Lessons for Vietnam

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Asia & the Paciﬁc Policy Studies, vol. 1, no. 2, pp. 273–286 doi: 10.1002/app5.22 Original Article

Myths of Political Independence, or How Not to Solve the Corruption Problem: Lessons for Vietnam

Martin Painter*

Abstract 1. Introduction

Corruption is widely identiﬁed as a critical In 2004, the World Bank proclaimed on its problem for developing economies and is also website that corruption was ‘the single greatest viewed as a priority issue by international obstacle to economic and social development’ organisations and donors. Governments such (quoted in Bukovansky 2006, p. 191). In many as Vietnam place anti-corruption high on their East and Southeast Asian countries, domestic policy agenda. However, external observers politicians are publicly committed to and sup- regularly criticise them for not meeting their portive of anti-corruption (AC) efforts. Public targets. The problem with the critique is that it and media exposés and criticisms of corruption mostly places the blame on implementation create political anxieties for political leaders, failures when the issue is as much a design not only in democratic but also in authoritarian failure. Templates for anti-corruption success regimes in the region. AC activists in many of in fact misread the practical lessons. One these countries (including Vietnam) work closely element of the standard template, the need for with international organisations, promoting a an ‘independent’ anti-corruption enforcement more or less standard set of diagnoses and rem- system, misreads the meaning and empirical edies, within the framework of a wider ‘good reality of ‘independence’. Evidence is pre- governance’ discourse. From this perspective, sented from Singapore, Hong Kong and there is much borrowing and emulation from Indonesia to show that their anti-corruption the apparent ‘success stories’ across the world. agencies are ‘independent’ more in the sense The remedies within this discourse emphasise that they are powerful, rather than in the sense enhancing citizen voice, including press free- that they are apolitical. The lesson for Vietnam doms; judicial reform, especially the creation of is that misleading design principles such as an ‘independent’ judiciary; civil service employ- ‘political independence’are a distraction from ment reform; modernisation of public manage- the task of strengthening the anti-corruption ment systems, including removing unnecessary law enforcement system. layers of regulation and bureaucracy; tough AC laws; and politically independent, special- Key words: corruption, Vietnam, good gover- purpose AC law enforcement agencies. nance, political independence, anti-corruption The subject of this article is the relevance reform of overseas experience and contemporary AC reform templates for Vietnam’s recent AC * Emeritus Professor, Department of Public Policy, efforts and prospective reforms. The main City University of Hong Kong, Hong Kong; focus is on two aspects of these AC measures, email: Ͻ[email protected]Ͼ. namely investigation and enforcement. It draws

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University. This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes. 274 Asia & the Pacific Policy Studies May 2014 primarily on material gathered during a Vietnam occurs in many forms, including research consultancy in 2012 for the Hanoi street-level harassment by police officers and office of the United Nations Development Pro- other government officials of ordinary citizens gramme (UNDP), the findings of which are going about their daily lives; ‘under-the- published elsewhere (Painter et al. 2012). The counter’payments for medical, health and other research included not only a survey of overseas services; demands for bribes from business literature and published sources on AC experi- entities in the licensing and permissions pro- ence in other jurisdictions, and an extensive cesses; ‘purchase of office’in all areas of public review of Vietnam government legal docu- employment; and theft of public resources ments and internal reports on AC, but also a (including land) by high officials, sometimes series of discussions with public officials in on a grand scale. Vietnam is firmly fixed in Hanoi in September and October 2012.1 The place as one of the lowest ranked countries conclusions drawn in the original report in Transparency International’s Corruption included a set of proposals and recommenda- Perception Index (ranked 112 out of 182 in tions based on an analysis of the historical 2011 and ranked 123 out of 175 in 2012). origins and experience of AC investigation The government has launched a series of and prosecution regimes in Hong Kong, Singa- measures to deal with the problem. In 2005, it pore and Indonesia, as well as Vietnam. The adopted an AC Law (amended in 2012), and in current article extends and expands on these 2006 it promulgated an AC strategy with bold conclusions. and ambitious aims. At this time, it set up a Gainsborough et al. (2009, pp. 378, 397) number of new special agencies and re-assigned argue that ‘corruption in Vietnam is a systemic roles and responsibilities, including a special problem’ and that since economic reform investigation unit in the Ministry of Public began, ‘both the incidence of corruption and the Security (MPS); a designated AC office in the sums involved have increased’. Corruption in Procuracy (which handles prosecutions); and a coordinating body under a Steering Committee 1. The officials concerned comprised Mr Duong Van chaired by the Prime Minister. Vietnam signed Phung, Director General, and Mr Le Mai from Department 1B on Prosecution and Procuracy for Corruption Cases, up to the United Nations Convention against the Supreme People’s Procuracy; Mr Nguyen the Binh, Corruption (UNCAC) and made commitments Director General of Monitoring Adjudication of Serious under it to conform to international standards Corruption Cases, and Mr Hoang Cac, Deputy Director on AC laws and enforcement, and to engage General of Department III, the Office of the Steering Com- in international cooperation. It has actively mittee on Anti-corruption; Mr Le Hong Hanh, Director General of Legal Sciences Institute from the Ministry of sought international advice and assistance on Justice; Mr Nguyen Dinh Quyen, Vice Chairman of Judi- AC reforms and has participated since 2007 cial Committee, the National Assembly; Mr Nguyen Van with donors and non-governmental organi- Thanh, Deputy General Inspector, Mr Do Gia Thu, Direc- sations (NGOs) in an annual high-level ‘Anti- tor General of Legal Department and others from the GI; Corruption Dialogue’. Recent Party Plenums in Mr Dang Van Hai, Deputy Director General and others from the State Audit of Vietnam; Mr Dang Thanh Tung, 2011 and 2012 have announced important new Deputy Chief Inspector, the Ministry of Home Affairs; Mr AC measures. In what was presented as a sign Le Ba Than, Chief Judge of Criminal Court, Ms Phung Thi of increased commitment, the Office of the Loc, Head of Division of Criminal Court, and Mr Vu Tuan Steering Committee in 2012 was moved and Duc, Deputy Head of Division of Criminal Court, the placed under the wing of the Communist Party Supreme People’s Court; and Mr Ha Huu Duc, Deputy Director General of the Research Department (the Party Central Committee, and the existing ministerial Inspection Commission of the Communist Party of Steering Committee chaired by the Prime Vietnam). The interviews with these senior experts were Minister was disbanded. conducted from 17 to 21 September 2012, and from 3 to 5 Thanks to some of these efforts, Vietnamese October 2012. While these discussions were helpful in reformers have been exposed to the good gov- contributing to the information required for the research study, the findings and judgments presented in this article ernance rhetoric and to the orthodox recipes for are the responsibility of the author and should not be reform. While these remedies have dominated attributed to any of those listed earlier. much of the donor and local NGO reform

