On the effectiveness, efficiency, substantiality of anti-corruption policies and measures

Overview of the current corruption situation in Vietnam

Vietnam has recently experienced grave and complex cases of corruption and misconduct that kept going for many years. These include the following main characteristics:

Firstly, corruption occurs at many levels, branches and sectors.

Corruption is often taken place in some common areas, namely land management; primary construction; natural resources; public finance and property management; banking; state-owned enterprise equitization; staff arrangement, etc. Corruption also occurs in people’s livelihood, even in some sensitive fields such as humanitarianism, healthcare, education, or the implementing policy towards people with meritorious services, the poor, which lead to social frustration and discontent. Corruption occurs at all levels, from central to local, in state corporations and enterprises. Corruption not only arises in the field of economic management but also in state management, social management and even in specialized agencies for corruption prevention and fighting.

Second, a rise has been reported on the number and the scale of corruption cases which are complex in nature and sophisticated in maneuvering.

Research conducted by many countries shows that the scale of corruption increases proportionally with the size of the economy. Common features of almost all recent serious cases in Vietnam are: taken place on a large scale, occured in a number of provinces and cities.(1) The amount of money and property, which are appropriated or lost in many cases, have not been several billion VND, but up to thousands of billion VND, or even tens of trillion VND. Crimes have been conducted for a long time before being reported, with complex interwoven relationships, from enterprises to state management agencies, legal protection agencies, which all resulted in forming powerful and rich “closed interest groups”. The situation has become worse as these cases are also carried out with increasingly sophisticated and unprecedented tricks, even taking advantage of specialized professional activities, or front companies.

Thirdly, many corruption cases are well organized, related to string of crimes forming and deeply involved by a significant number of people and enterprises.

In fact, the recent trials show that many cases have entered the procedural history because of their large scale and particular seriousness. The defendants in many cases were several dozens, even up to a hundred, with the number of participants summoned up to hundreds of people.(2) The developments of these cases represented the closed collusion, the direction, and assignment among case-related defendants in order to override power, engage in the abuse of power, intentionally act against the law, make attempts at manipulation for self-seeking. Also, a number of cases concluded that many firms have influenced the process of policy-making, staff arrangement, state-owned enterprise equitization, budget allocation, project approval, and public procurement policy, etc. Moreover, many cases ended up with serious consequences, caused great losses to the State’s assets, undermined the credibility of many party organizations and government apparatus. Numerous cadres and party members have been subjects to prosecution and punishment. Among these are officials, who hold leadership positions in central or local agencies, were manipulated by the enterprise.

Fourthly, “petty corruption” takes place quite commonly, causing social frustration

The acts of extorting “supported hand” or “lubrication” to obtain a public service are quite common at many levels, in many fields. The culture of “cash-filled envelope” has not been relieved, which indicates a serious deterioration in public service ethics, as well as the bureaucratic and authoritative attitudes among cadres and civil servants.

The fight against corruption: Achievements and Challenges

Achievements: Since the 12th National Party Congress, the fight against corruption has achieved many satisfactory outcomes, notably: 1 – Targeting and uncovering a range of particularly serious cases; 2 – Detecting and penalizing many officials and party members, including high-ranking cadres; 3 – Clarifying the nature of self-enrichment through corruption cases; 4 – Recovering a large amount of assets related to corruption cases; 5 – The fight against corruption has become an irreversible trend; 6 – Regain public confidence.

Challenges: Despite achieving favourable outcomes, the fight against corruption in the coming time faces multiple challenges. Firstly, the corruption prevention still reflects weakness; being formal and lacking real effectiveness are quite common among corruption prevention regulations and measures, especially regulations on assets and incomes declaration for officials and public servants. Secondly, self-inspection and self-detection of corruption within agencies, organisations and units does not get any result. Up to now, a number of cases are detected mainly by the activities of inspection agencies, auditing, judiciary, press and people’s denouncing. Thirdly, “petty corruption” is still thorny; issues on the acts of harassing and extorting, which make public services difficult to be obtained by people and businesses, are not eradicated. Problematically, the culture of “cash-filled envelope” has been increasingly more popular when parts of the people accept “supported hand” and “lubrication” to get a job done. Fourthly, the fight against corruption, despite initially obtaining favourable outcomes, still has potential risks of recurrence. It will be very unpredictable in terms of scale, nature and consequences.

