The Social Construction of Corruption in Europe The Social Construction of Corruption in Europe Edited by DIRK TÄNZLER KONSTADINOS MARAS ANGELOS GIANNAKOPOULOS ASHGATE Acknowledgements We wish to acknowledge the support of the European Commission in realising this book. It originated from discussions within the project “Crime as a Cultural Problem. The Relevance of Perceptions of Corruption to Crime Prevention. A Comparative Cultural Study in the EU-Accession States Bulgaria and Romania, the EU-Candidate States Turkey and Croatia and the EU-States Germany, Greece and the United Kingdom”, which was funded under the Sixth Framework Programme of the European Commission. It has been coordinated at the University of Konstanz, Germany and lasted from January 2006 to July 2009. Most chapters of this book present findings from this project thereby discussing the importance of perceptions of corruption in view of anticorruption policies in the participating countries. However, the views expressed in all book chapters are those of the authors and do not necessarily reflect legal or political views of the European Commission, and the European Commission is not responsible for any use that might be made of the information presented in this publication. In addition to the countries covered by the project, the book contains contributions and analyses on aspects of corruption and anti-corruption in France, Italy, Poland, Portugal and Sweden. We also would like to acknowledge our debt to a number of colleagues for fruitful cooperation both during the course of the project and while preparing this book for publication. We want to mention in particular Andreas Göttlich and Ralf Rogowski as well as the Textwings Agency for translation and editorial support. vii Contents List of Figures and Tables ix List of Contributors xi 1 1 The Social Construction of Corruption in Europe: An Introduction D. Tänzler/K. Maras/A. Giannakopoulos 2 “Above the Law, below Ethics”: Some findings on Portuguese attitudes towards corruption 41 L. de Sousa 3 Diffusion of Corruption in Poland 59 G. Makowski 4 Systemic Factors of Corruption in Romania. Evidence from Discourses on Corruption 107 I. Precupeţu 5 New Public Management and Risks for Corruption: The Case of Sweden 143 S. Andersson/G. Ó Erlingsson 6 Integrity issues in the United Kingdom: An Emerging Debate 185 D. Hine/G. Peele 7 Corruption in France: Structural and contextual conditions 229 H. Rayner 8 When anticorruption policy fails: The Italian case eighteen years after “mani pulite” investigations A. Vannucci/D. della Porta 271 viii 9 The German Myth of a Corruption-free Modern Country 309 D. Tänzler/K. Maras/A. Giannakopoulos 10 Corruption discourse as a wild card: Politics and Media in Greece and the “modern” triumphalism of anti-corruption 333 E. Lambropoulou 11 Corruption: Contested Perceptions, Shared Disappointment 397 R. Dorosiev/D. Smilov 12 Corruption in Turkey: A systemic problem Z. Şarlak 437 ix List of Figures and Tables Figures 2.1 Social Corruption Index 2.2 Dimensions of the Social Corruption Index 3.1 Diagram of possible ways of converting social problems 3.2 Survey data illustrating conviction of Polish public opinion that corruption is ‘big’ or ‘rather big problem’ (CBOS data) or happens ‘vey frequent’, ‘rather frequent’ or ‘frequent’ (OBOP data) 3.3 Number of articles whose main theme was corruption (the word ‘corruption’ was mentioned in the title or in the lead of the article), published in two main Polish newspapers Rzeczpospolita and Gazeta Wyborcza, between 1989 and 2004. 8.1 Corruption-related crimes reported and the number of people involved 8.2 Corruption crimes reported the police: 2004-2009 8.3 Number of convictions for corruption-related crimes in Italy 1996-2006 8.4 Percentage of citizens whom in their country in the last 12 months was offered or asked a bribe 8.5 Variation of the perception of corruption in Italy: 2000-2009 8.6 Corruption perception index in 2008 and 2009 in EU-27 and G-8 countries 8.7 Annual average number of alleged cases of corruption reported by la Repubblicca 8.8 Number of cases of alleged corruption reported annually by la Repubblica 19952008 x Tables 6.1 UK/English Ethical Watchdogs: Roles and Controversies 8.1 Major direct anti-corruption and potentially ‘corruption enhancing’ measures in Italy: 2000-2010 9.1 The Nature of Corruption 9.2 Evaluation of Corruption 9.3 Prevention of Corruption 9.4 Images of the society and the state 11.1 Trust in Institutions xi List of Contributors Staffan Andersson is senior lecturer in political science at the School of Social Sciences, Linnaeus University, Sweden. He received his Ph.D. in political science from Umeå University, Sweden and his Masters in Economics from Lund University, Sweden. In the field of corruption he has contributed to several studies of Sweden, as well as comparative studies. He has also taught courses in Sweden and the UK on political corruption, and has experience as adviser for anti-corruption projects. Another major area of research interest is representative government in Europe, where Andersson is involved in creating infrastructure for research on citizen opinion and their representatives: political parties, parliaments and governments. Rashko Dorosiev (MA) is a political scientist, who has worked on the issue of corruption since 2002. He is graduate of the University of Sofia. He was project director with the Centre for Liberal Strategies, Sofia, until 2008, where he was responsible, among others, for projects concerning the fight against organised crime and corruption, and the reform of the Bulgarian judicial system. Since then he has continued working in these areas, being based permanently in Brussels. Rashko Dorosiev has published a number of articles in the Bulgarian press, as well as contributions in edited volumes. Gissur Ó Erlingsson is a researcher at the Centre for Municipality Studies at Linköping University. He received his Ph.D. in political science from Lund University, Sweden. xii His main research interests are in the areas of public corruption, intra-party democracy, local government, the emergence of new political parties and institutional change. Dr. Angelos Giannakopoulos is currently “Privatdozent” at the University of Dortmund and Head of Office of the EU-funded project “ALACs” at Konstanz University. He is internationally active in teaching and research and has published in various fields of European integration. David Hine is Fellow and Tutor in Politics at Christ Church, University of Oxford. His interests are in the rules of political life: particularly ethical rules and electoral systems. Among his recent publications are “Conflict of Interest in its Institutional Context” in Christine Trost and Alison Gash, eds, Conflict of Interest in Public life :Cross National Perspectives (Cambridge University Press, 2008); “Partisan self-interest and electoral reform: The new Italian electoral law of 2005”. Electoral Studies, 28(3):437-447, 2009; and a report on Electoral Systems, Party Law, and the Protection of Minority Rights (Council of Europe, 2009). He is currently finishing (with Gillian Peele) a book on the British debate on integrity issues. Dr. Effi Lambropoulou is Professor of Criminology at the Department of Sociology at the Panteion University of Social & Political Sciences in Athens. LL.L (Athens, Greece), Postgraduate Studies in Sociology of Criminal Law and Ph.D. in Criminology: penology and correctional policy (Universities of Bielefeld & Freiburg i. Br., Germany); worked with the Criminological Research Group at the Max-Planck-Institute for Foreign and International Criminal Law (1983-1987, Freiburg, Germany). Research xiii interests, courses and professional experience: Social control, Sociology of criminal law, mass media, corrections, police and policing, social violence, drug policies and corruption issues. Grzegorz Makowski, PhD – sociologist, director of the Civil Society Programme at the Institute of Public Affairs (Warsaw, Poland). His main fields of interests are sociology of social problems, classical sociological theories and civil society development. Author of the book “Corruption as Social Problem” and numerous other scientific publications, articles, and expert opinions. His last work is a comparative study of central anticorruption bodies: “A Sociological Analysis of the Functioning of The Central Anticorruption Agencies. An International Perspective and Polish Experience” (forthcoming). Lecturer at the Collegium Civitas (Warsaw, Poland). Until 2008, assistant professor at the Institute of Applied Social Sciences of Warsaw University. Between 2000-2002 Coordinator of the Against Corruption Programme – a joint undertaking of the Stefan Batory Foundation and the Helsinki Foundation for Human Rights. Dr. Konstadinos Maras has been Teaching Fellow at the University of Tübingen (Faculty of Philosophy, Institute of Art History) and at the University of Konstanz (Faculty of Humanities). He is currently Research Fellow at the Institute for advanced Studies in Humanities (Essen). His special research and teaching interests are Critical Theory, Aesthetics, Philhellenism and European Integration, and Corruption. He is taking part at the EU-funded research Programme “Promotion of Participation and xiv Citizenship in Europe through the ‘Advocacy and Legal Advice Centres (ALACs)’ of Transparency International”. Gillian Peele is Fellow and Tutor in Politics at Lady Margaret Hall, University of Oxford. Among her recent publications are “Conflict of Interest in British Public Life” (with Robert Kaye) in Christine Trost and Alison Gash (eds.), Conflict of Interest in Public life: Cross National Perspectives (Cambridge University Press, 2008), and “Regulating Conflict of Interest: Securing Accountability in the Modern State” (with Robert Kaye) published in 2010 by Siglo Press XXI as Corrupcion Y Transparencia: Debatiendo las fronteras entre Estado, mercado y sociedad (edited by Irma Sandoval). A study of the American right (co-edited with Joel Aberbach), Crisis of Conservatism? The Republican Party, the Conservative Movement and American Politics after Bush, will be published by OUP New York later this year. She is currently finishing (with David Hine) a book on the British debate on integrity issues. Donatella della Porta is professor of sociology in the Department of Political and Social Sciences at the European University Institute. Among her recent publications are: (with M. Caiani), Social Movements and Europeanization, Oxford University Press, 2009; (ed.) Another Europe, Routledge, 2009; (ed.) Democracy in Social Movements, Palgrave, 2009; Approaches and Methodologies in the Social Sciences (with Michael Keating), Cambridge University Press; (with Gianni Piazza), Voices from the Valley; Voices from the Streat Berghan, 2008; The Global Justice Movement, Paradigm, 2007; (with Massimiliano Andretta, Lorenzo Mosca and Herbert Reiter), Globalization from Below, The University of Minnesota Press; (with Abby Peterson and Herbert Reiter), xv The policing transnational protest, Ashgate 2006; (with Mario Diani), Social Movements: an introduction, 2nd edition, Blackwell, 2006; (with Sidney Tarrow), Transnational Protest and Global Activism, Rowman and Littlefield, 2005. Dr. Iuliana Precupeţu is a Senior Researcher at the Research Institute for Quality of Life, Romanian Academy and the Deputy Editor of the Quality of Life Journal. She has a twelve years teaching experience at the Faculty of Sociology and Social Work, University of Bucharest teaching courses of Methods of social research and Quality of life. Iuliana Precupeţu specialises in quality of life, social policy, methodology of social research and the study of corruption. She coordinated research projects or has been part of many research teams either national or