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 275 discourse, including in dialogues with public case of Vietnam and describe the basic consti- officials, they have not been fully adopted or, if tutional and institutional frameworks within adopted, they have not always been imple- which AC programs are implemented. Finally, mented. On the one hand, this is interpreted by I discuss the possibilities of reform within the outsiders as a sign of ‘window dressing’ and existing system, drawing on both the reassess- weak commitment, a view reinforced by the ment of overseas lessons and also on current growing levels of corruption. But labelling it an reform trajectories in Vietnam. implementation failure is a soft option; it is also a design failure (Gainsborough et al. 2009). What Works? A Best Practice AC Model This is not to deny serious implementation problems, in that prevention measures and Emulation and learning from success stories AC law enforcement are under-resourced and is a standard operating procedure of admi- poorly coordinated (Painter et al. 2012). The nistrative reformers worldwide (Dolowitz & point remains that in Vietnam, many of the Marsh 1996; Common 2001; Dong et al. remedies of the orthodox AC template are 2008). In the case of borrowing and trans- rejected outright because they contradict stan- plantation of AC success stories, several of dard precepts of Communist Party rule or the most commonly recommended templates because Vietnamese society and historical con- originate from some of Vietnam’s neigh- ditions are said to be ‘special’or ‘unique’. Even bours, in particular Hong Kong and Singa- if it is the case that the existing political lead- pore. These cases are frequently taken as ership are ‘reluctant reformers’, it remains the object lessons in how a developing country case that those who argue for reform need a successfully combats serious corruption. plausible set of proposals that are at least half- There is often debate over the details, such as way acceptable. As it is, the Communist Party the role of a separate, independent AC inves- Government of Vietnam rejects key elements of tigative and/or prosecuting agency in relation the offered overseas templates. So far, neither to the wider law enforcement system (Meagher external donors and advisors nor local reform- 2005). There are also disagreements over the ers have formulated a coherent set of alternative emphasis on different strategies, such as pre- design principles. vention or punishment. But it is clear that a There are two main dimensions to the few key features of these jurisdictions’ expe- design failures in this case. The first dimension rience came to be widely diffused. From the is to be wedded to offering remedies, even 1970s on a wave of imitation resulted in the though they keep being rejected, in the belief widespread adoption of special AC legislation that they are among the necessary conditions and the establishment of AC agencies (ACAs; for success, when in fact this is based on a OECD 2008). The promulgation of AC strat- misreading of the actual reasons for success in egies by international organisations such as other jurisdictions. The second dimension con- the United Nations and the European Union cerns reluctance on the part of both external has further led to a common menu of ortho- advisers and local reform advocates to focus dox solutions, most comprehensively set out on how effectively to improve the existing AC in the UNCAC, to which Vietnam is a signa- system within the parameters set by the politi- tory. In brief, this template, as expressed in cal regime, as distinct from seeking to trans- the chapters and articles of this Convention form it to conform to external models. (United Nations 2004), covers the following In this article, I first turn to an analysis of elements: one prominent and widely adopted template of the ingredients of a successful AC program • a set of AC laws that criminalise all forms and, second, identify key areas where the of corruption (Articles 15 and 16), contain lessons of success (particularly in Asia) that in severe sanctions (Article 30) and include part underlay this template have been misread effective means to recover the proceeds of and taken out of context. I then turn to the corruption (Articles 52 and 53);

© 2014 The Author. Asia and the Paciﬁc Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University 276 Asia & the Paciﬁc Policy Studies May 2014

