How does corruption violate the basic human rights?

Introduction:

There is a close connection between corruption and human rights. Increasing empirical evidence around the world reveals a linkage between corruption and the infringement of human rights. Corrupt state officials use their power to silence critics, so that justice would be subverted. Other times corruption has made it possible for criminals to go unpunished. As can be seen from authoritarian regimes, large-scale human rights abuses generally take place along with  endemic corruption, such as in the regimes of Idi Amin in Uganda, Sani Obacha in Nigeria and Suharto in Indonesia.

It could be said that corruption causes a lack of respect for human rights and the rule of law.  As seen from the Euro Barometer Survey of 2005, more than half (57 per cent) of the citizens of the European Union see corruption as the driving force behind organized crime in their countries.[1] This is especially so in the case of organized crime, which contributes to serious violations of human rights, such as human trafficking where corruption has been identified as a major barrier to effective law enforcement (Iselin, 2002). Corruption in such cases can further exacerbate the degree of exploitation and violation of human rights of those who are already disadvantaged.

Corruption is a major barrier to fulfilling the state’s obligations to respect, protect and fulfill the human rights of individuals (ICHRP, 2009). For instance, a corrupt political system denies the fundamental right of political participation. A corrupt judicial system violates the basic right to equality before the law. Corruption in public administration endangers the right to life when it allows the manufacture of hazardous products. When the state fails to curb the spread of corruption, it may be concluded that the government has failed to fulfill its obligation to protect human rights.

Corruption:

There is no universally accepted definition of corruption. There is a tendency to use the term “corruption” loosely as a catch-all term. There is also considerable disagreement over which specific acts constitute corruption. Most people would agree that the embezzlement of public assets or the acceptance of bribes by a public official entails corruption, but if an employee of a  private  company  is  bribed  by  a  contractor  of  the  company,  is  this  also  a  question  of corruption? Most would still regard it as a corrupt act, but there exists a minority which holds that  the  term “corruption”  is  limited  to acts  that  take place within  the public sector. A more extreme view holds that corruption also encompasses cases such as when office supplies in a company go “missing,” or when a public employee claims to be sick but goes on vacation.

Such  differing  ideas  about  what  constitutes  corrupt  practices  have  resulted  in  different definitions of corruption. Today, probably the most used definition is the one adopted by the non-governmental organization Transparency International:  “corruption is the abuse of entrusted power for private gain.”

 It is important to note that corruption can also take place solely within the private sector. It is now widely accepted that corrupt practices within the private sector do in fact have a place within the spectrum of corruption. Most organizations currently working  to  fight corruption deal with corrupt practices in the private sector, mainly with the understanding that in order to effectively  combat  corruption  and  design  appropriate  policies,  it  is  necessary  to  include private entities.

 Most importantly, there is a significant connection between corruption, human rights, and the private  sector. The Special Representative of  the Secretary-General on  the  Issue of Human Rights  and  Transnational  Corporations  and  Other  Business  Enterprises  has  mentioned corruption  as part of  the  abuses on human  rights  committed by  transnational  corporations.[2] Undoubtedly, corruption is relevant to the relationship between transnational corporations and human  rights.  In this context, the notion of Corporate Social Responsibility is increasingly taking into account the problem of corruption. For example, the CSR initiative of the United Nations, the Global Compact, contains an Anti-Corruption Principle: “Business should work against corruption in all its forms, including extortion and bribery.” This initiative focuses on providing  anti-corruption  background  information,  as well  as  providing  guidance  and  other tools  to  participating  businesses  and  organizations  around  the  world.  Companies that participate in this initiative must make anti-corruption part of their strategy, culture, and day to day operations.

 Privatization is another issue related to the private sector that has important implications on corruption and human rights. Through privatization, public functions such as health, transport, or  telecommunications  are  put  in  private  hands  with  the  necessary  transfer  of  budgetary allocations  and  regulatory  powers.  Experience has shown that privatizations are prone to corruption, thus any definition of corruption should include the private sector.

