of Zilla (District) councils, for a period of four years and cannot be municipal committees, municipal removed except by the Supreme Judicial corporations or metropolitan corporations. Council, on the grounds and as per the The law is also made applicable to the procedure prescribed in Article 209 of the holders of an office or post in BPS-17 or Constitution. below, if such an officer is found to be involved in the commission of an offence Reference against the accused is with the public servants earlier mentioned. initiated by the Chief Ehtesab The Law excluded the institution of the (Accountability) Commissioner either on judiciary and the members of armed forces, receipt of a reference from the federal/ except when a person who is a member of provincial government or on a complaint any such force is holding or has held an from any citizen or on his/her own accord. equivalent post or office in any pubic On completion of an enquiry, the Ehtesab corporation, bank, financial institution or (Accountability) Cell communicates the any other institution. findings to the Chief Ehtesab (Accountability) Commissioner, who There is no material deviation in the evaluates the evidence and decides definition of corruption or corrupt practices whether or not to refer the case to court. as given in the previous laws. They also These offences are non-bailable and no provide for a presumption against the court, other than the High Court, has accused, in that it is presumed that the jurisdiction to grant bail. Bail is not property/assets are illegally acquired if the permissible if there are reasonable grounds accused cannot satisfactorily account for for belief that the accused is prima facie them or if they are disproportionate to guilty. known sources of income.
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On voluntary return of the property, the order to check the excesses of the officials trial proceedings are discontinued but the of various departments, without resorting accused is required to resign from office and to lengthy judicial processes. The public the court may impose an additional fine or was to have quick and inexpensive redress penalty. The Chief Ehtesab of their grievances, seek rectification of (Accountability) Commissioner (CEC) can wrongs and get compensation for acts of grant a pardon to an accomplice, subject to malfeasance/misfeasance on the part of a approval by the federal government. The government agency or its officials. The Law applies not only to the recipient of Mohtasib (Ombudsman) has been given illegal gratification and/or pecuniary powers to investigate complaints against advantage but also to the one who gives or any office of the federal government, except offers the same. In case a complaint the judiciary and the armed forces. Its succeeds up to the final stage, the functions include diagnosing, complainant may be entitled to such investigating, redressing and rectifying rewards as may be determined by the court. acts of injustice or mal-administration. However, in case the complaint is proved During investigation/enquiry, the to be false, malafide or made for some ombudsman is not bound to strictly follow ulterior motive, the complainant may be judicial procedure. S/he may choose and punished with imprisonment for/up to adopt any appropriate procedure and may three years, as well as by fine. also seek the settlement of disputes through any informal method, e.g This law is most likely to achieve its conciliation. Against the orders of the object in eradicating corruption from Ombudsman, a representation can be filed society, provided the machinery thereof before the President of Pakistan. (constituted by the government itself) is not partisan and discriminatory with the VI. CONCLUSION potential to be abused and misused against The discussion so far has brought us to opponents, dissenters and non-conformists, the conclusion that the levels of corruption and provided it is given effect from a year are of two kinds. One is at the higher/ that includes the period of the ruling government level and the other is among government as well. The Law Commission the lower strata of government officials. of Pakistan has recommended that the Law Notwithstanding the plethora of criminal of Accountability should be amended and laws for the prevention and punishment of made applicable with effect from 14th corruption among public representatives August 1947, the day the country came into and government servants, the results have existence, and that it should not grant not been very encouraging. Hardly any immunity to certain incumbent holders of prominent figure has been convicted. The public office or the functionaries of certain reason for such dismal failure may be institutions like the army and the judiciary. scribed to the selective, rather vindictive, The immunity of the judiciary is not that use of the law, by the successive alarming because it has its own system of government against their opponents. accountability, provided in the Unfortunately, the process of accountability Constitution. could never acquire the level of legitimacy and credibility which the people expected. L. Wafaqi Mohtasib (Federal Lack of political will to initiate the process Ombudsman) of accountability and apply the law in The institution of Wafaqi Mohtasib earnest, without fear or favour, has (Ombudsman) was established in 1993 in
489 RESOURCE MATERIAL SERIES No. 56 resulted in a situation where corruption is and to reduce the gap between the rich and not only tolerated but allowed to spread. the poor. Such a yawning gap between the two gives impetus to the race for money I cannot avoid recalling the words of a and hence, corruption. Lack of education Chinese sage philosopher, Confucius, who is another factor that leads to corruption. said in the middle of the sixth century, Lack of nationalistic feelings have been before Jesus, that; observed to be the most powerful factor which makes public servants irresponsible, “If a ruler is himself upright, his less honourable and more greedy. If all people will do their duty without these factors are universally available, it orders; but if he himself be not would be much easier to identify the upright, although he may order, they culprit, investigate the crime and to take will not obey”. the guilty to task.
In another place, he said: ANEXURE I CAUSES OF CORRUPTION “ When a ruler loves good manners, his people will not let themselves be 1. Lack of morals. disrespectful; when a ruler loves 2. Lack of nationalism. justice, his people will not let 3. Poverty. themselves be unsubmissive; when a 4. Low salary of investigating officers and ruler loves good faith, his people will judges. not venture to be insincere.” 5. Wide gap between the cross-section of people qua their wealth. To give a bribe to a public servant has 6. Sense of false standards and been considered a usual thing amongst competition in the race for money. under-developed and developing countries 7. Lack of education and employment for centuries. As the bribes are paid protection for the children of civil secretly, it is really difficult to procure servants. evidence in order to prove the crime. 8. Lack of protection to civil servants after Another complicated phenomenon of retirement. corruption is that both the receiver, as well 9. High rate of inflation. as the giver, are happy at the same time, 10. High rate of population in developing gaining advantage simultaneously. Such and underdeveloped countries. crimes are difficult to identify, investigate 11. Bad customs regarding various social and prove. cultural ceremonies and a sense of false competition theirabout. Experience has shown that the more 12. Pressure from political high-ups and stringent the laws, the higher the rate of their own superiors. payment. It is therefore necessary that 13. Lack of basic facilities. various measures are organized as to make 14. If one can do wrong under the orders an appeal to the conscience and morality from an other, why not such dishonesty of the public in general, and of public for his/her own monetary benefit. servants in particular. True and 15. Lack of accountability. Those who undistorted religious teachings should be interfere, they protect from. given to the people serving in various 16. Uncertainty about the future. offices of government. Economic policies should be devised so as to eliminate poverty
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CAUSES OF LACK OF CONVICTION between the rich and poor completely eliminated. 1. Sub-standard investigation 9. Complete legal and physical protection 2. Lack of protection to the complainant to complainants and witnesses. and witnesses. 10. Strict laws be enforced to eliminate 3. Low education of the investigating extravagant expenditure on social officers. customs. 4. Insufficient training of investigating 11. All political interference be officers. discouraged, taken serious notice of and 5. Complicated record of offences relating political authorities be subject to to accounts. impeachment without delay. 6. Lack of competence among public 12. Means of communication be improved prosecutors. so that witnesses are served on time to 7. Incompetent people appointed as public appear in court. prosecutors. 13. Number of courts to be increased, at 8. Good lawyers not inclined to work in least to double the existing number. public agencies. 14. Strict action to be taken against 9. Witnesses transferred, influenced or lawyers at the court level, as well as won-over. Bar Council level, who are found using 10. Interest lost - matter forgotten by the delaying tactics and thus impeding the public. course of justice. 11. Public not vigilant nor reactive. 15. Highly educated officers, academically as well as technically, be apointed as SOLUTIONS investigating officers. 1. Extensive teachings about honesty, morality, nationalism, good conscience, humanity and religion to children from the day they attain understanding. 2. Enhancement of the salaries of investigating officers, public prosecutors and court staff. 3. Enhancement of the salaries of judges and magistrates, and provide them free basic facilities of life like accomodation, conveyance, petrol, healthcare, telehone, gas and electricity. 4. Provide club and other cultural facilities to judges where they do not have to mix with other people. 5. Full retirement benefits to judges, as they have during service. 6. No allurement, i.e, judges expectation of political and other jobs after retirement. 7. Equip the police and court officers with the most modern electronic devices and thorough training thereof. 8. Fair economic standards with the gap
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THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE FOR THE PREVENTION OF CORRUPT ACTIVITIES BY PUBLIC OFFICIALS
Roderick Kamburi*
I. INTRODUCTION Singapore and Hong Kong for instance, have ready introduced anti-corruption Recent years have witnessed a growing agencies of their own. As we acknowledge awareness of the nature and extent of the that corruption in the public service has threat posed by transnational criminal flourished to an extent that almost nothing activities. The initial concentration on can stop its continuous germination, what organised international drug trafficking for can the authorities do to minimise, or instance, or terrorism, has gradually rather terminate entirely, corruption in the started to broaden to include other criminal public service? areas. Areas such as fraud, corruption, counterfeiting and money laundering yield In my paper I will look at the level of high profits. Such forms of organised corruption as I see it in my country (PNG). transnational criminality is characterised I will look at individuals and agencies by the ability to diversify operations and engaged in this illegal activity. I will also engage in new activities or in new look at the laws and legislation that deal geographical areas as soon as they appear with corruption matters and explain the promising. role of anti-corruption agencies such as the Ombudsman Commission and the police Corruption in public life is not a new force; the problems faced by these phenomenon of the 1990s. However it has organisations in carrying out their duties; taken an alarming dimension in recent and suggest ways to improve on the current years. Such activities became a global system of combating corruption. concern as countries around the world began to realise that corruption, fraud, II. LEVEL OF CORRUPTION counterfeiting and money laundering has become a multi-dimensional, national and Corruption in the public service is not international problem. As a result, it has new. In PNG it has reached the stage hindered development, created poverty, where politicians and senior bureaucrats destroyed confidence in the legal and are frequently taking bribes, especially political system, and undermined good from foreign companies intending to do governance. business in the country. Those that are already operating in the country also Having identified this problem, contribute to this illegal activity. It has countries around the world moved into reached the stage where corruption has introducing anti-corruption bodies such as become part of everyday life in the public Interpol, Europol and Transparency service. This is evident from the statistics International. Countries such as Australia, (appendix A) that those who have been prosecuted for corruption related offences * Acting Director, Leadership Division, Ombudsman are people who occupied high offices. Commission of P.N.G., Papua New Guinea.
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Our records shows that politicians tend But first, let us look at what the police and to be the ones up-front accepting bribes in the Ombudsman Commission do. return for favours (eg, awarding government contracts to a road A. Police Force construction company whose owner is a A division of the police force known as friend of the Minister for Works). Major the Fraud Squad is responsible for foreign companies are also the main source investigations into matters concerning of corruption. They offer tempting gifts and fraud and corruption. They have been favors with the intent to lure those in successful in getting a number of authority to submit to their demands. Cash convictions, some of which have received transaction is the main form of corruption long term custodial sentences. Although in the country. the Constitution guarantees independence for the police force (eg, it is not subject to III. PROBLEMS ASSOCIATED WITH direction or control by anyone) it is really CORRUPTION at the will of the politicians. (i) Bad organisational structure 1. Appointment of the Police (ii) Poor recruitment policy Commissioner (iii) No Code of Ethics / old Code of Ethics The Police Commissioner is appointed (iv) Low salary / no promotion by the Cabinet though recommendation of (v) Laws and legislation (draconian/ the Minister of Police. Therefore, it is weak) always the Minister’s candidate who gets (vi) Desire for wealth (greed, selfishness) appointed to the position. Past experience (vii) Inadequate training shows that Police Commissioners have (viii)I nadequate auditing and been subject to direction and control by management system politicians through the Office of the Police (ix) Lack of non-formal penalties Minister. Therefore, unless an (transfers, publication) independent appointment committee is set (x) Organisational culture up to appoint the Police Commissioner, there is no guarantee that the police force IV. LAWS AND LEGISLATION is independent, as the Constitution allows. Besides other relevant legislation, the Criminal Code deals with almost all the Our police force is a member of Interpol, serious crimes committed in the country. which means it has connections with other It imposes a maximum penalty of life international police forces who are also imprisonment. members of Interpol.
V. THE ANTI-CORRUPTION B. Ombudsman Commission COMMISSION AGENCIES The Ombudsman Commission was established under Section 217 of the There are two distinct anti-corruption Constitution. There are three (3) Members agencies operating in the country, the police of the Commission (MOC); the Chief and the Ombudsman Commission. Ombudsman and two Ombudsman. However, a number of organisations, through their unique functions, indirectly 1. Appointment assist these two agencies in the fight The members of the Commission are against corruption. I will take you through appointed by the Head of State (Governor these organisations later in this report. General) acting to and according to the
493 RESOURCE MATERIAL SERIES No. 56 advice of an Ombudsman Appointment 6. Functions Committee consisting of: The Ombudsman Commission has three primary functions conferred by Section 219 (i) Prime Minister of the Constitution. They are: (ii) Chief Justice (iii) Leader of the Opposition (i) To investigate alleged wrongful (iv) Chairman of the Permenant conduct and defective administrative Parliamentary Committee on practice by government departments, Appointments statutory authorities and other (v) Chairman of the Public Service governmental bodies: the so-called Commission. traditional role of the Ombudsman; and 2. Qualification (ii) To investigate alleged or suspected The Chief Ombudsman must be a person discriminatory practices; and of very high personal qualities. It does not (iii) To supervise enforcement of the necessarily mean being a person with a national Leadership Code. particular qualification. My paper is based on the third item - 3. Ombudsman the Leadership Code which, in the absence The Constitutional Planning of an Independent Anti-corruption Committees Report, to the then House of Commission, operates as a de facto anti- Assembly, recommended that the two corruption agency in the country. Ombudsman should have the qualification of an accountant and a lawyer. However VI. LEADERSHIP CODE the Constitution does not clearly indicate The Leadership Code, and the whether the Ombudsman should acquire Ombudsman Commission charged to specific qualification. Therefore, anyone enforce it, both came into being at our can be appointed as Ombudsman. independence in September 1975. At the time of our independence, few Papua New 4. Salary Guineans were exposed to western The salary terms and conditions of the influence, foreign ideals or were proficient Chief Ombudsman shall not be less then in the English language. The majority of or inferior to the salary and other our people were, and still are, living in conditions of a Judge, other then the Chief villages, practicing their traditional Justice and Deputy Chief Justice. economy of barter and give and take, where Likewise, the salary terms and conditions social obligations are so closely knit that of the Ombudsman shall not be less than leadership is a natural outcome of such or inferior to the salary and other social interactions. Today, PNG has leaders conditions of a public prosecutor. in many different areas of involvement who look after our interest at the national and 5. Term and Removal from Office provincial levels, as well as at the local and The term of office is six (6) years. There village community levels. are only two grounds upon which an Ombudsman can be removed from office. Our constitutional planners saw that as First, by reason of physical and or mental an independent country, we could go disability, and secondly, removed in- through a period of adjustment where our accordance with Division 2 (Leadership leaders would have to be strong and Code) of the Constitution.
494 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS committed in order to steer our country upper echelons of public office-holders. The through all kinds of influence, both good only high public office holder excluded from and bad, so that the dominant culture of the ambit of the Leadership Code is the the west would not undermine our Governor General, who is the Queen’s sovereignty and independence. representative as Head of State.
It was for this reason that our C. Why the Leadership Code applies constitutional planners decided that we only to Leaders should write into the Constitution a We believe that the success of the nation Leadership Code which would regulate the depends ultimately on the leaders and the behaviour of our national leaders, who not people. Therefore, as the leaders are people only have the responsibility of guiding, but who occupy positions of power, authority also of determining, the destiny of our and influence, they are vulnerable to the people. The third goal of our Constitution offer of tempting gifts and favours from accommodates this: outside forces. In accepting the offer, the leader will no doubt compromise their “We declare our third goal to be for position thus placing themself in a PNG to be politically and potential conflict of interest situation. economically independent, and our Therefore, in order to ensure that our economy basically self-reliant. We national leaders do not fall victim to the accordingly call for our leaders to be outside force, the Leadership Code was committed to these national goals and drafted specifically to regulate the conduct directive principles, to ensure that of the leaders whilst performing their their freedom to make decisions is not official duties’ as well as their private life. restricted by obligations to or relationship with others, and to make D. How is the Leadership Code all of their decisions in the national Enforced? interest...” The Ombudsman Commission conducts investigations into allegations against a A. What is a Leadership Code? leader, and when it finds that there is a The Leadership Code is a set of rules prima facie case of misconduct in office, it which have been written into the national is obliged under the Constitution to refer constitution and the Organic Law on the the matter to the Office of the Public Duties and Responsibilities of Leadership Prosecutor for prosecution before an (OLDRL) to serve one purpose only. That Independent Leadership Tribunal. The purpose is to regulate the behaviour and Tribunal consists of the chairman, who is conduct of our national leaders who occupy a judge of the National Court, and two positions of power, authority and influence. senior members from the magisterial Breach of these rules may result in the service, all appointed by the Chief Justice. leader being prosecuted in the Leadership Offences considered as “misconduct in Tribunal for misconduct in office. office” range from immoral behaviour to criminal offences capable of being B. Who does the Leadership Code prosecuted both in civil and criminal apply to? courts. Section 26 (1) of the Constitution provides that the Leadership Code applies Section 27 of the Constitution very to a wide range of public office holders. In broadly defines general acts of misconduct short, the Leadership Code applies to the in office. In addition, the Organic Law on
495 RESOURCE MATERIAL SERIES No. 56 the Duties and Responsibilities of established directly unde.r Section 217 (5) Leadership, which was enacted to of the Constitution, which states that in implement the Leadership Code, prescribes the performance of its functions, the in detail some very specific acts that Commission, is not subject to direction or constitute or amount to misconduct in control by any person or authority. Section office. These are not exhaustive provisions 217 (6) states that the proceedings of the of the Organic Law, nor are they quoted Commission are not subject to review in word for word from the relevant law. any way except by the Supreme Court or the National Court, and only on the E. Double Prosecution grounds that it had exceeded its It is not a bar for those found guilty in jurisdiction. History shows that the the Leadership Tribunal to be tried before Ombudsman Commission has been vigilant the Criminal Court or vice-versa, based on in its defence of the independence the the same facts. The Tribunal is considered Constitution has conferred upon it. an administrative proceedings and not a criminal proceeding as such. Therefore, the I. Cartoon Incident question of double jeopardy is immaterial In March 1992, the three Members of the under our law. Commission were summonsed before the bar of the National Parliament to give an F. Standard of Proof explanation for the inclusion in the annual The standard of proof required in the report of the Ombudsman Commission of Leadership Tribunal is proof on the balance several cartoons dealing with the ethical of probability. Although this is the case, standards of parliamentarians and judges sitting as chairman of the tribunals ministers in particular. The cartoons were have aired serious concerns on the considered by the Parliamentary Privilege standard of proof and insist that in any Committee to be offensive, and an apology leadership tribunal, the standard of proof was sought from the Ombudsman should be raised to almost equivelent to Commission. However, the then Chief that of the case brought before the criminal Ombudsman, Sir Charles Maino, declined courts, although rules of evidence do not to appologise. Instead, he gave what was apply in the Tribunal proceedings. in effect a measured and rational explanation to the MPs on the educational G. Penalties value of the cartoons and the need to The maximum penalty for anyone found maintain ethical standards in public life. guilty by the Leadership Tribunal is Subsequently there were in parliament dismissal from office. The dismissal some rather undignified attacks made on remains in force for three years from the the Ombudsman Commission, and a draft date the Governor General signs the resolution was circulated which called for instrument of dismissal from office. This the immediate sacking and imprisonment means that the person cannot hold any of the three Members of the Commission. public office for a period of three years. The Fortunately, it was soon realised that the Alternative Penalties Act also provides for Parliament had no power of imprisonment lesser penalties if the Tribunal considers nor did it have the power to remove the that the offence committed is not so serious members of the Commission. to order dismissal from office. J. How does the Leadership Code H. Independence Fight Corruption? The Ombudsman Commission is Corruption takes place between two
496 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS persons, the giver and the taker. In almost extent of the criminal activities by all cases, takers are people who occupy imposing punishment provided by law. positions of trust, authority and influence. Such punishment may include a custodial Therefore, the Leadership Code acts as a sentence, fine, good behaviour bond, parole regulator and prevents policy makers and or even confined to ‘Boys Town’ (if a those in high offices from making decisions juvenile). These are measures the courts which will benefit themselves, their can take to deter the further commission families, friends and relatives. The of serious crimes. Leadership Code also helps to eliminate those who seek to compromise their So far, since the establishment of the position for the benefit of others whose aim court system in the country, the neutrality is to manipulate and underpin the and independence of the judiciary has legitimate process. In fact, the always been maintained. It is a Ombudsman Commission is referred to as requirement under the Constitution that the watchdog of the nation and is a very the courts are given independence and are much feared anti-corruption agency in the neutral at all times. The courts have a country. separate budget, which they get through submission in Parliament. VII. OTHER ORGANISATIONS WHICH HELP FIGHT CORRUPTION The problems of speedy administration of trial depends entirely on the The following organisations also play effectiveness of the institutions involved in important roles in the fight against the criminal justice process, such as the corruption in the country. They are: public prosecutor, public solicitor, CIS, police and courts working together. Right (i) Judiciary now we have a shortage in the number of (ii) Correctional Institution Services judges available to sit on trials and have (CIS) them processed. (iii) Auditor General (iv) Media Sentencing to goal remains the last (v) Transparency International available resort, depending upon the circumstance of the case. Alternatives to A. Judiciary (Courts) goal are quite popular, such as fines and There are five different court systems in probation, but the lack of available the country: resources such as probation officers, halfway-houses and rehabilitation centers, (i) Supreme Court make it quite difficult for alternative (ii) National Court sentencing options to be considered. (iii) District Court (iv) Local Court Constant and immediate communication (v) Juvenile Court and cooperation amongst government (vi) Village Court agencies and statutory organisations is non-existent. This is because some The Supreme Court is the highest court institutions felt that the laws under which in the country. It sits to hear appeals and they operate guarantees their judicial reviews on the decisions of the independence; eg, they are not subject to national courts. The courts play an direction or control by anyone, or that they important role in deterring the level and are not obliged to disclose to anyone the
497 RESOURCE MATERIAL SERIES No. 56 nature and extent of their affairs, except (v) Community out-reach to the Parliament. This is bad in the administration of criminal justice because The institution plays an important role such situations do not help the anti- in changing one’s life through these corruption agencies to fight corruption. programs. There should be constant dialouge between each criminal justice agency and C. Auditor General administrative organisation. As I have The Office of the Auditor General was indicated earlier, problems of co-operation created by an Act of Parliament. The duties and co-ordination occur due to the creation of this office are mainly to audit the books of institutions to be independent from any of government departments and statutory influence. bodies which exercise governmental functions. The Auditor General tables his/ 1. International Co-operation in her report in Parliament annually, with Corruption Cases findings and recommendations. At the Legal front, we are currently corroborating with neighboring South Auditors play an important role in Pacific countries and South-East Asian exposing, or rather revealing, what can be countries for the purpose of facilitating stealing, misappropriation or even an international co-operation on money abuse of power by those in authority (eg, laundering, environmental pollution, approval granted for the funding of a sharing of expertise, etc. certain project without following tendering procedures). Exposure by the Office of the In so far as the extradition treaty is Auditor General helps organisations such concerned, we do not have in place an as the police and the Ombudsman extradition law or a treaty with other Commission in many ways. It shows where neighboring South Pacific and Asian the inquiry should start, and generally sets countries. However, we do operate under the foundation for an indepth investigation. the commonwealth banner for the purpose of the extradition of fugitives and other D. Media related matters. Meanwhile, government Media also plays an important role in lawyers are currently putting together a exposing shady and questionable deals, draft bill, soon to go before Parliament, for negotiations and agreements made in the enactment of our own law in dealing secret and in confidence by certain public with extradition cases. officials which are considered improper and bad in substance. Independence for the B. Correctional Institutional media is guaranteed under the Service (CIS) Constitution. Therefore there are no The main function of this institution is sanctions whatsoever, resulting in its right to rehabilitate prisoners to live a normal to report on almost anything. life when they return to the community. The rehabilitation programs conducted in In PNG, we have a private run television this institution are: station called EMTV. It is the only electronic media we have in the country. (i) Education There is also a government owned radio (ii) Religious programs station called the National Broadcasting (iii) Conflict resolution courses Commission (NBC). It has its (iv) Prison industry headquarters based in the capital, Port
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Moresby, with stations located in all the do not have in their countries. For 19 provinces. There are also two private example, some have the power of search, owned radio stations called NAUFM and arrest and seizure without warrants, whilst YUMIFM. others don’t. Extradition laws, for instance, are one of the main barriers in some There are four print media publications countries. For this and other reasons, it in the country. They are the Post Courier, cannot be said that anti-corruption The National, The Times and Wantok. The agencies operating in their respective Post Courier and The National are printed countries face similar problems as those in daily from Mondays to Fridays, whilst the other countries. Nevertheless, I have listed Times and Wantok are printed once a week. below some problems faced by my Exposure by the media immediately sets organisation in its fight against corruption: the clock ticking the moment it is published, thus it greatly assists the police (i) Poorly resourced in terms of budget and the Ombudsman Commission. allocation Unfortunately, I was unable to collect data (ii) Poorly staffed on the media reports. However, I can say (iii) Lack of skilled staff that about two to three corruption related (iv) Inadequate training for staff matters are exposed by the media each (v) Bad organisational structure month. IX. SUGGESTIONS FOR E. Transparency International IMPROVEMENT Transparency International was (i) That PNG take all the steps introduced in PNG in 1998. Although the necessary to rectify the problem areas institution is quite new in the country, it mentioned in this report. made its presence known when it organised a number of seminars and workshops in (ii) That PNG should introduce an the nation’s capital, Port Moresby, to Independent Anti-Corruption explain what it can do to help fight Commission, given powers similar to corruption in the country. that of the Ombudsman Commission. This organisation should have the F. Independent Anti-corruption powers of search, arrest and seizure Commission of properties (without warrant) which The Government will shortly be are considered illegal. introducing in Parliament an Independent Anti-corruption Commission bill. We X. CONCLUSION expect this to happen before the end of the year. Though we have come a long way since our independence, we are still trying to VIII. PROBLEMS FACED BY impress upon those who are affected by the ANTI-CORRUPTION AGENCIES Leadership Code the significance of the law and what it means in practice. We still Problems faced by anti-corruption have problems in our hands, that is why I agencies vary very much from country to am here in search of the answers to our country. For instance, some countries have problems. laws which gives their anti-corruption agencies autonomy, independence and the powers that other anti-corruption agencies
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ANNEXURE A LEADERSHIP TRIBUNAL
YEAR OFFICE RESULT 1976 MP (1) Dismissed 1978 Statutory Body (2) Reprimanded (1) Suspended (1) 1981 MP (1) Dismissed 1982 MP (1) Resigned 1983 MP (1) Dismissed 1985 Statutory Body (1) Fined Manager - NPF 1988 MP (1) Fined PNGBC - Chairman Fined 1989 MP (1) Dismissed 1990 MP (1) Resigned (later jailed five years on the same crime) 1991 MP (1) Resigned (later jailed for the same MP (1) offence. Resigned prior to dismissal) 1992 MP (2) Resigned MP (4) Dismissed 1993 MP (1) Resigned 1995 MP (1) Dismissed (later jailed for the same crime) MP (1) Fined MP (1) Dismissed 1996 MP (1) Jailed * MP = Minister of Parliament
OFFICE DISMISSED RESIGNED REPRIMANDED FINE SUSPENDED TOTAL MPS 10 7 - 2 - 19 OTHERS - 1 2 1 4
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GRAFT AND CORRUPTION: THE PHILIPPINE EXPERIENCE
Nelson Nogot Moratalla*
I. INTRODUCTION fight against corruption will be taken up in terms of law, anti-corruption This paper will present a condensed constitutional bodies, and other report on graft and corruption in the government agencies and non-government Philippines. Information was compiled by initiatives. Finally, there will be an the author from documents, articles, assessment of the anti-graft and corruption newspaper clippings and other data programs, and recommendations on what gathered from the reports and journals of might be done in the light of Philippine the Ombudsman and the Sandiganbayan, democracy, culture and development. two of the constitutional bodies mandated by Philippine law to investigate and act on II. THEORETICAL PERSPECTIVE complaints filed against public officials and employees for violations of graft and We view corruption as an agent’s corrupt practices. More specifically, this departure from the principal’s demand for report will cover input from an unpublished the responsible use of power in society. As research paper prepared by scholars from such, although it is centered on a public the University of the Philippines, College official’s act and is indicated by a violation of Public Administration, whom I will of law, it does not involve the state alone. accordingly acknowledge in this work.1 Rather, it is embroiled in the accountability of public officials, and indeed of the state, This report will generally follow the to the people. Thus, in analyzing and outline as provided. The first portion will combating corruption, we look beyond the introduce the theoretical perspective and state. Corruption shows up what the context of corruption in the Philippines. It society views as the responsible use of clarifies the national context within which power and thus what it will accept and corruption operates. It will look into the support. In this light, any attack against intersection of corruption and Philippine corruption must come to terms not only history and culture. It will likewise discuss with the law, but also with the country’s some public perceptions of corruption. history, ie what is accepted by the culture Estimates of the extent and losses of and the behavior of civil society as well.2 corruption in the Philippines will be briefly discussed. The history of the Philippine III. THE CONTEXT OF CORRUPTION IN THE * Deputy Director / Dean of Academic, Philippine PHILIPPINES National Police Academy, Philippine Public Safety In the late 1980’s, the Philippines College, Philippines. entered the Guinness Book of World 1 “Initiatives Taken Against Corruption: The Records for allegedly the biggest corruption Philippine Case”; unpublished paper prepared by of all time, referring to the period of the Ledivina V. Cariño, University Professor and Dean, dictatorship of the former President, Gabriele R. Iglesias, Assistant Professor, and Ma. Fe V. Mendoza, Associate Professor, College of Public Administration, University of the 2 Ibid, “Initiatives Taken Against Corruption: The Philippines. Philippines Case”; p.4
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Ferdinand Marcos. Marcos was ousted pesos will go to waste if corruption from his twenty-year presidency by a remains unchecked.” bloodless people’s power revolution in February 1986. To describe the corruption While the figure cited above is a ballpark of his regime, “kleptocracy” and “plunder” figure that cannot be validated, the concern became part of the Filipino’s political of President Estrada is certainly warranted vocabulary and discourse.3 “Government by the findings of this research. It is also by thievery” did not stop with the not a recent phenomenon but one that has enactment of the Republic Act No. 7080 in been identified and decried since the 1991, entitled “An Act Defining Plunder”. Spanish colonization in the 16th century. Indeed, although both laws and agencies to combat corruption have increased in the A. Filipino Culture and Corruption post-Marcos period, it remains one of the Corruption has been viewed as a prime problems complained of by the “cultural and psychological phenomenon in people. The currency and gravity of the a country marked by incompatible legal and problem are manifested in the following cultural norms” (Tapales 1995:407). The clippings from a September 7, 1998 issue former emphasizes “rationality and of the Philippine Daily Inquirer: universal principles of action” as against and in conflict with “reliance and obligation “On board a Philippine Airlines toward kinship, friendship and primary chartered flight to Manila from groups” (Bautista 1982). This conflict is Mindanao where he inspected on- highlighted in the use of the alibi of a gift- going government infrastructure giving culture to justify bribery and projects, President Joseph Ejercito extortion, or the Filipino regard for the Estrada... thought of a slogan other (pakikipagkapwa-tao) to justify reminding Filipinos that he is serious giving benefits to unqualified but in fighting graft and corruption in the personally known recipients. government. Dubbed “Supilin, pigilin ang pagnanakaw sa pamahalaan,” This is a real problem, but it can be (“Win over, stop thievery in overblown. For instance, both culture and government”), he thought of putting- law similarly define cases of corruption and up such a message on billboards, huge rectitude. One’s kin may ostracize a posters and the like to remind people bureaucrat who chooses to stay within the in government and the private sector law. The state may, however, leave them not to succumb to the “evils of stealing alone, provided they do not compromise from government coffers.” Stealing, their official role. Another case is when an if aggregated with other official participates in a decision involving misdemeanors of public service and kin, even if they vote against that person’s their “transactees,” he said, would interest, that official (under the Republic sum up to about 20 percent of the Act 3019) can still be charged with national budget. With a proposed corruption. For an official similarly budget of more than 500 billion in situated, but who bends over backwards to 1999, “this means roughly 100 billion make sure their kin gets a prized government contract engages in so called 3 Lengthy discussion on this is presented in “Politics “favour corruption”. This is indeed the of Plunder: The Philippines Under Marcos”, Belinde quintessential conflict between culture and Aquino, Great Books Trading and UP College of law. Public Administration, 1987.