international. Currently, she is the county team coordinator of the project Growing Inequalities Impacts (GINI) funded under the 7th Framework Programme of EU. She was also involved in research projects under the 5th and 6th Framework Programmes of EU. On the whole, Iuliana Precupeţu published three books as co-editor, one book as unique author, about ten chapters in various books, around twelve research articles and wrote more then twenty research reports. Hervé Rayner is Standing-Professor of Political Science at the University of Lausanne (UNIL) and Lecturer in social science at the Ecole Polytechnique Fédérale de Lausanne (EPFL). He is the author of several books and articles on political scandals. Fields of research: scandals, mobilizations, corruption, French, Italian and Swiss politics. Teaching: sociology of political institutions, concepts and theories in political science, sociology of risks. xvi Zeynep Şarlak acquired her bachelor’s degree in Economics and her master’s degree in Political Science and International Relations from Boğaziçi University. She also received a master’s degree in Comparative Politics from Paris Institute of Political Studies. She worked as editor-in chief for the newspaper Posta Europe in Paris. She worked as a research assistant at Galatasaray University and as a researcher for the Turkish leg of the project “Crime and Culture” under the European Union 6th Framework Program. She currently works as a field specialist in economics for a project on family education at the Office of the Prime Minister’s Directorate of Family and Social Studies, and teaches economics at the International Baccalaureate Program. She has published articles on military and national security in Turkey. Daniel Smilov is a comparative constitutional lawyer and political scientist. He is Programme Director at the Centre for Liberal Strategies, Sofia, Recurrent Visiting Professor of Comparative Constitutional Law at the Central European University, Budapest, and Assistant Professor of Political Theory at the Political Science Department, University of Sofia. He holds doctorates from the University of Oxford and the Central European University, Budapest. In 2003-2004 he was Jean Monnet Fellow at the European University Institute, Florence. He has also been a Visiting Scholar at the Boalt Hall School of Law, University of California, Berkeley in 1995. Dr. Smilov is co-author (with Martin Tisne) of From the Ground Up: Assessing the Record of Anticorruption Assistance in Southeast Europe, Central European University Press, 2004, co-editor (with Denis Galligan) of Administrative Law in Central and Eastern Europe, CEU Press, 1999, and co-editor (together with Jurij Toplak) of Political Finance and Corruption in Eastern Europe, Ashgate, 2007. xvii Luís de Sousa got his Ph.D. in Political Sciences at the European University Institute, Italy in 2002. He is currently a Research Fellow at the Institute of Social Sciences of the University of Lisbon, Portugal. He has published regularly on corruption control and political financing. Dirk Tänzler is Professor for Sociology at the University of Konstanz and at the Rheinische Friedrich-Wilhelm-University Bonn; he was Visiting Professor at the University of Lucerne (2008), University of Zurich (2007), Vienna University (2005, 2006), Visiting Lecturer at the University of Zurich (2005-2010) Lucerne (2005-2008), Zeppelin University Friedrichshafen (2006), University of Salzburg (2005), Humboldt University of Berlin (1995, 1996), Otto-von-Guericke University Magdeburg; he is coordinator of the EU-Research-Consortium “Crime and Culture” 2006-2009 and “ALAC” (2009-2012), he was Director of the Sozialwissenschaftliches Archiv Konstanz (“Alfred-Schütz-Gedächtnis-Archiv”) / Zentralarchiv der Deutschen Gesellschaft für Soziologie (2000-2005), Research Fellow at University of Konstanz (1999-2000), at the Science Centre Berlin for Social Research (WZB) (1993-1997) and at the Institute for Economic Culture at Boston University (1991-1992). He received his Habilitation at University of Konstanz (2005), his PhD at J.-W. Goethe University of Frankfurt a.M. (1990), and a Diploma in Sociology at J.-W. Goethe University of Frankfurt a.M. (1982). Major research interests are Sociology of Corruption, Social Theory, Sociology of Knowledge, Cultural, Visual and Political Sociology, Qualitative Methods. Together with Susanne Karstedt, University of Leeds, and Ralf Rogowski, University of Warwick, he is editor of the Ashgate-book series: Crime and Culture. xviii Alberto Vannucci is Professor of Political science and Public policy at the Department of political and social sciences of the University of Pisa. Among his research interests there are: political and administrative corruption; mafia and illegal markets; neoinstitutional political theory; competitive processes within the Italian politicalinstitutional system; policies against irregular work. In 1996 he collaborated with the Committee for the prevention of corruption of the Italian Chamber of Deputies. Among his latest publications “Nero, grigio, sommerso: attori e politiche per l’emersione del lavoro irregolare” (Pisa 2009); “Mani impunite. Vecchia e nuova corruzione in Italia” (Roma-Bari, 2007, con D. della Porta); “Lo spettro della competitività. Le radici istituzionali del declino italiano (Soveria Mannelli 2006, con R. Cubeddu). Chapter 1 The Social Construction of Corruption in Europe: An Introduction Dirk Tänzler / Konstadinos Maras / Angelos Giannakopoulos Since Peter L. Berger and Thomas Luckmann’s book The Social Construction of Reality: A Treatise in the Sociology of Knowledge (1966), constructivism has been a social science success story. Its core argument is that social order exists as a product of human activity in its genesis (i.e., social order is the result of past human activity) and in its existence at any instant of time (i.e., social order exists only and insofar as human activity continues to produce it). Constructivism dates back to philosophical (and sociological) ideas of the 19th and 18th century1 and can even claim to be the scientific faith of postmodern times. Recently, Mark Granovetter (2007) applied constructivism to the theory of corruption, arguing that corruption is not a “natural” fact but a “social” factum. So-called radical constructivism even goes a step further and calls corruption fiction.2 Such talk of corruption as a social construction (or of crime as fiction) might sound frivolous. However, this somewhat artificial shift in perspective enables research to understand and explain corruption as a discursive effect. One may roughly differentiate between two types of social constructivism: one that locates the generation of meaning within the communication of social systems, and 1 Giambattista Vico (1988 [1710]) formulated already in 1710: “Verum quia factum”. 2 For radical constructivists such as Baudrillard and Derrida, the difference between reality and fiction vanishes. We, however, follow Berger and Luckmann’s dialectical concept of realism and constructivism, which has its roots in the anthropology of the “young” Karl Marx. 2 another that focuses on the interpretation of the social world by human individuals. The first paradigm is associated with Talcott Parsons’ theory of structural functionalism and in particular with Niklas Luhmann’s currently popular social system theory; the latter is often referred to as methodological individualism, initially introduced by the Austrian School of national economy. The introduction takes neither the one or the other position of the said paradigms and opts instead for a third position in explaining corruption that merges the two by emphasising cultural and historical relativity and the context of the network society for a redefinition of corruption as immoral exchange. The System Theory Approach: Corruption as a Mode of Communication A powerful theory that puts functional differentiation at the centre of an analysis of modern society and understands the pre-modern character of corruption, that is, the commingling of private and public interests as its “unintended consequence”, is Niklas Luhmann’s (1997, 2003) social system theory. His theory characterises modernity as the progressive emergence and establishment of independent function systems in politics, economy, law, art, science and education. Societal function systems are conceived as self-referential systems of communication that follow their own autopoietic logics. Social system theory raises these two characteristics of modernity – functional differentiation and operational self-sufficiency of communication systems – to socioontological fundamentals of the structure of modern society. The theory of social systems does ultimately assume that any form of interfering with the codes and programmes governing the operational modus of the societal function systems leads to corruption. Any intrusion of external factors distorts the logic of functional independency, because neglecting the system-specific code means abusing the operational logic for the sake of other, external, goal orientations (Hiller 2005: 61). 3 The consequence is a dysfunction of the system, an interruption of communication (in the case of an organisation, other members are excluded) and therefore an obstruction of the self-preservation of the economic, political, juridical, scientific, or educational system. In this view corruption consists in diverting the system from fulfilling its inherent functional objectives. Given the self-closure of the functional subsystems the question is, where do corruptive interferences come from? If we take the example of the political system, that is, the struggle for gaining and maintaining power, corruption means that political decisions are taken not on the grounds of the system’s logic but, rather, according to economic calculations. Similar processes occur in other function systems when economic objectives are not pursued using economic means, but rest upon exercise of political influence; when scientific experiments are not carried out for the sake of scientific progress, but to serve economic or political interests; or when legal decisions are taken not on the basis of the prescriptions of the law, but following other considerations. In all of these cases the functional logic of the subsystems is diverted to serve objectives other than those programmed by the code of the system. Assuming that corruption would usually emerge from this diversion helps us better understand what motivates the use of such notions as breach of trust and contract with the principal, abuse of entrusted power for private gain, or overlapping of universal and particular enactment of roles. System theory solicits viewing corruption in sociologically neutral terms as social problem solving and treating negative labelling as a separate act of ascription. The irony of Luhmann’s system theory lies in understanding that problems are rarely solved, but that resolution leads to new, often more complex problems. Furthermore, if corruption is understood as the rupture of communication, 4 this in itself then becomes an interesting social fact with the potential for opening new unconventional options. The key to comprehending corruption as a diversion or as kind of switch of action orientation lies in understanding the way something universal in nature becomes the object of particular goal seeking. The implications become clear if we look more closely at this universality. Social systems process communication by using specific codes and programmes that allow them to generate their own realities. The code indicates the function of the system in society, for example that an economy deals with scarcities, politics with power, the legal system with law, science with truth, and art with beauty. Programmes translate the codes