 Hence, in general corruption is understood as the abuse of entrusted power both in the private and  public  sectors  for  private  gain.  Yet, in this  work,  a much more  specific  definition  is needed. Only by specifying the wide definition of corruption can one expect to analyze when and how different corrupt practices entail a violation of human rights. Hence, it is necessary to have recourse to a legal definition of corruption.

 In  the  legal  context,  the  commonly  understood  definition  of  corruption  as  “the  abuse  of entrusted  power  for  private  gain”  should  be  translated  into  “the  illegal  abuse  of  entrusted power  for  private  gain.”  In  other  words,  the  legal  definition  of  corruption  adds  a  further condition, which is the unlawful abuse of the entrusted power. This means that the person in a position of power who is accused of corruption must be acting contrary to the law.

 Although  every  country  in  the  world  criminalizes  corruption  in  some  form,  both  at  the international and national  levels corruption as such  in  legal  terms does not exist as a crime. Corruption is generally used as a term to group certain criminal acts which correspond to the general notion of an abuse of entrusted power.

 International conventions against corruption reflect this, as they do not define and criminalize corruption, but rather enumerate criminal acts which amount to corruption. The best definition of corruption (because it is at the same time broad in scope but detailed in content) is the one provided  by  the    Southern  African Development  Community  Protocol  against  Corruption: “‘Corruption’  means  any  act  referred  to  in  Article  3  and  includes  bribery  or  any  other behavior  in  relation  to  persons  entrusted  with  responsibilities  in  the  public  and  private sectors which violates  their duties as public officials, private employees,  independent agents or other  relationships of  that kind  and  aimed  at  obtaining undue  advantage of  any  kind  for themselves or others.”

 Corrupt Acts:

There is no one single comprehensive list of acts that is universally accepted as constituting corruption. National laws vary on which criminal acts are considered corrupt acts. However, on  the  basis  of  the  latest  and  broadest  international  anti-corruption  convention,  namely  the United Nations Convention against Corruption  (UNCAC), one can gain an  idea of what has generally been accepted as “corrupt acts.” The following is the list of core corrupt acts. It is important to note, however, that this is not an exhaustive list. Progressive development could enlarge this list to include other acts in the future.[3]

 Bribery

The most representative act of corruption is bribery. It  may be defined  as  the  promise, offering or giving,  to a public official, or  the  solicitation or acceptance by a public official, directly  or  indirectly, of  an  undue  advantage,  for  the  official  himself  or  another  person  or entity, in order that the official act or refrain from acting in the exercise of his official duties.

 There are however several different forms of bribery. The act of offering a bribe is commonly referred to as active bribery and the act of accepting the bribe as passive bribery. In addition, there  are  differences  in  the  definition  of  bribery whether  it  involves  a  national  or  foreign public official, and whether  it  takes place with  the public sector or solely within  the private sector.  The aforementioned definition refers to bribery of national public officials. The bribery  of  foreign  public  officials  and  officials  of  public  international  organizations,  also called transnational bribery, adds the condition that the undue advantage given to the official must  be  in  the  context  of  international  business.  If  the  act  of  bribery  is  committed  in  the course  of  economic,  financial  or  commercial  activities  and  solely  involves  persons  in  the private sector, this is referred to as bribery in the private sector.

Embezzlement

A common corrupt practice is embezzlement of public property.  It may be defined as the misappropriation or other diversion by a public official, for purposes unrelated to those for which the assets were intended, for his benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his position. The embezzlement of property can also occur in the private sector in the course of economic, financial or commercial activities.

 Trading in Influence

The promise, offering or giving to a public official or any other person, or the solicitation or acceptance  by  a  public  official  or  any  other  person,  directly  or  indirectly,  of  an  undue advantage in order that the public official or the person abuse his real or supposed influence with a view  to obtaining  from an administration or public authority an undue advantage  for the  original  instigator  of  the  act  or  for  any  other  person,  is  called  trading  in  influence. For some  it  is  irrelevant whether or not  the  influence  is ultimately exerted and whether or not  it leads to the intended result. Trading in influence is also commonly divided into its active form (giving an advantage in exchange for influence) and its passive form (requesting or accepting an advantage in exchange for influence).