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The idea of cultural acceptance of country’s achievements in his development corruption also needs to be re-examined in strategy for the Philippines 2000. The SWS the light of a string of public opinion polls poll of September 1993 validates this fear: where Filipinos decry it as a major problem. 89 percent of the respondents felt that The media, church pastoral letters and corruption would indeed be a big obstacle other culturally valued sources likewise to attaining this vision. denounce this. Indeed, the long list of laws enacted against them manifest that graft Other SWS polls since have produced and corruption are not colonial impositions consistent results. An August 1990 survey but are desired by Filipinos themselves. conducted in Metro Manila asked respondents to state their satisfaction with B. Public Perception of Graft and the activities of several agencies in Corruption reducing graft and corruption. The In a speech in 1988, Jaime Cardinal Sin, proportion of dissatisfied respondents is Archbishop of Manila, stated that consistently higher than those satisfied, for “corruption was the biggest problem of them each agency. They stated that graft and all” (Murphy, October 9, 1988). In 1989, corruption is big in the Presidential after months of declaring the rectitude of Commission on Good Government (PCGG), the government she heads, President the Bureau of Internal Revenue (BIR), the Corazon C. Aquino despaired, “Corruption Cabinet as a whole, the courts of justice, has returned, if not on the same scale, at the Bureau of Customs (BOC), and in the least with equal shamelessness police force. They considered corruption in (Cagurangan, 1989).” Apparently, many the courts and in the military as small. Filipinos agree with her. In a survey Very few thought that there was no conducted in July 1989 in Metro Manila corruption in any of these government by the Social Weather Station (SWS), a institutions. respected public opinion polling firm, as much as 58 percent of respondents agreed In November 1991, 41 percent of those that given current conditions, corrupt polled agreed that most high-ranking government officials are a greater threat government employees are not suited to to the country than the NPA (New People’s their positions based on their knowledge Army, communist guerrillas who lost and capabilities, and 62 percent noted that ground after Aquino’s assumption to office). the performance of government employees Those who were satisfied with the has not improved from 1986 (SWB, July performance of the Aquino administration 1993). In a February 1992 nationwide poll in fighting graft and corruption decreased on the attributes of high officials in from 72 percent in March 1987 to 26 government, 40 percent of its respondents percent in July 1989 (Guidote, 1989). In stated that, based on personal observation, her State of the Nation Address in July “most” of these high officials are corrupt, 1989, President Aquino shared the people’s and another 27 percent said “some” of them exasperation that she would leave as a were, a total of 67 percent weighing in on problem the very issue that she wanted to the positive side (SWB, July 1993). leave as a legacy: a clean and accountable government. The public verdict on the judiciary is mixed. In 1985, a Bishop-Businessmen’s Indeed, her successor, Fidel V. Ramos, Conference poll revealed that 30 percent ranked graft and corruption as third among agreed and 29 percent disagreed with the the major problems that obstruct the statement that most judges could not be
503 RESOURCE MATERIAL SERIES No. 56 bribed. In 1993, a similar split in half can C. The Magnitude of and Losses due be discerned. While 50 percent said none to Corruption or few judges could be bribed or bought, 49 It is difficult to estimate the total losses percent thought many or most could (SWB due to corruption. The best measure is the July 1994). However, one out of two amounts involved in cases filed with the Filipinos considered the degree of Ombudsman. The Office of the corruption in the judiciary serious (SWB Ombudsman (OMB) reported that about P9 July 1993). billion was lost to government due to malversation, estafa (swindling) and Over the years, the performance of the violation of the provision of RA 3019 (the government in fighting graft and Anti-Graft and Corrupt Practices Act) for corruption was evaluated more poorly than a period of eight and a half years (1990 to that of the overall performance. It June 1998) (OMB 1998). In the indicated that the government Ombudsman’s report, 63 agencies and performance in fighting corruption has departments contributed to the losses. indeed has been dismal. Philippine However, the top ten of these agencies Ombudsman, Aniano Desierto, in a nation- alone accounted for almost P8.5 billion. wide public affairs TV program, Firing Line, aired on September 14, 1998, stated Large though these sums are, bigger that the Philippine anti-corruption amounts are involved in cases involving the landscape “is improving as evidenced by the Marcoses. From the Office of the Special good marks the country is getting from Prosecutor under the Ombudsman, the international groups like Transparency money value of cases filed against the International (IT) and the Political and Marcoses involving the same offences Economic Risk Consultancy (PERC), Ltd”. (malversation, estafa and RA 3019 The Hong Kong based Political Economic violations) for the same period was P1,117 Risk Consultancy Ltd, likewise graded 12 billion. These cover cases of behest loans, Asian countries and ranked the Philippines both filed and under review and the 4th least corrupt country in its survey. investigation, forfeiture cases, PCGG cases for recovery, criminal cases against Marcos As PERC (1998:1) hinted, most survey cronies, and criminal cases against other grades deteriorated probably as a reflection public officials. The Ombudsman claimed of the change of sentiment in businessmen that, “the government lost P1.4 trillion and from “turning a blind eye to corruption continues to lose P100M daily since the when economic times are good. As economic Office began investigating corruption in conditions worsened, however, such government since 1988.”4 This is similarly tolerance disappeared... Economic pointed out by President Joseph Estrada conditions were becoming more difficult when he said, “at least P24.13 B of what and it was easier for businessmen to see the the Philippine government spent last year link between that deterioration and for various projects was lost to graft and corruption.” On the whole, the results of corruption, or barely 20% of all project national and international surveys funds are lost to grafters.”5 consistently depict the Philippines as riddled with corruption and unable to effectively fight corruption.
4 Desierto, Philippine Daily Inquirer, July 10, 1999. 5 Estrada, Philippines Daily Inquirer, June 10, 1999.
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III. ANTI-CORRUPTION POLICIES The Anti-Graft and Corrupt Practices AND PROGRAMS Act (RA 3019) was passed in 1960. It enumerates what may be considered Philippine initiatives against corruption corrupt practices by any public officer, have taken the form of law and anti-graft declares them unlawful and provides the bodies created by the Constitution, law and corresponding penalties of imprisonment executive orders. In addition to the state, (1 month, 6 years and 15 years), perpetual others institutions have been active in the disqualification from public office, and fight against graft and corruption. confiscation or forfeiture of unexplained wealth in the favour of the government. It A. Anti-corruption Laws also provides for the submission by all The accountability of public officials is government personnel of a statement of enshrined in the Constitution of 1987, as assets and liabilities every two years. it has been in the Malolos Constitution of Considered landmark legislation at the 1898, the Commonwealth Constitution of time, it also elicited the following wry 1935 and then the Constitution of 1973, the comment: Martial Law period. Article XI of the 1987 Constitution, entitled “Accountability of “The anti-graft law was passed not Public Officers”, states the fundamental because there was a need for it but principle of public office, as public trust. only to appease public opinion. There It requires full accountability and integrity was no urgent need for anti-graft among public officers and employees. The legislation because the Revised Penal President, Vice-President, members of the Code and other laws were sufficient Supreme Court, members of the to bring the guilty to court” Constitutional Commissions and the (Congressman Manuel Zosa, quoted Ombudsman may be impeached for in G.U. Iglesias, 1993:35). violations of the Constitution, treason, bribery, graft and corruption, other high B. Laws During the Martial Law crimes, and for betrayal of public trust. Period (1972-1986) Other public officials committing such acts Presidential Decree no.6, which took can be investigated and prosecuted through effect six days after the imposition of the regular judicial process provided by Martial Law, was the “legal” basis for the law. purge of almost 8,000 officials and employees in the first year of the The Philippine government is directed dictatorship. The provision for summary to maintain honesty and integrity in the proceedings was reiterated in Presidential public service, and to take action against Decree No. 807, the Civil Service Act of the graft and corruption (Section 27, Art. II). period and was repealed by the Corazon It is also directed to give full public Aquino administration. All other anti-graft disclosure of all transactions involving the presidential decrees remain in effect. This public interest (Section 28, Art. II). This includes: provision is complemented by the Bill of Rights within the Constitution, which gives (i) Presidential Decree No. 46 (1972), people the right to information on matters making it unlawful for government of public concern, including official records, personnel to receive, and for private documents and papers pertaining to official persons to give, gifts on any occasion acts, transactions or decisions, and to including Christmas, regardless of government research data used as the basis whether the gift is for past or future for policy development (Section 7, Art. III).
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favors. It also prohibits entertaining in any private enterprise within 30 days public officials and their relatives. from assumption of office, to avoid conflict of interest. The Ombudsman Act of 1989 (ii) Presidential Decree No. 677 (1975) (RA 6770) provides the functional and requires the statement of assets and structural organization of the Office of the liabilities to be submitted every year. Ombudsman. The Act further defining the Jurisdiction of the Sandiganbayan (RA (iii) Presidential Decree No. 749 (1975), 8249) places the Sandiganbayan as a granting immunity from prosecution special court on par with the Court of to givers of bribes or other gifts and Appeals. to their accomplices in bribery charges if they testify against the D. Constitutional Anti-corruption public officials or private persons Bodies guilty of these offences. The 1987 Constitution established special independent bodies to support the C. Laws of the Redemocratization principles of honesty, integrity and public Period (1986 to the present) accountability. These are: Immediately after Aquino’s assumption to office, she promulgated the “Freedom (i) the Office of the Ombudsman as the Constitution” which, among other people’s protector and watchdog; provisions, declared all government (ii) the Civil Service Commission as the positions vacant unless otherwise central personnel agency; identified (Section 3, March 28, 1986). This (iii) the Commission on Audit as the Freedom Constitution was the basic law of supreme body responsible for a revolutionary government and was auditing the government’s superseded by the Constitution of 1987. Six expenditures and performance; and new anti-corruption laws emerged under (iv) The Sandiganbayan as a special court its operation. that hears cases of graft and corruption. The Administrative Code of 1987 (Executive Order No. 292)6 incorporates in To ensure that these organizations and a unified document the major structural, their commissioners can fulfill their duties functional and procedural principles and without fear of reprisal from other agencies rules of governance. It reiterates public of the government, the Constitution grants accountability as the fundamental them fiscal autonomy7 (Section 2, Article principle of governance. In 1989, the VIII). Their actions are appealable only to Republic Act No. 6713, the Code of Conduct the Supreme Court. and Ethical Standards for Public Officials and Employees was passed. It promotes a The Office of the Ombudsman was high standard of ethics and requires all created to investigate and act promptly on government personnel to make an accurate complaints filed against public officials and statement of assets and liabilities, disclose net worth and financial connections. It also 7 Fiscal autonomy in that their approved annual requires new officials to divest ownership appropriation shall be automatically and regularly released, so that there can be no undue delay in 6 Executive orders promulgated by President Aquino the execution of their duties. Their annual during the revolutionary period when she was sole appropriation cannot be reduced from that of the legislator (1986-87) have the force of the law. previous years.
506 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS employees, and to serve as the people’s organizing a committee of cabinet officials watchdog of the government. It is an rather than an agency with full-time institution with the biggest responsibility personnel, the President’s Committee on to prevent graft and corruption. It provides Public Ethics and Accountability (PCPEA). for a Deputy Ombudsman for the military, Its framework advanced the inseparability and at least one each Deputy for the of accountability from other acts of geographical divisions of Luzon, Visayas governance, the idea that corruption can and Mindanao. be tackled by management actions that increase its risks and decrease its benefits, The Civil Service Commission is the and decentralized graft-busting. central personnel tasked to promote efficient and responsive public service President Fidel V. Ramos created the delivery, to establish a career service, Presidential Commission against Graft and strengthen the merit system and human Corruption (PCAGC) under Executive resource development, promote public Order No. 151 dated January 11, 1994. It accountability and enforce the Code of was tasked to investigate presidential Conduct and Ethical Standards for Public appointees charged with graft and Officials and Employees (RA 6713). It corruption. Likewise, it functions as a undertakes anti-corruption functions, such coordinating body in the efforts of as values orientation workshops and inhibiting the practice of graft and employee voluntarism. corruption, to expeditiously prosecute such practices by officials in the executive The Commission on Audit, while department, and to monitor the primarily regarded as an evaluator of the implementation of the Moral Recovery government’s performance in handling Program. funds, also has as a function on the input side, as it conducts audits on the income Unlike other presidents, President and revenues of government. Aside from Estrada has not created his own anti- ensuring financial accountability, the corruption body and has allowed the Commission may also inquire as to the Ramos’ created PCAGC to continue in effectiveness and impact of programs, and office. He seemed to be inclined to use not alone into the economy, efficiency or the instead the Inter-Agency Anti-graft legality and regularity of government Coordinating Council, composed of the operations. Commission on Audit, Civil Service Commission, the Ombudsman, the The Sandiganbayan, literally “the pillar Department of Justice, the National of the nation”, is a special court with Bureau of Investigation and the jurisdiction over civil and criminal cases Presidential Commission against Graft and involving graft and corrupt practices. Corruption.
E. Presidential Anti-corruption F. The Rank and File as Graft Bodies Busters (Cariño, 1992) Each president has appointed his or her Because of their knowledge of the anti-graft or investigating agencies “as an workings of both formal and informal exercise of the president’s power to probe processes, employees are natural sources into the anomalous members of his/her of information about deviations from administrative organization (Alfiler, 1979: accountability. It was in the Aquino regime 329)”. President Aquino broke tradition by in 1986, that the potential of employees as
507 RESOURCE MATERIAL SERIES No. 56 graft-busters was tapped. Several unions integrity and corruption. Their initial had tangled with their respective approach centered not on punishing management on the issue of their corruption, but in being involved in keeping accountability and performance. The union government operations clean and effective. in the National Electrification The Community Employment and Administration has unearthed anomalies Development Program (CEDP) of the late and delays in the implementation of some 1980s became the laboratory for this new projects such as the USD$ 192 million rural partnership of government and cause- electrification revitalization program, a oriented groups. For instance, the National joint project of the World Bank and the Movement for Free Elections (NAMFREL)8 Office of Economic Cooperation Fund of branched from election cases to the Japan (Manila Chronicle, November 13, monitoring of CEDP implementation in 1995:4). The most successful effort is still various local areas. Based on this virtual that as described by Gaffud (1994), which experiment, the government promulgated was able to remove the top administrators guidelines on the use of such volunteer of an agency in 1990. The union questioned groups for exception monitoring. transactions worth P176 million, including overpricing, purchases made without being Some associations focused directly on utilized, purchases made for non-existent preventing corruption. Operasyong projects, etc. After being ignored by the Walang Lagay (OWL), its name connoting Department of Justice and the higher a movement to prevent bribery, assisted officials of the department to which it is some departments and local governments attached, the union finally found a in streamlining procedures and improving listening ear in an NGO (non-government bidding committees. However, it folded in organization), the Gising Bayan 1989 because the volunteers could not cope Foundation, which then filed complaints with the increasing demands on their time, with the Ombudsman. After investigation, a very real problem for volunteerism in a President Aquino dismissed three assistant growth field such as corruption. administrators, but not the head administrator. The National Coalition of Transparency was launched in 1989 to show that public Since 1986, the leadership of at least support for measures to enhance seven other unions faced harassment, accountability could still be mustered. intimidation, and sometimes, removal from Composed of over thirty NGOs, including office for their anti-corruption stance. Bishop-Businessmen’s Conference (BBC), Nevertheless, they have succeeded in NAMFREL, and other groups that were in bringing cases of corruption, abuse and the forefront of the anti-Marcos struggle, nepotism practiced by their superiors to the it put forward a comprehensive approach attention of control bodies such as the to the problem as it recognized the private Commission on Audit, the Ombudsman sector’s incrimination in the continuation and legislative committees for further of governmental corruption. Lacking self- investigation. righteousness, its first campaign was for its membership to pay the proper taxes, G. Participation of the Non- and thus be morally capable of censuring governmental Sector the dissipation of public revenues by People power energized in the EDSA inflamed non-government organizations 8 NAMFREL is now active in sponsoring seminar- (NGOs) to get concerned about issues of workshops on Japan’s koban system of policing.
508 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS government. It was in meeting with them IV. THE OMBUDSMAN'S STRATEGY that the President admitted the return of AGAINST GRAFT AND shameless corruption in her administration CORRUPTION (Cagurangan, 1989). In this portion, I will present some data from the Ombudsman and the Anti-corruption organizations associated Sandiganbayan that can provide us with with religious groups include the BBC, the insight on the results of the Philippine anti- Gising Bayan Foundation9 and the corruption effort. These efforts are focused religious right, calling itself Citizens Battle on the intriguing causes of corruption: Against Corruption (CIBAC)10. The Nationalista Party, a political party, also (i) Individual causes which are formed an anti-graft panel, composed attributed to weak moral fiber and largely of former officials of the Marcos distorted values among bureaucrats, regime (Manila Bulletin, June 4, 1989), such as materialism, lack of integrity making it suspect as a political neutral and nationalism; body. (ii) Organizational causes refer to deficiencies, in the bureaucratic Meanwhile, the Anti-Police Scalawag apparatus such as low salary, poor Group (APSG) is focused on police recruitment and selection corruption. It recently called on the procedures, and red tape in Philippine National Police (PNP) to curb government; and rampant “tong” and payola collection from (iii) Societal causes where corrupt operators of illegal gambling, ironically behavior is itself the norm of society. perpetrated by members of the PNP’s own illegal gambling task forces. An APSG A. Programs of the Office of the spokesperson disclosed that in Metro Ombudsman Manila alone, there were about 30 to 45 The OMB is mandated under the gambling “maintainers” of vice dens such Constitution to protect the people from as video karera, sakla, hi-lo,11 lottery, abuse or misuse of power by government, bookies, and prostitution dens who give its agencies or functionaries. It must fight goodwill money ranging from P500, 000 to for justice for all citizens, prevent loss of P1 million, aside from the monthly “payola” government funds and bring the culprit to for protection of P100, 000 to P500, 000 justice. It faces a gigantic challenge in (Philippine Daily Inquirer, August 10, carrying out the government’s 1998:22). determination to rid itself of undesirables in the public service. The conferment of this extensive authority by the Constitution insulated the Office from political influence or interference by:
(i) Stating that the Ombudsman is 9 “Gising Bayan” means “Wake Up Nation.” It was removable from office only by originally the title of a radio program under Radio impeachment; Veritas, the Catholic station. (ii) Prescribing a fixed term of office for 10 CIBAC is coined from the Tagalog word “sibak” seven years without reappointment; which means to cut down. (iii) During the term, his/her salary 11 These are local gambling practices considered cannot be diminished; illegal. (iv) Leveling the Ombuman’s rank with
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that of a Supreme Court justice. criminal cases, however, all public officials and employees, without any exception, are B. Five (5) Major Functions12 under the Ombudsman’s investigative The Ombudsman performs five major jurisdiction. functions, such as investigation, graft prevention, public assistance, prosecution, In consonance with all these functions and administrative adjudication. It is performed by the Ombudsman, s/he shall invested with corresponding authority to act on all complaints, but not limited to acts be able to carry out these functions. The or omissions which: investigative function of the Office involves determination of violations of the anti-graft (i) are contrary to law or regulations; laws by public functionaries through fact- (ii) are unreasonable, unfair, oppressive finding or evidence gathering. It also or discriminatory includes the finding of probable cause (iii) are inconsistent with the general through formal preliminary investigation course of an agency’s function, though for the purpose of prosecution. in accordance with law; (iv) proceed from a mistake of law or an In graft prevention, the Office has the arbitrary ascertainment of facts; authority to prevent the commission of (v) are in the exercise of discretionary graft by ordering or stopping the powers but for an improper purpose; implementation of government contracts or that are found to be disadvantageous to the (vi) are otherwise irregular, immoral or government. In the exercise of its public devoid of justification. assistance, the Office of the Ombudsman extends assistance to citizens in getting In its effort to solve the twin evils of graft basic public services from the government. and corruption, the Office of the In prosecution, the Office may file charges Ombudsman employs a two-pronged or prosecute cases in court against erring strategy: confrontational and psychological public officials and private citizens found approaches. to have connived with them. The Office of the Special Prosecutor may prosecute the The confrontational approach involves case in the Sandiganbayan. In the regular the administrative and criminal courts, regular prosecutors are deputized investigation and prosecution of erring by the Office of the Ombudsman to handle members of the bureaucracy. In this prosecution. regard, a number of criminal cases were filed in the Sandiganbayan involving high- Under its administrative adjudication ranking officials and about 2,500 cases function, the Office has the authority to referred to the ordinary courts involving conduct administrative penalties where the low-ranking members of the bureaucracy. erring public official or employee, including To complement this capability, the Inter- Cabinet Secretaries, may be suspended or Agency Consultative Committee with the dismissed from public service. It holds Commission on Audit (COA), Civil Service disciplinary authority over all government Commission (CSC), Philippine Commission functionaries, except the president and Against Graft and Corruption (PCAGC), members of congress and the judiciary and and the National Bureau of Investigation other impeachable officials. In all other (NBI) have been formed and organized for effective coordination. 12 The Ombudsman Primer, p.2.