into policies and allow the system to build up a set of procedures, rules and norms that bind the decision-making process. This enables the system to streamline decision-making and to convert decisions into binding, usually irreversible and norm-conforming outcomes of procedures. Once norms are created, decisions can be expected. A corruption-inducing situation emerges when the automatism of rationalising decision making through procedure is interrupted and procedural outcomes become an object of negotiation. Whereas previously the rule-bounded procedures guaranteed scope and content of predictable decisions, it is now the negotiation between the individuals involved in the decision-making process itself and the criteria used that determines how the process can or should end. As a result, rule- and norm-based procedures are no longer universally binding and valid, and negotiation substitutes (uncertain) outcomes for (predictable) decisions (Reiter 2009: 383). The key to understanding negotiations is being aware of their potential for opening up alternatives not determined by the rules governing the procedure. Consider, for example, a typical case of petty corruption: the issuing of passports by the civil 5 servant X who is supposed to act in accordance with the norms of the procedure that set out the modalities for decision making. Suppose further that Y, as possible receiver of this kind of public service, has a problem with the rules of this procedure (for example, the time for issuing the passport being too long). Y persuades X, by whatever incentives, means and temptations, to reconsider the binding force of the procedure and deviate from obediently following the rule. If X agrees, the procedure loses its universal, normatively objective and procedurally firm validity and becomes a particular, context-dependent and inter-subjective object of negotiation, the outcome of which can vary according to the socio-cultural circumstances: How much is Y willing to pay in order to receive the passport more quickly? How can time be measured with money? To what extent can X and Y trust each other? Y is by all means willing to acknowledge that the delivery of some public services is associated with certain monetary preconditions. However, persuading X to bend the rule and ignore the required procedure (shortening the legally prescribed period for issuing the passport) leads to a kind of identity switch: instead of being a public good everybody is, in principle, entitled to, the passport becomes an item of (price) negotiation or an exchange article. Instead of being a public service it is transfigured into a commodity, the value of which is determined by the law of supply and demand. Agreeing to corrupt administrative practice by setting a price higher than that officially prescribed, both X and Y tacitly convert the service into a commodity that is in short supply and urgent demand. Furthermore, as an illegitimate exercise of influence, corruption operates by switching or converting symbolic media (money, power, cultural capital, status, or authority). The possible influences of one particular medium (for example money) are 6 deployed in order to obtain influence in the field of operation of another medium (e.g. power, administrative procedures) (Luhmann 2003: 101). Political parties use positions of power to acquire financial gains, or wealth and status are exchanged for political influence; scientific research and experiments are undertaken to achieve the strategic economic goals of multinationals; former public office-holders transfer knowledge and/or administrative know-how from the public to the private sector and public services are allocated to those in powerful socio-political networks. Or, to use the example of petty corruption mentioned above, administrative procedures are substituted with a selling-buying scheme (i.e., one’s demand is the other’s supply). Understanding corruption as the substitution of rules, procedures by negotiations, and transfers from one medium to another underlines the principal insight that corruption should first and foremost be seen in a neutral manner, without quickly jumping to normative judgements. That corruption can be observed across all social fields and domains of action further indicates that such exchanges, diversions, conversions and transfers are part and parcel of the way modern society functions; that they are the modes by which the various function systems interact, inform and influence each other. As an exchange relation, corruption functions as an indicator of wants and fulfilments or demands and supplies being transferred from one system to another and converted from one medium to another. This does not imply universal exchangeability of needs and goods, because the conditions for converting media into each other are socially regulated and restricted by norms, values, ethics, laws and judicial prescriptions. If corruption should then in principle be seen as a transfer mechanism, it is reasonable to concur with system theory that its social function consists in providing society with functional equivalents. Corruption is an indication that function systems 7 should be checked for the compatibility of demands and supplies and that they may better fulfil their tasks through transfer of media. Viewed in this way, corruption, or what subsequently comes to be characterised as corruption, becomes a permissible and even recommendable course of satisfying mutual needs. In evolutionary terms corruption (i.e., exchanges between power, money and social status) turned out to be one of the most powerful mechanisms of economic restructuring, political reorganisation and institutional transformation in the pathways of European modernity as well as the transition process of former socialist countries. In 19th century England, what is now called corruption served to elevate individuals of the economically powerful class to top positions of political privilege and social distinction. In the case of transition from socialism to capitalism in the late 20th century, corruption paved the way for the new ruling classes. Both examples show that in periods of transition, which are accompanied by farreaching socio-institutional changes and reorganisation of the rules of the game, corruption tends to become an issue of serious social concern. When new modes of exchange and media transfer replace the accustomed ones, perceptions of normviolation and denigration of values arise. Until the new institutional arrangements assume clear-cut forms delineating well-defined areas of competencies, obligations and entitlements, claims of corruption are bound to arise as an unavoidable consequence of the shifts in the ways transfers between the spheres of social action take place. Corruption becomes the object of a negative normative judgement and the moral or moralising discourse of corruption arises. Methodological Individualism: Corruptive Behaviour as Meaningful Action 8 System theory, which provides a powerful scientific tool for the explanation of corruption in terms of an irritation of systemic functionality, has the disadvantage for an analysis of corruption that it conceives the individual first of all in terms of a disruptive factor: particular goal seeking hampers the universal functioning of the system, and that the intentions of the individual actor are classified as being of a subordinate value at the most. Yet this invalidation of the meaning which corruptive behaviour has to the acting individuals has its shady side: the problem, which the particular (corruptive) act is supposed to solve, is interpreted only from the standpoint of the system, not from the one of the individual – but it is rather obvious that these two standpoints must necessarily differ. Thus, the approach of system theory cuts off one dimension of social reality and for this reason must be completed by an individualistic approach considering this very dimension. Seen from the perspective of the individual, nominating and relating things, events, and experiences is an act of bestowing good reasons upon the existence of a phenomenon. The individual actor estimates his or her own actions not so much in the light of their consequences for the functioning of a surrounding system, but rather in relation to his/her own motivations and interests. Economics has adopted this perspective for its model of the utility-maximising individual who blocks out the general context of society and follows his or her rational interests for self-preservation. Altruistic motives, which also arise in economists’ explanations, have no intrinsic value and seem to be constraints that restrict successful, egoistic action. The economic approach furthermore tends to describe corrupt conduct as just a means of optimising the allocation of goods and services (e.g., grease, slush or speed money) after a market failure. We share Granovetter’s (2007) criticism of the economic theory of corruption 9 for excluding social aspects in assessing the incentives, values and meaning of economic actors and subscribe to his suggestion that an analysis of social, cultural, and historical elements of corruption is needed that transcends mere economic explanation. In carrying out such a sociological analysis the subjective and the objective meaning of a particular action has to be distinguished. We follow here Max Weber (1978) for whom the meaning an action has for the acting individual itself differs from the meaning the same action has for a person observing it. For external observers, corruption is indisputably a problem. It is a norm-deviant and law-breaking behaviour that diminishes the social contract. But for those participating in it, corruption often seems to be the solution to a problem. As Alfred Schutz (1962) argues, it is this latter perspective which has to be taken as a starting point for the formation of second-order constructs by sociology. As is the case with system theory, such an approach reveals the discrepancy between functional imperatives and individual intentions, yet the latter are not conceived as disturbances of the former, but vice versa: the former (incarnated in social institutions) are conceptualised as determining factors (and possibly as hindrances) for the acting individual. There seem to be at least three kinds of subjective motivations that collide with or do not conform to institutional rule settings: Firstly, the actor automatically follows routines or other habitualised plans of behaviour using unreflected tacit knowledge of problem solving that is taken for granted and proven in everyday life. Secondly, a rational actor reflecting on the situation believes3 he or she is entitled to resources that 3 This belief rests on certain cognitive or moral certainties about social values that the actor shares with others, or of which he or she can be easily convinced. For example, in a post-socialist environment nearly everybody could be 10 the institution cannot provide and therefore looks elsewhere to attain them. Such a rational calculation is not a universal standard model of action, but a theoretical construction or ideal type related to the utopian idea of modernity. Thirdly, the material or immaterial gratifications of the institutional role appear to the actor to be considerably deficient. When the actor believes that the institutional role values are violated, the justification for gratifying desires through corruption prevails. This means that acting in the institutional role does not achieve the value of esteem that the role deserves and the actor perceives that he or she does not receive the acknowledgement the role acting is entitled to. Depending on whether the acquired gratifications can be accounted for by the actor’s need for wealth and power or are rather result of the internal processes of an institution, the motivations of the actors differ, that is, the reasons for their decision to willingly act in a corrupt manner differ. Of course, one can distinguish degrees of justification for certain types of behaviour. For example, it can very well be the case that the greed for (more) wealth and power can be justified or rationalised in terms of how the actor comes to perceive his or her access to wealth and power as unrestricted. Or the actor is motivated to embark on corrupt conduct on the grounds of belief that his or her action is justified as necessary to re-establish the valueimport of his or her institutional role.4 easily convinced by the persuasiveness and social value of quick enrichment (by all means), because everybody could consider himself or herself entitled to personal wealth after decades of depravation and discrimination. 