Policies and measures to enhance the effectiveness and efficiency of the fight against corruption in the coming time

The fight against corruption in the coming time requires: 1 – Regardless of which stageit is, the fight against corruption must be conducted resolutely, persistently, effectively and efficiently for ensuring the endurance of the Party with our nation; 2 – The fight against corruption, in essence, is a legal struggle, not a movement in nature. Related to the rights and obligations of citizens, the struggle must be supported by the laws. Therefore, all the Party’s policies and measures to prevent corruption must be substantially legalized. By doing that corruption will be rooted out; 3 – The point of view “no restricted zones, no exceptions, whoever that person is” must be persisted; 4 – Drastically imposing measures to recover corrupted assets or properties showing signs of corruption on the basis of upholding the accountability obligations of public servants.

In order to fulfill these requirements, it is necessary to do practical reviews and research, as well as consult global experiences. Series of policies and measures on anti-corruption, which focus on enhancing the effectiveness and efficiency, need to be renewed:

Firstly, political determination to fight against corruption must be sincere and substantial

As being drawn from the practice of preventing and tackling corruption in Vietnam as well as in many other countries, this is the first and the most important condition that determines success. Favouring anti-corruption slogans might not be long lasting while the lack of sincereness and substantiality in the fight against corruption will not bring about a positive outcome. Also, that might lead to frustration and discontent among the people; thus, the way it affects the survival of the regime is unpredictable.

Political determination to fight corruption must start from the head of the state, thereby spreading out and becoming the political determination of the entire political system. In fact, with strong political determination, the spirit of seriousness, exemplariness, ‘words come along with actions’ of the Secretary General and the President, the fight against corruption has become an unstoppable trend. Political determination must be strongly and consistently expressed in an anti-corruption advocacy; in developing professional and feasible anti-corruption legislation; in encouraging anti-corruption strategies that focusing on achieve major breakthrough, as well as not supported by prior examples; in resolutely tackling corruption cases with no restricted area. As one-party state, Vietnam must consider fighting against corruption as a vital task of Party building, as well as building a socialist law-governed state. By doing that, corruption could be prevented and repelled.

Secondly, getting involve in the fight against corruption must be associated with the country’s supreme political authority

Anti-corruption is considered as a complex task for at least two reasons: First, in essence, this is a fight against oneself. Reality always requires each person to overcome many temptations as well as thousands of reasons for self-compromise and self-defense. Second, anti-corruption is the fight against peculiar subjects. Mostly, they are people with comprehensive knowledge, rich in life experience, greatly dedicated or outstanding contribution. Also, they are among cardes, teammates, superiors or high-ranking officials. As the results, tricks of corruption are often sophisticated; acts of covering up, removing traces are usually inconspicuous. Moreover, the subjects often make vigorous attempt to evade crime by a number of means, notably power, money, relation, or even by creating series of fabricated reasons: for overall stability and prosperity, for the prestige of the Party, or for the life of the workers, etc. While the forces that prevent efforts to fight corruption come from many sides; the line of right or wrong is subtle; and the struggle is resource-intensive, putting this struggle under the most concentrated leadership of the Party might ensure victory. The recent success has affirmed its correctness – the campaign must be put directly under the leadership and direction of the General Secretary, President. Therefore, no groups of power or forces can interfere, dominate, or reverse.

Third, the anti-corruption apparatus must be highly independent, truly professional, absolute integrity, authorized special powers that come along with special discipline and policy that forster integrity.

Investigation of corruption is a particularly important prelude that determines the accuracy of prosecution and adjudication. At the same time, it ensures the recovery of corrupted assets by tracing the money flows. Due to such an important role, the apparatus organizing; staff arrangement; functions and duties defining; as well as the enforcement of specialized measures by the corruption investigating agencies must adhere to specific principles that are distinct from the fight against conventional crime. The experiences of effective anti-corruption countries show that the corruption investigating agencies must be independent, separated from the executive, and placed under the top national leadership in order to have authority to make direct decision without having to report through the hierarchical structure. Recruited investigators must be qualified and skillful, knowledgeable in law; integrity, fairness and discipline, as well as being favoured an integrity forstering policy. Also, the corruption investigating agencies is allowed to carry out special investigative measures.