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As part of the strategy, the tripod system moral values of honesty, as well as was adopted to enforce honesty and educating the public on preventive efficiency. This system includes the measures in its fight against graft and establishment of Corruption Prevention corruption. At present, about 200 CPU’s Units (CPUs), Junior Graftwatch Units have been already organized from among (JGUs) and installation of the Offices of the civic-minded non-governmental Resident Ombudsman. The CPU’s were organizations. organized to broaden community participation and serve as the The Junior Graftwatch Units (JGU’s) Ombudsman’s eyes and arms, closely have been organized to mobilize the youth monitoring critical and substantially (both at high school and college level, funded government projects and/or including the out-of-school youth) in the transactions in their respective areas of fight against graft and corruption, by concern. They also serve as a front desk to encouraging them to become the primary receive and facilitate requests for coordinating arm of the Ombudsman with assistance, complaints, or reports of any respect to the educational and motivational anomalous or corrupt practices. In projects involving youth, and as an effective addition, the CPU’s work hand-in-hand ally of the Office of the Ombudsman. All with the Office of the Ombudsman in over the country, there are already seven promoting the objectives of the latter hundred and seventy-four (774) Junior through the conduct of various activities Graftwatch Units accredited by the involving community participation, such as Ombudsman. These are organized to consultative workshops, symposia, develop and strengthen their instinct of seminars and conferences, developing goodness and idealism which is anchored
Figure I. THE POLICY OF GRAFT PREVENTION Stages of Graft Prevention
UNCOVERING PLANS FOR CORRUPTION
STOPPING ON-GOING ACTS OF CORRUPTION
DETERRING CORRUPTION
CONDITIONING THE MIND AGAINST CORRUPTION
PROACTIVE GRAFT PREVENTION
RESIDENT OMBUDSMEN JUNIOR GRAFTWATCH UNIT CORRUPTION PREVENTION UNITS
511 RESOURCE MATERIAL SERIES No. 56 in the principle that a child who grows up See Figure I for the stages of graft in an environment of honesty will be prevention as conceived by the difficult to corrupt when s/he attains Ombudsman. maturity. The psychological approach adopted has The Office of the Ombudsman believes been designed to create and nurture an that in empowering the citizenry to practice environment of integrity in the Philippine their innate virtues of honesty and society. This proceeds from the principle uprightness, and getting them involved in that corruption cannot thrive in a milieu the Ombudsman’s struggle for the right of honesty. This approach, which has a values, we can expect a citizenry with even long-range objective, is expected to have a stronger moral fiber in the future. The lasting effect because it aims to develop a Office’s graft prevention efforts are directed strong moral fiber for the citizenry. at sustaining the support of all sectors of Filipino society, which is a healthy sign of For this purpose, the Office has worked empowering the citizenry in nation with the Education Department on building. It has likewise installed Resident introducing graft prevention modules that Ombudsmen (ROs) in 22 important will teach students old Filipino values of departments of the government to serve as honesty and integrity. It has forged an watchdogs and guardians of integrity and agreement with the Movie and Television efficiency. They closely monitor the Review and Classification Board (MTRCB) performance of government functionaries, to ascertain that corrupt practices pictured thereby producing strong deterrence to in movie films and television programs bureaucratic corruption and inefficiency. have redemptive values or punishment of
Figure II. THE OMBUDSMAN’S TOTAL STRATEGY AGAINST GRAFT AND CORRUPTION
CONFRONTATIONAL APPROACH
Protection Administrative Investigation Adjudication
Enforcement of Laws on Public Accountability
Community Public GRAFT-FREE Mobilization Assistance BUREAUCRACY/SOCIETY
Values Formation Graft Prevention & Reorientation Strengthening of the Citizens’ Moral Education Fiber; Graft Deterrence
Resident PSYCHOLOGICAL Ombusmen APPROACH
512 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS the corrupt. Orientation seminars for new Natural Resources (DENR) government entrants are also conducted to (iv) Department of Agriculture (DA) provide a deeper understanding of public (v) Department of Health (DOH) service values and of the accountability (vi) Department of Transportation and attached to their positions in the Communication (DOTC) government. It has continuously conducted (vii) Department of Interior and Local values orientation seminars/workshops to Government (DILG) enhance organizational effectiveness and (viii)Department of National Defence strengthen the moral fiber of the personnel. (DND) The totality of the Ombudsman’s strategy (ix) Department of Foreign Affairs (DFA) against graft and corruption is shown in (x) National Irrigation Administration Figure II. (NIA) (xi) National Power Corporation (NPC) C. Focus on New Initiatives: Dealing (xii) Bureau of Immigration and with “Graft-prone Agencies” Deportation (BID) Given the fact that stolen money is (xiii)Philippine Economic Zone Authority usually never recovered, even if a (PEZA) conviction is obtained, the Ombudsman (xiv) Philippine Ports Authority/Bureau of decided that the problem must be Customs (PPA/BOC) confronted before it is committed. A (xv) Bureau of Internal Revenue (BIR) psychological approach was developed to (xvi) Board of Investment (BOI) address the social environment within which graft and corruption occur. The For these agencies, the Resident approach as previously mentioned Ombudsmen reviews processes to cut red attempts to strengthen the citizen’s moral tape, and inspects bidding requirements fiber and deter the opportunities for graft. and contracts for evidence of graft.
In determining the graft-prone agencies This program appears to be a worthwhile of the government, the Ombudsman adopts initiative to the extent that the three criteria: Ombudsman assists an agency in improving policies and programs to prevent (i) the size of the budget of the agency, corruption. In that sense, it is proactive, (ii) the number of its personnel; and and views corruption from a systemic (iii) the number of cases filed in the perspective. However, the work that the Office of the Ombudsman. Resident Ombudsman is given should not duplicate or take away the responsibility As may be noted, the first two criteria of the management, through a working relate to the presence of opportunities for internal control unit, in supervising the corruption, while the third relates to actual performance of the functions assigned to cases uncovered by complaints and that agency. To transfer this responsibility investigation. The agencies meeting these to an outside agency may enmesh the criteria are the following: Ombudsman in implementation problems, as well as corruption opportunities, and (i) Department of Education, Culture decrease its capacity for enforcement and and Sports (DECS) provision of sanctions. This seems to us (ii) Department of Public Works and similar to the pre-audit functions that used Highways (DPWH) to be performed by the Commission on (iii) Department of Environment and Audit, until it recognized that management
513 RESOURCE MATERIAL SERIES No. 56 should wield this important power, for A. Re-examination of Existing Laws which it is responsible. The Philippines does not need any more laws against corruption. If anything, what Another problem may be in the labelling it needs is a re-examination of anti- of agencies as graft-prone. Bigness alone corruption laws not only to remove is not necessarily a prelude to corruption. duplication, but also to ensure that those Besides, the third criteria of the number existing are accepted by the populace and of cases may be misleading if they enforceable by the anti-corruption primarily consist of cases still under agencies. We can only cite a few areas for investigation, rather than resolved. A further study. There are at present some litigation-prone agency may not be provisions that, in their strictness, may equivalent to a corruption-prone one. We encourage their breach: may point out that this issue shows the urgent need for the Ombudsman to (i) The Anti-gift Decree has never been expeditiously dispose of cases brought to implemented, but it can conceivably its jurisdiction. be used against a completely innocent, generous person, who VI. CONCLUSION AND (being a devout Christian) cannot RECOMMENDATIONS help but give gifts on Christmas day, an act sanctioned by PD 46 and The Philippines has unleashed many ignored by almost everybody weapons against irresponsible behavior in immersed in Philippine culture. the government. It has a comprehensive set of laws that may have ascertained all (ii) The statement of assets and the possible instances of graft and liabilities, a simple but potentially corruption that can be devised. The anti- strong mechanism to find corruption agencies have been given ample unexplained wealth, is submitted powers to identify and punish offenders. yearly by all public officials, but no They recognize the burden of power, with one ever studies them. In any case, special agencies to give priority to catching any well-paid accountant can hide the “big fish” and grave offences, over the unexplained wealth, and so the only acts of lower ranking personnel. They people potentially at risk are civil started on their own to coordinate with servants that cannot afford to have each other for greater over-all effectiveness. others write their statements. They approach corruption in both a preventive and punitive way. They (iii) Other provisions may work against recognize that the task is not only with the getting good people in government, government, and have enlisted civil society for example, by the requirement for in the struggle. For their part, citizens divestment. This approach to have also volunteered, in cooperation with possible conflicts of interest will be state agencies or by themselves, in fighting met by well-qualified people entering corruption. On the whole, the Philippine into the highest reaches of the state approach has used democratic means, apparatus. The current divestment relying on due process, transparent procedure may be too harsh, since it procedures, and volition in effecting many could effectively mean that no top of its aspirations. Yet corruption continues. industrialist for instance can be What else needs to be done? Secretary of Trade and Industry, and no top banker may be Central Bank
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Governor. That would be denying the cases requiring fast actions. However, government valuable human enforcement of these laws leaves much to resources. be desired. The retention of officials whom the President’s anti-graft agency itself A possible alternative is to put more recommended to be removed suggests a trust in transparency and the press lack of political will, and the priority of (which requires an amendment of partisanship over the public interest. This existing law). When a president would have provided an occasion for chooses a person who shows articulating the Administration’s ethical reluctance because of the divestment vision, catching a big fish, and warning requirement, exemption must be everyone that the leadership means made for that person, provided that business. he or she discloses in detail and publicly all personal interests that The people expect not only equal have public implications. This could enforcement of the law, but even more mean that the citizenry could keep strictness on persons perceived to be in the track of the development of the President’s inner circle. Decisiveness relevant businesses and industries, would also be perceived if the public is while a valued member is in public informed of a clear connection between the office. Conversely, the problem of official’s misdeed and his/her removal. Part conflict of interest must be tackled of the popular dissatisfaction with the head on by removing persons whose conduct of accountability is the lack of personal interest prospered while closure of cases. The number of they were in office. This is amply investigations that were not finished, or provided for in RA 3019 and RA 6713, have “softer” findings and conclusions even without the divestment when no longer laboring under the public requirement. eye, does not increase public confidence in the anti-corruption programs. (iv) The schedule of penalties may also be looked into. In some cases the C. Leadership in the Anti- penalty may be too low, e.g, the corruption Drive maximum imprisonment for Leadership of the organizations corruption under RA 3019 is 15 years. primarily focused on fighting corruption In others, it may be too high, e.g, the requires higher qualifications than what sole penalty for grave misconduct on is normally demanded. This applies first offence is dismissal from the particularly to the Ombudsman and to the service. Extreme penalties do not heads of other agencies specifically created encourage prosecution of offences, for this purpose. The very concept of an even when they are blatant, because Ombudsman requires a person of high of the cultural trait of “sayang” (waste integrity whose very presence provokes of time) for those who will merit only respect and rectitude. The Philippines has low penalties and “awa” (pity) for not been blessed with the appointment of those who will be hit by harsh such persons to this office. Instead, they punishment. have been controversial, such that they raised questions about the Office, itself not B. Enforcement only about its head. The President who The Philippines has an impressive appoints the Ombudsman should be number of laws to tackle practically all cognizant of the high expectations of the
515 RESOURCE MATERIAL SERIES No. 56 people to bring to the Ombudsman’s office E. Better Public Administration persons known for their ethical role The management approach started modeling, non-partisanship, and good under the Aquino administration should be judgement. continued and improved. Persons in decision-making positions should be D. More Resources for Enhancing trained and encouraged to think Accountability strategically. The challenge is to use Resources for enhancing accountability whatever capacity there is towards work and attacking corruption must be provided. that is focused on enhancing the public This is an investment that will pay off in interest. There is also a need to the long run. Guardians must be supported institutionalize some of the efforts that in their programs and given incentives not have been put into enhancing to stray from accountability. The funds, accountability since 1986. This means the personnel, technology, and other resources support of agency reform measures, as well of the Ombudsman and the as the establishment of new procedures, to Sandiganbayan must allow them to keep pave the way for cleaner administration. in step with the corrupt they are trying to catch. The personal income of such officials F. Encouraging Public Sector should be competitive with the private Unions sector, subject to the conscientious Democracy is developed in the performance of their duties. Their bureaucracy as the rank and file are given organizations should be provided with the the chance to air their grievances, press for necessary equipment high-tech devices like better working conditions, and demand hidden cameras, etc and mundane matters responsibility and rectitude from the such as paper clips, envelopes, filing management. Even with Civil Service cabinets as is needed in their work. Commission encouragement, unions still Incumbents should be imbued with a sense face an uphill battle in being heard by their of mission early, via a well-planned bosses. An arrangement where the union orientation program, and keep them going keeps its independence while remaining with peer group and leadership support, open to a partnership for service with and a hotline for counseling on the management would provide the best problems they meet. avenue not only for policing how accountable management is, but also for Civil servants who perform exceptionally improving the performance of everyone at well should be recognized. The Civil all levels of the organization. Service Commission program to this effect is a step in the right direction, but it honors G. Reform of Politicians and too few people. The increase of salaries Business People across the board through the Salary Changes should also focus on the main Standardization Law is a way to keep up corrupters, the politicians and the private with inflation, but it has had the pernicious sector. The NGOs that require their effect of eating up any resources that may members to pay the right taxes and conduct be given competitively. Merit increases and activities towards corruption prevention promotion can signal that an agency within their ranks should be encouraged. recognizes that one official is doing better Political parties should reform themselves, work than the others are. primarily through the continuous training of their members on party principles and policies, and their acceptance of the
516 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS principle of political neutrality among civil While cultures cannot be changed servants. Pending that, the passage of the overnight, support for value changes must law required by the Constitution against be developed through a system of rewards political dynasties, and increased recourse and punishments that becomes regularized to and encouragement of the activities of in standard operating procedures. Also, the the Ethics Committees of both Houses meting out of positive and negative strokes would be more immediate steps. Cause- must be swift but fair, and even-handed. oriented groups and public sector unions Value development seminars should be may assist politicians, especially those who case-oriented, thought provoking, and able regard themselves as non-traditional, in to encourage innovative behavior, while developing support groups to re-enforce raising alarm about continued violations. their desire for true public service, not mere patronage. J. Role of the People There is a need for popular involvement H. Transparency and Accountability in ethics and accountability. Paying the Make transparency real, allowing civil proper taxes, obeying regulations, being servants and the public to access well informed about government services - information in government. A question these are only the first steps in moving to hour in Congress, or a radio-TV program a disciplined but democratic society. In with questions and comments to be addition, support for politicians who answered by executive officials may help promote causes rather than just their inquiries into any aspect of their policies charm and personality would also make the and performance. Reports of investigations line of accountability clearer. The should be made available to the public. The development of parties with coherent support of the mass media in these platforms should then be a focus of people’s endeavors, accompanied by their own participation, to tie up with the reforms efforts at reforming their ranks, would be suggested above. These are all in addition crucial to the success of these efforts. to the encouragement of NGOs that are non-partisan in exposing corruption and Accountable performance would be bringing violators to justice. The start of supported if the public is informed about many of these measures has already been what the agency does and why. It is a made. They are in tune with democratic means of ensuring that the personnel principles, as well as the culture. One themselves know its mission. At the same hopes that many more financial, human time, both they and the public would also and moral resources will be placed at the then understand the reasoning behind service of accountability in the country. what seem to appear only as red tape. Information sharing - particularly of steps in service delivery - also makes it unnecessary for the client to seek out a ‘fixer’. Open transactions can build a sense of partnership between the government and the people the agencies serve.
I. Moral Reform Having role models, a code of ethics and value formation exercises speak of a desire for moral reform within the government.
517 RESOURCE MATERIAL SERIES No. 56
19 92 28 18
TIVE CASES
73 93 95 179 296 253
able 1
T
From 1988 to 1998
6 3,536 6,403 8,805 9,928 12,789 14,652 12,975 12,473 9,159
OFFICE OF THE OMBUDSMAN
57 3,722 3,997 5,142 5,303 8,172 9,454 6,122 8,117 8,150 8,551
REPORT ON CRIMINAL/ADMINISTRA
1,811 2,814 998 145 314 105 154 46 552
1,862 2,996 1,908 2,278 3,839 3,605 4,851 4,262 5,109 8,986 8,397
1,868 6,592 8,511 11,690 14,422 18,205 22,397 20,839 21,736 20,651 17,728
1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998
TISTICAL
A
ST
Dismissed/ Closed and terminated Penalty Imposed Prosecution 60 200 607 655 1,738 2,828 3,507 3,975 2,210 2,166 Regular Courts 405 393 1,378 2,198 2,988 3,734 1,722 1,700
OMB Cases Received during the year Cases received back to pending Old Tanodbayan Cases Old Tanodbayan Carry-over from the previous yeaer Total Workload of Criminal/ Workload Total Administrative Cases/ Complaints Disposed of 1,862 3,056 2,108 2,885 4,494 5,416 7,772 7,864 9,263 11,492 10,816
Pending 6 3,536 603 8,805 9,928 12,789 14,625 12,975 12,473 9,159 6,912
518 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
Table 2 WORKLOAD AND STATUS OF CRIMINAL AND ADMINISTRATIVE CASES (as of December 31, 1997)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received during the year 1,246 1,494 2,075 1,150 2,185 8,150 Referred by the other OMB office 8 13 0 49 0 445 Disposed cases reverted back to pending 0 0 0 28 0 28 Carry-over from 1996 3,980 2,460 1,932 3,244 857 12,473 Total workload of criminal and administrativecases 5,234 3,967 4,007 4,471 3,417 21,473 Less cases recalled to central office / transferred to OMB office 186 68 177 9 5 445 Net workload of cases 5,048 3,899 3,830 4,462 3,412 20,651 Disposed 3,249 1,772 2,094 2,034 2,343 11,492 Dismissed / exonerated 2,812 1,337 1,527 1,520 989 8,185 Prosecution 254 383 357 451 765 2,210 Penalty imposed 148 15 86 47 0 296 Closed and terminated 35 37 124 16 589 801 Pending 1,799 2,127 1,736 2,428 1,069 9,159
Table 3 WORKLOAD AND STATUS OF CRIMINAL CASES (as of December 31, 1997)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received during the year 880 1,125 1,242 847 1,370 5,454 Referred by the other OMB offices 7 13 0 46 255 321 Disposed cases reverted to pending 0 0 0 25 0 25 Carry-over from 1996 2,989 1,997 1,281 2,765 756 9,788 Total workload of criminal cases 3,876 3,125 2,523 3,683 2,381 15,855 Less cases recalled to central office / transferred to OMB offices 179 2 132 6 3 321 Net workload of criminal cases 3,697 3,123 2,391 3,678 2,378 15,267 DISPOSED 2,749 1,480 1,440 1,746 1,643 9,058 Dismissed 2,460 1,097 1,070 1,295 878 6,800 Closed and Terminated 35 0 13 0 0 48 Prosecution 254 383 357 451 765 2,210 with regular courts 176 244 291 309 752 1,772 with Sandiganbayan 78 139 66 142 13 438 Pending 948 1,643 951 932 735 6,209
519 RESOURCE MATERIAL SERIES No. 56
Table 4 WORKLOAD AND STATUS OF ADMINISTRATIVE CASES (as of December 31, 1997)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received during the year 366 379 833 303 815 2,696 Referred by the other OMB offices 1003120124 Disposed cases reverted back to pending 000303 Carry-over from 1996 991 463 651 479 101 2,865 Total workload of administrative cases 1,358 842 1,484 788 1,036 5,508 Less cases recalled to central office /transferred to other OMB offices 7 66 45 4 2 124 Net workload of administrative cases 1,351 776 1,439 784 1,034 5,384 DISPOSED 500 292 654 288 700 11,492 Dismissed / exonerated 352 240 457 225 111 1,385 Penalty imposed 148 15 86 47 0 296 Closed and terminated 0 37 111 16 589 753 Active / awaiting final disposition 851 484 785 496 334 2,950
Table 5 TOTAL WORKLOAD OF CRIMINAL AND ADMINISTRATIVE CASES (as of December 31, 1996)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received 1,342 1,525 2,026 1,140 2,084 8,117 Referred by other OMB offices 19 13 1 16 243 292 Disposed cases reverted back to pending 0 0 5 87 0 92 OSP / TBP transferred cases 6 1 1 544 0 552 Carry-over from 1995 4,718 2,063 2,062 3,079 654 12,576 Total cases received 6,085 3,602 4,095 4,866 2,981 21,629 Less cases recalled to central office /transferred to other offices 65 7 210 6 4 292 Net workload of cases 6,020 3,595 3885 4,860 2,977 21,337 Disposed 2,974 1,135 1,765 1,219 2,121 9,214 Dismissed 2,063 879 1,472 909 741 6,604 Prosecution 350 185 201 221 549 1,506 Penalty imposed 21 65 46 39 8 179 Closed and terminated 0 6 46 50 823 925 Pending 3,046 2,460 2,120 3,641 856 12,123
520 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
Table 6 WORKLOAD AND STATUS OF CRIMINAL CASES (as of December 31, 1996)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received 1,028 1,213 1,424 828 1,228 5,761 Referred by other OMB offices 18 13 1 10 178 220 Disposed cases reverted to pending 0 0 4 76 0 80 OSP/TBP transferred cases 6 1 1 544 0 552 Carry-over 1995 3,402 1,657 1,342 2,605 605 9,611 Total criminal cases received 4,454 2,884 2,772 4,103 2,011 16,224 Less cases recalled to central office /transferred to other offices 60 7 144 5 4 220 Net workload of criminal cases 4,394 2,877 2,628 4,098 2,007 16,004 DISPOSED 2,339 880 1,159 936 1,252 6,566 Dismissed 1,989 695 941 701 703 5,029 Closed and terminated 0 0 17 14 0 31 Prosecution 350 185 201 221 549 1,506 with Regular Courts 195 181 153 194 542 1,265 with Sandiganbayan 155 4 48 27 7 241 Pending 2,055 1,997 1,469 3,162 755 9,438
Table 7 ADMINISTRATIVE CASES / COMPLAINTS (as of December 31, 1996)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received 314 312 602 272 856 2,356 Referred by the Central Office 1 0 0 6 65 72 Disposed cases / reverted back to pending 0 0 1 11 0 12 Carry-over 1995 1,316 406 720 474 79 2,965 Total administrative cases received 1,631 718 1,323 763 970 5,405 Less cases recalled to central office /transferred to other offices 5 0 66 1 0 72 Net workload of administrative cases 1,626 718 1,257 762 970 5,333 Disposed 635 255 606 283 869 2,648 Dismissed / exonerated 614 184 531 208 38 1,575 Penalty imposed 21 65 46 39 8 179 Closed and terminated 0 6 29 36 823 894 Active / awaiting final disposition 993 463 651 479 101 2,685
521 RESOURCE MATERIAL SERIES No. 56
Table 8 TOTAL WORKLOAD AND STATUS OF CRIMINAL AND ADMINISTRATIVE CASES (as of December 31, 1995)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received 1,203 0 1,159 1,354 617 4,333 Referred by the Central Office 0 1,142 109 137 248 1,636 Disposed cases / reverted back to pending 0 0 0 19 0 19 Referred by the other OMB offices 27 18 6 19 285 355 OSP / TBP transferred cases 90013646 Carry-over 1994 5,855 1,692 2,257 3,459 602 13,865 Total criminal / administrative cases received 7,094 2,852 3,531 4,989 1,788 20,254 Less cases recalled to central office /transferred to other offices 30 2 85 231 7 355 Net workload of criminal / administrative cases 7,064 2,850 3,446 4,758 1,781 19,899 Disposed 1,984 1,416 1,475 1,834 1,155 7,864 Dismissed 1,637 1,140 1,143 1,311 473 5,704 Prosecution 307 252 246 379 336 1,520 Penalty imposed 1 24 15 55 0 95 Closed and terminated 39 0 71 89 346 545 Pending 5,080 1,434 1,971 2,924 626 12,035
Table 9 CRIMINAL CASES (as of December 31, 1995)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received 955 0 710 1,135 295 3,095 Referred by the Central Office 0 852 85 100 217 1,254 Disposed cases reverted back to pending 0 0 0 11 0 11 Referred by the other OMB office 21 15 4 10 250 300 OSP / TBP transferred cases 90013646 Carry-over 1994 4,372 1,272 1,446 2,796 559 10,445 Total criminal cases received 5,357 2,139 2,245 4,053 1,357 15,151 Less cases recalled to central office /transferred to other office 26 2 64 206 2 300 Net workload of criminal cases 5,331 2,137 2,181 3,847 1,355 14,851 Disposed 1,576 1,105 929 1,397 775 5,782 Dismissed 1,266 853 648 987 439 4,193 Closed and terminated 3 0 35 31 0 69 Prosecution 307 252 246 379 336 1,520 Pending 3,755 1,032 1,252 2,450 580 9,069
522 113TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS
Table 10 ADMINISTRATIVE CASES / COMPLAINTS (as of December 31, 1995)
Central Particulars Luzon Visayas Mindanao Military Total Office Cases received during the year 248 0 449 219 322 1,238 Referred by the Central Office (CO) 0 290 24 37 31 382 Disposed cases / reverted back to pending 0 0 0 8 0 8 Referred by the other OMB office 6 3 2 9 35 55 Carry-over from 1994 1,483 420 811 663 43 3,420 Total administrative cases received 1,737 713 1,286 936 431 5,103 Less cases recalled to CO /transferred to other office 4 0 21 25 5 55 Net workload of administrative cases 1,733 713 1,265 911 426 5,048 Disposed 408 311 546 437 380 2,082 Dismissed 371 287 495 324 34 1,511 Prosecution 1 24 15 55 0 95 Closed and terminated 36 0 36 58 346 476 Active / awaiting final disposition 1,325 402 719 474 46 2,966
523 REPORTSRESOURCE MATERIAL OF THE SERIES COURSE No. 56
GROUP 1
CURRENT SITUATION OF AND RECENT TRENDS IN THE CORRUPT ACTIVITIES OF PUBLIC OFFICIALS, AND CRIMINAL LEGISLATION AGAINST CORRUPTION
Chairperson Mr. Joma Zidan (Palestine) Co-Chairperson Mr.Chandrashekara (India) Rapporteur Mr. Asmadi Bin Hussin (Malaysia) Co-Rapporteur Mr. Pravit Roykaew (Thailand) Members Mr. Li Hai-Teng (China) Mr. Hiroshi Matsui (Japan) Mr. Naoki Ujita (Japan) Mr. Yoji Tanaka (Japan) Mr. Masahiro Okamura (Japan) Mr. Hector Efrain Castillo Guevara (Venezuela) Visiting Expert Professor Antony Didrick Castberg (USA) Advisers Professor Shoji Imafuku (UNAFEI) Professor Chikara Satou (UNAFEI) Professor Hiroshi Tsutomi (UNAFEI)
I. INTRODUCTION Secondly, sub-topic two required this All members of this group agree that no group to discuss the current provisions country in the world is safe from against corruption and their judicial corruption. The only difference is that interpretation. In every country in the some countries are suffering from serious world, legalistic approaches are the and widespread corruption, so much so that dominant countermeasures against in certain countries corruption has become corruption. Over time, laws are made and the norm, if not a culture, while corruption amended when the need arises, to in other countries is at manageable level. strengthen the fight against corruption. In Group one was given the task to discuss recognition of the role played by legislation the current situation of and recent trends in stamping out the menace of corruption, in the corrupt activities of public officials, this group exhaustively discussed issues and criminal legislation against corruption regarding the criminal provisions against in three sub-topics. The first part dealt corruption, and a comparison of the with the phenomenon of corruption, criminal provisions relating to corruption reasons and background (including by between countries represented by this domestic/transnational organized crime group and their judicial interpretation. group). The objective of this sub-topic was to examine the concept of corruption, which Lastly, in sub-topic three this group segment of the public service is involved, discussed and proposed effective domestic the reasons why the perpetrators of and international criminal legislative corruption committed the offence, impact countermeasures against corruption. of corruption and the involvement of Considering that current legislation transnational organized crime groups in against corruption in the respective corrupt activities.