• a tailor-made AC investigation and pros- tal trajectories—those things identified with ecution system (Article 36) that has the good governance often come late in the devel- powers and resources to pursue all cases opment process and are as much a conse- without fear or favour, has the ‘necessary quence as a cause of it (Goldsmith 2012; independence’ and can resist political inter- Painter 2012). Unravelling causation and ference (Article 6); sequencing in the search for AC remedies is • a judicial process that is impartial (Article best tackled through case-by-case historical 11), brings about convictions and applies analysis. It is important to understand the par- appropriate sanctions; ticular context and sequence of events in which • accountability procedures, such as legis- a jurisdiction such as Hong Kong or Singapore lative oversight, transparency and public came to adopt and implement its AC measures reporting, to limit abuses of power in the and to establish its AC institutions. In addition, procurement, public finance and other key such a contextualised analysis of the historical administrative activities (Articles 9 and 10), realities and practical lessons of successful AC as well as the AC enforcement process reforms demonstrates that in fact, these cases itself; do not neatly fit the supposed standard tem- • a public dissemination and education plate: the reasons for success are often to be program, including codes of conduct and found in departures from some aspects of the ethics training for public officials (Article model. 7), that reinforces the prevention activi- This is so in the case of ‘political indepen- ties of the AC law enforcement agencies dence’ for a separate AC agency. Following the through building a supportive environment; lead of Singapore and Hong Kong, many juris- and dictions have set up special-purpose ACAs. • effective administrative discipline machin- The principle that these agencies should be ery within a well-entrenched, merit-based independent is seen as axiomatic. Article 6 of civil service system (Article 7). the UNCAC states that the signatory ‘state parties’ shall set up a ‘body or bodies’ to AC reform is a key component of the ortho- prevent corruption and shall grant it (or them) dox prescriptions for ‘good governance’. As ‘the necessary independence, in accordance has been noted by Grindle 2004 (p. 526) in the with the fundamental principles of its legal context of these prescriptions, the drawing up system, to enable the body or bodies to carry of a recipe list is of no help in telling reformers out its or their functions effectively and free ‘what is essential and what’s not, what should from any undue influence’ (United Nations come first and what should follow. . .’. 2004, p 10). A recent elaboration of this prin- However, there are some clues about these ciple is to be found in the ‘Jakarta Statement missing parts of the recipe in the AC case in on Principles of Anti-Corruption Agencies’, the historical experience of success stories. drawn up at an international conference of Such experience is far more likely to yield current and former heads of ACAs in Novem- results for lesson-takers than an abstracted ber 2012, in which the mechanisms were set model such as provided by a set of general out by which such independence could be principles or a list of desired measures distilled assured (Jakarta Statement on Principles for as an orthodoxy. Referring again to the wider Anti-Corruption Agencies 2012). good governance debate, this list is essentially Being free from undue influence is gener- a doctrinal distillation of the imagined tra- ally stated in the form of ‘being free from jectory of western economic and political politics’. However, while politics is seen as development, but it is often wrong both in part of the problem, it is also well understood attributing many features of the general tem- that politics is part of the solution. As Quah plate to specific cases to be emulated (in fact, (2003) has pointed out, ‘political will’ (that bad governance is everywhere in varying is, determined and persistent support by degrees) and also in its reading of developmen- the political leadership for AC measures) is

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 277 a vital ingredient in the success stories of of remuneration and other employment con- Hong Kong, Singapore and elsewhere. There ditions; high levels of financial and personnel is something of a paradox here: political inter- management autonomy; oversight by the vention to achieve reform must be accompa- legislature as well as the executive; and the nied by a form of political self-denial. That is, requirement to publish an annual report. political leaders must exercise their power to While a broad understanding of the kinds limit their capacity to exercise ‘undue influ- of institutional arrangements for assuring ence’ over the AC law enforcement process. political independence is widely shared, in But if we look more closely at cases such as practice, there is significant variation when Hong Kong and Singapore, we see that this we come to look at particular jurisdictions. paradox is resolved in ways that do not exactly This is the case in two of the most cited and conform to textbook good governance models emulated models—Singapore and Hong Kong. of political independence. Singapore’s ACA (the Corruption Preven- tion and Investigation Bureau (CPIB)) is not Political Independence and institutionally separated from the political Political Capacity executive—since 1969, it has been located in the Prime Minister’s Office. There is no formal The ideal is that the ACA will be part of an statement of statutory independence for the ‘apolitical’ law enforcement system, following Director in the Singapore Prevention of Cor- exclusively legal norms and procedures and ruption Act; however, the appointment process implementing, with meticulous attention to does indicate that the Director is unlike a due process, a clear set of laws to bring about normal head of a branch of the civil service the apprehension, conviction and punishment under the Prime Minister’s (PM’s) direction. of offenders. The instruments that may be The incumbent is nominated by Cabinet but deployed to try to ensure independence are appointed by the President. Moreover, one several (Jakarta Statement on Principles for section of the Constitution on the powers of Anti-Corruption Agencies 2012; Lewis & the President (Article 22G) provides that the Stenning 2012). Some ACAs have a statutory director of the CPIB can continue to investi- or constitutional basis for a claim to indepen- gate any minister or senior civil servant even dence in the form of a ‘black letter’ statement if the PM does not consent, providing the asserting autonomy and limiting the powers director secures the President’s approval. This of executive direction. The Jakarta Principles is the main de jure ‘guarantee’ of indepen- argue for ‘permanence’ in the form of estab- dence (and of high symbolic importance). lishment of ACAs under the Constitution or a But to what extent are these stipulated special law. In limiting executive direction, powers of the President a guarantee of de the power of an oversight minister may be facto independence? Both cabinet members restrained rather than eliminated altogether. and presidents have always been of the same For example, the minister may be required to partisan persuasion in the lifetime of Singa- issue a public statement if he or she intervenes pore’s ACA. Singapore’s fight against cor- in a decision of the agency concerned, or ruption owes its origin to its status as a key rejects its advice. Other mechanisms relate to political program of the ruling party. It was appointment, continuity, removal and remu- highly significant that it was moved in 1969 neration of AC officials. They include an oath into the PM’s department and hence under the of office upon appointment of the head of direct oversight of Prime Minster Lee Kwan the agency; guarantee of job security (for Yew, the self-proclaimed champion in the example, fixed terms beyond the normal term battle against corruption in Singapore. Singa- of the appointing government); checks and pore’s ACA retained the capacity to act vigor- balances in the appointment and dismissal ously against corruption to the extent that process through the involvement of the legis- successive PMs and presidents persistently lature and the judiciary; external determination and unequivocally supported and defended

