THE KYRGYZ WORKSHOP ON DRAFTING ANTI-CORRUPTION LEGISLATION
Nov. 22-26, 2004

Introduction: The OSCE, together with the Kyrgyzstan anti-corruption commission, arranged this one week workshop primarily for Kyrgyzstan government officials (see attached lists of participants and the one week workshop schedule). In the process of assessing the likely effectiveness of specific legislation in reducing corruption in government decision making, it provided an opportunity for the participants to learn legislative drafting theory, methodology and techniques.

Organization of the workshop: The workshop learning process consisted of engaging the 26 workshop participants in analyzing the use of legislative theory and its problem-solving methodology as a guide to examine the potentials – and limits – of drafting law to deal with corruption. The participants focused on corruption as it appeared in government decision-making in three areas:

(1) as identified in a draft law which, as “a normative legal document,” aimed to “identify, prevent and stop corruption, to institute proceedings against convicted, and also to define legal and organizational basis of fighting corruption incidents;”
(2) criminal law enforcement; and
(3) government procurement of goods and services.

For this purpose, the participants formed three teams, each focused on one of these three areas. On the basis of their reading of the manual, Legislative Drafting for Democratic Social Change - A Manual for Drafters (Kluwer, 2000,)2 and the daily presentations made by Professors Ann Seidman, Robert Seidman, and Lorna Seitz, the teams analyzed the nature and causes of the relevant corrupt practices as a basis for legislative measures to curb them.

The teams used legislative theory’s problem-solving methodology to guide their analysis and the development of their proposed legislation. Legislative theory emphasizes that, to ensure effective implementation, as does the drafter of any law, a drafter of an anti-corruption law must first narrow the investigation. Instead of beginning with a broadly-stated social problem of the sorts stated above, that theory teaches to specify as the social problem addressed specific behaviors that together constitute a specific problematic institution.4 In the case of corruption, only that kind of detailed statement of the problem, and the corresponding analysis, makes it possible to analyze the evidence as to the causes of specific corrupt behaviors. Having proven the explanations of those behaviors consistent with the available facts, drafters can then claim that the design of a bill’s detailed provisions would likely logically ameliorate those causes. The drafter can then with some confidence predict that the new law will induce the relevant social actors to behave in relatively non-corrupt ways.

For example, the team seeking to assess the likely effectiveness of the overall draft anti-corruption law decided to focus their attention on the corrupt behavior of a tax inspector who accepts a bribe to reduce the stated value of a business entrepreneur’s property, and hence the tax the entrepreneur must pay. As the team pointed out, the tax inspector’s corrupt behavior inevitably contributes to state budget deficits, reducing the funds available for social welfare (including state employees’ salaries) and undermining the public’s confidence in government.

The team members then used legislative theory’s agenda for analyzing the evidence as to the likely causes of the problematic behaviors of the two sets of relevant social actors:5 the tax payer and the tax inspector in the face of the existing law. That theory proposes seven categories that serve to guide the investigator to develop specific explanatory hypotheses for the problematic behaviors at issue.

In the case at hand, in examining the existing Rules, the team members found the anti-corruption law’s wording vague, providing little guidance for identifying this particular form of corrupt behavior.
At the same time, the ambiguous wording and frequent changes in the tax law gave tax inspectors the power in their discretion to determine whether an entrepreneur’s behaviors in fact violated the tax law. That enabled those inspectors, seeking in their own interest to supplement their low official salaries, opportunity and capacity to interpret the tax rules arbitrarily.

The process of determining whether an entrepreneur had violated the tax law -- beginning with the requirement that the tax inspector check on the payments made, and ending with that inspector’s submission of a report to the authorities for verification -- appeared non-transparent, with little real supervision or accountability.

The team members concluded that, in light of these circumstances, the prevailing ideology -- a firmly-held public belief – held that, to avoid more serious troubles, an entrepreneur had little choice but to pay the bribe demanded.

It goes without saying that receiving the bribe lay in the official’s interest.