524 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE countries is inadequate, and also the need or for others”. to intensify the fight against corruption, measures to rectify this defect by amending Actions by public officials which existing legislation and creating better constitute corruption are as follows. legal provisions should be taken immediately. Proposals for model domestic 1. Bribery and international criminal legislative The penal provisions of most countries measures were discussed and proposed by include the offence of bribery, where private this group. Various international parties offer or promise money or other documents were referred to during the advantages to public officials in order to discussion in order for this group to come influence their decisions while exercising up with better and more effective their official duties or functions. Bribery legislative countermeasures, be it for offences may be committed as variations application domestically or internationally. of deceitful acts such as attempts, promises, giving, soliciting, or acceptance II. THE PHENOMENON OF of a bribe. Demanding, soliciting and CORRUPTION, REASONS AND extorting anything of value by public BACKGROUND officials may be called ‘active bribery’, while accepting bribes can be safely be referred A. Definition of Corruption to as ‘passive bribery’. Considerable time was given in discussion on whether to develop a Another form of bribery is receiving universally acceptable definition of illicit payments. This situation covers corruption between the members. As it is public officials who solicit or accept monies extremely difficult, if not impossible, to in order to do something or not to do define what constitutes corruption, all something which the official has, by nature members agreed to explain and illustrate of the official’s duty, to do or not do anyway. what constitutes corruption, rather than These payments are often referred to as to define it. “speed money”, and are paid to public officials in order to expedite a decision As the participants come from different making or other process, to cut ‘red tape’ countries with different political systems, and bureaucratic delays. criminal justice systems, cultural values and beliefs, and levels of economic 2. Leaking Information development, to have consensus on a A situation whereby public officials give definition of corruption is something we confidential information belonging to the dared not endeavor to do. Nevertheless, government to a particular business members of the group agreed for reference enterprises or individual, which enables and guidance purposes to use the definition that business enterprise or individual to of corruption of the Council of Europe: gain an advantage over competitors. “bribery and any other behavior in 3. Abuse of Power relation to persons entrusted with Whenever public officials abuse or responsibilities in the public...which misuse their power and discretion for violates their duties that follow from personal benefit, or for the benefit of their status as public officials...and another person related to the official, such is aimed at obtaining undue actions constitute corruption. They range advantages of any kind for themselves from favoritism, nepotism and cronyism,
525 RESOURCE MATERIAL SERIES No. 56 to illegal discrimination through misuse of 6. Misappropriation of Public Funds the powers and discretion bestowed upon This situation occurs whenever a public public officials. In countries where official dishonestly uses public funds or privatization policies are carried out in the other assets of the government for their process of the liberalization of economies benefit or for the benefit of others not and development, the wide discretionary authorized to receive them. Domestic and powers given to the public officials have international financial institutions are become a ripe field in which to benefit favorite places to hide the loot, taking themselves and others related to them by advantage of the protection of banking abusing their designated power and secrecy laws. discretion. Instances of public officials awarding government tenders to their Based on the above discussion, it may children, buying stocks of companies that be safely said that corruption involves two they know will be awarded a contract by main elements: the government (the value of which will surely go up), and disclosing a competitor’s (a) Receiving advantage, either economic bid for public construction work, are all or non-economic, for personal profit, very common in those countries engaging gain and enrichment. in privatization policies. (b) Misuse of one’s official capacity, duty, 4. Breach of Trust and discretion for personal benefit or Whenever public officials are entrusted the benefit of others who have a with power or anything tangible to be relationship with that public official. administered, and he/she misuses that entrusted power for personal benefit, he/ B. Aims of Corruption she is committing the offence of breach of All members of this group agreed that trust. Public officials may divert public the aim of the perpetrators of corruption monies, funds, resources or properties to may be classified into two categories: themselves, their relatives, or to those not related to them. History has shown that (a) Economic some autocratic rulers and despotic The perpetrator of corruption can be regimes are best known examples of this said to have committed that offence kind of systematic looting of their country’s for economic reasons, perhaps wealth. influenced by insufficient income, greed, traditional customs of 5. Conflict of Interest accepting gratification, enriching This situation occurs when public themself because of a limited tenure officials contaminate their decision making of office, and collaborating with process with personal interest, resulting in organized crime groups. bias. These types of public officials completely disregard their obligation to be (b) Non-economic fair, impartial, trustworthy and efficient in Non-economic motives include a their public roles. Instances of public public official’s desire to obtain fame, officials taking part in decision making power, or status through corruption. processes affecting enterprises or This also includes cases where they companies in which their wives, children, may be ordered by a superior to or siblings are shareholders or directors are commit corruption. examples of this kind of corrupt practice.
526 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
C. Subject (Who) and public defenders who are government All members of the group were given the employees. If corruption is allowed to opportunity to discuss the level of penetrate this area, it will destroy the corruption in their respective countries. administration of justice and the public will After extensive discussion, it was agreed lose confidence in the nation’s justice that corruption practices involve not only system. low ranking public officials, but also those who hold high positions in government. D. Impact of Corruption If corruption is allowed to flourish, Corruption among lower ranking public especially corruption involving high officials may be called small scale ranking public officials, the nation may be corruption and may cause little detriment, severely damaged economically. Business but a high degree of severity of corruption opportunities and wealth will be restricted involves persons holding high positions. to those who are connected to the ruling Lower ranking public officials include elite, and this will reduce or eliminate traffic police asking for money from competition in the business sector. motorists who commit traffic violations, Collusion and nepotism will become the clerical employees who falsify overtime rule of the day. This in turn will lead to claims, etc. political instability, as well as depriving citizens access to basic needs. The people Small-scale corruption in some countries will feel frustrated and the general constitutes the bulk of prosecution cases population’s distrust will rise and in courts of law, perhaps because corruption eventually chaos will reign. Foreign by high-ranking government officials is investment will also be curtailed if often more difficult to expose and widespread corruption is in place. This will investigate. Secrecy by certain affect the country’s development. governments does not allow the law to take its course to bring perpetrators to justice. Corruption directly increases the cost of a transaction. If a business pays a bribe to Bribery by politicians involved in vote be awarded a contract, it will pass on that buying was hotly debated by members of cost to the purchaser. Prices skyrocket and the group. The argument was whether a the purchasing power of consumers will politician who contested an election, and decrease. who eventually becomes a public official, can be considered a public official. One E. International Dimension of point of view is that a candidate in an Corruption election is not a public official until and All members of the group agreed that unless he/she wins the election, but he/she crime cannot always be solved with the is possibly a future public official. If the effort of each country alone. All social contestant who engages in a vote buying phenomena have become transnational as process is elected, his/her election is a result of the remarkable progress in contaminated by corruption. One who transport and communication. Crime, resorts to corrupt practices is prone to which is the negative side of social commit the same while in office. phenomena, is no exception. Accompanying the internationalization of Special attention must be given to commercial activities, it is frequently corruption amongst criminal justice reported that companies offer bribes to officials, such as judges, public prosecutors, foreign officials. It is been alleged, for
527 RESOURCE MATERIAL SERIES No. 56 example, that several major Asian transportation into Malaysia, and construction companies bribed officials in Malaysian registration officials accept Southeast Asia to obtain favorable bribes from transnational organized crime treatment of their bids on major projects. groups to issue registration cards. Because of the high incidence of this activity and With respect to organized crime, it can the difficulty of finding sufficient evidence be said that it is natural for crime to bring the culprits to court, the organizations to move the main sphere of government has to use preventive their activities from their own country to detention to detain those suspected of other countries, to avoid strict control or engaging in this illegal activity. in expecting more benefit. On the other hand, the criminal justice power of 2. Trafficking of Illicit Drugs enforcement authorities does not extend It is common knowledge that outlaw beyond national boundaries. This fact will gangs in Colombia bribe police, customs spur the internationalization of crime. and immigration officials to facilitate the easy passage of narcotics through Corruption of public officials is no Venezuela for distribution in the United exception. When a criminal organization States. Drug trafficking provides an seeks enormous profits abroad, they need excellent, but appalling, example of the role to avoid any control and get advantageous of transnational organized crime groups in treatment. Then temptation to corrupt corruption. The demand for cocaine has foreign public officials by crime resulted in a supply line that starts in the organizations increases. Andean Mountains of South America, flows through Latin America and the Caribbean, Crime organizations obtain enormous and ends up on the streets of almost every profits in cooperation with other city in the US. This demand and supply organizations through the smuggling of process involves billions of dollars, some of drugs or weapons, intermediation of illegal which is used to bribe public officials in immigration, traffic in persons etc. Colombia, where the coca plants are Temptation of public officials who are processed to produce cocaine, in Mexico and responsible for detecting such illegal some nations in the Caribbean, which are activities, e.g customs officers, immigration major transit routes, and in the US, the officers, police officers, prosecutors and destination of the drugs. The head of their assistants, judges and court officials Mexico’s drug enforcement agency was etc, is not only an international concern but arrested in February 1997 for drug also a serious problem which damages the trafficking, organized crime, bribery, and base of each state. The main instances of illicit enrichment, and in August 1999 this reported by members of the group are Mexico’s number two prosecutor was as follows. indicted in the US for laundering more than $9 million in drug payoffs through a 1. Trafficking of Illegal Immigrants bank in Houston, Texas. In the US, As Malaysia during the past nine years between 1992 and 1999, 28 Customs and has been enjoying an economic boom, it has Immigration and Naturalization agents attracted illegal immigrants from stationed along the US-Mexican border Pakistan, Bangladesh, China and other were convicted for a number of crimes nations to come and work. It is alleged that involving facilitating drugs crossing the illegal immigrants use the services of border. In fiscal year 1997, 150 law transnational organized crime groups for enforcement officers in the US were
528 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE convicted of corruption-related crimes, over Discretionary powers vested in public half of which involved drugs. These are officials opens the door of corruption. just a few examples of a much larger Public officials may use their discretionary problem of drug-related corruption powers as an instrument to seek illegal affecting many countries in the Americas. gratification. Delaying processing certain documents has becomes a very common F. Causes/Background of practice in government departments. In Corruption order to speed up applications submitted The problem of corruption is a problem for approval, the public has to grease the of systems and institutions, combined with palms of public officials. human factors. Causes of corruption, which are examined and discussed, are as 3. Monopolistic or Oligopolistic Situations follows. This situation means that in a given market economy, one or a handful of 1. Lack of Transparency and companies are given tasks to perform or Accountability carry out specific development projects or Transparency and accountability are provide certain services. This happens related to the right to information. Corrupt quite commonly in developing countries practices, especially amongst public that intensify privatization policies, and officials holding political power, goes also in the field of defence projects. unchecked and undiscovered because there Controlling the market has become a tool are insufficient mechanisms to control their to commit malpractice, such as exercise of power. The right to information overcharging, providing low quality work, is sometimes curtailed through the manipulating prices etc. Companies implementation of various laws that hoping for a monopolistic market normally protect disclosure of the improper exercise bribe public officials to secure specific of power and discretion. In order to expose development projects. any wrongdoing committed, investigating agencies need to have unrestricted power 4. Low Salary to examine public records, financial It is a common belief that poverty tends institution documents and other relevant to encourage public officials to commit documents in the possession of the corrupt acts. With low salaries, they find concerned bodies. Nevertheless, in most it difficult to attain a modest standard of countries, banking secrecy laws are the living, so much so that they have to revert most common hindrance to investigation. to corruption to enhance their income. But Corrupt public officials, especially in if corruption has become accepted in the dictatorial regimes, almost always avoid public sector, however much public officials prosecution by manipulation of these salaries are increased, the temptation of loopholes in the law. corruption will forever exist. However, one may argue that this notion is not 2. Wide and Broad Discretionary Power necessarily true, since in developed Wide and unfettered discretionary power countries where public officials have very in the hands of public officials can generate high incomes and ample welfare, temptation and motive for corrupt corruption among public officials still practices. Without the proper mechanisms exists. Thus, one may conclude that low of transparency, and checks and balances, salary alone is not the real reason for public officials will have ample opportunity corruption, but is used as an excuse to to take undue advantage of their powers. indulge in corrupt activities.
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death sentence may be imposed, but is not 5. Lack of Ethical Consciousness mandatory. Even though the court has the Ethical consciousness is interrelated power to impose a death sentence, it is not with moral values. Public officials with low commonly exercised if the convicted can ethical consciousness succumb to the return the amount that has been taken. A temptation of corruption easily, compared unit may be the subject of bribery to those with firm ethical standards. allegations, and may be punished if found guilty. In addition, public officials whose 6. Greed Factor property or expenditures exceed their This factor explains above all why high- lawful income, the source of which cannot ranking public officials and politicians with be explained properly, may also be high salaries and adequate means are penalized. Corruption is becoming complex involved in corruption. The pursuit of and rampant as China opens its doors to a personal satisfaction, which has no limit, market economy, so there is a need to enact means that these kinds of public officials separate legislation to deal with corruption never have enough, and corruption is the effectively and to establish a special agency only way to seek satisfaction. to investigate and counter corruption.
III. CURRENT CRIMINAL 2. India PROVISIONS AGAINST There are two laws which deal with CORRUPTION AND THEIR corruption in India: JUDICIAL INTERPRETATIONS (a) The Indian Penal Code (1860) A. Criminal Provisions against (b) Prevention of Corruption Act (1988) Corruption Summaries of the criminal provisions Both statutes seem to have similar against corruption in the respective provisions, but under the Prevention of countries of these group members are as Corruption Act, punishment is more severe. discussed below. The specific provisions of Imprisonment under this Act may be a each country represented in the group may maximum of 7 years, whereas under the be found in the Appendix. Penal Code the maximum imprisonment that can be imposed is 3 years. Minimum 1. China sentences are also provided for, with or Corruption offences in China may be without fine. divided into two broad categories, which are as follows: It is to be noted that neither the word “corruption” nor “bribery” is used in the (a) Bribery and embezzlement Indian penal provisions against corruption. (b) Abuse of power Instead, the word “gratification” appears in Indian criminal legislation against One significant difference between corruption. But neither in the Penal Code China’s legal provisions on corruption and nor the Prevention of Corruption Act is the those of the other countries of this group is word “gratification” defined. The that the maximum punishment that can Prevention of Corruption Act does not be imposed by the court is death. If an provide for confiscation. Confiscation accused person is convicted of corruption proceedings can be initiated under the offences where the amount of the bribe or Criminal Law Amendment Act of 1944. embezzlement exceeds RMB100,000, a
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Although there is no definition of on 8 January 1998. Another feature of “bribery” and “criminal misconduct,” what corruption legislation in Malaysia is the constitutes these offences are described use of emergency powers to combat under the relevant sections of law. corruption. In order to tackle certain However, under section 169 of the Penal practices which would have escaped the net Code there is a provision for confiscation of the Prevention of Corruption Act of 1961, of the property bought or bid for by a public which was the predecessor of the Anti- servant through misuse of their office. Corruption Act of 1997, the Supreme King of Malaysia on 21 February 1970 3. Japan promulgated the Emergency (Essential Criminal provisions against corruption Powers) Ordinance No. 22, which is are mainly found in the following statutes: popularly known as Ordinance 22.
(a) Penal Code With the coming into effect of the Anti- (b) National/Local Public Service Law Corruption Act of 1997, which is considered to be the comprehensive law regulating The Penal Code covers the offences of corruption practices, the government on 23 bribery, abuse of power, fraud, and larceny October 1998 passed a resolution in the by public officials. Prohibitions against Dewan Rakyat (The Lower House of disclosing official secrets are found in the Parliament) repealing the Ordinance National Public Service Law and also in retrospectively from 8 January 1998. At the Local Service Law. Public officials who the time of passing of the resolution, assume positions as directors or advisors several prosecutions under the Ordinance in private companies contrary to the law were still pending in the court. Arguments may, if convicted, be punished under the were put forward in those cases as to the National Public Service Law. legality of the charges under the said ordinance, as the law was considered to 4. Malaysia have no effect after it was repealed. In the Penal provisions against corruption may case involving the former Deputy Prime be found in the following statutes: Minister of Malaysia, the defence team raised a preliminary objection that as the (a) Penal Code Lower House of Parliament has repealed (b) Customs Act of 1967 the Ordinance, charges under the (c) Anti-Corruption Act of 1997 Ordinance were no longer sustainable. (d)Emergency (Essential Power) Ordinance No. 22 of 1970 After hearing arguments from the prosecution and the defence team, the In Malaysia, corruption was first made learned trial judge ruled that, as the an offence in 1871 with the introduction of Ordinance was promulgated under Article a Penal Code copied from India by the 150(2) of the Federal Constitution at a time British colonial masters. These provisions when a grave emergency existed, the are still preserved in the Penal code. A Ordinance will only cease to have effect if separate enactment dealing with both Houses of Parliament pass a corruption was first introduced in 1938. resolution annulling such a law as Since then, the specific legislation has been stipulated by Article 149(2) of the Federal the subject of numerous amendments, and Constitution. As the Dewan Negara (the in 1997 the government introduced the Upper House), which is the other Anti-Corruption Act, which came into effect component of Houses of Parliament, has
531 RESOURCE MATERIAL SERIES No. 56 not passed a resolution annulling the Laundering Act which, inter alia, empower Ordinance at the time of the trial, it was the court to order confiscation, even though held that the trial was not a nullity and the assets have been transferred to another was therefore sustainable. or have changed form.
5. Palestine There is also the Mutual Legal Corruption offences in Palestine may be Assistance Act and Extradition Act which grouped into three different classes of empower investigative agencies to provide misbehavior: assistance to a requesting country to facilitate the investigation of corruption, (a) Bribery and to seek the assistance of another (b) Embezzlement country in bringing to justice perpetrators (c) Abuse of Power of corruption who have escaped from Thailand and have taken refuge in another Bribery offences are stipulated under country. The same principle applies vice Penal Code No. 41 of 1944, by sections 106, versa to other countries which seek 107, 108 and 109. The punishment Thailand’s cooperation. provided ranges from one to three years’ imprisonment, depending upon the 7. Venezuela seriousness of the offences committed. There are two penal provisions dealing Embezzlement is punishable under Penal with corruption in Venezuela: Code No. 57 of 1946, which carries a maximum of one year of imprisonment (a) The Venezuelan Penal Code upon conviction. Abuse of power and (b) Organic Law for Safeguarding Public tyranny are dealt with under the same law, Administration and can be punished with a maximum of two years imprisonment. Recently, political changes took place in Venezuela whereby a new democratic 6. Thailand government was elected after a long period Legal provisions to combat corruption in of corruption and a degenerative process Thailand can be separated into two with a democratic mask. The Venezuelan categories: Parliament is in the process of enacting a new constitution and it is expected that (a) The Penal Code with the changes to the legal system, new (b) Supplementary legislation to rectify laws relating to corruption will be enacted. loopholes in the Penal Code B. Judicial Interpretation of Apart from the prescribed punishment, Corruption Offences the court in certain offences can impose 1. China confiscation of the property or assets In China, a new criminal law which has acquired through corruption. But this two independent chapters against provision has it shortcomings, as it cannot corruption just came into force two years be imposed if the property or assets have ago. It is new legislation, so almost all been transferred to another person, or have definitions of corrupt activities are found been changed or transformed into another in the law. Judicial decisions relating to asset which is different than the original. corruption cases mostly focus on strategies To rectify this situation, the Thai to tackle the recent trends of corrupt government has enacted the Money activities and judicial countermeasures.
