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At
the Inaugural Dinner of the International Conference
"TRANSPARENCY
FOR GROWTH:
CONFRONTING
CORRUPTION IN THE AMERICAS"
Atlanta,
Georgia, May 3 , 1999
Today
as never before, the countries of the Americas enjoy the benefits
of democratic political systems -with only one exception.
The political
experience of freedom is the premise upon which the structure
of equity and social justice is built. It is a necessary but
not sufficient condition to build all other democratic values.
Therefore, respect for the basic principles of democracy is
basic to its continued development.
Our
political system is based upon legitimacy. It is essential
that the subjects of governmental action be convinced about
the suitability and the benefits of such a system, and peacefully
accept the exercise of power by their authorities. This legitimacy
is nurtured continuously when the people believe and accept
that government is genuinely interested in their problems
and in trying to solve them, and that in this task it makes
an adequate use of public resources, acting with transparency
and objectivity in the exercise of its duties. To gain legitimacy,
a code of ethics of the public function becomes necessary
to guide the actions of government in the search for the common
good as the ultimate goal of the State. The absence of a code
of ethics results in the corruption of public officials and
thus the political process loses legitimacy.
In
order to carry out a proper analysis of public ethics in a
democratic society, one must start from the premise that what
is new is not corruption itself but the debate about
it. Corruption is not a problem of the times, but of men,
as Seneca wrote so brilliantly twenty centuries ago. This
evil poses a serious threat to the functioning and credibility
of the emerging democracies, and dangerously weakens the legitimacy
of those presumably consolidated systems. To degrade in favor
of a few the foundations of the decisions of governmental
structures in a discriminatory fashion strikes at the very
heart of the system, and leaves the citizen to doubt about
the benefits of democracy, because the differences stem from
reasons that are absolutely spurious.
The
analysis of the relationship between politics and morals is
not new. We must ask ourselves how he who acts politically
must conduct himself. That is to say, are there rules of conduct
that distinguish political action from other forms of conduct?
The problem can be stated as follows: that which is illicit
in politics, is it also illicit in morals? Chapter XVIII of
Machiavelli's 7he Prince expounds on the question of
whether the statesman is forced to respect pacts as one of
the fundamental duties of morals. The answer is clear and
direct: "great things achieved those princes who held
in little account that principle." Thus, concludes Machiavelli,
those who fail to achieve great things because they respect
pacts cannot be thought of as great politicians: "may
a prince - procure to aggrandize and preserve the State that
the means will always be considered honorable and lauded by
all." In other words, the end justifies the means.
Max Weber
seized extraordinarily well the relationship between politics
and morals with his famous distinction between the "ethics
of conviction" and the "ethics of responsibility.
" Whoever acts on the basis of the first, believes that
he must respect principles of conduct valid and preeminent,
without regard for the consequences derived from them. Whoever
acts on the basis of the second, considers his duty fulfilled
if he accomplishes the result sought. A famous French writer
expressed this with enormous crudity by making one of his
characters say that he who engages in politics cannot help
but get his hands sullied, although without explaining if
by mire or blood.
The
crux of the problem regarding these conceptions is who justifies
the means. Must we not ask ourselves rather if it is
not evil means that corrupt good ends? In any case, what is
an end and what a means? Every end can become a means to a
higher end. It has been said that democracy is more a system
of means than of ends. All political systems coincide on the
defense of social justice, the common good, and the individual
rights of people. The discussion arises when we compare the
means that they intend to use. For this reason, instruments
are important, and the end cannot justify the means.
Improper
behavior among public officials gives rise to a legal and
political problem with very particular characteristics: rulers
have the sources of information and the ability to 4 influence
others, all of which allows them to commit the said c - rimes
as well as to prevent them from being investigated and prosecuted.
Constant's vision of rulers is revealing: 44 government ministers
will be often denounced, sometimes indicted, rarely convicted,
and never punished."
We cannot
forget that constitutionalism is based on a pessimistic anthropological
vision of the human being: -
If
men were angels, no government would be necessary. If angels
were to govern men, neither external nor internal controls
on goverranent would be necessary. In organizing a government
that is to be administered by men and for men, the great difficulty
lies in this:
You
must first enable the government to have command over
the governed, and then oblige it to regulate itself. Dependence
on the people is, without a doubt, the primordial and
indispensable source of control over the government; but
experience has taught mankind the necessity of auxiliary
precautions.
James
Madison, 77ze Federalist, N' 51
In the
same sense we can quote Hume, whose warning was unequivocal:
"when conceiving any system of government, it must be
assumed that every man is a scoundrel, lacking in any other
purpose but his own private interest. "
Curiously,
citizens do not easily accept that those whom they elect to
public office seek their own selfish objectives. In
spite of criticizing them harshly and ruthlessly, citizens
hold an instinctive hope that their politicians be part of
a class of their own, independent from the rest of the common
mortals, possessing an aura of sanctity and a statute of protection
which isolate them from worldly temptations.