4 In this case the individual recurs to the rational-choice model of action, believing that the institution cannot provide him or her with the (moral or cognitive) resources associated with carrying out the particular functional role, and reverting to extra-institutional compensatory mechanisms. The unofficial or alternative structure established by corrupt practices can be thus seen as an effective compensation for functional deficiencies in the official structure 11 The constructivist view of corrupt conduct as a problem-solving act performed by individuals has further advantages. A lawyer may, for example, be asked: Given a set of valid legal norms, when and under what circumstances does an actor justifiably decide to deviate from such institutional rules? A sociologist following a constructive approach can argue that the motivation to act according to prescribed rules does not always coincide with what the actor believes, knows, or feels about “things done the right way”. This means that the principles, values, and objectives of institutional action do not provide the actor with convincing or motivating resources sufficient to regulate his or her own behaviour. Since the constructivist way of interpreting and accounting for the phenomena of corruption goes well beyond the formalist or legalistic notions of wrong-doing, it is obvious that the normative illegitimacy of corruption can be shown to display a rationality of its own, which is not reducible to the designated definitions of the penal law. This issue of subjective interpretation and cognition of objective rules leads to the important additional aspect of knowledge resources which enable the individual to assert whether or not he or she is able to carry out the chosen action. In other words, the actor must be able to distinguish between enabling conditions and prohibiting factors. This knowledge depends primarily on the internal conditions of the institution, but also on beliefs about personal identity. The answer to the question “Can I or do it or not?” (or “Is it worth doing?”), is determined by what the actor is capable of in the framework of the organisational structure of the institution. However, capability aside, the actor may also feel constrained by allegiances, bonds and duties towards his or her social (Merton 1961). According to a functionalist point of view, corruption as compensatory mechanism can also be seen in the exchange relationship between political action for economic wealth and political stability (Huntington 1968). 12 environment. The violation of these duties would amount to a kind of rupture of the actor’s identity and self-esteem (i.e., moral integrity). Among the enabling conditions, the most important are those captured in the equation c = m + d – a (corruption = monopoly + discretion – accountability) (Klitgaard 1988). Given this exclusive access to institutional resources, the justification for corrupt conduct cannot draw upon compensatory reasoning. Where the monopoly’s resources are deployed for institutionexternal purposes, the classic case of corruptive interface between public and private rationalities of action arises. It is at this point that corruption becomes a social exchange relation. Equating corruption with the absence of competition and accountability has the advantage of bringing together two perspectives of analysing corruption: the principalagent theory on the one hand, and the notion of monopoly on the other (RoseAckermann 1986 and Graeff 2010). If the way the agent (i.e., the public office-holder) interacts with a (private) client in corrupt conduct undermines the goal of promoting the public good as represented by the principal, the economic connotations firmly model the principles of a free market economy. If corruption is understood as interplay between public-office-centred factors of corrupt behaviour and principles governing the economic sphere, stemming corruption becomes a matter of simultaneously raising accountability and competition. However, whether or not increasing competition really reduces corruption is an open question. Furthermore, linking corruption to levels of competition and accountability raises a number of issues that ultimately expose normative assumptions about a common rationality underlying competition, accountability and corruption. On this line of thinking corruption should be rationalized according to the tenets of free 13 market functions. Monopoly occupies the dominant role in the set of factors giving rise to corruption and, far from being restricted to the sphere of managing public affairs, accountability turns out to belong to those factors whose absence fosters monopolistic distortions of the free play of market forces. From a political science perspective it can be added that corruption phenomena also arise in conditions characterised by a lack of or deficient modes of party political competition. However, viewing economic and political competitive action as symmetrical does not mean that the rationalities governing the political and economic systems can be confounded. The asymmetries are considerable. The most important asymmetry is that competitive democratic politics relies on open competition between political parties, which is ruled by normative and institutionalised assumptions of universal equality and citizens’ participation.5 In contrast to markets, where (competitive) equality is seen merely as a starting point, it is assumed that, in the framework of democratically constituted state politics, the competitive forces of party antagonism will be integrated into broadly accepted public policies. Against the background of this asymmetry it is not difficult to determine the normative underpinnings of Klitgaard’s (1988) corruption theory. They lie in the preconceived assumption that the economic paradigm of unrestrained market forces offers the conceptual means and normative principles against which corruption should be evaluated and managed. Setting up the ideal of unconstrained markets as a universal maxim turns corruption into a vicious particular that incorporates all those elements, 5 Ethical universalism is the equal and fair distribution of public goods to all citizens of a given society (Parsons 1997). Hence, a corrupt regime is one that systematically deviates from the norm of ethical universalism as a governance principle. 14 both economic and political, that as removable encumbrances stand against the expansive forces of a free economy. Accountability enters in a specific way into this discursive framework by conforming to certain presuppositions of the neo-liberal doctrine, in particular the existence of a reliable state that complies with the demands of the free economy and guarantees eschewing any regulatory overload. Corrupt conduct that is embarked on in order to solve problems requires assessment if sufficient prohibiting factors exist to deter an actor from engaging in ruleviolating actions. Justifications of circumventing (control) rules often draw upon the argument that the individual is not after private gain, but rather the advancement of corporate objectives (political or economic). In such cases the cost-benefit calculation entails a kind of moral reasoning that prioritises certain objectives. For example, enhancing the financial assets of a political party, even through illegal acts, is nevertheless justified by the actor as promoting the cause of party politics. Anticorruption rules appear to be a problem to be overcome in order to realise the higher goals of the party. Merging Perspectives: The Cultural and Historical Relativity of Corruption The constructivist approach to the phenomenon advocated by us, thereby building on system theory and methodological individualism discussed above, emphasises the relational character of corruption: what counts as corruption differs with the historical and socio-cultural context. It is important in this perspective to consider how the concept is articulated in the framework of different corruption discourses, that is, by elucidating the varying underlying assumptions that in each case are taken for granted and usually not called into question. Let us take as an example the widely used definition of corruption as “behaviour which deviates from the normal duties of a public 15 role because of private-regarding (family, close private clique), pecuniary or status gains; or violates rules against the exercise of certain types of private-regarding influence” (Nye 1989). Deviating conduct of this kind assumes the forms of bribery, nepotism, or misappropriation of public resources for private uses. Assuming that this type of conceptualisation of corruption can be easily situated in one of the dominant discourses of the 1960s, the theory of modernisation, the normative function corruption plays in the discourse of development can be readily recognised. The set of theoretical beliefs about the normal and rule-conforming functioning of the office-holders in public administration provides a firm background of indisputable certainties against which law deviations and rule violations can take a clear-cut shape. It comes as no surprise that phenomena such as nepotism, misappropriation and abuse of public office are attributed to that developmental stage of society in which the standards of tenure, bureaucratic accuracy, professional identity to serve common welfare, and non-partisan integrity do not (yet) hold strong. The discursive function of corruption therefore consists in providing a symbolic representation of modernisation deficiencies and cultural lags that can only be overcome by consistently observing the binding rules and procedures of administrative-technical professionalisation. What this in turn means for the developmental scheme is that the concept of corruption is used in a two-fold sense. On the one hand, it delineates certain deficits of modernisation that are surmountable only by holding to the normative force of achieving the goal of corruption-free public management observed in fully developed countries. On the other hand, it insinuates that the normative requirements of a public administration resistant to corruption are already fulfilled once the modernisation process has reached the stage 16 where the Weberian notion of bureaucracy becomes the governing ethos of public affairs (Weber 2002). It now becomes clear why clientelism, patronage, nepotism and simony are for modern Europeans the embodiment of corruption, whereas the same practices in earlier times were widespread and tolerated. For example, it was a common and well-known practice in the past for the German electoral delegates to accept bribes during the election of the king. Similarly, simony or buying of votes even in the liberal England of the 19th century was not only customary, but also morally accepted. It was not until the end of the 19th century that simony or the buying of votes was banned and, significantly, criminalised. Hence, there is no criminality without legal norms