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Recently, with assistance from various has been interpreted by the court as not legal experts, the Supreme People’s only restricted to tangible things, but also Procoratorate (SPP), China’s top criminal to intangible things. This may include watchdog, drafted judicial explanations money, interests, favors, entertainment, concerning 52 crimes related to corruption, etc. Examples: bribery, dereliction of duty and the violation of the personal and civil rights of citizens, (i) Tangible Things committed by officials. The object of the The case of a former Vice-Minister of offences of bribery and embezzlement is Health and Welfare who was accused restricted to money or property only, and if of having accepted cash of about 60 one accepts intangible things, such as million yen from a director of a social entertainment, it is not considered a crime welfare company in return for giving of corruption. it advantages in distributing subsidiaries. He was convicted by the 2. India Tokyo District Court and sentenced Neither the word “bribe” nor to imprisonment for 2 years and “corruption” is defined in the Indian penal forfeiture of the bribe money. provisions against corruption. “Illegal gratification’’ is used to denote the offence (ii) Intangible Things of corruption in the Indian Penal Code and In the ‘Recruit’ case, high-ranking in the Prevention of Corruption Act of 1988. governmental officials, including Judicial decisions over the years have political appointees, gave preferential interpreted illegal gratification to include treatment to the Recruit Company in all improper and selfish exercises of power return for a special offering of stock and influence attached to a public office or of the company before its public to the special position one occupies in public release. The court ruled that the life. It has to be viewed from the entire benefit of such an advantageous gamut of moral values, social ethics, and purchase of such stock, which was acknowledged norms of behavior in public certain to increase in value, was a life. In other words, “gratification’’ is not bribe. restricted to pecuniary gratification, but encompasses intangible things. Thus, (b) Official Duty anything which affords satisfaction to one’s The bribe must be taken or obtained by mind or body, and does not form part of a public officials in relation to their official public servant’s legal remuneration and is duties. In a Supreme Court ruling it was obtained as a motive or reward for showing held that “official duty” includes, but is not favor or disfavor in the course of their restricted to, their designated duties. official act, would be gratification. Elected representatives, such as members of 4. Malaysia legislatures, are public servants as held by Under the Malaysian criminal the Supreme Court. Trapping bribe-takers provisions against corruption, the words red-handed is held to be part of the “bribe” and “corruption” are not used. investigation, under a Supreme Court Instead, the word “gratification’’ is found ruling. in the Penal Code and Anti-Corruption Act of 1997. The Penal Code does not define 3. Japan what constitutes gratification, but under (a) Bribe the Anti-Corruption Act of 1997, the word The word “bribe” under the Penal Code “gratification” is defined as:
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(a)Money, donation, gift, loan, free since the content of both provisions is the reward, valuable security, property, same. interest in property, being property of any description, whether movable Under the Emergency (Essential Power) or immovable, or any other similar Ordinance No. 22, the subject of corruption advantage; is in the form of misusing the office or (b) Any office, dignity, employment, position for pecuniary or other advantages. contract of employment, or service, “Pecuniary advantages’’ has been and any agreement to give interpreted by the High Court, in the case employment or render service in any of Public Prosecutor vs. Dato’ Tan Swee, to capacity; mean wrongful or undue gain, that is (c) Any payment release, discharge or something to which a person is not entitled liquidation of any loan, obligation, or or is not yet entitled to or is getting other liability, whether in whole or in something more than s/he is lawfully part; entitled to. “Other advantages” also has (d) Any valuable consideration of any been subject to judicial interpretation. In kind, any discount, commission, the case of Nunis vs. Public Prosecutor, it rebate, bonus, deduction or was held that the words “other advantages” percentage; includes favoring circumstances or benefits (e) Any forbearance to demand any of some of kind, other than pecuniary. money or money’s worth or valuable thing; In the case of Public Prosecutor vs. Dato’ (f) Any other service or favor of any Seri Anwar Bin Ibrahim, the accused was description, such as protection from charged with four offences of corrupt any penalty or disability incurred or practices under section 2 of Ordinance 22. apprehended or from any action or It was revealed by witnesses that the proceedings of a disciplinary, civil or accused, while holding the office of Deputy criminal nature, whether or not Prime Minister and Minister of Finance, already instituted, and including the had used his position to order two police exercise or the forbearance from the officers to get retraction statements from exercise of any right or any official two persons, in order to save him from power or duty; and embarrassment and criminal prosecution. (g) Any offer, undertaking or promise, It was held that saving oneself from whether conditional or unconditional, embarrassment and criminal prosecution of any gratification within the amounted to “other advantages’’ stipulated meaning of any in the preceding by section 2 of Ordinance 22. paragraph. 5. Palestine In one celebrated case involving an In Palestine, the offence occurs only officer of the Immigration Department who when the bribe-taker receives or demands asked for sexual favors in return for tangible things such as money, cars, land, immediate processing of an application for etc. Intangible things, such as renewal of a passport, it was held to entertainment, cannot be the object of a amount to soliciting gratification, which is bribery offence. an offence under Section 4 of the old Prevention of Corruption Act 1961. This 6. Thailand interpretation is still applicable for offences Corrupt activities in Thailand can be under the Anti-Corruption Act of 1997, classified into two main groups. The first
534 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE group can be called “misuse of power” or persons can retain, having in their “abuse of power’’. The relevant sections possession, and having pecuniary value, that may be grouped into this category of can be sold or transferred to another offences are 147, 148, 151 and 152. The person. Thus, under the Thai judicial essential elements which the public interpretation, “bribe” is restricted to prosecutor has to prove are: pecuniary benefit, or to benefit that can be estimated in money. Other forms of benefit, (a) The accused or offender is a public such as entertainment, service or meals, official; and is out of the scope of the bribe. (b)Such a person unlawfully and wrongfully exercises his functions for To apply the law to a real situation, a particular purpose. however, is sometimes difficult because there still is a legal vacuum in the The second group can be termed definition of cash or property to be “bribery”. Sections 149, 150, 201 and 202 considered as unlawfully obtained. There are grouped into this. The essential is no any legislation in Thailand which elements of crime in this are: prevents a public official from receiving cash, property or any other kind of benefit, (a) The accused or official is a public due to affection or appropriate amount of official (including members of the reward on traditional occasions. Thus, it State Legislative Assembly, member appears very often that the accused usually of the Municipal Assembly, etc); and argued that such money or property had (b) The accused accepted, demanded, or not been obtained corruptly, but was given agreed to accept any undue property as a token of affection or as a reward. or benefit for themself or another person; and Another controversial issue about (c) For exercising or not exercising any judicial interpretation, before the year of their functions, whether such 1999, was the interpretation of Sections 33 exercise or non-exercise of their and 34, which stipulated the rule of functions is wrongful or not. forfeiture or confiscation. A Thai court ruled that property forfeited by means of The Public Prosecutor, however, has the these sections should be property acquired burden to prove a strong link between the directly through the commission of an corrupt activities and the official’s offence. Thus if the property was designated functions in both groups. transferred, sold or changed in form, these two sections are inapplicable. However, As for the offence of bribery, nowhere in since August 20, 1999, the Money the Penal Code or any other legislation Laundering Control Act has come into defines the meaning of “bribe”. However, force, and this kind of situation should not in the relevant sections, they use the be a problem anymore. wording “property” and “any other benefit’’ to express the meaning of “bribe’’. The 7. Venezuela Supreme Court interpreted these two In Venezuela, the interpretation of words as interchangeable. The Civil and “bribe” is different from case to case. The Commercial Code of Thailand provides the principle of binding precedent is not definition of “property” in this context: applicable in the Venezuelan judicial property is anything, tangible and system. The lower court is not obliged to intangible, which an individual person or follow the higher court’s decision. This
535 RESOURCE MATERIAL SERIES No. 56 situation has created inconsistency in facilitating corrupt activities, every country judicial interpretation of the subject matter should review their criminal legislation of bribery. Thus, both tangible and and identify lacunas in the existing intangible objects can be the subject matter legislation and make necessary of bribery, depending on the judge’s amendments to rectify such defects. Every discretion. country should examine the inadequacy of their penal sanctions in dealing with IV. PROPOSED DOMESTIC AND corruption cases, which indirectly helps INTERNATIONAL CRIMINAL this evil activity to flourish. LEGISLATIVE MEASURES EFFECTIVE AGAINST Existing legal sanctions against CORRUPTION corruption offences should be increased substantially where necessary. Mandatory Noting the increasing complexity and custodial sentences upon conviction might growing sophistication of corruption, as be necessary to reflect the government’s well as the multiplicity and diversity of the policy in corruption cases. Mandatory problems it creates at the national and imprisonment sentences may act as a international level, proposed legislative deterrent to committing the offence, not improvement must be made to various only for the offender but also to the public legislation, including criminal and at large. procedural legislation, administrative regulations, as well as international In addition to custodial punishment, mutual legal assistance related provisions. penal provisions should include the power to impose fines. The imposition of fines One can expect that in response to the should not only apply to the bribe-taker, new measures or legislation, corrupt but also to the bribe-giver. Courts should activities will become more sophisticated. be given the power to inflict substantial Offenders always probe for weak spots in fines, as nominal fines do not have a legislation, seeking new avenues, venues deterrent effect. The amount of fine that and persons to exploit. Reviewing, can be imposed should be equivalent to the modernizing and harmonizing existing amount received as the bribe, or a larger substantive and procedural legislation to figure, such as two or three times the ensure their continued relevance, efficiency accepted amount. and adaptability to the various forms of corrupt practices, including elaborating Among the participating countries in and adopting new laws and regulations this course, only China and Vietnam designed to meet the challenges posed by empower their courts to impose capital the complexity and sophistication of punishment in corruption cases. The organized crime and corruption, should be question of whether capital punishment carried out by every country on a regular should be provided for in corruption basis. legislation is a matter of policy for that particular country and should not be A. Domestic Substantive Criminal subject to criticism by any other country. Law Any sovereign country must be allowed to 1. Punishment carry out any policy that is considered To enhance their capacity to respond to appropriate to suit its own domestic all forms and manifestations of corruption, situation. as well as to any conduct assisting or
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2. Subject Matter of Corruption establishment of transparent and It was agreed by all members of this competitive procedures, such as unfair group that the subject matter of corruption competition prevention and anti-trust laws, offences may include monetary worth or are deemed necessary. benefits, as well as indirect benefits such as dinner, entertainment, discharging of 5. Establishment of Anti-Money debts, etc. Legislatures in every country Laundering Laws should consider legislation that defines Corrupt public officials benefit from corruption as including such indirect money or properties obtained through advantages. Experiences in some countries illegal means. To avoid detection, in some have shown that without clear and cases, proceeds from corrupt activities are comprehensive provisions, there will be being laundered by corrupt public officials ambiguity in the interpretation of the law. in legitimate transactions. Existing laws, such as penal codes, anti-corruption Acts, 3. Exercise of Confiscation or Forfeiture and the like, are often not adequate to It is commonly agreed that confiscation suppress either money laundering or illegal has a strong deterrent effect on potential use of crime-related money and property. perpetrators of corruption. Since Thus, in order to cut off this vicious circle corruption is frequently committed for of crime, measures to effectively control pecuniary reasons, taking away the fruit money laundering should be established. of corruptly gained assets, equivalent In addition, to combat corruption more monetary value, or the proceeds of the effectively, all kinds of corrupt activities crime, is an effective preventive measure. should be included in the predicate offences In addition to imprisonment and fines, of the legislation against money courts should be given the power to impose laundering. confiscation orders on the offenders’ unlawfully gained assets or other property 6. Enhancing the Financial Institutions’ that the offender cannot prove to be his/ Role her true and lawful property, and that no Countries should consider introducing other person is entitled to that property. measures or legislation to clarify the role In cases where the benefit or advantage of financial institutions. Such legislation accepted by the accused person is not might require the financial institutions to: pecuniary in nature, such as sexual favors, confiscation orders can not be pronounced (a) Identify, on the basis of official or by the court. In cases such as these, as a other reliable identifying documents substitute, the court should be given the and records, the identity of their jurisdiction to impose equivalent penalties clients. upon conviction of the accused. (b) Take reasonable measures to obtain information about the true identity 4. Guarantee of Transparency of the person on whose behalf an The lack of transparency and account is opened or a transaction is accountability may facilitate corruption, conducted, if there is any doubt as to thus legislation allowing the public to whether these clients or customers access governmental information should be are not acting on their own behalf. introduced to guarantee transparency in (c) Maintain, for a certain period of time, the management of public funds and in the all necessary records on transactions, decision-making process, to ensure both domestic and international, to accountability. Since corruption produces enable them to comply swiftly with distortions in the world of business, the
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information requests from competent All countries should consider enacting authorities. legislation consistent with the (d) Report any suspicious transactions Organization of American States (OAS), to competent authorities. Organization for Economic Cooperation and Development (OECD) and Council of In addition, to encourage the cooperation Europe (COE) recommendations relating of financial institutions and their to criminal penalties against citizens who employees, there should be legal provisions bribe or attempt to bribe foreign public to protect them from criminal or civil officials. liability for breach of any restriction on disclosure of such information, if they B. Domestic Procedural Law report to competent authorities in good We recommend the following: faith. (a) Provisions which promote banking 7. Illegal Enrichment secrecy should be relaxed to facilitate Laws to apply criminal penalties to the investigating authorities public officials who appear to have in their pursuing and gathering material possession valuable assets, goods and evidence to expose corruption. Many means that are clearly beyond their times, the effectiveness of financial remuneration, and who fail to investigation is hindered because of explain how they got the properties, should the veil of banking secrecy. be considered. See the OAS document Investigating authorities should be entitled “Model Legislation on Illicit empowered by legislation to conduct Enrichment and Transnational Bribery’’. inspections and confiscate any document, movable or immovable 8. Limitations on the Activities of Former property, in the custody of financial Public Officials institutions, which is suspected to be In order to prevent conflicts of interest, the subject matter of corruption laws must be enacted, where they do not offences. already exist, that prohibit public officials from taking positions that involve them (b) Investigating authorities should be representing private or personal interests given the power of directing public before their former governmental agency officials, who are suspected and or department, within specified periods of arrested in connection with time. corruption charges, to surrender all travel documents in order to prevent 9. Prohibition of Tax Deductions them absconding from the country. Countries should consider legislation that would prohibit tax deductions for (c) Every country should consider bribes or other expenses related to reviewing and adopting provisions, corruption, whether within the country without infringing upon the itself or internationally, as recommended fundamental rights of accused by United Nations Resolution A/RES/51/59, persons, for the reversal of the burden dated 28 January 1997. of proof in cases where the accused appears to have in their possession 10. Criminalization of Bribery of Foreign or have available, directly or Public Officials indirectly, goods or assets and means that are clearly beyond their normal
538 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
financial standards. keep the issue of action against corruption under regular review. All forms of corrupt (d) Introducing a Witness Protection activities, including bribery of foreign Law. Bearing in mind that witnesses public officials, should be included in the are frequently essential to law treaties for mutual assistance. The enforcement authorities in collecting requested country should not decline to evidence to prove allegations, and render legal assistance based only on that those witnesses may be financial secrecy laws. In another words, threatened by others involved, every treaties for mutual legal assistance must country should consider new prevail over the domestic financial secrecy legislation, or review existing laws of the requested country. legislation, in order to encourage and facilitate the cooperation of 2. Extradition Law or Treaty witnesses, including the introduction Corrupt offences, money laundering, of witness protection schemes. bribery of foreign public officials and related illicit activities, should be deemed C. International Legislative by every country as an extraditable offence. Measures In case the requested country declines to 1. Mutual Legal Assistance Law or Treaty extradite its own national who is sought Since corruption and money laundering for committing corruption offences, or who are global problems, the international is involved in money laundering activities community should recognize that these in the requesting country, the requested kinds of crimes have no national country should submit the case, as required boundaries. Action by individual states by its domestic legislation, to its competent alone is inadequate to combat those authority for prosecution. activities effectively. It requires a global response. Failure to participate in an V. CONCLUSION international effort is not neutral but The phenomenon of corruption has rather facilitates victimization of other become increasingly complex and states, including those which believe sophisticated. In addition, corruption of wrongly that they can stay on the sidelines. public officials is frequently used by the Thus, close cooperation between the law perpetrator as a primary tool to conduct enforcement authorities of each country, other criminal activities. Corruption through bi-lateral and multi-lateral causes uncountable damage to our society. arrangements, is urgently suggested. It destroys every person, institution, and International authorities should be given system wherever it can emerge. responsibility for gathering and Corruption is not the problem of any disseminating information to competent individual country anymore, but rather a authorities about the latest measures being global problem which requires strong used in corrupt activities by perpetrators. cooperation among the various countries to combat. Every country should recognize Each country should review and expand, its danger and urgently cooperate with where necessary, practical each other to suppress and eliminate this countermeasures against corruption, in kind of evil activity from our society. In order to coordinate with other countries fighting corruption, the continuing process and relevant international organizations in of reviewing, strengthening and enacting anti-corruption efforts. It is also legislative measures which are deemed recommended that every country should
539 RESOURCE MATERIAL SERIES No. 56 effective to prevent and control corruption and related activities should be seriously exercised. Harmonizing and modernizing existing legislation, rules and regulations to facilitate enforcement and enhance cooperation among the law enforcement agencies, at both the national and international level, should be done simultaneously. Every country must devote its energy and resources to enhance and expand international cooperation in the fight against the evils of corruption.
540 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
Appendix I
3,4: property
3,4: property
Property
property
2: 1Y to 10Y 3: 5Y to life 4: 10Y to death
3: 5Y to life 4: 10Y to death
1M to life imprisonment
more than 5Y (for individual)
1M to 3Y
3Y to 10Y
1: Up to 5,000RMB 2: 5,000 to 50,000RMB 3: 50,000 to 100,000RMB 4: more than 100,000RMB Public funds 1M to life imprisonment
1: Up to 5,000 2: 1Y to 10Y 2: 5,000 to 50,000RMB 3: 50,000 to 100,000RMB 4: more than 100,000RMB Money or advantages Bribes Not more than 3Y
Bribes Fine (only unit) and not
Property 1M to 5Y Part of exeeding
State-owned assets
Power or duty (causing heavy losses to public funds)
Power or duty 1M to 10Y
Power or duty 1M to 10Y
Taking advantage of and Taking misappropriation Accepts Bribes 1: Up to 2Y detention
Bribes or introduces
functionary
securing illegitimate benefits
Property exceeds lawful income undeclared large bank savings outside China Divides up in secret (in the name of unit) Abuses or neglects or engages in
Abuses or neglect
Abuses or neglect
Criminal Provisons against Corruption in Participating Countries
organ malpractice for personal gain
Any functionary of a state organ
Law 383,394 property and gift
CL 384 State functionary
CL 385 to 388 State functionary
CL 389 to 391 Any person or unit CL 392CL Any person Introduces a bribe to a state
CL 393CL Any unit Other bribes for the purpose of
CL 395 State functionary
CL 396 State-owned unit
CL 397CL Any functionary of a state
CL 398CL Any person Divulges State secrets 1M to 10Y CL 399 to 401 Any judicial officer CL 402 to 419
Country Section Subject Behavior Object / Funds Punishment Confiscation China Criminal Public servant Embezzles Public money or 1: Up to 2Y detention
541 RESOURCE MATERIAL SERIES No. 56
Property
Up to 3Y or fine or both
Up to 3Y or fine or both
Up to 3Y or fine or both
Up to 3Y or fine or both
Up to 2Y or fine
Up to 1Y or fine or both
Up tp 1Y or fine or both
Up to 3Y or fine or both
Up to 1Y or fine or both Up to 2Y or fine or both
6M to 5Y and fine
6M to 5Y and fine
6M to 5Y and fine
6M to 5Y and fine
1Y to 7Y and fine 2Y to 7Y and fine
3Y and fine
Illegal gratification
Illegal gratification
consideration
Valuable thingValuable to 5Y and fine 6M
Takes gratification to influence a Takes public servant by corrupt or illegal means
Takes gratification to influence a Takes public servant by corrupt means Abets taking Illegal gratification
sections 161 to 165
(to cause injury to any person)
with intent to cause injury
property
Taking gratification to influence a Taking public servant by corrupt means
personal influence with public servants
sections 8 and 9
sections 7 and 11
under sections 7 and 12
under the Act under the
other person
1860 Section 161 PC 162 Any person
PC 163 Any person
PC 164 Public servant abetted
PC 165 Public servant or obtains Takes things without Valuable
PC 165A Public servant Abets offences under
PC 166 Public servant Disobeys a direction of the law
PC 167 Public servant Frames an incorrect document
PC 168 Public servant Unlawfully engages in trade PC 169 Public servant Unlawfully buys or bids for
The PreventionPublic servant gratification Takes Gratification to 5Y and fine 6M
of Corruption Act of Corruption 1988 Section 7 PCA 8 Any person
PCA 9PCA Any person gratification to exercise Takes
PCA 10PCA Public servant Abets an offence under
PCA 11PCA Public servant Obtain without consideration PCA 12PCA Any person Abets the offence under
PCA 13 Public servant Criminal misconduct PCA 14PCA Public servant Habitually commits offences
PCA 15PCA Any person Attempts to commit offences
Country Section Subject Behavior Object / Funds Punishment Confiscation India Code Penal Public servant Takes Illegal gratification
542 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
Equivalant
Equivalant
Equivalant
Equivalant
Equivalant
Equivalant
Equivalant
1M to 10Y
1M to 1Y
Fine up to 30,000 yen
Up to 3Y or fine up to 3,000,000 yen in the lcase of juridical person: 300 million yen
Bribe 1M to 7Y Bribe or Monetary
Bribe 1M to 5Y Bribe or Monetary
Bribe 1M to 5Y Bribe or Monetary
Bribe 1Y to 15Y Bribe or Monetary
Bribe 1M to 5Y Bribe or Monetary
Bribe 1M to 5Y Bribe or Monetary
Authority 6M to 10Y Equivalant Status 1M to 7Y
Authority/Status 2Y to 15Y
Status 1Y to 10Y Status 1Y to 10Y
Authority 1Y to 10Y
Secret 1M to 1Y
Secret 1M to 1Y
Any pecuniary or other advantage
Accept Bribe 1M to 5Y Bribe or Monetary
Accept with entreaty
Accept with entreaty
Causes to be offered to third persons Accept with dishonest act
Accept with dishonest act
Abuses authority (special Public officer) Violence and cruelty Violence (Special Public Officer) Aggravation by result
Let prisoner escape
official duty
Drafts false official document
of business
Disclose secrets obtained from
Assumes position as director or advisors in private company or runs such a business Disclose secrets obtained from
or arbitrator
ex-arbitrator
guarding or escorting person
guarding or escorting person
National public officer and ex-officer official work Fine up to 30,000 yen
ex-officer
and ex-officers official work Fine up to 30,000 yen
197.1.1st PC 197.1.2nd Public officer or arbitrator
PC 197.2 person to be a public officer A
PC 197-2 officer or arbitrator Public
PC 197-3.1,2 officer or arbitrator Public
PC 197-3.3 officer or Ex-public
PC 197-4 officer Public (for exertion of influence) Bribe
PC 193 Public officer authority Abuse Authority 1M to 2Y PC 194 Judicial, prosecutor or police
PC 195.1,2 Judicial, prosecutor or police
PC 196 Judicial, prosecutor or police
PC 101 Gurding or escorting person PC 138 Customs official by reason of Aggravation
PC 156 Public official
PC 253 Any person Embezzles in the conduct
PC 246 Any person Fraud 1M to 10Y PC 235 Any person Larceny to 10Y 1M
National Public Service Law 100.1 NPSL 103NPSL National public officer and
Local Public Local public officer
Service Law 34.1 Unfair Any person Give, offer or promises bribe to Competition foreign public official a Prevention Law 13
Country Section Subject Behavior Object / Funds Punishment Confiscation Japan Penal Code Public officer or arbitrator
543 RESOURCE MATERIAL SERIES No. 56
than
than
than
than
than
3Y or fine or both 3Y or fine or both 2Y or fine
3Y to 10Y
10 thousand ringgit
Not less than 14 days and not more 20Y, and fine not less than 5 times 20Y,
the sum or value or 10 thousand ringgit, whichever the higher Not less than 14 days and not more
20Y, and fine not less than 5 times 20Y, the sum or value or 10 thousand
ringgit, whichever the higher Not less than 14 days and not more
20Y, and fine not less than 5 times 20Y, the sum or value or 10 thousand ringgit, whichever the higher
Not less than 14 days and not more 20Y, and fine not less than 5 times 20Y, the sum or value or 10 thousand ringgit, whichever the higher
Not less than 14 days and not more 20Y, and fine not less than 5 times 20Y, the sum or value or 10 thousand ringgit, whichever the higher
Not less than 14 days and not more
20Y, and fine not less than 5 times 20Y, the sum or value or 10 thousand ringgit, whichever the higher
14Y or fine 20 thousand ringgit or both
consideration
Gratification to screening a person from legal punishment
Bribes, gratuity, 3Y or fine not more recompense, reward for
neglecting duty Gratification to do or not
transaction
Any gratification as inducement to do or not
their principal’s affairs their principal’s Fraud
Any gratification for not
voting, preventing the
passing of any vote in their capacity as such an officer
Any gratification
Abets taking Illegal gratification
Accepts, agrees or attempts to
Accepts, agrees or attempts to obtain
Corruptly solicits, receives or
Corruptly accepts, obtains or
obtain to do any act in relation to
Knowingly gives or uses a false,
Solicits or accepts
Uses office or position
Attempt to commit offences under the Act under the
Uses position or office for
Public servant abetted other persons
servants obtain
persons employed for the prevention of smuggling Any person including public
officers agrees to accepts or attempts to
officers erroneous or defective document
Any public officer or any person
PC 164 PC 165 Public servants or obtains Takes thing without Valuable
PC 213 Any person including public
Customs ActCustoms of customs or Officer other 137 (1)(a)(b)(c)
Anti Corruption Act 1997 10 servants agrees to receive to do any matter or
ACA 11(a)ACA Any agent including public
ACA 11(c)ACA Any agent including public
ACA 14ACA Any public body officer
ACA 15ACA Any public body officer
ACA 20
Ordinance Public officer or members of No.22 administration or other pecuniary advantage
Country Section Subject Behavior Object / Funds Punishment Confiscation Malaysia Penal Code 161Public servants Takes Illegal gratification
544 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
Confiscation
Property acquired
Property acquired
Property acquired
Property acquired
Property acquired
Property acquired
Punishment 1Y to 3Y or fine or 200 pounds to 500 pounds or both 1Y
2Y
5Y to life 2,000 to 40,000 baht 5Y to death 2,000 to 40,000 baht 5Y to death 2,000 to 40,000 baht 5Y to life 2,000 to 40,000 baht 1Y to 10Y 2,000 to 40,000 baht 5Y to life 2,000 to 40,000 baht 1Y to 10Y or death 2,000 to 40,000 baht 1)6M to7Y 1,000 to 14,000 baht 2)life or 1Y to 20 and 2,000 to 40,000 baht 5Y to death 2,000 to 40,000 baht 5Y to death 2,000 to 40,000 baht 3Y to 5Y 1/2 preceding article 15 days to 1Y Fine, 50 to 1,500 bolivar 18M to 5Y 3Y to 10Y and fine 20% to 60 % of misappropriate money 3M to 1Y
Object / Funds Bribe
Embezzlement
Tyrany/Entering without court order Anything
Property or any other benefit Bribe
Bribe
Any kind of benefit
Bribe
Bribe
Bribe Bribe Power abuse Power abuse Extortion Misappropriate
Misappropriate
Behavior Accept
Embezzles
Abuses authority
Misappropriates
Misuses power
Demand, accepts
Demand, accepts (before being appointed) Embezzles
Evades taxes
Misuses power
Misuses power
Demand,accepts
Demand,accepts (before being appointed) Accepts Gives Does Does not Requests Misappropriate Gives opportunity to another person
Subject Public officials
Public officials
Public officials
Public officers
Public officers
Public officers / politician
Public officers
Public officers