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University 278 Asia & the Pacific Policy Studies May 2014 its mission—a political commitment rather more broadly, interference in operational than a legal guarantee. But it helped also that it matters by the Chief Executive would be was given impressive legal and bureaucratic political suicide, if it ever became public, in powers to investigate corruption from its seat the face of a vigorous political opposition and in the PM’s Office; that the laws are tough a news media free of censorship. Ultimately, and punishment severe;2 that successive com- it is these factors against a background that missioners deployed these powers vigorously; ICAC is one of Hong Kong’s most widely that prosecution success rates were high— respected public institutions that guarantees Singapore has a prosecution success rate in its independence. The initial establishment corruption cases in excess of 90 per cent of the ICAC in 1974 was a response to public (between 2007 and 2011, the success rate was demand to clean up the Colony’s corrupt 97 per cent) (The Straits Times 2013); and that police force. The arrest and prosecution of the judiciary generally imposes the toughest senior British police officers and other officials available sanctions. In Singapore, there have won instant public support from a Chinese been successful prosecutions of senior figures population that had recently rioted against associated with the ruling party—exercising British rule. The legitimacy of the colonial political will here means ‘letting the law take power was at stake. its course’. On this point, the existence of a The priority for the Hong Kong government respected and reliable judiciary has also been a was the need to set up a body independent of key feature. Bearing in mind the prosecution the existing policing and prosecution system, rates and the heavy sentences, this is as much as it was there that the problem lay. Once the a statement about the efficiency and unity of new investigation unit got to work, the judi- purpose of those engaged in the fight against ciary sided firmly with the central administra- corruption as a statement about judicial inde- tion and imposed tough sentences. The extent pendence. In sum, Singapore’s reputation as to which the ‘might of the law’ was deployed ‘corruption free’ owes as much to the political is illustrated by the fact that, as in Singapore, character of the Singapore regime as to insti- possession of ‘illicit assets’ was made an tutions that guarantee freedom from political offence, with the onus of proof on the accused. interference for its law enforcement agencies. The highest penalty for this offence is a Its ACA owes it success to being at the heart of 10-year prison sentence plus a fine (up to political power, not to distancing itself from it. HKD500,000).3 In the first 5 years after the The independent status of Hong Kong’s ICAC was set up, prosecutions under this pro- Independent Commission Against Corruption vision were laid in 37 cases. Most notorious (ICAC) chief is also ambiguous. The ICAC was the ‘$600 million detective’ (with total Commissioner is directly appointed by the assets in equivalent to 10,000 years of his Chief Executive and can be dismissed by the official annual income) (Tong 2007). As in Chief Executive at any time. Section 5.2 of Singapore, prosecution success rates have the ordinance set outs that the Commissioner been very high (in excess of 80 per cent) of the ICAC is not to be ‘subject to direction or (Hong Kong Government 2013). Extraordi- control of any person other than the Chief nary levels of resourcing were provided for the Executive’. In Hong Kong, where the ‘rule of ICAC (in 2011, the staffing establishment law’ is an article of faith among the political of Hong Kong’s ICAC stood at 1,380, and elite as well as among members of society its total budget was approximately US$90 million). Upon the handover to China in 2. A key feature of the Singapore Prevention of Corrup- 1997, the existence of a ‘Commission against tion Act is that Section 24 empowers the CPIB to investi- Corruption’ was written into the Basic Law. gate any person who possesses pecuniary resources or ‘Political independence’ continues to have property disproportionate to his or her known sources of income, and for which he or she cannot account. Posses- a high symbolic importance. Hong Kong’s sion of such ‘illicit assets’ can be taken as evidence of corruption. The courts can also confiscate such assets. 3. HKD500,000 is approximately USD65,000.

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 279 political leaders take great pains to demon- autonomy but also statements about capacity, strate their political self-denial in corruption such as ‘adequate and reliable resources’. cases and to reassure the public that legal Political support, high levels of resourcing and norms and ‘the rule of law’ operate. For adequate investigative powers under the law example, in 2003, the Financial Secretary are all crucial in building and maintaining this was investigated for allegedly using ‘insider capacity. knowledge’ when purchasing a car to evade In addition to legal and material capacities, an increase in vehicle registration tax, to be the capacity to win battles within the bureau- introduced at the upcoming budget. ICAC cracy (and, possibly, also the judiciary in cases presented its findings to the Director of Public where it may be hostile) is critical. Again, Prosecutions in August 2003. Two indepen- ‘independence’is a misnomer for this aspect of dent opinions were sought from local and the ACA’s capacity to act effectively, and British legal authorities, respectively, both of again, this is a matter of politics (in this case, whom found that there was not a reasonable bureaucratic politics). Indonesia’s ACA (the prospect of securing a conviction. The Secre- Corruption Eradication Commission (Komisi tary for Justice (equivalent to the minister), Pemberantasan Korupsi or KPK)) provides a who under the Basic Law is responsible for good example. KPK is an extreme case of an taking decisions on whether or not to mount ACA designed not only to be politically inde- prosecutions, delegated this decision to the pendent but also to be all-powerful. Following Director of Public Prosecutions, who advised the fall of the Suharto government in 1998, the Secretary not to prosecute. She accepted there has been strong public support for a the advice. The details of the case and the vigorous AC drive. ‘Grand corruption’ by the reasons for the decision were published in a Suharto family during his years in office was a 12-page report on 15 December 2003. In sum, strong driver of the downfall of that regime. meticulous public attention to the norms of Since then, frequent cases of high-level politi- political independence in this case was consid- cal corruption, including in the senior ranks of ered to be of paramount symbolic significance, the law enforcement agencies, have remained for clear political reasons. in the public eye, both at central and local To sum up, norms of political independ- levels. Public anger and effective campaigning ence and political self-denial are legitimating by NGOs have kept the issue prominent in devices for the exercise of investigative and electoral politics. President Susilo Bambang judicial powers, although perhaps no less Yudhoyono, elected in 2009 for a second important for that. But in the matter of inves- 5-year term, took a strong public stand against tigation, it is the raw operational power of the corruption. ACA that seems to matter, as much if not more In 2002, new legislation was adopted, and than its purported political independence. a range of new AC institutions was set up. Cooperation from the judiciary is also impor- Article 3 of Law 30/2002 provides that ‘(t)he tant. This concerted power requires strong top- KPK is to be a State agency that will perform down political leadership and commitment, its duties and authority independently, free and it also requires other capacities, such as from any and all influence.’ The KPK com- skilled investigators and the ability to collabo- prises five commissioners, nominated by the rate with other investigative and prosecuting President with the assistance of a selection bodies. The other side of the independence committee and then selected by Parliament. coin for an ACA is the possession of sufficient Thus, they are appointed through a highly powers and resources to make its operations charged political process. Once appointed, the effective. Independence (like all forms of KPK Commissioners swear an oath of office freedom) not only has a negative connation and can claim a high level of legitimacy to act (freedom from interference) but also has a independently. Many of the KPK cases are positive one (the capacity to act). The Jakarta high profile. KPK has not shied away from Principles include not only statements about going after some rich and powerful figures,

