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Corruption in Viet Nam: External and Internal Reviews of Corruption, Causes and Consequences in Viet Nam

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Corruption in Viet Nam: External and Internal Reviews of Corruption, Causes and Consequences in Viet Nam Public Administration Reform and Anti-Corruption A Series of Policy Discussion Papers Criminalising Corruption: A Study of International Practices and Application for Viet Nam Professor Alan Doig Dr. Dao Le Thu Dr. Hoang Xuan Chau October 2013 The series of Policy Discussion Papers on Public Administration Reform and Anti -Corruption is led and edited by Jairo Acuña-Alfaro, Policy Advisor on Public Administration Reform and Anti-Corruption at UNDP Viet Nam. The series aims to analyze trends in Viet Nam regarding the implementation processes and options in specific public administration reform areas. In order to confront the social, economic, political and environmental challenges facing Viet Nam, policy makers need to be informed by evidence. These policy papers aim to contribute to current policy debate by providing discussion inputs on policy reforms – thereby helping to improve Viet Nam’s development efforts. Three principles guide the production of the policy discussion papers: (i) evidence-based research, (ii) academic rigour and independence of analysis, and (iii) social legitimacy and a participatory process. This involves a substantive research approach with a rigorous and systematic identification of policy options on key public administration reform and anti-corruption issues. Citation: Alan, Doig, Dao, Le Thu, and Hoang, Xuan Chau (2013). Criminalising Corruption: A Study of International Practices and Application for Viet Nam. A Joint Policy Discussion Paper on Anti-corruption commissioned by the Department for International Development (DFID) of the United Kingdom and the United Nations Development Programme (UNDP). Ha Noi, Viet Nam: October 2013 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior permission. Disclaimer: The views and opinions expressed in this policy discussion paper are those of the authors and do not necessarily reflect the official views or position of the Department for International Development (DFID) of the United Kingdom and the United Nations Development Programme (UNDP). UNDP Viet Nam DFID Viet Nam 25-29 Phan Boi Chau British Embassy Ha Noi - Viet Nam 7th Floor, Central Building 31 Hai Ba Trung Street Tel : +84 4 3942 1495 Ha Noi - Viet Nam fax :+84 4 3942 2267 Tel : +84 4 3936 0555 Fax :+84 4 3936 0556 Enquiries: [email protected] Enquiries: [email protected] Media enquiries: [email protected] Media enquiries: [email protected] Table of Contents EXECUTIVE SUMMARY AND POLICY RECOMMENDATIONS .......................................................... 1 ABOUT THE AUTHORS ........................................................................................................................ 3 ACKNOWLEDGEMENTS ....................................................................................................................... 3 WHY ADDRESSING CORRUPTION IS IMPORTANT: VIETNAM’S DEVELOPMENT TRAJECTORY ................................................................................................................................... 4 POLICY CONTEXT AND REPORT STRUCTURE .................................................................................................................. 4 CORRUPTION AND DEVELOPMENT ISSUES FOR EMERGING MICS ...................................................................................... 4 CORRUPTION IN VIET NAM: EXTERNAL AND INTERNAL REVIEWS OF CORRUPTION, CAUSES AND CONSEQUENCES IN VIET NAM ............................................................................. 9 EXTERNAL .............................................................................................................................................................. 9 INTERNAL .............................................................................................................................................................. 9 WHAT IS IN PLACE: THE CURRENT LEGAL AND INSTITUTIONAL CONTEXT FOR ADDRESSING CORRUPTION ........................................................................................................ 12 OVERVIEW OF THE LEGISLATIVE FRAMEWORK ............................................................................................................. 12 ANALYSIS OF CURRENT LEGISLATION ......................................................................................................................... 13 THE INSTITUTIONAL FRAMEWORK ............................................................................................................................ 16 THE DYNAMICS OF CORRUPTION FOR THE POLICY AGENDA ................................................... 19 UNDERSTANDING THE DYNAMICS OF CORRUPTION FOR THE POLICY AGENDA ................................................................... 19 WHAT SUBSTANTIVE REFORMS HAVE BEEN PROPOSED TO DATE? ................................................................................. 22 ARE THE PROPOSED REFORMS ENOUGH? UNDERSTANDING THE CONSEQUENCES OF NOT ADDRESSING CORRUPTION FOR THE POLICY AGENDA ................................................................................................................................................... 23 INFORMING THE POLICY AGENDA: LEARNING FROM INTERNATIONAL EXPERIENCES ........ 25 WHY AND HOW: THE REFORM PROCESS AND GOING BEYOND THE MINIMUM .................................................................. 25 OTHER COUNTRIES’ PENAL CODES ........................................................................................................................... 26 OTHER ISSUES RELEVANT TO VIETNAM LAW ............................................................................................................... 31 IMPLEMENTATION ................................................................................................................................................. 32 CONCLUSIONS: POLICY GUIDANCE FOR VIET NAM AND PROPOSALS FOR THE REFORM OF THE PENAL CODE .................................................................................................................... 34 POLICY GUIDANCE ................................................................................................................................................. 34 REFORMING THE LEGISLATIVE FRAMEWORK: ISSUES AND PROPOSALS FOR INCLUSION IN THE POLICY AGENDA ........................ 37 FIRST STEP IN THE REFORM PROCESS: REFORMING THE PENAL CODE ............................................................................. 40 PENAL CODE REFORM: CRIMES RELATING TO POSITION FRAMEWORK ............................................................................. 43 PENAL CODE REFORM: A NEW AND SEPARATE SECTION – BUSINESS CRIMES - FOR PRIVATE SECTOR CORRUPTION? ................ 44 PENAL CODE REFORM: STATUS AND SERIOUSNESS ...................................................................................................... 45 SANCTIONS .......................................................................................................................................................... 45 IMPLICATIONS FROM THE FIRST STEP FOR THE ACL, AND INSTITUTIONAL AND PROCEDURAL REFORM .................................... 46 REFERENCES ...................................................................................................................................... 48 ANNEXES ............................................................................................................................................. 52 Executive Summary and Policy Recommendations The overall policy rationale for reform is with future Financial Action Task Force explicit. First, levels and types of corruption requirements, a comprehensive and timely are increasing. Not only will they adversely reform process that addresses holistically the impact on Viet Nam’s chosen path of causes and consequences of corruption, the economic development but the potential for legislative framework and the necessary them to become pervasive and entrenched institutional and procedural arrangements to will emphasise the increasingly visible implement the law effectively. In view of the disparities between the state, public officials external and internal issues raised, the third and the citizens. Second, there are policy option is essential. weaknesses in terms of the coherence of the Articles in the Penal Code and the need to In light of international experiences and the review and amend the language of existing various internal and external reports on the Articles to bring it in line with other countries. law, this policy report makes specific Third, in terms of an overview of the current recommendations within which to begin the legislation and in comparison to international reform process by a substantive revision to good practice, the legislation does not the Penal Code. address new areas of corruption, including bribe-giving, private sector corruption and the It argues for: a revised and expanded Section offence of bribing a foreign public official on Crimes of Corruption that encompasses (PFO). Fourthly, the reform of Vietnam public and private sectors; and a revised legislation, which should be grounded in the Section on Crimes of Public Office specifically risks and threats of corruption faced by Viet for the public sector. Nam, is an essential platform on which to provide a more integrated legal framework The revised Crimes of Corruption section will with the Anti-Corruption
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