It seems likely that the official know the rule – that is, that is has been communicated to them

The team members recognized that these preliminary explanatory hypotheses would likely need revision in light of further facts not available to them. Nevertheless, they concluded that to the extent that their analysis seemed consistent with their own knowledge of the tax system, a number of possible legislative solutions logically might reduce the danger of the specific kinds of corrupt behaviors they had identified:

• to overcome the tax law imperfections, introduce new amendments to the tax law (a new draft Tax Code exists; this requires careful assessment);

• to alter low salaries of tax inspectors, provide increases, if possible linked to improved performance;

• to improve the public and entrepreneurs’ knowledge of tax legislation, hold training courses and publish information in the media;

• to increase effective measures to ensure that tax inspectors comply with legislation, strengthen responsible fiscal agencies and publicize their role in the madia, facilitate feedback through citizen hotlines, and establish data bases of tax officials held liable for administrative and disciplinary purposes; and

• to change population’s traditional mind-set, provide educational and awareness programs emphasizing corruption’s negative impact on public welfare.

Narrowing down their analyses to this level of detail, in other words, enabled the team members to begin to design the kinds of detailed legislative prescriptions required to alter or eliminate the causes of specific kinds of corrupt behaviors. This suggests that to reduce corruption requires drafting legislation relating to every aspect of government activity – whether statutes or administrative regulations – defensively. At every point, a drafter must specify detailed rules to ensure that officials make decisions by procedures that ensure transparency and accountability, and, wherever possible, the participation of those likely to be affected – especially the poor and vulnerable, usually excluded from the halls of power. Research everywhere suggests implementing those kinds of detailed rules increase the probability of detecting corrupt behaviors. Limiting officials’ opportunities and capacity to advance their own interest instead of the public welfare constitutes probably the most effective way of deterring them from behaving corruptly.

Learning from other countries’ experience: At the Kyrgyz workshop, a Macedonian and a Lithuanian expert described their governments’ anti-corruption commissions. Their experiences seem to confirm this analysis, and to underscore the importance of increasing civil society’s awareness and involvement in combating corruption at all levels of government.

In Lithuania, before 2000, the criminal law had proved ineffective in dealing with petty corruption because it did not address the causes of officials’ corrupt behaviors. A public awareness campaign proved more effective in exposing and discouraging individuals from taking advantage of their office to advance their own interests. In 2000, the Lithuanian government enacted several laws and set up a Commission with the aim of reducing officials’ opportunities to behave corruptly. A new criminal procedure code, although apparently not fully implemented, required the state prosecutor to specify specific procedures all officials must follow. The Commission, funded by the state budget, specifies and supervises government’s procurement processes; a complainant has the right under stipulated procedures to appeal to a court a decision exceeding a specified amount. Public officials must fill out tax returns, and declare their personal assets to the Commission.

In Macedonia, Ms. Slavjana, a Chairperson of an independent Commission concerned with combating corruption, emphasized the importance of a long-term perspective on the process. Reviewing the Macedonian experience from 1997 to 2004, she pointed out that without civil society awareness and demands for change, little change would take place. Most government measures seemed to reflect international pressures, ‘make-up’ amendments of existing laws. Reflecting the politicization of all institutions and the politicians’ ties to oligarchy, the Macedonian legislature adopted an amendment to the criminal code, first drafted in 1997, in 2004. Over the years, people learned to recognize the problems, and the need to reconstruct government, the parliament, universities and civil society. In 2004, the anti-corruption drive led to 22 laws, but these still seemed in the ‘declarative’ stage; their effective implementation still appeared likely to require a long, on-going process. The prime minister’s resignation, just before the Kyrgyz workshop took place, reflected a partial response to the anti-corruption movement. Ms. Slavjana explained that the Macedonian anti-corruption Commission has no formal powers to enforce the law; that remains the responsibility of agencies established under the 22 laws recently enacted. Nevertheless, remaining responsible to the elected Parliament, it can undertake research and demand accounting by public officials and may even check their bank accounts. Above all, the Commission aims to educate the public and government officials of the importance of effective implementation.

The workshop participants’ questions indicated their intense interest in these two countries’ experiences. More than that: They suggested the potential value of establishing linkages and exchanging research findings among those in these and other countries in the region and throughout the world who confront similar problems of government corruption.

Next Steps: The OSCE representative said he would discuss further with relevant officials, including members of Parliament and the University who had participated in the 2003 Distance Course, the possibilities of institutionalizing an on-going project to strengthen drafting capacity and law-making institutions.

ICLAD hopes to use its website and electronic exchange network to facilitate the exchange of comparative law and experience information on efforts to combat corruption.