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University 280 Asia & the Pacific Policy Studies May 2014 including leading members of the president’s information on tax records and assets. Unlike own ruling party, very senior government the police, it can inspect private bank accounts officials, including members of the police without obtaining the prior approval of the force, prominent tycoons and parliamentarians Governor of the Bank Indonesia. KPK is also (Bolongaita 2010, p. 17). At the same time, well resourced. It has a budget in excess of critics point to many other high-profile cases US$50 million and a staff of over 700. Inves- that do not proceed to court (the suggestion is tigators and prosecutors are chosen through a that pragmatic considerations are relevant in rigorous selection process. Strict integrity which cases to prioritise). tests are applied. Staff are hired on fixed-term KPK was granted extensive and extra- contracts, and if these are not renewed, the ordinary power and authority within the individuals return to their original jobs law enforcement system. KPK ‘coordinates’ (mostly in other law enforcement agencies). A and ‘supervises’ other agencies involved in position in KPK is highly prized: KPK’s combating corruption. Many corruption cases recruiting exercise in 2008 received over continue to be dealt with by the police and the 28,000 applicants for 85 positions (Bolongaita public prosecutor, but KPK’s oversight extends 2010, p. 9). to the power to take over investigations that it In addition to these measures, Article 54 of considers to be taking too long or not produc- Law 20/2002 established the Court of Corrup- ing the desired results, in particular where it tion (Pengalidan Tindak Pidana Korupsi believes that corruption may be hindering the or Tipikor) (Butt 2012). The Court was based process. It has special investigative powers that in the Jakarta District Court and formed rule out the need to cooperate with other agen- by recruiting, through a rigorous selection cies. It conducts its own prosecutions. It also process, a team comprising both experienced has a special mandate to conduct investigations career judges and also ‘ad hoc’ judges (for and mount cases against other law enforcement example, academics and senior legal practitio- agencies. In practice, there are continual ‘turf ners) who would only hear corruption cases. In wars’ and legal disputes over the conduct of 2006, the Constitutional Court ruled that this investigations, with the occasional public con- so-called ‘parallel’ court system was unconsti- frontation when KPK forcibly enters police tutional, as it set up two classes of accused— premises to seize files. Recently, KPK and one tried before the normal courts and another the police have been in open warfare over before the Tipikor under different rules—and KPK investigations into police corruption hence denied the basic principle of ‘equality (Pramudatama & Aritonang 2012). In 2009, before the law’. The Parliament was instructed two KPK Commissioners were charged with to remedy the situation. The result was legis- corruption by the public prosecutors, and its lation in 2009 to give the Tipikor exclusive chairman was charged with murder (and later jurisdiction over corruption cases and, at the found guilty). The verdict on the murder case same time, to set up a national system of caused sensation, but not political contro- regional Tipikor to handle the increased work- versy. However, the corruption charges were a load. These decentralised Tipikor were subor- different matter and were later dismissed by dinated to district courts. The requirement for the Constitutional Court. It was revealed that a majority of external ‘ad hoc’ judges was police and Attorney General’s Office officials removed, and ordinary prosecutors as well fabricated evidence. KPK mounted a counter- as KPK prosecutors could bring cases. This investigation, and secret wiretaps provided the extension of the system resulted in an influx evidence of a conspiracy. of prosecutors and judges who were not KPK’s special powers of investigation are hand-picked for AC work. Some high-profile far-reaching. It has the power of arrest and KPK investigations and prosecutions of local detention (up to 120 days). It can use wiretap- Tipikor judges followed (Kristanti 2012). ping, impose travel bans, investigate financial KPK’s success rate in cases brought before assets, block bank accounts and gain access to the Jakarta Tipikor has been 100 per cent,