China’s experience in fighting corruption shows that, before March 2018, the investigation of corruption was assigned to the Supreme People’s Procuracy. From March 2018, China established a National Supervisory Committee based on unifying all anti-corruption agencies of the Government, the Supreme People’s Procuracy and the Party; the function of investigating corruption is transferred from the Supreme People’s Procuracy’s to the National Supervisory Commission. The Commision, created by the National Assembly, is considered as an institution that controls state powers and has the same status as the Government, the Supreme People’s Court, and the Supreme People’s Procuracy. The head of this Commision is a member of the Politburo. The General Secretary, the President is authorized to lead the fight against corruption.

Fourthly, proceedings need to be reformed to allow the application of special procedures and special measures

Considering as exceptional circumstances, dealing with special subjects, the fight against corruption must base on special solutions. It cannot apply the same common procedures and deadlines as tackling with any other crime, but must be reformed to allow the application of special procedures and special measures.

Accordingly, the proceedings necessitate being in close integration. In normal cases, the proceedings of prosecution, investigation, prosecution and adjudication are seperated, and the time limit for each stage is relatively long. For corruption cases, it is necessary to reform the proceedings in the way that all the phases need to be linked and the court must participate right from the beginning of the investigation stage. This provision does not affect the principle of the independence of the court, but allows the court to actively access evidence, documents, and details the case; take responsibility for procedural decisions; as well as bring the case come to trial in the shortest time.

In the process of investigating a corruption case, the law of many countries allows the application of special investigative measures. In which, there are three groups of important measures: Coercive procedural measures; measures to collect evidence; and corrupted asset recovery measures.

Measures of Procedural Coercion: Besides conventional measures of arrest, detention, exit ban, travel ban, etc., there are other special measures applied specifically to corrupt criminals. In Singapore, the law allows the investigating agency to arrest suspected corrupters without prosecutors’ approval. They also have the right to search and seize evidence without an order if this is believed to cause proof destruction and corrupt assets dispersal. This is because in essence, the operation of this agency is participated by both the procuracy and the court and is associated with the highest power of the state. Chinese law permits the National Supervisory Commission to keep suspected corrupt party members in an isolated location which is separate from families and society; they are provided with normal living conditions and remain there to explain suspected questions in the corruption investigation process. This provision does not violate human rights because it is consistent with individual commitment of complying with the Party disciplines when joining the Party organizations.

Evidence Collection Measures: While conventional methods of investigation are still being applied and prove effective, the corruption investigative agency is also able to adopt special investigative measures. Vietnam’s Law has recognized four special investigative measures including secret audio and video recording, confidential phone call eavesdropping and electronic data collection. In many countries, regulations on many other special measures are enforced and have demonstrated their effectiveness. These are namely: secret recording of telephone calls; secret camera recording; secretly installing audio and video recording equipment in some locations or on some vehicles; blocking telecommunications service; requesting telecommunications service organizations to secretly provide subscribers’ information; secretly tracking objects; confidentially accessing and collecting electronic data; penetrating private homes; trap setting to check on collected evidence; confidentially examining and collecting papers and documents at locations; putting fake traffic camera; using informants and collaborators, etc.

Measures to recover corrupt assets: The grand overarching principle is that officials’ properties which are not declared, incorrectly or insufficiently declared or done without explicable explanations must be confiscated. Judicial offices are not required to prove the property’s illegal origin. This is an important part of the Anti-Corruption Law that public officials and cadres must grasp and are obliged to administer before joining the public apparatus. Anti-corruption investigation agencies are given permission of temporary seizure, distraint of property, documents and objects, and freezing bank accounts as well as assets that fail to conform to the above-mentioned declaration. All agencies, organizations and businesses including banks, credit institutions, and securities committees must obey this seizure order.

Fifthly, promulgate regulations to reduce the State's burden of proof and increase the accountability of the authorities.

General principles of criminal procedures are: The responsibility to prove crimes rests with the State; the accused has the right but is not obligated to affirmatively prove his innocence. Likewise, in handling party and administrative disciplines, party organizations and state agencies are responsible for inspecting, examining, and collecting evidence of violations by its members before disciplining.