and an authority to ensure their validity and compliance. Similarly, political scientist Klaus von Beyme claims that the corrupt parliaments of the pre-bourgeoisie democracies were fulfilling a thoroughly positive function during the push for parliamentarism over the dominance of the king and for the access of the bourgeoisie to political power (Beyme 1999). Beyme does not hesitate to attribute a similarly positive function to the corrupt networks in post-socialist Russia, which compensated for the dysfunctionalities of the weak state during the transition phase. Even Miklos Marschall of Transparency International sees some corruption in certain circumstances as thoroughly justifiable, such as during the times of the socialist economy of scarcity (Marschall 2005). Consequently, corruption is not a substantial object defined by structural attributes but the subjective interpretation of a social fact and the normative evaluation of a social relation (Höfflinger 2002) under 17 particular socio-historic circumstances.6 In other words, the facticity of corruption is an effect of the semantics of modernity as a cultural discourse. The method of a sociologist can thus be described as giving a non-normative explanation of norm-related social actions by being particularly aware of socio-historic relativities. After analysing the objective possibilities of a socio-historical situation and the means the actor has at his disposal to realise his goal, the sociologist then demonstrates the consequences of the options the actor can choose. Looking at the completed act, the sociologist reconstructs the actor’s motives and can finally explain the reasons for the decision, even if it was not the optimal choice. From a constructivist perspective, corruption is a normative evaluation of a social act that is, paradoxically, explained by the sociologist in a non-normative manner. In this vein, sociologists attempt to understand corruption using deliberately morally neutral categories such as gifts, favours and loans as opposed to moralising terms such as bribes and payoffs (Granovetter 2007: 154). Such an approach abstains from making normative statements on social behaviour formulated in negative terms (e.g., deviant, criminal, illegal). Conceptualising corruption in a neutral manner takes a constructivist approach that assumes that corruption is social problem solving.7 This approach argues that the different concepts, interpretations and causal explanations applied to the phenomenon of corruption should be analysed in relation to the specific historical and social contexts in which they are used. Corruption can no longer be 6 Seen from this point of view, the definition of corruption given by system theory – as disturbance (diversion, transfer, convertibility) in modern society – may be seen in a different light: in the discourse of system theory, functional disturbance and distortion of operational self-reference are almost normative maxims that protect the functionality of social systems from serious damage. 7 In the sense of Popper’s concept of life as problem solving (Popper 1999). 18 explained as the intervention of the devil or as mistaking the eternal ideas of truth, beauty and good as in ancient and medieval metaphysics, but rather as deriving from the self-conception of the actor in a concrete socio-historic situation. It is not about universal but, rather, empirical validity. Criminal is a social definition that varies considerably in cultural comparison. What one person sees as legitimate, another condemns. A Revised Definition of Corruption: Immoral Exchange in the Network Society Probably the most widely accepted definition of corruption is the classical, common sense notion that “corruption is the abuse of an office for private gain”. Formally, from a philosophical or juridical perspective, the classical definition is not distinct enough. There are abuses of an office that cannot be attached to specific legal definitions and provisions and corruption is also possible in the private sphere (between two economic actors). One option is to enlarge the concept of office to all professional contracts, as Transparency International did in response to these notional shortcomings.8 However, these revisions do not challenge the fundamental link of the classical definition to the modern idea of an interest-driven individual who is following a rational choice calculation of means and ends. Such a concept of an individual actor is the product of an abstraction from the cultural embeddedness of rational behaviour and from society as the very precondition and context of individual life. This construct of unsocial behaviour is appropriate only in the economic system, where the social consequences 8 TI’s revised definition reads: “corruption is operationally defined as the abuse of entrusted power for private gain” (at: http://www.transparency.org/news_room/faq/corruption_faq). For a critique and sociological redefinition of corruption see Schweitzer 2009. 19 are externalities of utilitarian realisation of private gains for which other systems (nature, family, welfare state) are responsible. What is accepted as externalities and what are economic assets in terms of costs depend on the respective socio-political consensus (see for example the discussion on environment). Similarly, a social exchange relation that might be rational and ethically good for the actors involved becomes corruption when a third party (i.e., all the others, who constitute society and who speak through their political representatives) is no longer willing to accept the costs of this exclusive social relation as an externality. There are attempts within economic theory to overcome the shortcomings of (neo-) classic liberalism. A prominent approach is institutional economics. For example, Susan Rose-Ackerman’s (1986) economic analysis of corruption includes the power structure of an organisation and the fundamental distinction between principal and agent, who enter a contractual relation as two members of that organisation. In her concept, the corrupter and the corruptible tacitly enter into agreements of rational, reciprocal utility maximisation. This apparent zero-sum game is at the expense of a third party, the principal excluded through an illegal contract. From the principal’s point of view, in this case the state and thus ultimately the citizen, the corrupt relationship (and its respective tacit contract) is an infringement of the contract between the agent and the principal, official and state. Corruption, in the sense of an illegal, criminal action, only becomes apparent in an economic transaction through the confirmed breach of contract in relation to a third party – in other words, through the comprehension of a legal fact. It is exactly this breach of a tacit contract that the term corruption connotes in modern societies, according to Rose-Ackerman. This breach is the result of the interference of a universal with a particular interpretation of the actor’s role. 20 From a sociological perspective, contractual relations are embedded in organisational contexts. Corruption is in modern society the product of a number of processes of differentiation, between the private and public sphere, between particularistic and universal value orientations and especially relevant for an analysis of corruption between informal network relations and formal organisations. Corruption is a significant phenomenon for sociologists because it expresses the handling and management of network relations in a modern society. Although ubiquitous, networks are problematic in modern societies; they represent archaic, pre-modern rationality9. Network theory reminds us that networks are a particular form of organisation that provides a technique of establishing contacts between different function systems. Networks combine contractual with organisational components (Teubner 2009, 2011) and offer an ideal opportunity structure for corruption because they run counter to the logic of functional differentiation.10 They cut across a clear-cut orientation towards a specific function system and establish contacts alien to the organisation’s operational field, thereby distorting and corrupting its functional meaning. Networks bring about a (corruptive) conjunction of different function types and (mis-)appropriate resources and procedures of one specific functional sphere to the advantage of another. The most prominent examples of such networking can be detected in the sphere of political corruption or exercise of influence by lobbyists. In the latter case, network-induced corruption means deviance from what society normally expects from the independent functioning of the various subsystems: guarantees of procedural rationality and operational efficiency (Luhmann 1995). 9 This also means that not everything is modern in modernity (Weber 1978; Latour 1993). 10 Max Weber discusses this problem under the heading of patrimonialism (Weber 1978). 21 For system theory, the abusive character of corruption derives less from abuse of public office for private gain (Nye 1989) or the misuse of monopoly power (political or economic) or discretion without accountability (Klitgaard 1988) than from the very principles governing the social structure of society. Accordingly, the normative scheme of (good) universal and (evil) particular is reformulated in the following way: although a plurality, the different types of logic running through the subsystems converge upon the universal principles of manifold differentiation and operational self-sufficiency and closure. Against this axiomatic background, corruption can emerge only as a violation of this universality, that is, as a particular rupture of functional logic. In contrast to the theory of social systems, which does not refer to value judgements, the exploitation theory of corruption overtly embraces a normative point of view. According to this concept corruption originates in the modes of acquiring, using and exchanging wealth and power within the broader socio-political context of the class structure of society (Johnston 2005: 35). Corruption denotes the fact that the ways of distributing wealth and power are marked by abuse and exploitation. In exploitation theory, the concept of corruption stands for social experiences of injustice and inequality, and so the abuses of citizens while pursuing and safeguarding their economic well-being are perceived to be minimal in contrast to the abuse of political and economic power by the ruling classes. In this theoretical framework corruption functions as a negative indicator of a normative state of affairs, in which being free from exploitation would guarantee citizens’ equality in terms of power and wealth and, in the latter consequence, a classless society. Both system theory and exploitation theory underexpose the importance for an understanding of corruption in modern society of the historically unique fact of 22 differentiation between the private and public sphere. This differentiation is indeed a cultural exception from a universal pattern of exchange between individuals. What is appropriate between members of a family, a clan, a free association or a club is not allowed between members of a formal organisation in economics, politics or public administration. The problem is that in given situations the actors are forced to address their different roles to the same person(s), thus running the risk of corrupt behaviour. In a more pragmatic sense and since corruption, as seen above, is an effect of a differentiation between forms of social organisation, it is just plausible that actors might see opportunity structures for corrupt conduct in different social subsystems. For example, there are economic institutions that render possible corrupt behaviour and others that prevent it. The market