But it
is not so. Professor Buchanan has summarized the fundamentals
of his teachings in just a few lines:
"It
is very important that we recover the prudence of the eighteenth
century by means of a system of checks and balances designed
to limit government, and that we rid ourselves of the romantically
stupid notion that, in dealing with democratic processes,
everything is fair play.
One
of the most harmful effects of public corruption is the so-called
Gresham Law of social interaction, according to which, evil
behavior prevails over good, and all people are induced to
adopt selfish or self-interested behaviors by the acts of
a few. Hobbes said it already in the seventeenth century:
"Even
if the evil were fewer in number than the just, since we cannot
tell them apart, it is necessary to suspect, to be cautious,
to anticipate, to conquer, and to always defend ourselves
even from the most honest and just of all."
In this
regard, Brennan and Buchanan state that "institutions
must be designed in a way such that altruism or solidarity,
as is good education, be appreciated in all their value, but
not taken for granted."
It
cannot be taken for granted that the exercise of the discretionary
powers of political agents will respond to the interests of
the others, unless there are institutional restrictions to
ensure this effect. Without the existence of this institutional
design, human kindness is of little value. Our peasants put
it very graphically: "en arca abierta hasta el justo
peca", that is to say, even the most honest will sin
when the object of temptation is openly tendered.
One
of the most important analysts of the phenomenon of public
corruption is Robert Klitgaard. In his already classical works,
Controlling Corruption, and Adjusting to Reality, he
presents interesting propositions on the matter. According
to him, corruption grows wherever there are public monopolies,
more discretionary rules for public officials, and less transparency
in their acts before the citizens. Klitgaard has developed
a theory about a plan of incentives for reducing corruption.
It stems from the critique of a fundamental and sadly common
fallacy: it is all-to-often assumed that governments are corrupt
because people are immoral, and it is then inferred that the
solution is only to educate people generation after generation.
In fact, an organization is composed of an information system,
decision rules and a set of incentives that amount to more
than the simple sum of the persons who make it up. Its performance
as a system is different from that of the individuals who
are part of it.
The
importance of this topic must not make us surrender to the
temptation of a new form of McCarthyism and to denounce as
corrupt those who think different from us. The problem is
already serious enough as to compounded using it as a weapon
for a debate. Hiding the truth, lying knowingly, deceiving
an entire people, are some of the worst forms of corruption.
In
the last few years, the thesis of the codification of rules
has gained strength. In this sense, the already classic Nolan
Committee Report (Great Britain, 1995) on the norms of public
life should be a source of inspiration for our countries.
There is also in the Latin American Program of Joint Research
on crime policy a program on the corruption of public officials.
In the context of international organizations, it is absolutely
necessary to underscore the approval by the Organization of
American States of the Inter-American Convention Against Corruption,
signed in Caracas in March, 1996, and ratified in our country
by Law NO 7670 of April 17', 1997.
In summary,
a public policy that is adequate to fight corruption must
take into consideration at least the following aspects:
a)
Preventive policies that tend to reduce the discretionary
areas of behavior for public officials and to create incentives
so that individuals can behave normally in the exercise
of their activities without wasting their time, efforts,
or resources in currying the favor of the rulers. At the
same time, it is necessary to encourage a process of streamlining
and rationalization of the juridical tangle that hampers
both public and private activities, and which leads to the
type of perverse behaviors that procure to utilize the public
apparatus for private gain.
b)
Repressive policies: Despite the efforts that can
be made in the field of prevention, repressive activity
always serves to discourage inadequate behaviors in this
matter. Because of this, the revision of the harmful consequences
of acts of corruption is an important instrument of public
policy. Good repressive policies and the absence of impunity
add important strength to the preventive policies. One hundred
percent prevention will never be achieved, but the institutional
design must seek the least corruption and the maximum penal
correction that is possible.
c)
Educational policies: Every program designed to rescue
and promote values like decency, honesty, and public service
has an effect, doubtlessly important and basic, in the struggle
for decency and transparency against corruption. The inculcation
of values through education makes society less tolerant
towards corruption, and thus stimulates an institutional
design that is never too lax before the unacceptable
behaviors of public officials.
One
cannot fail to mention the fundamental role played by public
opinion in this process, especially through journalists and
the media. In this sense, we must facilitate every process
that permits the denunciation of acts of corruption, in adherence
to the journalistic ethics, without the fear of penal sanctions
which could serve as an instrument of censorship highly inconvenient
to the public interest.