This humane regulation guarantees human rights, which is suitable for dealing with all kinds of violations and common crimes. However, corruption criminals are officials and authorities who are responsibly in charge. In addition to human rights laws, criminals must also comply with the provisions of the Anti-Corruption Law and the regulations of their own organizations. Anti-corruption laws of many countries specify: Reduce the State's burden of proof, increase the authorities’ accountability. The most important accountability in one’s declaration is his/her duty performance and origin of his/her increased property. Failure to fulfill the assigned tasks shall bear responsibility for the consequences of state property loss under their management. Failure to explain the legality of an added asset means that the asset must be considered illegal income and handled by law regardless of when and where that asset was obtained and from which offense.

Going forward, it is urgent to eliminate the above shortcomings and amend the Criminal Procedure Code, the Law on Anti-Corruption to reduce the State's burden of proof and increase the accountability of people in authority. This is one of the major bottlenecks; if it is remedied, the fight against corruption will be promoted its effectiveness and sustainablility.

Sixthly, amend law on corruption constituents which primarily determines “objectivity” and is light on identifying “motives, purposes, and consequences”.

In terms of legal science, most of the corruption crimes mentioned in Vietnam Penal Code require proof of objectivity together with motives, purposes and consequences of the crime. A typical analysis of bribery, Article 354 of the Penal Code records: A person who holds an official position or “power” directly or indirectly has received or will receive money, properties, which has a value of VND 2,000,000 (approx. USD100) or more; and non-material benefit with the intent of taking advantage of his/her official position or power in order to perform or refrain from performing certain acts for the benefit of, or as requested by, the person who offers the bribe. Thus, judicial offices are required by law to prove all three factors: 1- Abuse of positions and powers; 2- Has received or will receive certain benefits; 3- Perform or refrain from performing certain acts as requested by the person who offers the bribe. It is clearly defines: Crime is a specific act within circumstances, space, time, place, and evolution. Meanwhile, in order to charge a bribe, the judical agency must prove the person “will receive” benefits. This is the criminal’s attempt to make it a future “legal proceeding” without time, place, circumstances or developments. This task is unlikely and contrary to the basic concept of crime. Obviously, this provision is seemingly stern yet unreasonable and makes it difficult to prove bribery.

The criminal laws of some countries stipulate that: A person in a position of entrusted power receives money and assets equivalent to 200 USD or more, which constitutes bribery without the proof of purposes. This is a specific regulation for officials to aim at preventing corruption by gifts. Obtaining experiences of different countries, it is necessary to change the perception of bribery by its “constituents”, which stresses upon determining “objectivity” and is light on identifying “motives, purposes”. Accordingly, the judicial agency only needs to prove the act of taking advantage of a position to receive an amount of money exceeding the prescribed threshold is constituted bribery without proving the motive and purpose. This will also be very helpful for combating “envelope evils”.

Seventhly, build a mechanism to encourage corruption denunciations.

Among the corruption crimes defined in the Penal Code, the crimes of giving bribes and accepting bribes are typical. Traditional Vietnamese legal practice is against both bribe-giver and the one receiving it. This stems from the concept of “politicians get spoilt by the people” in which people give and officials take. Bribery can take the following forms: 1- Corrupt officials harass to force people to pay bribes; 2. People give bribes to get the job done; 3- Trapping each other by arranging to give bribes and catch in the act. In the first two cases, it is difficult to prove the crime due to the law inadequacies as mentioned above and there are only two people, no witnesses or evidence during the crime event. Both the giver and the receiver have their own certain benefits and will be prosecuted if discovered although they will be held accountable for different criminal acts. Therefore, the law inadvertently coerces them into covering for each other for mutual benefits.

The approaches on this issue differ in different countries. The main objective of the Anti-Corruption Law is to fight corrupt criminals who are “public officials”. Therefore, in all cases of giving bribes due to being forced or to get the job done, the bribe-givers are not principally objected. Those laws encourage bribers to denounce corrupt criminals by exempting them from penalties. It is likely to report a bribe immediately or during investigation. This provision is to encourage people to report corruption; contribute a mechanism to avoid corruption among people with positions and powers due to fear of denunciation.