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 281 compared with approximately a 50 per cent To conclude, the experience of Hong Kong, success rate for corruption cases in other courts Singapore and Indonesia suggests that ‘politi- (Butt 2012). The reasons for this outcome are cal independence’ is an important symbolic several. First, KPK is highly selective in the statement, but that more important is the cases it brings to court. In 2007, for example, power placed behind the AC law enforcement the public prosecutor dealt with 712 corruption process. This power derives from the presence cases against the KPK’s 27 cases (ASEAN of a concerted political program imposed from Affairs 2008). The Commission closely re- the top down, in which an AC law enforcement views all proposed prosecutions to ensure that a system with teeth is established, and supported watertight case exists. A second reason for its in whatever appropriate way by the political success is that KPK is well resourced and has leaders of the day. In practice, political support very strong investigative powers.Athird reason and protection are needed just as much as is that the Jakarta Tipikor operates transparently independence, to provide the necessary and predictably. For some, its predictability is a resources and the required autonomy to reason for complaint. The Tipikor is often conduct effective investigations and prosecu- accused of having ‘ignored the presumption of tions. What is also crucial is establishing the innocence in favour of a high conviction rate’ autonomy of the ACA within the bureaucratic (Butt 2012). and policing system more broadly. Legal In sum, to the extent that Indonesia’s ACA norms will be important in the conduct of has been successful, it has been because KPK enforcement activities, but these are no more has been strongly supported in the political than part of the mechanics and may vary from arena, granted extraordinary powers and jurisdiction to jurisdiction. The principle of resources, and located at the hub of a ring- political independence as reified in the ortho- fenced AC law enforcement system, which dox good governance model is less important is designed with successful prosecutions in than the need to possess the political and mind. The establishment of special courts was administrative capacity to act effectively. a move to counter the perceived corruption of the Indonesian judiciary, but at the same time, this system afforded KPK with enhanced Political Independence in Vietnam control. KPK is a high-profile public actor in the political realm in its own right, and it has In Vietnam’s system of government, the prompted a political backlash accordingly. In concept of an ‘independent’ actor within the addition to the battles with other law enforce- state outside the remit of the Communist Party ment agencies, the legislation decentralising of Vietnam’s (CPV) leadership and supervi- the Tipikor may also have been a kind of sion is a contradiction. Under the Constitution, ‘payback’, aimed at watering down KPK’s the CPV is ‘the force assuming leadership of effectiveness (Butt 2012). In another measure the State and society’ (Article 4), and to this that seemed aim at trimming its powers, end, it exercises oversight and is directly Parliament has considered amendments to involved, in one form or another, in all state Law 30/2002 to restrict KPK’s wiretapping agencies. Party membership is essential to rise powers, after a ruling by the Supreme Court in to senior official positions, while internal 2011 that laws covering wiretapping must be Party Committees exist in every state organ, reviewed. The Ministry of Communications including judicial organs, and exercise direct has sought to exert its powers in any new supervision. In promulgating its commitment regulatory regime (Transparency International to judicial reform, the Central Committee of Indonesia 2012). Other revisions to the KPK the Communist Party made clear that it will law under review in Parliament during 2011– take place ‘under the leadership of the Party 2012 would have restricted KPK’s powers and (will) aim to maintain political stability of indictment and prosecution and set up a and firmly preserve the nature of our State as a Supervisory Council. socialist rule-of-law State of the people, by the

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University 282 Asia & the Pacific Policy Studies May 2014 people, and for the people, as well as to ensure time, moderated by shared and overlapping the unified power of the State, along with the functions. With the Party exercising its role as distributions and collaboration between state well, this creates in Vietnam a notoriously con- bodies in the exercise of legislative, executive fusing and complex system of multiple claims and judicial powers’ (Communist Party of to wield state powers, with the effect that Vietnam 2005). different organs of the state frequently contra- Since 1992, the judiciary is under the dict each other. This confusion of overlapping control and supervision of the National realms of state management is reflected in Assembly (the judiciary was formerly under the arrangements for combating corruption. management by the Ministry of Justice, but it The system is complex and comprises multiple was moved because of failures of supervision agencies. Criminal investigation of corruption and widespread judicial incompetence) (To is given over to a branch in the MPS known 2006). Article 130 of the Constitution states, as C48, staffed by police officers and civil ‘. . .when adjudicating, judges and honorary servants, rather than to a stand-alone ACA. At judges are independent and conform only to the same time, other aspects of ‘economic the law’. The crucial part of this formulation crimes’ normally viewed elsewhere as corrup- is the phrase ‘when adjudicating’—otherwise, tion may be handled by other branches of the the judiciary is not intended to be ‘indepen- Ministry. Responsibilities for some aspects dent’ but is an arm of the unified party state of AC investigation (but not criminal investi- with a specific function, namely to enforce the gations) are shared with the Government law (To 2006, pp. 400–01). Neither does the Inspectorate (GI), which has general responsi- judiciary have the kind of authority or status bilities for corruption prevention because of its that is claimed for it under western concep- overall remit of inspecting the legality of the tions of the ‘rule of law’. Under these concep- work of state agencies and officials and making tions, an independent judiciary exercises a recommendations to remedy malpractice.4 GI realm of authority that, in principle, can chal- is required to pass on to MPS information that lenge or counterbalance executive power. The could lead to a criminal prosecution. Which judiciary exercises its own powers of inter- ‘case’ belongs to whom is also left up in the air pretation and adjudication in law enforcement. on occasion because the Penal Code excludes In Vietnam’s ‘socialist rule of law’ state, the from the realm of criminality petty corruption judiciary ‘applies laws’, but the power to inter- below a certain monetary value (measured in pret the law is in principle exercised by the terms of ‘loss to the state’), leaving these cases National Assembly. In practice, interpretation to the disciplinary mechanisms set up under the of the law is undertaken by executive organs of laws on public employment. These laws are the state, which issue legal documents for this supervised by another ministry altogether. In purpose as needed (Lien 2011). Legality, or addition, corruption cases involving senior legal formalism, in the conduct of government party members are reviewed and investi- business is a strong norm within the machinery gated by the Party Inspectorate as disciplinary of government in Vietnam, although lip service matters before they go any further as criminal or to this norm frequently masks irregularities disciplinary proceedings. Prosecution of crimi- that arise from the de facto discretion available nal cases (as distinct from party discipline to executive actors. matters) is handled by the Supreme People’s However, if separation of powers and con- Procuracy, a transplanted Soviet-style institu- cepts of political independence are alien, the tion, which has overall powers of supervision idea that state powers should be functionally over all criminal investigations and over the distributed and separated in the conduct of courts, with a special division to deal with state management is embodied in the Consti- corruption cases. The Procuracy is supervised tution. This dispersal of roles and functions across executive, legislative, supervisory, 4. The GI is the Government of Vietnam counterpart for inspectorial and judicial organs is, at the same AC work by donors and international agencies.