 Abuse of Functions

The abuse of functions or position is referred to as the performance of, or failure to perform an  act,  in  violation  of  laws,  by  a  public  official  in  the  discharge  of  his  functions,  for  the purpose of obtaining an undue advantage for himself or for another person or entity.

 Corruption Leads to Violation of Human Rights: Direct and Indirect Violations

Human rights are regarded as inherent, inalienable and universal. The Universal Declaration of Human Rights adopted by the United Nations in 1948, states: “All human beings are born free and equal in dignity and rights. … Everyone is entitled to all the rights.” When an individual has human rights, it means the state and other actors have to respect those rights, which in principle would guarantee that no harm would come to individual persons (ICHRP, 2009). However, all forms of corruption could reduce the state’s capability to fulfill its obligations in a way in which the powerful are favored but the vulnerable are harmed, with the imposition of difficulties and threats to people’s lives.  For instance, the trafficking of women, which is an organized crime and one of the worst forms of human violation, is made possible because corruption is central to its operation. Bribes are given to officials: police and immigration officers, border control officials and so on in the whole chain of officials involved.

To examine corruption in terms of how it relates to the violation of human rights, a power-relation perspective focuses on who does what to whom. Does the corrupt act itself violate human rights or does it bring about other actions which eventually lead to the violation of human rights? Who are involved in corruption and the violation of human rights? Is it the same or different actors who corrupt and abuse human rights? By exploring these questions, the consequences of corruption, which result in the violation of human rights, could be identified as two types: direct violation and indirect violation.[4]

 Direct Violation of Human Rights

Direct violation of human rights occurs when some corrupt acts are deliberately used as a means to violate a person’s rights. It takes place when corruption itself is a part of the violation (ICHRP, 2009). Violations of human rights, in the meantime, are acts of corruption. For example, wrongfully and unlawfully incarcerating one’s political opponent is a human rights violation and a form of political and judicial corruption. Another example perhaps is the best example to demonstrate a direct violation of human rights caused by corruption: corruption in the justice system. This type of corruption denies victims fair treatment and justice, and undermines the rule of law. For instance, a bribe offered to a judge, if accepted, definitely can affect the independence and impartiality of the judge’s ruling. In Global Corruption Barometer 2006, which surveyed people’s attitudes toward corruption in 25 countries (conducted by  Transparency International), it was found that 1 in 10 households had to pay a bribe to gain access to justice. The results showed that the first rank of corruption was police and the third rank was the legal and judiciary system.[5]

 Corruption also affects the administration of justice when it takes place before cases reach court. It could happen through the manipulation of evidence at the police level or the altering of facts at the prosecution level.  In Thailand, the story of the murder of Sherry Ann Duncan, a 16-year-old Thai/American girl, illustrates this problem, which resulted in tragedy for four innocent persons. Sherry Ann was abducted and killed in 1986. Initially, the police arrested and charged with murder four construction workers 9who later were sentenced to life imprisonment by the criminal court on the basis of evidence provided by the police. However, after the workers had spent several years in prison, the Supreme Court found the four suspects innocent. In the meantime, one of  the suspects had died in captivity, while two others died of heart failure a few months after their release.  The only remaining one was crippled as a result of the torture and harsh conditions he endured while in police detention and prison. It was a new investigative team that reopened the case and eventually cleared the names of the four scapegoats. New suspects were arrested and subsequently jailed. One of the suspects who was believed to have been the mastermind in ordering Sherry Ann’s murder was set free due to insufficient evidence. Fake evidence had been presented and a false witness had testified against the four original victims, all of which were formally presented by the police. The former chief investigator in charge of the case was found guilty; however, he resigned from the service before the conviction was made and thus escaped criminal proceedings. Other original investigators in the case received career advancement before their retirement. None of them faces criminal action.[6]