Eighthly, promulgate a special amnesty policy on dealing with corrupt assets.

In fact, the fight against corruption is facing a contradictory phenomenon, which is very difficult to solve, that is: Assets from corruption are often accumulated over a long period, even throughout the entire life of an official. Therefore, there exists a thin line between legal income and illegal one, which cannot or takes a lot of personnel, effort and time to be proved. Meanwhile, policy of asset declaration and confiscation undeclared assets or those whose legal origin cannot be explained is considered a drastic measure with strong anti-corruption effects. However, this policy is normally issued at a certain time and comes into force thereafter. The rule of law does not allow retroactive effect in judicial measures, that means the corrupt assets which was acquired years before the policy enforcement cannot be confiscated. This is a contradiction existing not only in Vietnam but also in many other countries. Only when this contradiction is resolved does the policy on property declaration bring about substantial effects. Officials’ income is not fuzzy, so the right-wrong distinction will become obvious.

Solutions to this problem differ from country to country. Some countries have successfully enacted a “special amnesty policy on dealing with corrupt assets”. This special amnesty policy includes 9 main contents: 1- The policy is applicable to public servants, state employees and business owners, managers, and executives in the private sector; 2- Within a reasonable period of time from the enforcement (ordinarily one year), all property declarants must declare their own assets; 3- Declared assets include finance, real estates and other properties of great value; 4- Declared subjects do not have to give an explanation about the origin of the property; the State does not examine or verify the legality of declared properties; 5- For untaxed assets, income tax must be paid according to the provisions in the current law (in Vietnam, the maximum income tax is up to 35% of the property value or income); 6- After the tax is paid, the State recognizes the legality of properties and is not treated as corrupt properties; 7- All assets that are not used for daily individuals and their families’ needs must be economically formed as follows: establishing new businesses, leasing, stock investing, savings deposits, etc. according to each individual’s capabilities, strengths and aspirations; 8- Incomes arising from investment continue to be declared and are considered lawful; 9- After declaration, all assets which are not declared, or declared incorrectly, incompletely, without legal explanation, or untaxed ones shall be regarded illegal and confiscated, the State does not have to prove the criminal origin of the assets.

The policy of a special amnesty policy has the following positive effects: 1- The State earns large sums of money from personal income tax; 2. There is a good financial source to promote economic development, establish many new businesses, create many new jobs, enhance national tax revenue, etc.; 3- Ensure that the measure of “declaring properties and confiscating undeclared or unlawful ones” will bring into play its real effects to repair the current formal declaration and lenient handling.

However, this policy has several main limitations as follows: It legalizes an amount of assets obtained from corruption; some past corrupt criminals have been left out and not charged guilty.

Both of the above limitations lead to public dissatisfaction. These are a few measures to deal with this problem in some countries: First, clarifying that officials will not escape the criminal prosecution with property declaration under the amnesty policy if their property is proved to be resulted from corruption in later cases. Second, holding a national referendum on the special amnesty policy. The people will make the decision by balancing the positives and the drawbacks, considering actual and sustainable anti-corruption goals. Once it is the people’s will, the State is obliged to implement it.

In general, anti-corruption requires effective and substantial solutions in order to: Strengthen Party building and rectification, educate political ideology, ethics, and lifestyle, raising the responsibility to set role models and self-esteem to prevent corruption among officials; improve their living standards and salaries so that state officials, civil servants and employees do not need to corrupt; renew awareness of corruption crimes, reduce the State's burden of proof, improve detection efficiency, simplify the processes of investigation, prosecution, adjudication, and resolutely handle corruption with no exception; clearly stipulate the maximum permitted value of gifts, honestly declare assets, enhance the declaration accountability of cadres and civil servants, and confiscate all acquired assets from their wrongdoings to prevent them from corruption./.

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(1) Such as Phan Van Anh Vu’s acquisition of land in Da Nang City and Ho Chi Minh City; Trillion-dong online gambling case occurred in Phu Tho province and 14 other localities; etc.

(2) The trial on Ocean Bank case, with 51 defendants and nearly 700 participants summoned; The trial on trillion-dong online gambling case in Phu Tho, with 92 defendants and nearly 300 participants summoned; The trial on Vietnam Oil and Gas Group case, with 22 defendants; etc.