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 283 by the National Assembly, and to that extent members over the extent of corruption has is somewhat outside the normal executive stimulated soul searching within the leader- chain of command. A central AC Steering ship. The longer term legitimacy of the regime Committee was set up in 2006 with the Prime may be in question if corruption continues to Minister as Chair to oversee and coordinate worsen. The latest in a series of responses by AC efforts, along with a new Office of over the CPV was the 2012 revision to the Anti- 100 officials, which devoted most of its Corruption Law, which abolished the Steering efforts to clearing logjams in this complex Committee chaired by the Prime Minister and administrative landscape. moved the function of overall coordination of Within the organisation of the government, the AC effort to the Central Committee of the there is no clear set of conventions or rules Party. A strengthening of the Central Com- about the distinct, ‘arm’s-length’ roles of poli- mittee’s administrative structures followed. A ticians and AC law enforcement agencies, rising star of the Party, Da Nang Party Secre- including the police. The MPS is a government tary Nguyen Ba Thanh, was appointed as head ministry, and the security forces are an integral of the Central Internal Affairs Commission arm of state power under the direct control of and given the jobs of advising the Politburo political leaders. Investigation of corruption by and Central Steering Committee on Anti- C48 is not afforded any special privilege in Corruption and of leading the investigation being free from such political control and and disciplining of senior party members. potential political intervention. GI is also a In this move, in one interpretation, the basic standard government agency under a minister, practical logic underlying the doctrine of inde- who has a relatively low standing in the min- pendence seems to have been acknowledged: isterial pecking order. The complex political the Party will do a better job to combat official subordination mechanisms to which AC agen- corruption from a position outside the execu- cies are subject is similar to that experienced tive because there will not be a direct ‘conflict by all other government agencies. of interest’.5 However, this flatly denies the In this context, calls for an independent ACA reality that the Party and state are fused, and have so far fallen on deaf ears. The kind of for this reason, this is not how the Party would political independence envisaged in templates wish to portray it. A simpler form of justifica- such as the Jakarta Principles is rejected out tion is the argument that the Party is simply of hand, while none of the agencies referred exercising its ‘leadership role’ in the face of to earlier will agree to surrender executive abject failure of the existing system. Whatever or supervisory power to a new body. At the the rationale, the move has significant political moment, the AC enforcement system is weak, implications. The most important is that the fragmented, uncoordinated and subject to Party has symbolically accepted overt respon- local capture and uncoordinated political inter- sibility for practical results. It is just possible ference. Weaknesses in the Criminal Code have that the leadership will not only take firm also been identified (Transparency International charge of the AC machinery but also give the 2011; Painter et al. 2012). These weaknesses, ‘green light’ for investigators and prosecutors coupled with chronic enforcement deficits and to act professionally and impartially, while coordination gaps, constitute the principle items backing them up.6 Significant reforms to the on the AC reform agenda in Vietnam. legal and institutional framework within the

A Way Forward 5. This rationalisation was offered by several respondents during interviews with government and party ofﬁcials in Most observers (as well as the Vietnamese October 2012. government and the Communist Party) 6. A more sanguine view (expressed by some interviewees) was that the result would be simply to add acknowledge that the AC law enforcement one more bureaucratic layer of delay and added friction system is not working. Popular opposition and in an already overcrowded ﬁeld of AC investigation and frustration among many grass-roots Party prosecution.

© 2014 The Author. Asia and the Pacific Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University 284 Asia & the Pacific Policy Studies May 2014 government would be needed, reforms that so Party for supervising AC work is in some way far have proved beyond the will or capacity of a ‘tipping point’ in Vietnam’s AC efforts. But the government itself to implement, but which if the earlier analysis of the conditions under might in future receive a greater impetus. which AC reform began to work in other juris- In considering reforms aimed at improving dictions is correct, this apparent assertion of law enforcement capacity, some of the lessons ‘political will’ (if such it is) might be a first of Singapore, Hong Kong and Indonesia are critical step. An alternative interpretation, relevant. AC successes in these jurisdictions however, is that this is just one more round in can be attributed in part to the concentration a continuing set of factional squabbles within of legal might (including a tough AC law) the Party.9 As argued earlier, if serious steps and political legitimacy under a well-resourced are to be taken to prevent and punish official ACA.7 In Vietnam, a key priority is to revise the corruption, the next step would be to increase Penal Code to strengthen the AC laws, which the enforcement capacity of the AC investi- currently contain gaps and, in some areas such gative and prosecuting machinery, including as the definition of crimes of corruption, measures to place the main law enforce- impose unnecessary obstacles in meeting the ment administrative units beyond the direct requirements for proof.8 The current arrange- interventional control and influence of line ments requiring coordination among multiple departments. Substantial legal reforms are also agencies create debilitating obstacles to effec- needed, which may be addressed as part of the tive investigation and enforcement, and these review of the Penal Code when it comes due. might be overcome by unifying critical AC These directions should be anticipated and functions into one overarching investigative supported, rather than hoping for unrealisable agency. Such an overarching agency would changes such as a politically independent law possibly need special investigative powers, enforcement system. none of which currently are enjoyed by the AC unit of MPS. To reinforce norms of due January 2014. process and impartiality and to place it above the influence of warring bureaucracies, one This article draws on two research consultancies option would be to locate it in the Supreme undertaken in Hanoi. The first, conducted in 2011, Procuracy, under oversight the National was commissioned by DFID Hanoi: APolicy Impact Assembly. Study on Anti-Corruption Dialogue 2007–2011; the It is far too soon to say that the recent asser- second, conducted in 2012, was commissioned by tion of the power and responsibility of the Department for International Development (DFID)/ UNDP on International Comparative Analysis of 7. No single factor can determine success or failure in AC Anti-Corruption Legislation: Lessons on Sanction- work, but the cases surveyed in this article show that ing and Enforcing Mechanisms. This article draws autonomy and investigative capacity were critical factors principally on the findings documented in the second in bringing about successful AC outcomes (to the extent that success was achieved) in each of the three jurisdic- of these research studies (Painter et al. 2012). tions. Going further, the reasons for different levels and Research for both projects involved accessing docu- types of corruption in different jurisdictions at different ments held by donor agencies and non-governmental times are complex and multiple, ranging across a wide organisation and conducting interviews with gov- spectrum of economic, social, institutional and political ernment and party officials in Hanoi. I wish to variables. The argument here does not give primacy to any one set of factors. In concentrating on the enforcement acknowledge the assistance of staff in both DFID regime, it highlights those features in that realm that and UNDP, with particular thanks to Renwick matter the most. Irvine and Jairo Acuna-Alfaro. Most of all, I wish to 8. For example, before a case will be accepted by the prosecutor as fit to be taken to court, the investigator must categorise the crime in terms of ‘loss to the state’. This 9. Nguyen Ba Thanh’s failure to be elected to the Polit- requires often very technical analysis by valuers that may buro in May 2013 has been interpreted as a counter-move end up being inconclusive. Many cases simply sit on the by those who feel threatened by his new role, in order to files as a result of this ‘lack of evidence’. weaken his authority (Nguyen 2013).