Public officers
Public officers
Public officers / (in judicial office)
Public officers / (in judicial office) Public officers / (in judicial office) Public officer Anybody Public officers Public officers Public officers Public officers
Public officers
Section Penal Code No.41 (1944) 106,107, 108,109 PC No.57 (1946) 110,111 PC No.57 (1946) 112 Penal Code 147
PC 148
PC 149
PC 150
PC 152, 153
PC 154 to156
PC 157
PC 200
PC 201
PC 202
Penal Code 199 PC 200 PC 204 PC 207 PC 196 Organic Law of
Safeguarding Public Administration 58 OLSA 59
Note: Y= years, M= Months Note:
Country Palestine
Thailand
Venezuela
545 REPORTSRESOURCE MATERIAL OF THE SERIES COURSE No. 56
GROUP 2
CURRENT PROBLEMS IN RESPONDING TO THE CORRUPT ACTIVITIES OF PUBLIC OFFICIALS AT THE INVESTIGATION AND TRIAL STAGES, AND SOLUTIONS FOR THEM
Chairperson Mr. Sardar Muhammad Raza (Pakistan) Co-Chairperson Mr. Tamotsu Hasegawa (Japan) Rapporteur Mr. Emmanuel Onuoha (Nigeria) Co-Rapporteur Mr. Yasushi Hatayama (Japan) Members Mr. Luis Artigas Jr. (Brazil) Mr. Ruben Maitland (Grenada) Mr. Yuji Suzuki (Japan) Mr. Yasuhiro Muraki (Japan) Mr. Omur Nogoyev (Kyrgyzstan) Mr. Nihal Sunil Rajapaksa (Sri Lanka) Advisers Professor Keiichi Aizawa (Japan) Professor Hiroshi Iitsuka (Japan)
I. INTRODUCTION the various countries, were discussed exhaustively. The group also identified The group discussion on current appropriate solutions for the detection and problems and solutions in responding to the investigation of corruption in the public corrupt activities of public officials at the sector, and recommended these for investigative and trial stages was executed implementation by relevant agencies in under three sub-topics. The first part dealt different countries. with the problems and solutions for securing independence and neutrality of Thirdly, the group examined the the investigative agencies and the courts. problems of and solutions for speedy and The target of this sub-topic was to obtain efficient administration of trial. The focus an overview of the current structure, of discussion was on the necessity for the function, and control of investigative introduction of witness protection agencies and the courts in the participants’ programs, the reversal of burden of proof, countries, and to find appropriate or resources at the disposal of trial courts, recommendable measures to achieve witness cooperation, dilatory tactics of the independence and neutrality. defence, court monitoring systems and sentencing patterns. Secondly, the problems and solutions for detection and investigation of corruption Finally, the mass media’s role in by public officials was the subject of exposing corruption, as an instrument of discussion in sub-topic two. Here, issues public mobilization against corruption, as regarding the problem of gathering well as its influence on the investigative information, securing the cooperation of agencies and trial courts in the people involved in the case, investigative participants’ countries, was discussed. tools, investigators’ skill, and coordination among different investigative agencies in
546 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
II. PROBLEMS AND SOLUTIONS (i) Designation of Conventional or Special FOR SECURING THE Organs for Investigation and Trial INDEPENDENCE AND The important issue to consider here NEUTRALITY OF INVESTIGATIVE is whether the agency is part of a AGENCIES AND THE COURTS ministry as a government bureau or is a special organ directly under the A. Problems Parliament, Prime Minister/President The police force is widely accepted as the or some other independent committee. conventional organization responsible for criminal investigations in many countries. (ii) Procedure for the Appointment and However, because it is also the duty of the Maintenance of Supervisory Control police to maintain law and order (an issue over the Investigative Agency and Trial for which society also holds the executive Court directly accountable), the tendency in some The points of concern are the system of countries is to avoid making the police appointment of personnel, terms of completely independent of executive employment, measures against control. The executive can apply controls unwarranted dismissal, and fair through appointment or discipline of police disciplinary procedures to secure their chiefs, budget, and different forms of impartiality in the course of duty. regulation. Where this is the situation, the Moreover, which agency should independence and neutrality of the police supervise the operation of the in handling cases in which public officials designated agency? charged with this duty of control are involved, may be seriously jeopardized. (iii)Budgetary Control over the Investigative Agency and the Courts Since in several countries public officials It is important to determine if the are the main target of legislation against agency would be better off sourcing its corruption, the suitability of the police as funding directly from the legislature, the sole criminal investigative organ has or to depend on some other come under wide review. In some governmental organization. countries, the police and the public prosecutor share this function, while in B. Analysis of the Current Situation others special agencies are set up to in Participating Countries investigate corruption offences. 1. Brazil The police service is responsible for the The above situation is also true of trial investigation of all criminal matters courts. The conventional courts may prove including corruption cases. This duty is inadequate to address the level of spelt out in the Federal Constitution. The corruption in some countries, necessitating criminal legislation is contained in a the designation of special courts for this federal criminal code and is enforced by the purpose. However, whichever agency or federal police in the federal domain and by court a country may use, the important the state civil police services in the state issue is the guarantee of its independence domain. The police do not require external and neutrality in the execution of the permission to begin or prosecute a case. assigned function. The major elements with which the independence and The Governor appoints the State neutrality of such an agency or court may Secretary of Public Safety, the Police Chief be evaluated are: General and the Chief Justice. Decisions
547 RESOURCE MATERIAL SERIES No. 56 about promotions and dismissal of such Annually, the Ministry of Finance officers are also made by the Governor. The requests and disburses budgetary support Governor can veto the decision on an officer for the police under a separate vote. In all considered guilty after an administrative serious criminal investigations, the process, and the decision of the Director of Public Prosecutions must be Administrative Court is not binding on notified and s/he provides advice. The him/her. Furthermore, the assignment of independence of the judiciary is guranteed police officers, prosecutors and judges to under the country’s constitution. Grenada respective state units/branches is also the has no special courts for corruption prerogative of the Chief General of each offences. institution, and may be politically influenced. 3. Japan The police (prefectural police) and public The executive arm of government prosecutors are responsible for the proposes the police annual budget and investigation of corruption offences. There submits it to the legislature for approval. is no specialized anti-corruption agency in Thereafter, disbursement of the fund is Japan. However, the three major District carried out by the executive. From this Public Prosecutor’s Offices (Tokyo, Osaka arrangement, it is obvious that the and Nagoya) have Special Investigation executive has extensive control over the Departments, which have successfully appointment and promotion of police investigated a number of corruption cases leadership, as well as budgetary control of involving high-ranking government the agency, which can affect its officials and politicians. This system independence and neutrality in handling appears to be working efficiently because issues involving high-level public officials. of mutual cooperation between the police An agency whose independence is and the public prosecutors, as well as their guaranteed is preferred. The independence independence from political influence being of the judiciary is guranteed under the sufficiently maintained. Constitution. There are no special courts for the trial of corruption cases. The public prosecutors are appointed by the Minister of Justice and are under his 2. Grenada control generally in regard to their The Royal Grenadian Police is the only functions. However, each public prosecutor organ responsible for the investigation of is authorized to conduct their duties all criminal offences, including corruption. independently from political influences, It is not under the statutory control of any and they enjoy almost the same guarantee other organ of government when of status as judges. In addition, the conducting an investigation. Minister of Justice is authorized to control only the Prosecutor-General in regard to The appointment of the head of the Royal the investigation and disposition of Grenadian Police is made by the Governor- individual cases. In this way, the General, on the advice of the Prime independence of prosecutors is secured. Minister. The Prime Minister almost always assumes control of the Ministry of On the other hand, prefectural police National Security under which the police are established as one of the organizations fall. The Police Commissioner may be of each local government. In order to secure appointed from outside the police service. the political neutrality of the police, it is subject to the control of the Public Safety
548 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
Commission, which is not under the Affairs also disburses the police budget. command nor order of the prefectural The perception is that if the independence governor. In Japan, independence of the and neutrality of the police is not directly trial courts is guranteed. There are no influenced by the Head of State, it could special courts for corruption cases. also be checked through other State apparatus. This situation is amply 4. Kyrgyzstan expressed in the low budgetary provisions The Ministry of National Security, made for the police in the past which, Ministry of Interior Affairs and the Public combined with other factors, tend to erode Prosecutor’s Office are responsible for the public confidence in the ability of the police investigation of corruption offences in to fight corruption. The President has Kyrgyzstan. already sent a Bill to the National Assembly for the establishment of an The head of the Ministry of National independent agency to investigate Security, Ministry of Interior Affairs and corruption offences. the Prosecutor-General are appointed by the President, on the recommendation of The independence of the judiciary is the Prime Minister. The office of the public protected by the Constitution. However, prosecutor is an independent entity. The there were cases of the forceful retirement parliament controls the budget of the above of judges in the past. Moreover, the investigative organs. The salary of public judiciary would like to have their budget servants, including the police, is allocated directly by the National inadequate. Assembly. No special courts are designated to try corruption offences. There is no obvious political or administrative interference in the duty of 6. Pakistan these agencies, and although Krygyzstan In Pakistan, two agencies are is still a young republic, so far the agencies responsible for the investigation of are effective in controlling corruption. The corruption offences. They are the Anti- courts are independent. Corruption cases Corruption Establishment which was set are tried in conventional courts. up in 1947, and the Ehtesab (Accountability) Commission which was 5. Nigeria added in 1998 to complement the activities The Nigerian police force is charged with of the Anti-Corruption Establishment. The the duty of investigating all criminal cases Anti-Corruption Establishment is headed in the country, including corruption by by a director who is subject to appointment public officials. There are special units or removal by the government. S/he is within the police service responsible for the completely controlled by the government, investigation of cases of corruption. and operatives are often seconded from the police service (to where they can also The Inspector-General of Police is return). On the other hand, the Chief appointed by the President. He can also Ehtesab Commissioner is appointed by the fire him; and this prerogative has been government in consultation with the leader exploited especially by military regimes, of the opposition in the National Assembly without explanation. The Ministry of and the Chief Justice of Pakistan. The Police Affairs exercises control over the Chief Ehtesab Commissioner cannot be promotion and discipline of senior members removed from office, except by a decision of the police service. The Ministry of Police of the Supreme Judicial Council on charges
549 RESOURCE MATERIAL SERIES No. 56 of misconduct. The budget of the Anti- fund created in the Constitution. Their Corruption Establishment is controlled by salaries cannot be diminished during the the Finance Ministry. The Ehtesab period of service with the Commission. Commission gets its budget from the Investigators are usually seconded from parliament. the police. Only two courts located in the national capital try corruption cases. The In the wake of the prevailing independence of the Commission and the circumstances, the independence of the judiciary is guaranteed by the Constitution. Anti-Corruption Establishment is yet to be assured. However, the Ehtesab 8. Hong Kong Commission enjoys a reasonable degree of In Hong Kong, the Independent independence although, there is public Commission Against Corruption (ICAC) is apprehension that the agency might be responsible for the investigation of used against groups opposing the corruption offences. This agency has three government in power. functional departments: namely Operations, Corruption Prevention and In Pakistan, the Constitution Community Relations. Respectively, these guarantees the independence of the departments are responsible for the judiciary. There are specific judges investigation of corruption offences, assigned to try corruption cases. However, plugging of corruption loopholes in the financial resources of the judiciary are institutional practices and procedures, and very lean. Moreover, judges are sometimes the education and enlistment of public appointed from outside the bench. support. Because, therefore, of the financial insecurity of the judges, and the lack of The head of the ICAC, the confidence and overt political inclination Commissioner, is appointed by the of those judges appointed from outside the Governor. The Commission is independent bench, they sometimes cannot exercise in its operation, however its activity is their independence. monitored by the legislature. It also has four advisory committees chaired by non- 7. Sri Lanka members. A Complaints Committee acts Sri Lanka has established a separate as check on the agency. The ICAC budget agency known as the Allegations of Bribery is guaranteed by law and is provided and Corruption Investigation Commission, directly by the legislative arm of to deal with corruption cases. The government. The agency receives sufficient Commission is statutorily independent. resources for its day-to-day operations and The members cannot be removed from to hire professionally competent staff. office except by a two-third majority decision of the Parliament. Members of the C. Recommendations for Achieving Commission consist of two retired judges Independence and Neutrality of of the Supreme Court or Court of Appeal Investigative Agencies and the and one senior officer of a law enforcement Courts branch. Depending on the situation in each country, the choice in features of a The President appoints members of this particular agency will differ considerably. commission in consultation with the Prime However, sustainability of the Minister. The salary of members of the independence and neutrality of any agency Commission is paid from a consolidated saddled with the responsibility of
550 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE investigating corruption cases hinges on securing the independence and the following factors: neutrality of such an institution.
(i) The strengthening of the (v) The budget of the judiciary and the commitment to duty, professionalism investigative agency should not be and economic base of the operators subject to undue bureaucratic control. of the system through adequate If a special agency is responsible for remuneration and training. This is investigation, ideally the parliament judged necessary to increase their should allocate funds directly to this confidence and self esteem, and to institution. avoid external influence. III. PROBLEMS AND SOLUTIONS (ii) E x c l u s i o n o f p o l i t i c a l a n d FOR DETECTION AND bureaucratic control by applying INVESTIGATION constitutional as well as legislative checks against any interference with A. Problems and Solutions for the independence of the investigation Gathering Necessary Information agency and trial courts. Legislation and for Securing the Cooperation is required to curtail excessive of People involved in the Case discretionary powers of the executive The issues involved in the detection and arm of government and bureaucrats, investigation of any criminal case will and to infuse transparency into include: cognizance of the crime, governance, as well as the guarantee determination of time of its occurrence, the of basic freedom. modus operandi of the perpetrators, persons involved in the act (including their (iii) Democratization of procedures for various degrees of involvement) and appointment of judges/magistrates possibly, reasons for the crime. To resolve and the leadership of the these issues, the investigator mainly investigating agency. engages in the collection, analysis and communication of data related to the (iv) Establishment of an independent offence. agency to investigate corruption cases in those countries in which the In corruption cases, the task of the current system is not effective. investigator is often exacerbated by the However, countries that prefer the uniquely limited sources of information. use of a distinct agency to combat Discussion on this sub-topic sought to corruption are advised to refer to the identify the sources of information open to Global Program Against Corruption1 the investigator, and the provision of an for the guidelines necessary for enabling environment for the detection and investigation of corruption offences.
1 This document was jointly prepared in February 1. Sources of Information 1999 by the Centre for International Crime (i) Investigation of Other Cases Prevention, Office for Drug Control and Crime An investigator may come across Prevention, and the United Nations Interregional information on corruption committed Crime and Justice Research Institute. It outlines by a public official while in pursuit of the general principles guiding the establishment a different case. This happens more of a national anti-corruption investigative unit, its frequently during investigations of functioning, resources and operational methods.
551 RESOURCE MATERIAL SERIES No. 56
money laundering and tax evasion of information like in Indonesia, cases. The experience in Japan and Hong Kong, Nigeria etc. other participant countries has confirmed that this is an important (vi) Other Departments/Agencies means to reveal corruption cases Corruption of public officials may be which might otherwise remain revealed through information unnoticed. supplied by other government agencies, such as the audit/inspection (ii) Accusation/Complaint departments, tax agency or Securities An individual or non-governmental Exchange Surveillance Commission. organization might also file a In Japan, this is a useful source. complaint with the investigating agency regarding the corrupt activity 2. Associated Problems of a public official. In this case, the Although the sources mentioned above complainant is usually willing to are available to the investigator to obtain cooperate with investigators, information regarding the corruption of although in many countries people public officials, there are nonetheless seldom use this approach. problems associated with the collection of such information and for securing the (iii) Information Media cooperation of people involved in the case. Through investigative reporting, the These problems include: news media sometimes reveals corruption cases. This is the case in (i) Unwillingness to Make Complaints/ all participant countries. Accusations People are often unwilling to reveal (iv) Observation of Parliamentary corruption cases because of fear of Question and Answer Sessions reprisals that may endanger their life The corrupt activity of public officials or career prospects, rejection from may be revealed by investigators colleagues or peer groups, official through their private observations or secrecy laws and red tape, or lack of information obtained during confidence in the investigative organ. parliamentary question and answer It may also be that those who know sessions. Investigators in Japan about the crime are also involved in utilize this source. it. Whatever reason is responsible for the people to adopt this position, the (v) Anonymous Reports effect is felt in most participating Sometimes people who do not want countries. to disclose their identity pass information to the investigating (ii) Late Revelation of Incidents agency to reveal the corrupt activities In several countries, as is the case in of public officials. These people may Nigeria and Pakistan, the tendency also take the cover of fictious names. is for people to make a complaint In some cases, they may have insider about the demand of a bribe by a information or they might come from public official when the official fails outside the organization. Anonymous to deliver the promise. In such cases, reports are more frequent in regions the official may have noticed the where special post office box numbers strained relationship with the victim are provided to encourage the passing and taken necessary action to cover
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the trail. This is also true of cases (iii) Witness Protection revealed through the mass media. Each agency should promote strong witness-protection schemes to (iii) False Complaints safeguard witnesses from When complaints of corruption are victimization arising from received, it is the responsibility of the cooperation with the organization. investigator to verify such complaints. In many cases, B. Problems and Solutions for complaints may be made to gain Improving Investigative Tools advantage over rivals or for several 1. Problems Posed by Insufficient other malicious purposes, in which Investigative Tools case they may be fabricated. This is In some of the participant countries, typical of complaints received from investigation of corruption offences is anonymous sources or accusations actually hampered by the inadequacy or made by political opponents in the total lack of necessary tools. The group participating countries. discussion considered some of the problems that confront investigators, caused by the (iv) Refusal to Testify lack of necessary tools for efficient In many cases in the participating investigation, under the following sub- countries, there are people who may headings: be willing to reveal corruption cases but are not inclined to being used as (i) Resources witnesses in court. This attitude may (a) Infrastructure be developed due to perceived lengthy In developing countries like periods of investigation and trial, Grenada, Nigeria and Pakistan, absence of effective witness the movement of investigators is protection schemes, or fears of often hampered by inadequate cultural sanctions. means of transportation. There are also situations when the only 3. Recommended Solutions means of communication is by (i) Improving Tools for the Collection of telephone systems which may not Information be reliable. Moreover, these Agencies are encouraged to set up agencies lack basic case information collection centers management tools like computers (information boxes, hot-lines, etc). and necessary office equipment. The P.O Box 1000 of Hong Kong, P.O Box 5000 of Indonesia and A22 of (b) Finance Nigeria are applicable examples. Efficient investigation requires the availability of funds for (ii) Public Education information, to offset The investigating agencies should investigators’ travel expenses, and create a section within their to meet other incidental needs. organization whose duty will include Adequate funds are also required public education on the evils of to provide the training necessary corruption and the need to expose it for improved investigator wherever it is found. This is already performance and the acquisition being implemented by the ICAC in of relevant equipment. However Hong Kong. in some countries, sufficient funds
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are not provided to meet these (iii) Secrecy of Financial Transactions needs, either because of the In most of the participant countries, weakness of the economy or financial institutions are accorded simply that the needs of the some degree of secrecy from investigating agency are not given disclosing clients’ particulars to any adequate priority. investigating agency, unless a warrant is obtained from a court of (ii) Covert Operations competent jurisdiction. Moreover, The activities categorized under this where there is the need to check the sub-heading include decoy account record within a limited time, operations, communication even the need to obtain a warrant is interference and electronic considered a hindrance to timely surveillance. Decoy operations are investigation. carried out in several forms. One form is the trap procedure, applied 2. Solution for Improving Investigative where a person approaches the Tools investigative agency to file an official (i) Agencies should endeavor to install complaint that a public officer is and use computerized criminal demanding a bribe. The use of information management systems for undercover agents is another form of faster storage and retrieval of decoy operation. Furthermore, covert information. Adequate security operations may be implemented controls should be built into the through interference with the means system to safeguard it against misuse. of communication or other forms of An integrated criminal justice electronic surveillance. information system, is a model that may be adopted by all the countries. Whereas in some of the participants’ countries like Brazil, Nigeria, (ii) Investigative agencies should be Pakistan and Sri Lanka, the trap adequately equipped with procedure is used to obtain operational vehicles, and necessary corroborative evidentiary facts in communication equipment. They bribery cases, it is judged a breach of should also be provided with the basic rights of the accused in adequate operational funds by the other countries. Moreover, Brazil is government, especially where there currently the only country in the is the political will to combat group where communication corruption. interference is legally permissible, with judicial approval, as a means of (iii) It may be necessary to review the securing evidence in corruption cases. existing laws in some countries to In view of the covert and consensual secure evidence through covert nature of the environment in which operations and also to guarantee the corruption is executed, the judicial admissibility of such evidence. unavailability of these covert tools to This will depend on the situation of investigators in the countries where corruption in each country and the their use is not permitted might people’s reception of such a measure. constitute some obstacle to successful It is recommended, however, that its investigation. application be subject to judicial control, to avoid abuse.
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(iv) The investigating agencies should investigators are often overworked. work in concert with the financial Not only does this affect the amount institutions for the examination of a of time they can devote to a given suspect’s financial records without case, it may sometimes result in the the hindrance of secrecy regulations, embarrassment of the agency, as is the case in Japan. In addition, especially if there is pressure from legislation should be made in each government, the press or the public. country to make it mandatory for Heavy workloads also do not leave financial institutions to report the investigator, and invariably the transactions exceeding an amount to agency, adequate time to analyze the be determined by the circumstances underlying issues involved in of the relevant country. corruption cases, in order to devise a strategy to combat it in the long run. C. Problems and Solutions for Improving Investigator’s Skills (iv) Integrity Issues 1. Problems Associated with Unfortunately, in some agencies the Investigator’s Skill level of corruption is high and this (i) Assignment of Inexperienced gravely impinges on the performance Personnel to Investigate Corruption of the individual investigator. Cases The covert and consensual 2. Solutions for Improving Investigator environment in which corrupt Skill activities are executed often entails (i) Develop Professionally Competent the application of a wide range of Investigative Teams experience in the area of In each agency, the leader of an investigation to successfully solve a investigation team should possess case. However, in some of the adequate legal knowledge and participating countries, rookies may operational experience. In addition, be assigned to the investigation of s/he should have maintained an these cases. The consequence of this impeccable integrity record. is obvious. (ii) Specialized Training (ii) Lack of Relevant Skill The agency should endeavor to avail Investigation of corruption cases investigators of the opportunity for often involves the examination of specialized training, especially in complicated financial and computer accounting and information systems, records. However, not many at the local and international level investigators possess the expertise to (when appropriate). perform such examination. Under these circumstances, it would appear (iii) Re-training that criminals are operationally Agencies are enjoined to update the ahead of the law enforcement, which skills of investigators, when is not desirable. necessary, through re-training programs. (iii) Heavy Workload In view of the limited number of (iv) Adequate number of skilled investigators with relevant personnel should be deployed to the experience and skill, these investigation of corruption cases.
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Ideally, the agency would need to set corruption are transferred outside up an analysis unit. the country of the perpetrator, legal differences usually make it very (v) Investigation by public prosecutors, difficult for vital information as long as it complies with the basic regarding the transaction to be legal system of the country, might be obtained, and for the repatriation of an effective tool to tackle corruption such funds. by politicians and high-ranking officials. Among the participating 2. Solutions for Better Coordination countries, public prosecutors in (i) Multi-Agency Committees Japan effectively carry out their It is not helpful for inter-agency authority to investigate corruption cooperation on criminal cases on the basis of their knowledge investigations to be on an ad hoc and expertise in law, as well as their basis. Multi-agency cooperation political neutrality. within the same country is important since it will provide the forum for D. Problems and Solutions for different agencies to share vital Coordination amongst Different information and to discuss various Investigative Organizations issues of common interest. In this 1. Problem of Coordination regard, each country should consider (i) Absence of Multi-Agency Forums the establishment of a Multi-Agency In the different countries, there are Committee Against Corruption. This no common forums for exchange of committee is to be comprised of information or ideas for the agencies representative(s) of the agency involved in the fight against responsible for investigation of corruption. Inter-agency cooperation corruption, as well as other members is on a case-by-case basis, and is not from various government institutionalized. Worse still, departments. Their mission will be unhealthy rivalry may develop the exchange of information and among the different agencies, ideas on how to tackle the especially when their duties overlap. phenomenon of corruption. This state of affairs cannot provide a suitable environment for effective (ii) Notification of Audit Query control of corruption. Internal and external audit reports should be given high priority and (ii) Audit Query attention. Moreover, there should be In some countries, audit queries are cooperation between the different not made available to anti-corruption audit units. Copies of any adverse investigation agencies for scrutiny. audit reports should be made This results in the loss of opportunity available to anti-corruption for detecting corruption in the investigation agencies for organizations concerned. information and perusal.