 Although no conclusive evidence of corruption was found in the investigation report, it is widely believed that corrupt practices were involved in the case. What could be the prime motive for the former chief of the police investigation to make his decision in a way which would cause menace to his career and life, if it were not for immense private gain? As mentioned by the lawyer for the four victims: “It was not only a mistake which could happen from just doing (one’s) duties. By taking such a high risk and great efforts to find the scapegoats, a person who was involved with the case must know the real wrongdoer and must have used all means to help him/her to escape from his/her guilt.” The motive to close the case due to public pressure alone was an unsound reason for a person to frame the four scapegoats and produce a false witness in this murder case. In addition, the chief of the investigative team was an acquaintance of the believed-to-be mastermind of the murder, a rich and influential person.[7]

Indirect Violation of Human Rights

Corruption becomes a necessary condition in cases of indirect violation of human rights (ICHRP, 2009). It occurs when corruption is the origin of subsequent violations of human rights. It is an essential factor among the factors that violate human rights. This type of corruption leads to actions by other actors, which eventually adversely affect human rights. It causes deteriorating effects, but by itself  it is not an act that violates human rights. Human rights are violated by an act which stems from an act of corruption. For instance, in human trafficking and other crimes, when corrupt officials turn a blind eye to those who have been trafficked and to other criminal activities in exchange for bribes, their inaction could even threaten the victims’ lives. In this example, bribes comprise an essential factor in the chain of events that lead to the violation of human rights.

Corruption is also found to be an indirect cause of human rights violation when corrupt officials seek to prevent exposure of their corruption. In the framework of power relations, corruption is an instrument that helps to sustain the order in which the powerful would often gain advantage. Corrupt officials will use all means to protect and maintain their position of power, a situation which may cause further violations of human rights.

Telling the truth to the public about power relations may endanger those who speak out. Journalists, activists, and “whistle-blowers” have been attacked after exposing corruption. Threats to witnesses and whistle-blowers may vary from jeopardizing their physical safety to psychological threats, harassment, imprisonment and discrimination. A civil society organization called the Committee to Protect Journalists (CPJ) reported that 734 journalists around the world were murdered between January 1992 and April 2009. Of the murdered journalists, 20 per11cent were killed as a result of their coverage of corruption.[8]

In Thailand, violent acts against whistle-blowers have been numerous and well known. For instance, in a recent case, Athiwat Chaiyanurat, a local reporter with a newspaper and a television channel, was found dead in his home in the southern province of Nakhon Si Thammarat. His death was suspected to be related to his attempt to expose corruption in the local administration. Athiwat had been told beforehand that some influential officials in the province were “dissatisfied” with his reporting on local corruption issues (CPJ, 2009).

Conclusion:

As seen above, human rights and corruption are related in ways in which corruption leads to violations of human rights. Acts of corruption can directly and indirectly violate human rights, especially those of the disadvantaged. These two acts are complimentary. Reducing one helps to lessen the other. Resolving one issue could possibly lead to another issue.  Therefore, anti-corruption measures need a human rights perspective. Similarly, effective human rights protection measures need to incorporate and integrate anti-corruption measures as well.

References:

1. 1.       United Nations Commission on Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97, 22 February 2006, para. 25-27.
   1. 2.       CORRUPTION AS A VIOLATION OF HUMAN RIGHTS , Julio Bacio-Terracino, January 2008, page 4-6, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1107918/SSRN-id1107918.pdf

 

1. 3.       How does corruption destroys human rights ?, Sanjib Kumar, at http://www.publishyourarticles.org/knowledge-hub/law/how-does-corruption-destroys-human-rights.html
2. 4.       Corruption is a violation of human rights, November 24, 2008, at http://www.rediff.com/news/2008/nov/24corruption-is-a-violation-of-human-rights.htm