© 2014 The Author. Asia and the Paciﬁc Policy Studies published by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University Painter: Lessons for Vietnam 285 acknowledge the contributions made to the research and Development: Challenges and Opportu- by my local collaborators: Mr Nguyen Quang Ngoc nities as Viet Nam Moves towards Middle- (who contributed to both projects), Mr Hoang Manh Income Status. In: Acuña-Alfaro J (ed) Chien, and Ms Dao Le Thu (Hanoi Law University). Reforming Public Administration in Viet Professor Bob Gregory (Victoria University of Wel- Nam: Current Situation and Recommenda- lington) also collaborated on the research for the tions, pp. 377–427. UNDP and National second project. The views presented in this article Political Publishing House, Ha Noi. are those of the author and should not be attributed Goldsmith AG (2012) Is Governance Reform a to any other individuals or organisations named Catalyst for Development? In: Jomo KS, earlier. Chowdhury A (eds) Is Good Governance Good for Development?, pp. 115–34. Bloomsbury Academic, London. References Grindle MS (2004) Good Enough Gover- nance: Poverty Reduction and Reform in ASEAN Affairs (2008) Corruption Cases Developing Countries. Governance 17(4), Keep Rising, 26 August, viewed August 525–48. 2012 Ͻhttp://www.aseanaffairs.com/page/ Hong Kong Government (2013) Hong Kong: indonesia_corruption_cases_keep_risingϾ. The Facts—ICAC, August 2013, viewed Bolongaita EP (2010) An Exception to the February 2014 Ͻhttp://www.gov.hk/en/ Rule? Why Indonesia’s Anti-Corruption about/abouthk/factsheets/docs/icac.pdfϾ. Commission Succeeds Where Others Jakarta Statement on Principles for Anti- Don’t—A Comparison with the Philippine’s Corruption Agencies (2012) Jakarta, 26–27 Ombudsman (U4 Issue 2010:4) Chr. November 2012, viewed February 2013 Michelsen Institute, Bergen. Ͻhttp://www.unodc.org/eastasiaandpaciﬁc/ Bukovansky M (2006) The Hollowness of en/2012/12/corruption-kpkl/story.htmlϾ. Anti-Corruption Discourse. Review of Inter- Kristanti A (2012) Chair of the Judicial national Political Economy 13(2), 181–209. Commission: ‘Kartin and Heru Are Butt S (2012) A Wolf in Sheep’s Clothing. Bandits’, Tempointeractive, 21 August Inside Indonesia 108. Viewed August 2012 2012, viewed February 2013 Ͻhttp://www Ͻhttp://www.insideindonesia.org/edition .tempointeractive.com/hg/nasional/2012/ -108-apr-jun-2012/a-wolf-in-sheep-s 08/21/brk,20120821-424796,uk.htmlϾ. -clothing-02042898Ͼ April–June 2012. Lewis M, Stenning P (2012) Considering Common R (2001) Public Management and the Glenister Judgment: Independence Policy Transfer in Southeast Asia. Ashgate, Requirements for Anti-Corruption Institu- Aldershot. tions’. SA Crime Quarterly 39, 11–21. Communist Party of Vietnam (2005) Resolu- March. tion of the Politburo on the Judicial reform Lien BTB (2011) Legal Interpretation and the Strategy to 2020, 49-NQ/TW, Hanoi, 2 Vietnamese Version of the Rule of Law. June. National Taiwan University Law Review Dolowitz D, Marsh D (1996) Who Learns 6(1), 321–37. What from Whom: A Review of the Policy Meagher P (2005) Anti-Corruption Agencies: Transfer Literature. Policy Studies 44(2), Rhetoric versus Reality. Journal of Policy 342–57. Reform 8, 69–103. Dong L, Christensen T, Painter M (2008) Nguyen H (2013) Surprise or Déjà Vu? The Administrative Reform in China’s Central Vietnam Communist Party’s Seventh Government—How Much ‘Learning from Plenum, CogitAsia, Centre for Strategic the West’? International Review of Admin- and International Studies, 13 May 2013, istrative Science 74(3), 351–71. viewed December 2013 Ͻhttp://cogitasia Gainsborough M, Dang ND, Tran TP (2009) .com/vietnams-leaders-at-the-seventh Corruption, Public Administration Reform -plenum-surprise-or-deja-vu/Ͼ.

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