(iii) Differences in Legislation (iii) Bi-lateral Agreements Differences in the laws of each Although each country’s laws are country often pose a serious threat made to suit the culture of the people, to international cooperation against one cannot lose sight of the effects of corruption. Where the proceeds of globalization resulting from
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advancement in information Grenada, Japan, Kyrgyzstan and technology. The proceeds from Nigeria, there are no special corruption are usually transferred courts to try corruption cases. offshore to safe havens by the Even in Pakistan and Sri Lanka, perpetrators. It is important to find where specific courts are new ways of cooperation amongst the designated to try corruption cases, different countries to combat the number of cases they have to corruption. At the international level try by far outweighs their efficient therefore, each country should strive operational ability. The result is to increase bi-lateral or even multi- that many cases are fixed for lateral agreements with different hearing on any given date, which countries on criminal matters. Such subsequently lead to frequent agreements are especially relevant to adjournments. Moreover, judges combat money laundering. are left with little time to write judgements or even to prepare IV. PROBLEMS AND SOLUTIONS adequately for court hearings. FOR SPEEDY AND EFFICIENT ADMINISTRATION OF TRIAL (b) Inexperience of Trial Judges/ Magistrates A. Problems Affecting Speedy Trial Incompetence and ignorance of While discussing the topic, the group the law and lack of experience of considered the factors involved in criminal some judges/magistrates is judged trial with a view to identifying associated as a contributory factor for delay problems. For corruption cases, the in trial. This class of judges/ following issues were examined: magistrates often fail to take proper control of proceedings (i) Resources available to the Courts during court sittings to such an (ii) Role of the Prosecution extent that valuable time is lost (iii) Witnesses Cooperation on unnecessary cross-examination (iv) Defense Tactics and arguments. (v) Related Legal Issues (vi) Sentencing Patterns (c) Unskilled Court Assistants (vii) Control Measures Another major source of trial delay in several countries is the B. Analysis of Current Problems lack of competent and skilled court The common problems identified at the administrative personnel. These trial stage in corruption cases include: courts rely on unqualified court registrars, secretaries and bailiffs 1. Resources Available to Trial Courts to assist the judge/magistrate. (i) Manpower Resources (a) Excessive Caseload (ii) Material Resources Most of the participants reported (a) Equipment that although the cases the courts In some of the participating have to handle are on the increase, countries, court proceedings are there is no commensurate manually recorded by the judge/ increase in the number of judges/ magistrate. This is especially the magistrates to deal with these case in Grenada, Kyrgyzstan and cases. In countries like Brazil, Nigeria. In these countries also,
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the office equipment necessary for (ii) Report of Experts fast reproduction of court In Brazil, Grenada, Nigeria, Pakistan proceedings, such as word and Sri Lanka, expert reports take a processors or photocopiers, are long time to be obtained because also lacking. there are few recognized experts. These reports may be laboratory (b) Finance reports needed for cases in which a Perhaps the biggest problem covert operation is used to obtain facing the judiciary in the evidence, or the report of an expert participating countries is to deal handwriting analyst for disputed with lean budgetary provisions. documents. Thus, trials are In Brazil, Grenada, Kyrgyzstan, sometimes adjourned awaiting the Nigeria, Pakistan and Sri Lanka, receipt of an expert opinion. salary and conditions of service of judges/magistrates and ancillary (iii) Lack of Preparation staff leaves much to be desired. In several countries, the prosecutors This has tended to imbue low are few compared to the number of morale in the system. Financial cases they have to deal with. These inadequacy sometimes also prosecutors do not have enough time hinders, or even stalls, the to prepare their cases, and coupled smooth-running of the courts, with inexperience, they are often thereby delaying trial. inclined to seek adjournments to enable them to prepare to handle the 2. Prosecution Problems issues raised by the defence. (i) Burden of Proof One of the tasks encountered in 3. Witnesses criminal trials is for the prosecution (i) Non-Attendance to prove the guilt of the accused. This Another contributing factor to delay task may pose a problem in in trial of corruption offences is the corruption cases where the failure of witnesses to attend court prosecution is required to prove the sessions when required. This receipt of the bribe, despite the situation arises especially in cases peculiar circumstances of the crime. where the prosecution may be In Pakistan, there is a law which transferred to a different location and shifts the onus of proof of innocence may not be summoned in time. to the accused, when the prosecution However, the situation is worse in has otherwise proved that such an countries where there is no adequate accused is in possession of assets well compensation for witnesses’ beyond visible earnings. This is not expenses. the case in all other participant countries, hence the prosecution (ii) Witness Protection bears the entire burden of proving In most countries in the group, there that the assets in excess of official is no protection scheme for trial remuneration were obtained through witnesses in corruption cases. bribery. Prosecutors in these Moreover, it is difficult to secure countries feel that this is an direct witnesses in corruption cases, enormous task and contributes to except those who may have delay in trials. participated in the crime. However,
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in a country like Kyrgystan, there is (ii) Modernization of Judicial no legal provision to allow any of the Information Systems accused persons as a witness for the It is necessary that trial courts keep prosecution. abreast of developments in information technology and acquire 4. Defence the necessary equipment to improve Defence attorneys are in the habit of the speed and accuracy of the prolonging trial time through documentation of trials. unnecessarily lengthy cross-examination, disputation of exhibits being tendered by (iii) Training the prosecution, requests for adjournments Initial training is recommended for and absence from trial on flimsy excuses. judges/magistrates on first This perhaps is the chief cause of delay, appointment, as is the case in Japan. especially when the accused person had Furthermore, periodic group training been granted bail. courses may be required to update their knowledge and to share 5. Control Measures experience on trends in corruption It was also noted that in certain amongst public officials, and the countries, the judge/magistrates are not necessary legal and procedural working as hard as they should. adjustments for efficient and speedy Sometimes, the situation degenerates to trial of these cases. Such training truancy, especially as there appears to be courses will also enable each judge/ no authority designated to effectively magistrate involved to identify when monitor their output. In these cases, the and how to intervene, to minimize trial judges/magistrates contribute to trial delays that could arise due to defence delay by their bad work habits. dilatory tactics.
6. Sentencing Patterns (iv) Increased Budget The participants remarked that the The budget of the judiciary should be pattern of sentencing for the same offence enough to provide adequate salary often varies in different courts in the same and conditions of service for judges/ country. This practice may be caused by magistrates, public prosecutors and the differing disposition of judges/ court assistants. Improved budget magistrates and is considered inefficient, will also enable the payment of if not unjust. The variance in sentencing adequate compensation to witnesses is even more pronounced among different and the purchase of necessary countries as a result of legal differences. supplies for use in the trial courts.
C. Recommended Solutions (v) Self Monitoring of Trial Duration (i) Reduced workloads It may be necessary to establish To reduce the workload on trial effective procedures for self- judges/magistrates, we recommend monitoring of the operation and that the relevant authority in each productivity of judges/magistrates. country should appoint an adequate This will improve accountability in number of experienced trial judges. the system and enhance speedy trial. More court assistants would also be Furthermore, it is recommended that required to speed up the processing trial judges/magistrates should of court proceedings. endeavor to conclude all trials of
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corruption cases within a reasonable through consistent practice, gain the period, such as six months from the experience necessary to speed up date of indictment. However, in view trials, as well as conduct efficient of inherent variations in the proceedings. However, the complexity of cases and the different participants did not reach a situation of each country, the consensus on this issue, as it was also presiding judge/magistrate should argued that the designation of special submit a report to the supervisory courts will raise new issues of authority within the judicial branch independence. Moreover, it was for cases exceeding the relevant noted that the existing courts have period, to explain the underlying more fundamental issues like circumstances of the case and reasons manpower and resource problems to for the delay. grapple with before the consideration of special courts. (vi) Pre-Trial Meetings Pre-trial meetings involving (ix) Reversal of the Burden of Proof prosecutors, defence attorney(s) and It may be necessary to enact laws in the judge to discuss/determine issues each country requiring the accused involved in the particular case and in a corruption case to prove that agree on lines of argument to be assets considered disproportionate to pursued, may speed up the trial their income were not obtained process. For this procedure to be through corrupt practices. That such effectively applied, it is necessary for a law may be perceived in some all the parties to understand the countries as an infringement on the issues involved and also to take steps right of the accused to be presumed to avoid its abuse. innocent until the contrary is proved cannot be overlooked. However, (vii) Witnesses Protection considering that human rights are An adequate witness protection involved here, different countries scheme is recommended to be put in may have to deal with this issue place in all countries to secure depending on their peculiar witnesses from the danger posed by circumstances regarding corruption, reprisals that may be contemplated and the peoples perception of what by the accused or their associates. measures may be taken to combat it. This is a necessary condition to obtain In Hong Kong and countries like full witness cooperation in the trial India and Pakistan, such legislation of corruption cases. was necessitated by the general outrage against corruption at the (viii)Designation of Special Courts for time of introduction. Corruption Offences As stated earlier in this report, (x) Equitable Sentencing Pakistan and Sri Lanka have specific Trial courts in corruption cases courts to deal with corruption cases, should make an effort to adopt an hence there was a proposal for the even sentencing pattern within their adoption of this practice in other country. countries. The advantage in this is that the presiding judge will devote more time to corruption cases, and
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V. EFFECT OF THE MASS MEDIA cooperation by investigative agencies with the mass media; As already noted in section III, the (iii) Application of existing laws on corrupt activities of a public official may contempt of court by judges; and be revealed through publication by the (iv) Development of training programs for mass media. The role of the mass media judges and investigators to enable as a useful vehicle in the dissemination of them to resist the influence of the information on the activities of an mass media in the course of their investigative agency, and for the education duty. of the people on the evils of corruption, cannot be over-emphasized. Moreover, the VI. CONCLUSION mass media is perhaps most suitably located to generate the magnitude of public The group discussed issues concerning support and backing required for successful the investigation and trial of corruption by investigation of highly placed public public officials from the perspective of officials under corruption charges. investigators and judges. Regarding the Furthermore, we cannot lose sight of the sub-topic on securing the independence and importance of a free press in any neutrality of investigative agencies and the democratic society. However, that the court, the issue of whether or not a special activities of the mass media sometimes independent agency like the ICAC in Hong interferes with investigations, and even the Kong should be established in order to trial, of corruption cases has become a eliminate bureaucratic and political thorny issue. influences on the investigation was examined. Most of the participants in the group felt that media interference in corruption cases To tackle the problem of investigation, in their countries is commonplace. In the group focused attention on seeking Brazil, Grenada, Nigeria and Pakistan, the efficient methods to source initial mass media is so powerful that they information on corruption, as well as on the sometimes influence investigations and the personnel and budgetary situation, the decisions of the court on several issues. expansion of the witness protection This development is considered unhealthy program and immunity for securing the since the media stance on a case may be cooperation of the people concerned. The based on several issues which may not be propriety of introducing new investigative necessarily connected to the realization of tools, such as decoy operations and how to justice or equity in the particular case. secure immediate access to bank accounts in order to strengthen the ability to collect Without the application of proper evidence, was also given attention. measures to avoid media interference, public confidence in the investigative To enhance speedy trial, the necessity agency and trial court may be eroded of improving the material and personnel through irresponsible media practice. The resources of the court, as well as the solutions recommended for this problem possibility of introducing the shifting of the include: burden of proof or establishing special courts on corruption, were discussed. In (i) Implementation of a strict code of addition, based on the consensus among conduct for media practitioners; the group members that excessive press (ii) Pursuit of programs of mutual coverage interferes with the efficient
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The group reached the conclusion that each country should be entrusted with the selection and implementation of the recommended solutions in many aspects, since the problems differ for each country and the effectiveness of each solution depends largely on the legal system, culture and the seriousness of corruption in each country. However, the most important solution, which is common through all these issues, is that investigators and judges must keep making an effort to improve their skills and ability through training and self-discipline. We believe that those who are engaged in the administration of criminal justice must recognize their accountability in their duties and must, therefore, play an active role in realizing speedy and proper investigation and trial, which is the fundamental action against corruption.
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GROUP 3
GENERAL PREVENTIVE MEASURES AGAINST THE CORRUPT ACTIVITIES OF PUBLIC OFFICIALS
Chairperson Mr. Nelson Nogot Moratalla (Philippines) Co-Chairperson Mr. Md. Kamal Uddin Bhuiyan (Bangladesh) Rapporteur Mr. Roderick Kamburi (Papua New Guinea) Co-Rapporteur Ms. Kyoko Fujino (Japan) Members Mr. Yudi Handono (Indonesia) Mr. Errol Ozil Hinson (Saint Vincent) Mr. Nguyen Thanh Hai (Vietnam) Ms. Yoko Nihei (Japan) Mr. Masaki Kitahara (Japan) Mr. Tetsuya Yamaji (Japan) Advisers Deputy Director Masahiro Tauchi (UNAFEI) Professor Akihiro Nosaka (UNAFEI) Professor Shinya Watanabe (UNAFEI)
I. INTRODUCTION enhance this illegal activity. To make matters worse, corruption has been A public official is a position of trust with expanded into a transnational crime, the duty to always act for the public respecting no borders. interest. Therefore, the ultimate loyalty of public officials shall be for the public Corrupt activities by public officials interest of their country, as expressed undoubtedly distorts their integrity and through the democratic institutions of neutrality in performing their official government. Public officials should be duties. It also breeds a feeling of distrust honest, fair and impartial in the and discontent by the public towards their performance of their functions and in government. As a consequence, these dealing with the public. They should, at activities by public officials may ultimately no instance, demonstrate undue weaken or collapse the administration of preferential treatment to any particular government and the economic structure of group or individual, or improperly a country. It undermines good governance discriminate against any group or and causes a great damaging effect to the individual, or otherwise abuse and misuse country. the power and authority vested in them. As corruption becomes a global concern, In so doing, public officials can avoid effective preventative measures must be being publicly criticized. Corrupt activities taken both at the domestic and by public officials, however, have persisted international level. Critical use of such in many countries for years. Furthermore, measures is deemed effective to deter the magnitude and complexity of further corrupt activities. Since most corruption has been observed to be preventive measures used to address increasing recently. Sophisticated methods corruption in government are reactive, this have been used to avoid detection and report will attempt to focus on proactive
563 RESOURCE MATERIAL SERIES No. 56 measures and to hit the problem right at Furthermore, a system or procedure the determined inception point. of screening applicants should be properly in place for strict adherence II. ESTABLISHING A by the members. Likewise, it is MANAGEMENT SYSTEM OF proposed that recruitment policies PERSONNEL AND ETHICAL and standards be established. STANDARDS FOR PUBLIC OFFICIALS (ii) It is also recommended that interview procedures be determined. Instead The measures for deterring corrupt of a single interviewer, a panel or an activities among public officials will be interview board may be organized by discussed here from the viewpoint of a officers with a wide range of management system of personnel; expertise. Hence, this could be one recruitment, training, rotation of personnel way of avoiding prejudice and bias and staff; improving working from among the members of the environments; promotion systems; and board or panel. discretionary power. In addition, a discussion on the importance of a code of The second situation is when the new ethics will be taken up. government entrant succumbs to corrupt activities once they are in government A. Recruitment service. Under the presumption that the At the very stage of recruiting new government entrants lawfully passed government officials, two situations are all the stages in the processing, without identified that have bearing on the resorting to the first situation as stated possibility of corruption. The first one is above, this event may happen in the future. corrupt activities at the selection stage of Those who may be blinded with fame and government applicants. Presumably, some power are likely to be corrupt. Though his/ new government entrants are recruited her situation seems complicated, through the practice of nepotism and bribe considering the time period or elements giving. The act of nepotism is itself taboo involved when that official starts to become in government service, and bribe-giving is dishonest or inept, and considering also the unlawful, hence, at the initial stage, it magnitude of factors such as environment, already constitutes corruption and a peer pressure, family problems, lifestyles, violation of law. To leave this practice etc, this group favorably endorses the unnoticed is both dangerous and costly to following points for consideration: government. To preempt this problem, a fair and impartial process of recruitment (i) Aside from qualifications and should be established. The following experience, it is also necessary that measures are therefore suggested: all government applicants are thoroughly screened, including (i) The screening body or extensive background or character recommendation panel to be separate checks in all areas of his/her public and distinct from the recruiting body and private life. Vertification of or panel. This rationale is to ensure personal records such as records from that each body or panel performs the police, organizations where he/ their task or obligation professionally, she belongs, former employers or co- with utmost diligence, and to further employees, teachers, community ensure checks and balances. leaders and others should be
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conducted, preferably before his/ her more intense the tendency to commit a probation period expires. wrong becomes. Then, the chances of compromising his/her position with (ii) Psychiatric and/or psychological undesirable elements within and outside testing may be conducted to further of the organization become imminent. help in detecting those who have the tendency to change their attitude and What should be done to those who have character once in the service, with over-lived in a particular unit or section? ready access to government resources The answer is simple. The government is and information. recommended to have a program of personnel and staff rotation within the B. Training functional positions in the organization or Provision of regular training to public within the geographical location of the officials is also encouraged. While training offices. With this measure, public officials serves many purposes, such as improving would find it hard to establish strong skills and knowledge, it is also useful in connections with outside groups such that redirecting attitudes and changing values, potential bribers may think otherwise thus in a way deterring public officials from before arrangements are made with engaging in corrupt activities. To ensure officials. Similarly, rotation also deters the the provision of effective training, the development of close attachments with all following are suggested: people and hence, special favors or preferential treatment with close (i) Morals and ethics are recommended associates may be avoided. to be the main subjects in the training program. However, it may be difficult to find an (ii) Initial training and in-service alternative appropriate position for some training should be made mandatory personnel and/or staff. The number of for all public officials. positions which use his/her special skills (iii) Refresher training is likewise needed and knowledge, may be restricted. for obvious reasons, such as to re- Considering family members, some may emphasize the sense of hesitate to be transferred to organizations accountability, responsibility and located at a different place. In the above transparency in the performance of case, at least, it is recommended that those his/her duties. who are responsible for the subordinate’s (iv) Institutional training should be behavior supervise his/her behavior more supplemented with on-the-job closely, considering the above risk. training to hasten professionalism, develop discipline, improve skills and D. Improving Work Environments enhance community interactions and Public officials must be provided with relations. proper and adequate work conditions in order to ensure a decent living for them and C. Rotation of Personnel and Staff their families. Mostly lower and middle Corrupt activities tend to occur when a level public officials in some developing public official remains in a particular unit countries are low paid, compared with or section in the organization for a long those employed in private business. In a period of time. The longer he/she remains situation like this, public officials may have in the unit/section, the more he/she the tendency to succumb to the temptation becomes a target of manipulators or the of committing dishonest acts in return for
565 RESOURCE MATERIAL SERIES No. 56 a favor that has to do with the discharge standard procedures and criteria for or performance of his/her official duties. In promotion is most highly recommended. consonance with this presumption, the Some of the important factors to consider provision of adequate salaries and facilities for promotion are: is recommended as long as the limit of government budget permits. By so doing, (i) Seniority (the length of service in the there is a possibility that need-based organization) corruption at the lower and middle level (ii) Merit (the activities worthy of praise will be minimized, if not totally reduced. or reward; achievement) (iii) Competence (the ability, skill or Additionally, the installation of a knowledge to do what is needed at grievance system within the organization work) is also one way of ensuring effective communication among officials. It is However, if promotion is strictly seniority helpful in improving working relationships based, officials promoted may not have the and inducing a healthy work environment. capability or competence required for the Through this system senior officials will position. Therefore, seniority criteria also be more careful in all their official should not be given much emphasis. dealings, for fear of being charged by subordinates or exposed unnecessarily. At the stage of conducting an evaluation Furthermore, work simplification of potential promotees, applicant officials (including streamlining of the bureaucracy) may resort to utilizing undue influence or is important. This not only reduces costs perhaps apply grease money to be favorably on the part of the government, but also considered. This dirty tactic will again ruin contributes to easing the workload of each or distort the established standard public official who has a backlog of work. procedure, resulting in decisions with partiality and bias. To exclude bias in E. Promotion System promotion, the following suggestions are Since promotion encompasses an forwarded: increase in salary and higher status in the organization, it is understandable that (i) The criteria used to award promotion every person in an organization looks be spelt out clearly. forward to his/her promotion. Promotion (ii) That selection of promotees shall be motivates public officials to work hard and done objectively and in consonance continue to struggle to maintain their with the established standard. status or be promoted again. However, if a (iii) The system to ensure fairness shall public official feels deprived of this be observed at all times. privileged in the organization where he/she (iv) An appropriate internal body shall be belongs, not because of his/her own ability established to address and attend to but due to a lack of vacancies, he/she may complaints pertaining to unfairness seek alternative means of earnings. Those and bias in promotion. means could be illegal. The intensity of dissatisfaction with the higher-ups may F. Discretionary Power tend to accelerate further if special favors Wide discretionary powers granted to or preferential treatment have been public officials always have the tendency detected or are known to have been applied to corrupt the said public official. So, in by the promoting authorities. To resolve order to exercise due prudence in the this dilemma, adherence to existing performance of their official duties, public
566 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE officials are suggested to have only limited 1. Declaration of Income and Assets discretionary power, subject to such A statement of income and assets is a limitation as may be authorized by law. document that would help to detect the The more power an official has, the disproportionate income of a government stronger the tendency to corrupt that official. However, arguments were raised power. In other words, people may exert as to the extent of disclosure of income and influence on public officials who have wide assets, and whether a family member’s discretionary authority, in order to gain income and assets should also be included. preferential favors as in the awarding of In some countries, all public officials are contracts of works/projects or of delivery required to file their income and assets contracts of materials and supplies, and annually, while others file it every two others. years. Similarly in other countries, only high level government officials are required For countermeasures, it is proposed that or mandated to file their income and assets the scope of administrative discretion is to the government. From the standpoint clarified by legislation and enabling laws. of cost effectiveness, we need to determine In addition, fairness and transparency in the level/position of officials in the the administrative procedure have to be hierarchy who should be required to file. pursued. Necessity for restrictions and the Disclosure of income and assets of all rationale of subsidies has to be reviewed family members, in some instances, may periodically. Moreover, information show or indicate an unusual accumulation disclosure and transparency in of wealth not proportionate to the official’s policymaking processes have to be legal income. In this regard, each country advanced. may consider such an act as an infringement of privacy, which may violate G. Code of Ethical Standards their constitutional rights. An international Code of Conduct for Public Officials has been formulated and 2. Obligation to Official Duties approved by the participating countries In principle, public officials are expected during the 1996 United Nations General to devote their time only to official duties Assembly. More so, some countries have and functions. If a public official engages their own Codes of Conduct for Public in income generating jobs directly or Officials fully institutionalized and indirectly related to his/her official implemented. Generally, these codes function, their official function might be prescribe the conduct guidelines for placed in jeopardy or be compromised. In officials holding public office. this regard, public officials have to refrain from engaging in other vested interest A Code of Ethics is considered to be one activities outside of their government effective tool in instilling discipline and function, to preserve their integrity and harmonizing the job performance of public avoid conflicts of interest. Checking the officials, and strict compliance or risk of a potential conflicts of interest adherence to its provisions is a sure way of situation, or of compromising their official guaranteeing efficient and honest public position, the unit head should make the service. When a country makes a code, the decision of permission. following are highly recommended to be considered: The following are some provisions that may be incorporated in formulating a Code of Ethics in each country:
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(i) Public officials shall not be engaged the mechanism or system of installing in other paid employment unless the internal inspection procedures and head of the organization approves it, disciplinary actions. considering the risk of a potential conflict of interest or compromise of A. Internal Inspection their official function. Every organization should take the (ii) Public officials shall not ask for or responsibility of regulating the behavior of accept any benefit in the course of or each member. If unworthy behavior has by reason of their official position. been noticed, immediate and appropriate (iii) Public officials, upon taking an oath measures are suggested to be taken. In of office, shall declare to the order to address this situation, internal government all personal assets and inspection measures or systems are liabilities, to include (possibly) that suggested to regulate and monitor the of their spouse and children. functioning of the organization. The other (iv) Public officials shall not purpose of this is to check administrative misappropriate public funds. problems in the organization, including (v) Public officials shall not use their determination of work efficiency and position for the benefit of themselves possible irregularities in their duties and and /or their family. functions. The following areas of concern (vi) Public officials shall take an oath of are hereby discussed in this report. secrecy and loyalty. (vii)Public officials shall not hold any 1. Procedure of Internal Inspection personal interest in any business The procedure of internal inspection enterprise that conducts business for should be clearly established and profit with the government. We term formulated. Likewise, a standard should this ‘divestment of interest’. be determined and adhered to strictly, and (viii)Public officials (except certain posts be made known to all members of the such as assumed by politicians) shall organization. Keeping the members aware not be engaged in politics. of the existing procedures will eventually (ix) Public officials shall not allow their guide them to behave in the manner official integrity or personal integrity expected of them by the regulations. to be compromised. 2. Internal Inspection Units III. INTERNAL INSPECTION AND Establishment of an internal inspection DISCIPLINARY ACTIONS unit is also necessary to carry out these functions. The unit should be an Running a big organization may be a independent body, not controlled by anyone rather difficult task for management. If in the organization except the head. public officials eagerly seek means for their Interference from other sub-heads of the own convenience, this attitude may lead to organization may make the unit ineffective engaging in corrupt activities to satisfy and inefficient. In this regard, such units such own personal interests while in the should be attached to the office of the head public service. However, if other people of the organization. have a way of monitoring such behavior, their selfish intent may be deterred. For 3. Internal Inspectors this purpose, inspection and disciplinary Internal inspectors are expected to be action takes on important role. So, in the professionally knowledgeable in all aspects following discussion, we will deal more with of the trade, such as knowledge of the basic
568 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE law, research strategies, effective report 6. Reporting writing, investigation techniques and After the conduct of inspection, procedures, record keeping, and other inspectors are required by regulations to similarly required skills. They are also submit results of the inspection to the head expected to possess the necessary attitude of the agency concerned or to where the and character to perform the job with inspection was conducted. The report diligence and utmost honesty or needs to indicate all the important areas impartiality. Furthermore, training for or aspects of the inspection as prescribed inspectors is also important. Preliminary by the regulations, such as the answers to training or orientation is necessary for “Who? What? When? Where? and How?”. them to initially acquire the qualities More specifically, a pre-determined required of inspectors. In addition, it is standard format should be proposed. also equally important to emphasize the Findings of grave concern involving serious inspectors’ accountability and violations of law should be known responsibility for their job in the course of immediately by the head of the the orientation or training. organization for his/her immediate and appropriate action. 4. Powers and Authority Since this is an internal system, the 7. Sources of Information powers and authority of internal inspectors The conduct of internal inspections could should be as provided for in the be determined in many ways and could be organizations’ internal administrative initiated under the following circumstances regulations, or as may be prescribed by a or sources: higher authority such as the head of the government agency or ministry, or by a (i) Suggestion boxes. national law. (ii) Hotlines (telephone, computer etc). (iii) Persons responsible for keeping 5. Duties sensitive records. The following may be some of the duties (iv) Informers or informants that provide of an internal inspector: information for free and for a fee.