allocation of goods and services offers fewer chances for corruption than an administrative-bureaucratic distribution. However, it is not sufficient to analyse corruption only as a result of opportunities and incentive structures. The actual incidence rate of corruption relates to people’s perception and attitude, whether they are “corruption-prone” or “corruption-averse”, and ultimately depends on the condition of “public morality” or “public spirit” (Hirschman 1982: 123 f.). Morals count, but morals are not simply a private affair, as lawyers and economists often suggest. From a sociological perspective morals are “habits of the heart” (Bellah et al. 1986) and social dispositions of individuals in a social world and, as such, they are products of class-structured social milieus. Therefore, corruption cannot (only) be understood on the basis of individual actions or bilateral social relations. It involves a trilateral relationship. At first it is simply a face-to-face exchange generating a reciprocal relation of equal individuals, which (re-)produces a firm and substantial social relation (e.g., friendship). But in an 23 organisational context the same procedure might have another social meaning. Reciprocity and friendship increasingly become pretence and camouflage an asymmetric relation, for example the one who accepted the gift acknowledges his or her inferior position to the presenter, who gains power over him or her (Lomnitz 1988: 44; Neckel 2000). Friendship is only pretence. In reality, the presenter is just interested in doing business. The actual intention is to buy privileged, exclusive access to the capabilities of the other (entrusted power) as a holder of public or other office. An office in a function system such as the economy, politics, public administration or judiciary, allows only impersonal and rational but not personal and emotionally motivated relations (sine ira et studio). Therefore, the holder of an office quite honestly sells the presenter not a service, but himself or herself (Neckel 2000: 84). Corruption is a symbiotic power relation that destroys the moral integrity of the corrupted. The pretence of friendship and reciprocity is possible only by abstraction from the organisational setting and the figure of the third, the generalised other, the society (Simmel 1950; Fischer 2008). Corruption is a moral judgement that makes sense only under specific social conditions associated with modernity. Consequently, the perception of corruption differs according to the level of modernisation. However, there are also forms of corruption that are typical of modern countries. The solution to this paradox is that, in general, network relations that still exist in modern societies are regarded as archaic and pre-modern. An example from economics is instructive. The modern form of corruption is grand corruption, operating systematically on the basis of firm social networks. The modus operandi is rent seeking. In contrast to profit as a bonus of risky investment of private capital, which is the result of individual performance (work, savings) and 24 increase of common welfare, rent seeking is the skimming of privileged positions in a network of social relations at the costs of others who are excluded from the network. In a market economy such feudal exploitation is regarded as illegitimate and is therefore veiled by the performance of a pseudo-market (Priddat 2005). Viewing corruption as an immoral exchange links a universal fundamental rule of human sociality (reciprocity) with the historical, namely the modern concept of a universalistic morality and holds true only for the modern epoch. However, universal norms and values are not universal per se. Pre-modern, or so-called traditional societies, uphold universal claims of validity for particularistic views and values. The idea of modernity, however, is to assign universal validity to a body of universalistic principles (such as the commandments and human rights) and to view particularistic values (such as religious disposition) as private affairs. In other words, morality is the expression of a mentality, of a historical way of viewing the world. To model corruption as an immoral exchange, we must therefore set out the socio-historical or cultural conditions of validity for moral principles. Furthermore, the normative stance towards corruption should give way to a social constructivist view of corrupt conduct as mechanism of social problem solving. To conclude, a short remark to the notion of “Europe” in this book: The notion “Europe” not only denotes the geographic space in which the following case studies are located, but predominantly represents the idea of a political and cultural unit. In this context, corruption is a hindrance to realising this idea. Corruption is a fundamental threat to the integration and expansion of the European Union and it is against the spirit of the project of European modernity. Modernity as a canon of values is incompatible with any form of corruption. This is true for the “traditional” form of so-called petty 25 corruption that forms a “culture of corruption” in pre-modern societies, but it is also true for the most advanced “modern” form of corruption, usually called grand corruption. In an evident break with the modern juridical norms, Transparency International11 differentiates petty corruption, as a form of “against-the-rule-corruption”, from grand corruption, as a form of “according-to-the-rule-corruption”. These two types describe the extreme cases of a continuum as well as a historical trend from traditional to modern society, a trajectory that is complete in old Europe but still present in the latecomers in south Europe and in present dramatic dimensions for the post-socialist transition states in Eastern and South-eastern Europe. The Contributions of the Book A popular view, based on Max Weber’s theory of protestant ethics (Weber 2002), assumes that the protestant societies of north Europe are less corrupt than Catholic countries of the south (Alemann 2006: 13). However, the thesis can be questioned with Weber’s own modernisation theory (Weber 2002) that separates the rules of action from personal moral integrity and religious belief and shows that a modern individual is able to perform a set of very different roles, each referring to a single social system to which he has learned to adapt. A cultural lag in the Catholic citizens’ habitus in this respect can no longer be observed; their coordination of action does rarely refer to rules of a moral meta-system, such as religion in a traditional society. Nevertheless, there are differences between catholic and protestant regions in Europe that require explanations. Luis De Sousa’s contribution, in which he presents findings from his empirical project “Corrupção e Ética em Democracia: Ocaso Português” provides a fresh look. Portugal, 11 http://transparency.org/news_room/faq/corruption_faq#faqcorr1. 26 he states, is an example of an “unfinished modernisation”: at the institutional level it displays the same characteristics, rules and instruments as most consolidated Western European democracies, yet it lacks a modern civic culture. Legal and ethical standards of public life are circumvented or subdued. The majority of Portuguese (65.3%) hold a minimalist view of ethical standards in public life. They are tolerant of corruption, in particular non-market forms such as pulling strings. Corruption is foremost associated with those practices, which are a clear violation of the standing legal rules in society. If the law does not clarify whether or not a certain practice is corrupt, then it becomes perfectly acceptable. The Portuguese frequently choose to do more than the law consents and less than ethics demand. On the one hand, the material values of social networks are more relevant to the Portuguese people than formal legal rules. On the other hand, they have a preference for following formal institutional rules over the ethical demands of inner consciousness. Grand corruption and private gain (e.g., the luxury car of a politician) are condemned, while petty corruption, nepotism and patrimonialism (networking) are tolerated. The shift between condemnation and toleration reflects the hybrid internalisation of pre-modern, traditional and modern individualistic moral standards. One can justifiably speak of a culture of corruption in Portuguese society to the extent that the majority of the citizens hold a minimalist conception of ethical standards in public life. The public would of course condemn the public official who accepts or asks for a bribe to take an illicit decision, but it would all the same condone the abuse of office for the sake of an alleged public interest. The prevalence of attitudes that are tolerant of corruption can also be explained as an informal response of citizens to public administration: the widespread perception of a dishonest, ineffective and abusive administration increases citizens’ propensity to 27 engage in informal ways of circumventing these hurdles. This, in turn, proves detrimental to a gradual modernisation of the state apparatus for overcoming corrupt practices. The trajectories of corruption in the so-called process of recovering modernisation (nachholende Modernisierung) (Zapf 1996) in the transition from communism to capitalism in Eastern Europe have been the subject of scientific scrutiny, but also of fierce controversy. Grzegorz Makowski illuminates the changing significance and function of perceptions of corruption in the socialist and post-socialist context of Poland and elaborates on the character of corruption as a social construction. His leading assumption is that, regardless of how evident or widely acknowledged a reason for dysfunction of a social system is, corruption need not necessarily be perceived as a social problem. Under certain circumstances, in a given system, corruption can even be indispensable. This can be clearly observed in the case of Poland, where, for almost a decade after the beginning of the transformation, corruption was not considered a social problem despite the widely held conviction of its omnipresence. By the late 1990s, when the anti-corruption discourse initiated by the International Monetary Fund (IMF) and the World Bank became a kind of ruling orthodoxy, the construction of the social problem of corruption in Poland had assumed tangible forms. In the following years perceptions of diffuse corruption became so rampant that the problem ushered in a state of moral panic. This had important consequences for public policies, because it led to a radicalisation of anti-corruption activities and to an inflation of anti-corruption legislation. As in other countries of the former Eastern Bloc the issue of anti-corruption became a pillar of party competition, culminating in the arrival in power of populist politicians with the platform of implementing anti-corruption policies at an operational 28 level.12 However, the agency established to operationalise the fight against corruption has not only turned out to be ineffective, but poses certain risks for the democratic state of law. Why corruption has become a structural feature of post-socialist transformation societies is the question Iuliana Precupeţu tackles by identifying systemic factors in perceptions of diffused and generalised corruption in contemporary Romania. She counts among them the fact that in Eastern Europe the transfer of state enterprises to private ownership has been associated with asset-stripping and nomenclature privatisation; the overlapping of economic and political positions, which transcend the formal organisations of society and are organised around private interests; and the poor economic environment, which discourages competition. Causes of structural corruption can also be found in politics and governance, because the political system is still plagued by such phenomena as fierce party political struggles, authoritative practices of democratic institutions and the explosion of anomy through the erosion of trust in people, institutions and the rule of law. An additional perspective on structural corruption in the post-socialist context is that corruption has become a stable feature of socio-cultural integration, as can be clearly seen in the new models of social mobility and success that promote behavioural patterns of corrupt conduct. Also contributing to perceptions of a state of normlessness are deeply felt inequalities, the weakening of social control, increased crime, and the corruption and erosion of moral values. Last but not least, the structural causes of corruption can be shown to originate in the historical path of the modernisation process in Romanian society. Nepotism and “rightful” briberies prove to be persistent traits of the cultural heritage. In the face of all this, it 12 For Bulgaria see Smilov & Dorosiev in this volume. 