Available in Russian
Author: Grigory Mashanov
DOI: 10.21128/1812-7126-2022-5-78-94
Keywords: anti-corruption; comparative anti-corruption; anti-corruption principle; constitutional law anti-corruption
In the last 10 years, 131 countries out of 180 have made no significant progress in fighting corruption, Transparency International (TI) reported in January 2022. This demonstrates, once again, that new approaches to counter corruption need to be found. Constitutional law theory may be helpful here. The concept of an anti-corruption principle in constitutionalism, introduced in 2009 by Prof. Zephyr Teachout, remains an underappreciated legal concept. This principle declares that constitutionalism provides inherent anti-corruption tools which allow preventing corruption, combating it, and liquidating its consequences. This paper reviews the constitutions of many nations to discover, surprisingly, how different countries have written into their basic laws the same integrity support provisions. The few Russian authors who have done such reviews classified their findings based on regional perspectives. In contrast, we suggest that similar concepts appear in countries with very different legal and political cultures. Sometimes countries like Brazil and Ukraine has more common, than Malaysia and Singapore. This proves for another time that there are universal anti-corruption constructions, such as division of powers, parliamentary and judicial oversight etc., which are used to secure the integrity in countries with very different background. Therefore, the classification ought to be institution-based, not territorial based. More importantly, the emphasis should not be on declarations of anti-corruption commitment but on specific provisions limiting monopolies and official discretion, as well as ensuring transparency and accountability. Indeed, while countries like Equatorial Guinea prescribe anti-corruption commitment with one of the worst corruption perceptions score (CPI) in the world, countries like Germany or Georgia have a significant number of anti-corruption constitutional constructions without a single mention of “corruption” and “bribe” in their constitutions’ texts, while having a satisfactory CPI level. The constitutionalism idea provides for an anti-corruption platform anywhere it is implemented. This paper provides a very short demonstration of the correlation between a country’s perceived corruption level and its level of economic development and freedom. However, current instruments do not allow us to solve the question: can causation be found between the development of anti-corruption provisions in the fundamental law and the country’s position in the Corruption Perceptions Index by TI? This paper develops the concept of an Anti-Corruption Principle Development Index (ACPDI), which can help answer that question.
About the author: Grigory Mashanov – Ph.D. Student at Department of Public Law, Faculty of Law, HSE University, Senior Lawyer at Transparency International – Russia.
Citation: Mashanov G. (2022) The Constitutional Anti-Corruption Principle: A Brief Comparative View. Sravnitel’noe konstitutsionnoe obozrenie, vol. 31, no. 5, pp. 78–94.
References
Choi F.K.H. (2018) How to Establish a Good Government? Lessons from Lee Kuan Yew in Singapore and Deng Xiaoping in China. Public Administration and Policy, vol. 21, no. 2, pp. 107–119.
Grimm D. (2016) Constitutionalism: Past, Present, and Future, Oxford: Oxford University Press.
Hirschl R. (2006) The New Constitutionalism and the Judicialization of Pure Politics Worldwide. Fordham Law Review, vol. 75, no. 2, pp. 721–754.
Horsley T. (2022) Constitutional Functions and Institutional Responsibility: A Functional Analysis of the UK Constitution. Legal Studies, vol. 42, no. 1, pp. 99–119.
Klitgaard R. (1998) International Cooperation Against Corruption. Finance and Development Magazine. Available at: https://www.mf.org/external/pubs/ft/fandd/1998/03/pdf/klitgaar.pdf (accessed: 06.07.2022).
Krasnov M. (2011) Zakonodatel’no zakreplennye polnomochiya Prezidenta Rossii: neobkhodimost’ ili servilizm? [Legislative authorities of the president of the russian federation: necessity or servility?]. Sravnitel’noe konstitutsionnoe obozrenie, vol. 20, no. 4, pp. 91–103.
Lafitskiy V.I. (2019) Konstitutsionnyy printsip protivodeystviya korruptsii: monografiya [The constitutional principle of anti-corruption: a monograph], Moscow: Prospekt.
Law A.J. (2021) The Restoration of Anti-Corruption as a Constitutional Principle. Government Law Review, vol. 14, no. 1, pp. 143–185.
Martinez J.S. (2012) Horizontal Structuring, Oxford: Oxford University Press.
Maslennikova S.V. (2012) Politicheskaya konkurentsiya kak prioritetnaya sfera konstitutsionnoy regulyatsii [Political competition as a priority area of constitutional regulation]. In: Razvitie Rossii i konstitutsionnoe stroitel’stvo: teoriya, metodologiya, proektirovanie: Materialy Vserossiyskoy nauchnoy konferentsii, 21 oktyabrya 2011 g., Moskva [Development of Russia and constitutional construction: theory, methodology, design. Proceedings of the All-Russian Scientific Conference, October 21, 2011, Moscow], Moscow: Nauchnyy ekspert, pp. 260–266.
McCormick R.L. (2015) Anti-Corruption in American History. The Journal of the Gilded Age and Progressive Era, vol. 14, no. 3, pp. 441–454.
Teachout Z. (2009) The Anti-Corruption Principle. Cornell Law Review, vol. 94, no. 2, pp. 341–413.
Teachout Z. (2014) Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United, Cambridge, MA: Harvard University Press.
Ten C.I. (2017) Constitutionalism and the Rule of Law. In: Goodin R.E., Pettit P., Pogge T. (eds.) A Companion to Contemporary Political Philosophy, Oxford: Wiley-Blackwell, pp. 493–502.
Tillman S.B. (2012) Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle. Northwestern University Law Review, vol. 107, no. 1, pp. 399–422.
Tregarthen T., Rittenberg L. (1999) Economics, 2nd ed., New York: Worth Publishers.
Vasil’eva S.V. (2016) Podchinenie gosudarstvennykh organov pravilam konkurentsii v Rossii [Public authorities subordination to competition law rules in Russia]. Lex Russica, no. 1, pp. 111–115.