(i) Audit the expenditure of the The key is how to motivate people to offer organization. information. At least, we must guarantee (ii) Ensure propriety in procurement the confidentiality of the informer or procedures or systems. informant. In addition, it is recommended (iii) Ensure observance of public tender to find easy and/or handy methods which or bidding procedures. let people offer information. (iv) Ensure internal security policy on classified materials. 8. Conduct of Inspection (v) Check on abuse or misuse of power Inspections can be conducted either by by officials or employees. schedule or randomly. Depending on the (vi) Check on misuse or misapplication of purpose and timing, such types of the organization’s resources. inspection can be adopted by any (vii)Point out problems encountered government agency or organization. during inspection work. Regular or scheduled inspections may have (viii)Other matters of interest. the important purpose of determining the efficiency of the performance of officials in terms of resource utilization or regular
569 RESOURCE MATERIAL SERIES No. 56 administrative functions. On the other his/her subordinates who have been found hand, the conduct of unscheduled to have acted irregularly in the inspections may detect misbehavior performance of his/her official duties and amongst officials, or react to reports or functions. The extent of that authority may complaints of irregularities. be determined by internal regulations or by law. Penalty should be based on the Areas for inspection must also be gravity of the offence. Examples of the considered. Offices that are highly types of administrative disciplinary vulnerable or prone to corruption, e.g, sanctions are as follows: finance or logistic sections, should be considered for frequent inspection, to (i) Reprimand ensure the efficient and effective use of (ii) Admonition organizational resources. (iii) Censure (iv) Reduction of pay 9. Manuals (v) Reduction in salary rank or grade The publication of a manual for internal (vi) Forced retirement inspection would greatly help in the smooth (vii) Demotion conduct of inspections, and guide users (viii)Dismissal accordingly. 3. Devices for Effective Application of B. Disciplinary Action Disciplinary Action 1. Regulations Firstly, if the offence or misconduct Internal administrative disciplinary committed is so grave that the internal action is an important deterrent measure disciplinary machinery or administrative in curbing corruption in the public service. sanctions are deemed inappropriate, However, disciplinary actions may inflict collaboration with other appropriate damage to the reputation of public officials government agencies must be sought. In if discriminately administered. In this the case of criminal offences noted, the law context, regulations for disciplinary action enforcement agency must immediately be should be established. The recommended provided with the necessary information on disciplinary process is shown in the the nature of the offence. In this regard, schematic diagram annexed to this report. an appropriate system or procedure should In this process, opportunity for the accused be established to facilitate the referral of to appeal is guaranteed if he/she feels cases of this nature. deprived of his/her rights. It also provides an avenue or a system of compensation for Secondly, it is important to consider that damages to those who are victims of sanctions imposed on any erring public wrongful accusation. officials, the nature of any cases and what the organization has done must be given 2. Sanctions according space in newsletters or news The head of the organization should be bulletins, to serve as a deterrent to would- held responsible for whatever his/her be violators. To be clarified, naming the subordinate officials do. This is the essence official will bring him/her disadvantages, of responsibility endowed upon all heads but it will prevent vague rumors which may of agencies or organizations in government. lead other officials to unrest. In consonance with this authority, he/she also has the inherent power to impose disciplinary sanctions or punishment to
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IV. INTRODUCING AUDITING AND guaranteed by the Constitution (Art.127 of OMBUDSMAN SYSTEMS Constitution). The President appoints the DISCOURAGE CORRUPTION; head of the organization. He/she holds ACCESS TO INFORMATION; AND office up to the age of 60 years. Their main ACTIVITIES TO INCREASE PUBLIC duty is to audit state organizations’ AWARENESS accounts of expenditure and revenue, and to submit findings to the President, who In this portion of the report, we shall look then releases the report to parliament. The into three topics. First, we will discuss the auditor has the power to access to all audit system and ombudsman system as a property that the government possesses. means to reduce or discourage corruption The main role is to audit the financial in the public service. Secondly, we will accounts of government agencies and discuss the means for the public to have submit a report to Parliament. There may access to government information. Finally, be some variation in the methods used in we will look into some measures in order carrying out the audit work. However, the to increase awareness regarding the ills of work is to serve one purpose, that is, to corruption, and how to prevent it. audit the financial accounts of the government agency. A. Auditing System We acknowledge that the purpose of an 2. Japan audit inspection is to ensure that there is Japan has its Board of Audit. The body transparency and accountability within the was established based on the provisions of organization. In order to attain this, a body Article 90 of the Japanese Constitution. shall conduct an audit of accounts, revenue This provides that the final accounts on the and expenditure of an organization. This expenditure and revenue of the State shall is to ensure that expenditures have been be audited by a Board of Audit and recorded properly and within the scope, submitted by Cabinet to the Diet, together procedures and limitations established by with the statement of audit during the law. Through an audit system, fiscal year. organizational funds are safeguarded against abuse and misuse. It also The Board is comprised of the Audit discourages would-be offenders in the Commission, which is the decision-making organization from abusing their positions. body, and the General Executive Bureau, So auditors here act as whistle-blowers. As which is the executive responsible for the we acknowledge the importance and the operation. The Audit Commission consists sensitivity of the work involved, we believe of three (3) commissioners appointed by that the auditor must be given the Cabinet with the consent of both houses of necessary powers and independence to the Diet (upper and lower houses). The carry out their duties without fear or favor. Emperor attests the appointment, which Along this explanation, suggestions to is for a period of seven years. improve the work of an auditor must be looked into. We, therefore, look at two The General Executive Bureau is models in this paper, the Bangladesh and comprised of a secretariat and five bureaus. Japan audit systems, as an example. They are responsible for carrying out audit work under the direction and supervision 1. Bangladesh of the Audit Commission. The jurisdiction Bangladesh has a Controller/Auditor of the Board of Audit extends to all state General. Their independence is accounts and public corporations.
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3. Recommendations of its functions. Thus, he/she is Participants from Indonesia, Papua New expected to conduct inspections of all Guinea, Philippines, St. Vincent and records of the organization Vietnam agreed that the nature of the specifically on the use of government auditors work in their countries is similar funds and resources. If anomalies are to that of the two countries mentioned discovered during the course of audit above. This observation tends to confirm work, the auditor shall refer the that the role and function of the auditor matter to the head of the organization are similar in most ways in most countries, and to other appropriate government especially countries represented in this agencies. The auditor shall summon discussion. The current trend caused by anyone within and outside of the the massive increase of corruption cases organizational to appear and produce involving public officials, suggests the evidence relating to the matters being necessity to strengthen the workings of looked into. He/she has the power to auditors. In making these direct individuals and organizations recommendations, we are mindful of the to cease, withdraw or terminate any laws and legislation varying from country transaction considered to country concerning the auditors’ role, disadvantageous to the government. their powers, and independence: He/she can also recommend disciplinary actions against public (a) Appointment officials for breach of organizational The President of the country, the rules and regulations, misuse of Prime Minister or equivalent high power and abuse of discretion. ranking official/organ may appoint the auditor. The national auditor (e) Functions shall appoint field auditors. The primary function of the auditor is to carry out audit inspection of all (b) Composition government organizations, including There shall be at least one auditor, its subsidiaries and statutory bodies. who should be the head of the Findings with recommendations national audit bureau and assisted by shall be reported to the government deputies and audit inspectors. The at the appropriate time. appointment of these officers may be within the scope of responsibility of B. Ombudsman System the auditor. The term “ombudsman” is a Swedish word for “attorney” or “ representative”, (c) Independence indicating their official role as a public The auditors’ independence should be protector. The institution was set up in the guaranteed by the constitution. That 17th century by the Swedish King, Charles is to say, the office of the auditor XII with the official title of Hogsta should be prescribed by provision of Ombudsman (Supreme Royal the constitution so that it is not Ombudsman). The job was to “Keep an eye subject to direction or control by on royal officials” and supervise the anyone. execution of the laws. Sometimes, the King would allow the Ombudsman to represent (d) Powers him/her in some official functions. To this The auditor shall also be given day, a number of countries have adopted powers to exercise in the performance the Swedish ombudsman system and have
572 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE developed the institution. In some 2. Philippines countries, the ombudsman has their The ombudsman is a constitutional body. independence guaranteed by the Its independence is guaranteed in the constitution. In this report, we introduce Philippine Constitution and has the power the current ombudsman system in Papua of investigation and prosecution. It has New Guinea and the Philippines. In broad and comprehensive powers to addition, we likewise consider the system institute reforms in the bureaucracy and adopted in Vietnam, as that with a function prosecute erring government officials. It similar to the ombudsman. has a Special Prosecutor’s Office, which prosecutes cases brought before a special 1. Papua New Guinea court known as the “Sandiganbayan” The ombudsman in PNG has two main which is coined from the Filipino words divisions: the Complaints Division, that “sandigan” meaning “something to lean” on receives normal complaints from the and “bayan” meaning “country”. citizens; and the Leadership Division, that deals mainly with the high-ranking The President, on the recommendation government officials. It does not cover the of the Judicial Bar Council, appoints the lower bracket of public service machinery. ombudsman and the members of the This is left for the police to handle. Sandiganbayan. It is a fixed term of office of seven years without reappointment; The ombudsman has investigative removable from office only by powers but does not have prosecution impeachment. As the dispenser of justice, powers such as in the Philippines. Rather the ombudsman administratively sanctions it refers its investigation files to the public erring government officials. It also prosecutor who initiates prosecution before criminally charges and prosecutes them, what we call a ‘Leadership Tribunal’. The including private persons found to have Tribunal is made up of a judge of the conspired with them. National Court who is the chairman, and two members from the Magisterial Service, 3. Vietnam all appointed by the Chief Justice. The Vietnam operates on a system that is ombudsman does not adjudicate on other similar to that of an ombudsman. However, organization’s disciplinary matters. These it comes under a ministry and is controlled are internal matters for the respective by a cabinet minister. It has offices set up organizations to handle. in the districts and receives complaints from the citizenry. Vietnam has a Civil The functions of the ombudsman, among Ordinance on Civil Complaints and other things, include ensuring leaders do Denunciation, which was endorsed by the not place themselves in a position in which President in May 1991. The purpose of the they could have a conflict of interest or Ordinance is to “ensure the civil right to might compromise their position when complain, to strengthen the law, promote discharging their duties; to ensure they do socialist democracy, defend the interest of not use their office for personal gain or the state, the lawful rights a group/ favor for themselves or for other persons; community and the interests of the citizen.” and to examine the annual declaration of assets and liabilities, income, business 4. Recommendations connections, positions etc. One of the major functions of an ombudsman is corruption prevention. It prevents the commission of an act by
573 RESOURCE MATERIAL SERIES No. 56 ordering or stopping the implementation degree to which citizens are allowed access of government contracts that are found to to the information of the government, is a be disadvantageous to the government. It manifestation of a truly democratic system likewise files charges and prosecutes cases of governance. However, in some countries in court against public officials or private of the world, this right is basically persons found to have connived with him/ restricted, sanitized and regulated. her. It also holds disciplinary authority over all government functionaries, except In most cases, the right to have access the President of the Republic or the Prime to government information may influence Minister and other elective officials, or government officials to attend to their those officials removable only from office duties honestly and fairly. Conscious of by impeachment. These broad powers are people watching or monitoring government inherently provided for in the Philippine officials through this right, people in ombudsman. So, it is for these reasons that government become cautious, thus this the creation of an ombudsman is favorably indirectly contributes to avoiding the considered as an effective means of commission of irregularities or abuse of preventing corruption in government. The power. Similarly, the sense of Papua New Guinean and the Philippine accountability and responsibility of ombudsmen could be cited here as government officials is enhanced and operating effectively in their respective improved. countries. Of course, not all government C. Access to Government information can be made available to the Information people. The law must protect some People in many countries contend only information that is considered sensitive in accessing part of the government’s nature. Examples of the type of information through publications such as information that a country may wish to annual reports. These publications are consider non-disclosable are; helpful for people to understand government activities. However, these (i) Matters relating to national security, publications only include limited defence and internation al relations information on the government. What with the government of any other citizens want to know may be excluded in country or with an international these official reports. organization. (ii) Trade secrets and privileged or Since the mission of government officials confidential commercial or financial is for public service, disclosing information information obtained from a person possessed by the government should be or body. promoted for the public as a matter of (iii) Matters to protect law enforcement obligation of the government and as of right interests, such as the ongoing to the citizen. In other words, citizen’s investigation and prosecution of rights to access government information crimes. should be guaranteed as a basic right. (iv) Matters to maintain personal privacy Without information as to the governments’ and security of a person. activities, a person cannot make a meaningful contribution on matters of However, the wider the range of non- government, especially on government disclosable information becomes, the less policies and programs. Therefore, the the civilian’s right to have access to
574 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE government information is guaranteed. It success. The ICAC is composed of three is interesting that law concerning the departments: the Operations Department, access to information held by Corruption Prevention Department, and administrative organs in Japan prescribes Community Relations Department. The that even non-disclosable information Community Relations Department is in stipulated under this law may be disclosed charge of public education efforts. The when it is deemed of public interest. successful experience of Hong Kong may encourage us to educate people as a In addition, non-disclosable information countermeasure for the corrupt activities should be prescribed and clarified in detail of public officials. by the laws or regulations of the country. If we leave the range to someone’s While government needs to take discretion, he/she may be pressured not to responsibility to encourage public disclose the information by those who feel awareness, the body or unit in charge of it is inconvenient to publicize that this responsibility is not restricted only to information. Furthermore, it is also the anti-corruption section of the important to establish an organization, organization. To promote public such as an information disclosure review awareness, it is imperative that board, who would determine what other government take the initiative to information could be disclosed to the public. encourage people to actively involve themselves in government affairs of public D. Measures to Increase Public interest. The following means and Awareness activities are suggested in order to increase As government officials are considered public awareness. public servants of the people, the public should monitor whether government 1. Educational Program in Schools officials perform their duties in pursuit of This program envisions stirring the the public interest or not. Irresponsible consciousness of the youth and imbuing in activities by public officials may be them the profound sense of responsibility unavoidable if the public has no interest as dynamic participants of the society by in government activities, and leave public encouraging them to undertake research officials without the public’s monitoring. In and studies on prevention and control. The this instance, knowledge of how corruption Ministry or Department of Education may works, the methods used in corruption, and develop instructional materials that will areas where corruption tends to occur, may make the students aware of and be useful for the public so as to detect understand the ills of corruption, and the corrupt activities amongst public officials. means of deterring the same. Lectures and discussions inside classrooms may be It is said that Hong Kong has supplemented with study-tours to successfully recovered from the serious government agencies, anti-corruption disease of corruption amongst public bodies, NGOs and other organizations, to officials. The Independent Commission further broaden the youths’ knowledge of Against Corruption (ICAC), established to their functions and responsibilities. fight corruption, has contributed significantly to reducing corrupt activities 2. Media by public officials in Hong Kong. It has Media is a powerful tool for bringing regarded education on combating news and information to the people. It corruption as one of the secrets of their takes the form of both written and audio-
575 RESOURCE MATERIAL SERIES No. 56 visual media such as television, such as the ICAC, community leaders or newspapers, radio, computer internet, and business sector leaders, may be invited to magazines of local, national, and be the resource persons. Active international publications. As a tool or involvement of all sectors of the community instrument for information dissemination, in government affairs, especially in and as the source for such information, exposing or criticizing abuses in press freedom should not be abridged nor government by public officials, or curtailed by government when used to discussing publicly contemplated expose anomalous activities or the government projects or programs they ineptitude of government officials. As such, foresee to be disadvantageous, manifest all media services available in the country awareness of the public in government may be fully utilized to bring a clear operations. message to the public on the evils of corruption and its impact on good 5. Invitation to Join Prize Contests governance. This means that the public are enticed to join prize contests such as slogan making 3. Posters contests, essay contests, or poster-making The use of posters can also be very contests, all with the central topic of the effective in sending messages to the people. evils of corruption or preventive measures Illustrations in the posters can convey to stamp out corruption or any other many messages. When posters are all over, related subjects. This is done to arouse the message will surely register in the interest, motivate, and encourage people minds of the people fast and easily. In to participate actively on the subject of addition, such posters reach out even to corruption. This method may elicit illiterates, so they can understand what the suggestions, new ideas, concepts and message is all about. Intricately designed opinions from the people. Thus, it could posters with anti-corruption slogans are possibly aid legislators in making surely eye-catchers, and thus attract the improvements to the existing laws or to interest and attention of the public. With creation of new laws or regulations that this method, the people are made aware of would improve efficiency in government whatever agenda the poster intends to service. convey. The public will either start to react or may remain unperturbed or passive. 6. People’s Day This new approach called “People’s Day” 4. Workshops, Seminars, and Public is actually practiced in the Philippines. It Forums/Dialogues was purposely installed as a system for People can acquire knowledge and encouraging the public to be involved in deepen their understanding on government government, and to consider public officials activities by attending workshops, as public servants always ready to assist seminars, and public forums/dialogues. In and provide efficient public service. This this regard, the public are encouraged to practice provides the general public with attend. To do that, topics of interest the opportunity of getting immediate affecting them and their government assistance and action, directly from the should be widely published or broadcast head of the government agency or beforehand. Some prominent speakers of functionaries, on matters which were often known probity from the public and private not acted on by subordinates, or on sectors, NGO’s, labor unions, religious complaints of wrongdoing against his/her sects, the academe and other organizations, own staff or personnel. Through this
576 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE system, government records, exclusive of in government should be addressed at the those categorized as top-secret or strictly stage of inception, rather than simply apply confidential and non-disclosable under the reactive measures to prevent it. laws of the land, are made public and people can ask for information or records Countermeasures to prevent corrupt right there and then. In this way, the activities can also be addressed through the government can practice transparency. conduct of internal inspections in government agencies and functionaries. As Not only the government itself but also such, any instance of ensuing illegal civilian organizations such as NGOs plan activities or irregularities among public these activities. In this regard, the officials can easily be detected and government should provide encouragement prevented. Inspections could be done either and extend utmost support to these on a scheduled basis or by random, as the activities. People in government should need arises. These measures are sure ways arrange for media interviews to allow free of deterring the commission of discussion of topics of public concern, and irregularities. Officials found guilty of to let the people know what their misbehavior can be immediately subject to government is doing. disciplinary action by the respective heads of their organization. In addition, the V. CONCLUSION sanctions to be imposed may range from mere reprimand to dismissal from Corruption is indeed endemic in most government service. societies of the world. It knows no borders and spreads like a virus or illness. If its Introducing an ombudsman system in impact is so deep, a country is placed in a each country is perhaps an act that needs no-win situation and loses structurally, political will if such a system is to have institutionally and economically. Along broad powers of investigating and this line, this group endeavored to pinpoint prosecuting all government officials and determine possible preventive accused of misdemeanors in public service, measures that a country can adapt or such as the acts of corruption and bribery. implement to eventually eradicate the evils In some countries like Papua New Guinea of corruption. and the Philippines, their ombudsman system is so powerful that a number of Management systems for personnel and public officials have been charged and establishing ethical standards for public punished accordingly, as provided for by officials has been given emphasis, along law. Similarly, an auditing system can be with the concepts involving activities at the a supplemental system to further check recruitment stage of public officials, and correct inefficiencies by government training, rotation of personnel and staff, officials. promotion systems, improvement of work environments, limiting the discretionry Finally, the freedom of the press and the power of officials, and the formulation of a people’s right to have access to government Code of Ethics for each country. The information should not be abridged or existence of ethical standards for public curtailed by the government. Creating officials is also a meaningful way of public awareness regarding corruption and embodying better performance from public irregularities in government is also one officials and regulating behavior in the way of preventing the incidence of public service. We opined that corruption corruption. In this regard, the group
577 RESOURCE MATERIAL SERIES No. 56 considers some measures to enhance public effectively to reform of their attitude involvement in creating public awareness, towards corrupt activities. such as educational programs in schools, use of the media and posters, conduct of workshops, dialogues or forums, the concept of a People’s Day and others.
While we suggest countermeasures to prevent corrupt activities among public officials in this paper, how we can guarantee implementation of these countermeasures is important. The device to manage personnel and internal inspections may contribute to detering corrupt activities among middle and/or lower officials. However, to monitor corrupt activities among high-ranking officials within the government itself may be a rather difficult task.
Here, we suggest two methods to combat corrupt activities among high-ranking officials. One of them is to mobilize civilian pressure. Civilians need not be afraid of revenge for the result of their criticism of a high-ranking official’s behavior. In this context, increased awareness of monitoring government activities among civilians is essential to deter corrupt activities. The other method is to utilize international conferences and international training on the topic of combating corruption. With rising global concern over the issue of the corrupt activities of public officials, there are various on-going efforts for preventing such activities through international organizations like the United Nations, OECD, Council of Europe etc. Attending these opportunities, high-ranking officials in each country would share ideas on the evil effects of corruption amongst public officials. Various recommendations and suggestions would help to facilitate the combat of corrupt activities. Some countries which have no or insufficient regulations and statutes on this subject may adopt these recommendations. The experiences of others would contribute very
578 113TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE
their affidavits
he respondent.
Refer to appropriate body for serious offences of a criminal nature (law enforcement/prosecutor body)
[6C]
Found with mitigating/ extenuating circumstances. Refer back to step 4B (proceed with charges for the lower offence)
[6B]
Found guilty of dismissable act. Issue dismissal order
File appeal or motion for reconsideration: 1. Summary dismissal authority 2. High appellate body.
Respondent [7A]
[6A]
Dismissing authority (high body) conducts dismissal proceedings, evaluates evidence and witnesses
[7B]
[5A]
Y PROCEEDINGS
ANNEXURE I
Summary dismissal proeedings recommended by the fact-finding body**
case.
ReprimandAdmonition Censure Suspension Reduction of pay Reduction of rank or position Combination of the above
Formal administrative charge starts: Respondent: 1. Furnish copy of complaints 2. 72 hrs required to submit counter affidavits and witnesses 3. Inform of the right to counsel of their own choice
Dismissable act [4A]
Impose discipline
SCHEMATIC DIAGRAM SCHEMATIC
Non-dismissable act or minor cases
[4B]
[5B]
prima facie
ADMINISTRATIVE ADMINISTRATIVE DISCIPLINAR
Substantial evidence/ probable cause Fact-finding body commences investigation (Internal Affairs Office)
Fact-finding body recommends dismissal of report/ complaint (dropped and closed)
No probable cause or insubstantial evidence
[3A]
[3B]
and counter-affidavits. Purpose is to establish a and counter-affidavits.
Direct fact-finding body
Initiate action
Suggestion box Hotline (telephone,
Officer responsible for
Informer or informant
* inquiry Preliminary - a proceeding whereby the complainant and the respondent are given the opportunity to be heard and submit
** Summary dismissal proceedings - an administrative process of determining whether a factual or legal basis exists to dismiss t
[2] Head of the Agency Head of the
(preliminary inquiry*)
[1] Information
computer, etc.) computer,
sensitive records
579 APPENDIX
COMMEMORATIVE PHOTOGRAPHS • 112th International Training Course • 113th International Training Course
UNAFEI
THE 112th International Training Course
Left to Right: Above: Siegismund (Germany), Cartwright (U.S.A), Zvekic (UNICRI)
4th Row: Takeda (Staff), Yoshida (Staff), Imai (Staff), Tezuka (Staff), Takagi (Chef), Satou (Staff), Gouda (Staff), Kai (Staff), Jinbo (Staff), Souma (Staff)
3rd Row: Matsushita (Staff), Hirata (Staff), Kubo (Staff), Ono (JICA), Komori (Japan), Genidy (Egypt), Yamada (Japan), Khosla (India), Alvaro (Colombia), Jallow (Gambia), Tirant (Seychelles), Himsa (P.N.G), Igeta (Japan)
2nd Row: Nakamura (Japan), Aswar (Indonesia), Sugawara (Japan), Uruga (Japan), Ghazali (Malaysia), Young-Hoon (R.O.K), Odongo (Kenya), Nadeem (Pakistan), Nora (Thailand), Caparas (Philippines), Wang (China), Yoshida (Japan), Nakajima (Japan), Ram (Fiji), Tai (Hong Kong), Mukaigawa (Japan)
1st Row: Chishima (Staff), Watanabe (Professor), Tsutomi (Professor), Aizawa (Professor), Iitsuka (Professor), Singh (Singapore), Griffin (Australia), Kitada (Director), Fattah (Canada), Tauchi (Dep. Director), Imafuku (Professor), Satou (Professor), Nosaka (Professor), Itou (Staff), Findlay-Debeck (L.A) THE 113th International Training Course
Left to Right: Above: Matsui (Japan), Abdul Aziz (Malaysia), Chan (Hong Kong), Giovacchini (France), Piragoff (Canada)
5th Row: Takagi (Chef), Kubo (Staff), Matsushita (Staff), Tezuka (Staff), Hirata (Staff), Satou (Staff), Kaneko (Staff), Jimbo (Staff), Okeya (Staff)
4rd Row: Souma (Staff), Yoshida (Staff), Imai (Staff), Takeda (Staff), Chandra (India), Nihei (Japan), Li (China), Hai (Viet Nam), Kuramochi (JICA), Gouda (Staff)
3nd Row: Yudi (Indonesia), Moratella (Philippines), Luis (Brazil), Hector (Venezuela), Hasegawa (Japan), Hinson (St. Vincent), Hatayama (Japan), Kamburi (P.N.G), Kitahara (Japan), Fujino (Japan), Pravit (Thailand), Okamura (Japan)
2th Row: Maitland (Grenada), Bhuiyan (Bangladesh), Tanaka (Japan), Yamaji (Japan), Muraki (Japan), Onuoha (Nigeria), Asmadi (Malaysia), Sardar Raza (Pakistan), Zidan (Palestine), Nogoyev (Kyrgyz), Ujita (Japan), Suzuki (Japan), Rajapaksa (Sri Lanka)
1st Row: Chishima (Staff), Watanabe (Professor), Nosaka (Professor), Satou (Professor), Iitsuka (Professor), Castberg (U.S.A), Kitada (Director), DeFeo (U.S.A), Tauchi (Dep. Director), Aizawa (Professor), Tsutomi (Professor), Imafuku (Professor), Itou (Staff), Findlay- Debeck (L.A)