29 remains to be seen if the relatively newly established anti-corruption tools will be successful in the future. Since the work of Susan Rose-Ackerman (1986), corruption is no longer seen only as a kind of collateral damage in the process of modernisation of pre-modern traditional societies in Asia, Africa and South America, but also as an effect of the modernisation of modernity in Western countries with stable democracies and market economies. Staffan Andersson and Gissur Ó Erlingsson show that corruption risks can be located in well-functioning democracies in the opportunity and temptation structures created by the reforms of the new public management (NPM).13 Although privatisation reduces the size of the public sector, thus reducing the opportunity structures of corruption, the mixed forms of ownership and the different forms of management nevertheless provide incentive structures and opportunities to engage in corrupt behaviour. In Sweden the structures that tempt corrupt conduct in the wake of the NPM can be expected to lie in local and regional government. The institutional arrangements for NPM in Sweden display certain features that warrant the assumption of risks for increased corruption. Not only do individuals have considerable opportunities to obtain resources through corruption with more attractive pay-off, but the degree of supervision is also reduced. Sanctions for corruption are rather mild and the rules for what should be considered illegal or impermissible are rather unclear. Of course there are no blueprints for reducing the risks of corruption. However costly the establishment of mechanisms of auditing, oversight and control may be, it is nevertheless true that attempts to save money in this area can be costly in the long run. Therefore, an appropriate system for identifying opportunities for corruption must be devised for the reformed public sector. 13 For Germany see Tänzler 2007. 30 This system of control must also be capable of overseeing operations in new organisational forms. On the assumption that corruption is not limited to legal definitions of criminal corruption, David Hine and Gillian Peele explore the issue of standards of public ethics from a value-centred approach. The significance of the debates on public integrity in the United Kingdom is quite obvious in the face of ethical ambiguities and uncertainties about party financing, the composition and attitudes of the parliamentary class, the boundaries between the elected politician and the professional civil service, the regulatory and hence the lobbying environment, and the style of political competition between the main parties. The authors examine the main institutional response to the public integrity issue, that is, the establishment of the Committee on Standards in Public Life, and the extent to which it has been able to contribute to developing the British ethics infrastructure. Although there has been notable progress, certain in-built difficulties in the political system make the process of improving public integrity a long-term issue. They concern the interdependency of the agencies entrusted with promoting and enforcing codes of conduct, the risks involved in individuals and institutions outsourcing their moral judgements to these agencies, and the fact that more detailed regulations can often create more controversy over culpability and sanction. Furthermore, the long period of reforming the British ethics machinery, which began in 1994, has not restored public confidence in the integrity of its elites. Based on the insight into the double nature of corruption as a social practice and value judgement on that practice, Hervé Rayner sets out to provide a historical physiognomy of corruption practices and perceptions in France. Reviewing major corruption scandals over the past twenty-five years, he traces the interplay between 31 social transformations and changing perceptions of corruption. He highlights the point at which corruption as a political problem necessitated the institutionalisation of an array of anti-corruption agencies and various legislation amendments to bring anticorruption policies into line with international treaties and conventions. However, largescale corruption currently poses such a serious problem that there seems to be a kind of privatisation of corruption. The most powerful media belong to big companies that cultivate good relations with politicians for the purpose of privatisations, whereas public programs are often motivated by hopes of bribes and/or favours – pantouflage encourages reciprocated favours between public officials and private firms. At the intersection of market politics and media, corruption consolidates collusions between big business, top politicians, high-ranking public officials and journalists. Furthermore, one of the principal obstacles in combating corruption arises from the political dependency of the judiciary and the fact that economic and political elites have succeeded in protecting themselves from the judges. In the face of all this corruption is hard to curb, because its embeddedness in the socio-economic and political system renders anti-corruption policies ineffective. Therefore, in the long run, a change of social perceptions of what is illegitimate to do in the various fields of action could prove to be a basis of tackling the problem. The structural obstacles confronting anti-corruption policies are also the object of analysis by Donatella della Porta and Alberto Vannucci. Surveying the trajectories of corruption in Italy since the ‘mani pulite’ anti-corruption campaign of the early 1990s, they point to a considerable discrepancy between perceptions of high levels of corruption and low levels of exposed or penalised corruption. They conclude that over time the probability that corrupt agents are able to undertake their transactions 32 successfully, without the interference of control agencies, has increased. Corruption has become more widespread and less risky, the mechanisms of detection and sanction lag far behind actual requirements, and the issue of anti-corruption has almost vanished from public discourses. Alongside some well-known structural institutional factors the strong persistence of Italian corruption can be explained in terms of a regulated market system in which public policies are exercised according to the economic logic of supply and demand. Old and new forms of corruption converge to the point of being systematic: systematic corruption denotes a complex of strategies, activities, styles, languages that are framed within prefixed scripts, following informal but codified rules. What differs is the way in which the tasks of protection are distributed within the still widespread networks of systemic corruption. Taking all this into account, it comes as no surprise that the framework of anti-corruption legislation has so far proved to be ineffective. The heritage of widespread corruption has developed a dynamic that sustains the current state of corruption by neutralising moral barriers, shaping more lucrative opportunities for illegal dealings rooted in formal procedures and decisionmaking processes, and providing organisational shields and mechanisms of protection from external intrusion by the authorities and internal friction among corrupt actors. The issue of corruption and corruption awareness in Germany is a highly ambiguous one. As Dirk Tänzler, Konstadinos Maras and Angelos Giannakopoulos point out, the widespread public belief that corruption is no serious matter masks an aspect of increasing significance in contemporary German life. Whereas petty corruption is regarded as a blatant violation of public standards, grand corruption is regarded as a trivial offence that is somehow excusable. The various party-financing affairs of the past decades along with the recent economic scandals (Siemens, Daimler, 33 VW) demonstrate that corruption has become a structural feature of the political and the economic system. The seriousness of corruption is downplayed most particularly in the spheres of politics and economics, where it is regarded as a contingent aberration or as sporadic deviant behaviour rather than a feature that is inherent in existing structures. In the judicial sphere the authors detect a strictly legalistic attitude towards corruption, because process-oriented German jurists are often unwilling to prosecute cases that cannot be objectified according to the conventional rules. On the other hand, one finds a much broader understanding of corrupt conduct in the realm of police investigation. A high level of sensitivity can also be observed in the sphere of civil society and NGOs; the latter have succeeded in advancing anti-corruption efforts to a common good that is to be painstakingly safeguarded. Perceptions of corruption in the media differ according to political preferences: whereas conservative newspapers view corruption as activating the self-cleansing forces of German democracy, the liberal newspapers put forth discourses on its damaging effects. By focusing on the role of the media and political discourses in constructing corruption as social facticity, Effi Lambropoulou is able to explain the contradiction observed in Greece between the low score on the CPI and the high rate of disapproval of petty corruption (e.g., bribe-seeking by public officials). She situates the anticorruption rhetoric that fosters perceptions of widespread corruption in the mechanisms of two-party political competition on the one hand, and the way the media use the issue of corruption to promote economic interests on the other. Particular emphasis is placed on attributing the (anti-) corruption rhetoric to neo-liberal strategies aimed at accelerating processes of marketisation and commodification. Socio-economically rendering some acts as corrupt promotes the objective of expanding the domination of 34 market relations at the expense of social costs and alternative trajectories that empower the lower strata of societies or countries that do not exactly fit the format of the advanced developed societies. Regarding Greece as exhibiting typical traits of underdevelopment (i.e., clientelism, patronage, weak civil society, low social capital, and low trust) misses the point. The methodological prerogatives of approaching corruption as the product of weak state institutions are uncertain and the correlation between the development of democracy and corruption is rather doubtful. Explaining the social construction of the phenomenon in Greece means stressing that not only have the hard facts of corrupt conduct increased, but the scandalisation and disapproval rates have risen greatly in the discourse at both the national and international levels. The fact that the anti-corruption rhetoric