My
government has proposed to Costa Rican people, through the
National Consensus Building Forum, a set of fundamental and
concrete issues to be analyzed and eventually recommended
as instruments of public policy for the fight against corruption.
The following are the main issues that were submitted:
1)
We shall promote a bill of reform of the Penal Code for
it to include new public official crimes in full adherence
to the Inter-American Convention against Corruption, such
as, among other new legal concepts, the trafficking of
influence.
2)
A "Code of Duties and Norms of Conduct of the Public
Servant" has been sent to the Legislative Assembly.
It constitutes an important normative instrument that
pursues the goal of defining ethics in the public function,
whose demarcation is indispensable in the fight against
corruption.
3)
We expect the prompt approval of the Financial Administration
and Public Budget Law, which establishes a novel system
of internal control and accountability by means of the
rendering of accounts in the financial and budgetary management
of public administration.
4)
We have proposed several specific Constitutional reforms
that seek to increase the period of time in which the
citizens can demand responsibility from the President
of the Republic and Cabinet Ministers after the conclusion
of their terms. Several constitutional reform bills will
be presented as well to limit the immunity of the officials
of the different branches of Government to the privation
of freedom. Once approved, officials of all branches of
Government will be liable to prosecution without the need
for the Legislative Assembly to remove their privilege
of immunity.
5)
Within the next few days we will present a constitutional
reform bill to eliminate the Executive pardon. I believe
that this power is a remnant from medieval times, which
mocks the Judicial Branch and could be used to render
ineffectual condemnatory criminal sentences against high-ranking
public authorities.
6)
In cooperation with the Comptroller-General's Office,
we are reviewing the existing mechanisms of control of
the increment of the patrimony of public officials, to
make it more transparent and accessible to the common
citizen.
7)
I shall insist on the promulgation of three laws which
I believe are of the utmost importance to the issue of
corruption:
A)
The creation of a specialized jurisdiction within the
Judicial Power to instruct and resolve the cases related
to public ethics, which are presently dealt with by
justices who have under their jurisdiction the prosecution
of common offenses.
B)
The creation of a prosecutor's office specialized in
public ethics, in charge of investigating and prosecuting
such type of offenses.
C)
The creation of a special procurator's office on public
ethics as an entity of the Executive Power in charge
of this matter and which will work in tandem with the
prosecutor's office in the prosecution of public
ethics offenders.
8)
1 am committed to the promotion of mechanisms of citizens'
participation in the control of public ethics, especially
in all procedures of public procurement, opening of state
monopolies to competition, and similar instruments.
9)
Convinced as I am of the importance of the media in this
issue, I have proposed a cluster of legal reforms to eliminate
the objective responsibility of media directors with respect
to offenses committed by third parties. They also seek
to limit the responsibility of offenders of the reputation
of others, when the victim is a public figure, to those
cases in which the offender has acted without due diligence,
adapting the American jurisprudence derived from 7he New
York Times v. Sullivan.
10)
One of the first acts of my government was to adopt a
decision establishing norms of public ethics for political
appointees of the President's trust, the violation of
which entails immediate termination. On the same date,
I issued a decree banning the display of the portrait
of the President of the Republic in public offices, as
well as the use of quasi-aristocratic forms of address
on his behalf. The use or display of the names of public
officials in public works built with public funds has
also been banned. These measures seek to curb the cult
of personality that is so harmful to democracy.
11)
This government has continued with a permanent process
of deregulation and of elimination of unnecessary requirements
and procedures aimed at reducing the discretional powers
of public officials, and to make public administration
friendlier to the citizen.
I am sure
that these ideas do not exhaust the topic of the necessary
measures that must be adopted for the defense of transparency
in public ethics. We must all -citizens and public officials
alike- work hands-on on this task.
In closing,
to honor a man who served as President of the Constitutional
Tribunal of Spain, and is a martyr of the struggle for democracy,
freedom, and human dignity, I quote the inspired words of
the late Francisco Tomds y Valiente:
The
gravest effect of corruption, understood as a perverse symbiosis
between illicit private benefit and the exercise of public
power, is that -when tolerated for a long time- it produces
the decay of the system, setting off a process of entropy
capable of ending the existence of the democratic State. That
final stage is reached when neither elected politicians nor
the citizens who elected them believe any more in democracy.
To
defend the legitimacy of the democratic system, to defend
equality for all under the rule of law, to avoid waste of
human and material resources, to assure efficiency in the
use of public means, transparency is required in government.
Thus, to fight for ethics in public activities is also to
fight for economic growth.
With
democratization in Latin America it is even more important
to confront corruption. I express my sincere recognition to
the leadership and vision of President Carter and to the efforts
of the Carter Center to organize this International Conference
for transparency and ethics in government. This conference
is thus for democracy and growth, and hence for human development.
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