has become some kind of new religion reflects current trends in global politics and the market economy. The significance of corruption in political discourse is the object of an empirical study conducted by Daniel Smilov and Rashko Dorosiev. The authors focus on the role played by corruption in the political culture of post-socialist Bulgaria and explore the various understandings of corruption observed in different societal fields. Concentrating on expert views from politics, the judiciary, police and prosecutors, the media, civil society and NGOs, and the economy, they analyse perceptions, causes, scope and effects of corruption, and also refer to anti-corruption measures. Against the background of partially heterogeneous, field-specific corruption perceptions they then shed light on how current politics treats the issue of corruption in the context of party competition. The main distinguishing feature of the way in which corruption functions in political life consists in governments establishing discourse coalitions with potential partners in order to secure their discursive support for launching anti-corruption strategies. Forging 35 discursive alliances helps to depoliticise corruption, making it an elaborate issue of long-term profound institutional change in all areas of governance. Concomitant with this trait of depoliticisation, governing politicians are abandoning the legalistic approach to the problem and embracing an inflated public interest based definition of corruption while adopting a rationalist discourse of structural change. However promising corruption as the major political discourse may be for institutional reform, it can also have the negative effect of giving corruption-related problems disproportional attention compared with other problems such as poverty, unemployment, deficient healthcare and education services. The authors conclude that focusing on corruption in this way can hardly be thought of as contributing to positive developments in Bulgarian society. The relationship between the set-up of political culture and corruption is also the object of methodical scrutiny by Zeynep Şarlak, who demonstrates how corruption should be seen as a structural feature in Turkey. Opposing the current corruption paradigm, which assumes that corruption is first and foremost located in the public sector, she argues against downplaying its role in the private (economic) sphere and suggests instead analysing the sociology or the political economy of corruption as the more promising approach to anti-corruption measures. By examining the relations between political party and voters, politics and business, and politics and the media, Şarlak reveals how corruption is a powerful mode of functioning in the country’s sociopolitical system. To begin with, the political system, riven as it is by patronage and clientelistic relations, turns the deficiencies in representation, participation and democracy into breeding grounds for corruption. This involves politicians and voters alike because both are interested in increasing their short-term individual prosperity and consequently there is no shortage of reasons justifying their involvement in corruptive 36 relational networks. In-built opportunities for corruption can also be observed in the interchanges between politics and the business world: on the one hand the powerful political class can exert considerable influence (both negative and positive) on business in order to secure its allegiance; on the other hand, owing to insufficient regulation of political parties’ resources, businessmen are expected to directly finance the political party and/or to mobilise their personal assets for the political propaganda. No less conducive to corruption are the oligopolistic structure of the media and the relationships of mutual trust and dependency between the media and the political class. In the face of all this, any anti-corruption strategy that does not touch upon the fact that the political arena is limited to the distribution of economic resources favourable to corruption is doomed to remain ineffective. Ultimately, the key to effectively combating corruption lies in pushing forward the process of democratisation. References Alemann, Ulrich von. 2006. Konfession und Korruption. Protestanten an die Macht. Der Überblick, 2, 13. Bellah, Robert N. et al. (eds.). 1986. Habits of the Heart. Individualism and Commitment in American Life. New York: Harper & Row. Berger, Peter L. and Luckmann, Thomas. 1966. The Social Construction of Reality: A Treatise in the Sociology of Knowledge. Garden City, New York: Doubleday. Beyme, Klaus von. 1999. Die parlamentarische Demokratie. Entstehung und Funktionsweise 1789-1999. Opladen/Wiesbaden: Westdeutscher Verlag. 37 Fischer, Joachim. 2008. Tertiarität. Die Sozialtheorie des “Dritten” als Grundlegung der Kultur- und Sozialwissenschaften, in Phänomenologie und Soziologie, edited by Jürgen Raab et al. Wiesbaden: VS Verlag für Sozialwissenschaften, 121-130. Graeff, Peter. 2010. Prinzipal-Agent-Klient-Modell als Zugangsmöglichkeit zur Korruptionsforschung. Eine integrative und interdisziplinäre Perspektive, in Korruption. Historische Annäherungen, edited by Niels Grüne and Simone Slanička. Göttingen: Vandenhoeck & Ruprecht, 55-75. Granovetter, Mark. 2007. The Social Construction of Corruption, in On Capitalism, edited by Victor Nee and Richard Swedberg. Stanford: Stanford University Press, 152-172. Hiller, Petra. 2005. Korruption und Netzwerke – Konfusionen im Schema von Organisation und Gesellschaft. Zeitschrift für Rechtssoziologie, 26(1), 57-77. Hirschman, Albert O. 1982. Shifting Involvements. Private Interest and Public Action. Princeton: Princeton University Press. Höfflinger, Christian. 2002. Korruption als soziale Beziehung. Opladen: Leske + Budrich. Huntington, Samuel P. 1968. Political Order in Changing Societies. New Haven: Yale University Press. Johnston, Michael. 2005. Syndromes of Corruption. Wealth, Power and Democracy. Cambridge: Cambridge University Press. Klitgaard, Robert. 1988. Controlling Corruption. Berkeley: University of California Press. Latour, Bruno. 1993. We have never been modern. Harvard: Harvard University Press. 38 Lomnitz, Larissa. 1988. Informal Exchange Networks in Formal Systems. A Theoretical Model. American Anthropologist, NS 90(1), 42-55. Luhmann, Niklas. 1995. Kausalität im Süden. Soziale Systeme, 1(1), 7-28. Luhmann, Niklas. 1997. Globalization or World Society? How to conceive of modern society. International Review of Sociology, 7(1), 67-79. Luhmann, Niklas. 2003. Macht. Stuttgart: Enke. Marschall, Miklos. 2005. The Changing Face of Post-Communist Corruption. Democracy at Large, 1(2), 10-11. Merton, Robert K. 1961. Social Theory and Social Structure. Illinois: Free Press. Neckel, Sighard. 2000. Der unmoralische Tausch. Eine Soziologie der Käuflichkeit, in Die Macht der Unterscheidung. Essays zur Kulturgeschichte der modernen Gesellschaft. Frankfurt a.M.: Campus, 82-90. Nye, Joseph C. 1989. Corruption and Political Development: A Cost-Benefit Analysis, in Political Corruption. A Handbook, edited by Arnold Heidenheimer et al. New Brunswick/Oxford: Transaction Publishers, 963-984. Parsons, Talcott (ed.). 1997. Introduction to Max Weber. The Theory of Social and Economic Organization. New York: Free Press. Popper, Karl. 1999. All life is Problem Solving. New York: Routledge. Priddat, Birger P. 2005. Schwarze Löcher der Verantwortung. Korruption – Die negative Variante von Public-Private Partnership, in Unaufgeklärter Kapitalismus – Multidisziplinäre Perspektiven zu Funktionen und Folgen der Korruption, edited by Stephan A. Jansen and Birger P. Priddat. Wiesbaden: VS-Verlag für Sozialwissenschaften, 85-101. 39 Reiter, Uli. 2009. Lärmende Geschenke. Die drohenden Versprechen der Korruption. Weilerswist: Velbrück. Rose-Ackerman, Susan. 1986. Corruption. A Study in Political Economy. New York/San Francisco/London: Academic Press. Schutz, Alfred. 1962. Common-Sense and Scientific Interpretation of Human Action, in Collected Papers I, edited by Maurice Natanson. The Hague et al.: Nijhoff, 3-47. Simmel, Georg. 1950. The Sociology of Georg Simmel, compiled and translated by Kurt Wolff, Glencoe, Ill.: Free Press. Schweitzer, Hartmut. 2009. Vom Geist der Korruption. Theorie und Analyse der Bedingungen für Entstehung, Entwicklung und Veränderung von Korruption. München: Martin Meidenbauer Verlagsbuchhandlung. Tänzler, Dirk. 2007. Corruption as a Metaphor. Crime & Cultur Discussion Paper Series No. 8. www.uni-konstanz.de/crimeandculture/index.htm. Teubner, Gunther. 2009. Coincidentia oppositorum: Hybrid Networks Beyond Contract and Organization. Storrs Lecture Series, Yale Law School, in Networks: Legal Issues of Multilateral Cooperation, edited by Marc Amstutz and Gunther Teubner. Oxford: Hart Publishing, 3-30. Teubner, Gunther. 2011. Networks as Connected Contracts. Oxford: Hart Publishing. Vico, Giambattista. 1988 [1710]. De Antiquissima Italorum Sapientia ex Linguae Originibus Eruenda Librir Tres (On the Most Ancient Wisdom of the Italians Unearthed from the Origins of the Latin Language), translated by L. M. Palmer. Ithaca: Cornell UP. Weber, Max. 1978. Economy and Society. An Outline of Interpretative Sociology. Berkeley/Los Angeles/London: University of California Press. 40 Weber, Max. 2002. The Protestant Ethic and the Spirit of Capitalism. Los Angeles: Roxbury. Zapf, Wolfgang. 1996. Die Modernisierungstheorie und die unterschiedlichen Pfade der gesellschaftlichen Entwicklung. Leviathan, 24(1), 63-77. 41 Chapter 2 “Above the Law, below Ethics”: Some findings on Portuguese attitudes towards corruption1 Luís de Sousa Introduction Portugal is an example of unfinished modernization. ‘The difficult road to sustainable democracy’, as Magone (1997) put it, is characterized by the coexistence of straight/pristine highways and tortuous/curvy roads, of modern and traditional societal features. It is a land of social contrasts, wrapped in a soft package of hospitality and mildness (brandos costumes), which tempers any resolute feeling of upsurge. In many aspects, Portugal is still a two-speed democracy. It displays the same characteristics, rules and instruments as most consolidated Western European democracies, yet it lacks a modern civic culture. Values underpinning democratic governance – such as equity, transparency, impartiality, legality, accountability and integrity – have not experienced and appropriated in a harmonious across its territory and population. Although this does not necessarily constitute a threat to democracy, in the sense that the vast majority of citizens accept and identify themselves with 1 This work is part of a research project funded by the Portuguese grant award body (Fundação para a Ciência e Tecnologia, POCI/CPO/60031/2004) entitled ‘Corrupção e Ética em Democracia: o caso Português’. 42 democratic rule and values, it certainly affects their cognitive mobilisation in regard to issues of public concern, such as corruption. There is a widespread public belief amongst the majority of Portuguese citizens that ethical standards governing public life are to be circumvented or subdued, whenever individual or affinity group interests stand higher. Public opinion also tends to be more focused on individual financial impropriety than on collective misconduct – such as illicit party financing or conflicts of interest – and more sensitive to visible aspects of corruption – such as ostentation and proved financial offences – than on the opportunity structures that give rise to deviant behaviour. Corruption in Portugal cannot be discussed only in terms of bribery. It includes a series of other practices and conducts in which the transaction of money for decisions is not so clear-cut and automatic. Small forms of influence peddling are common to the Portuguese administration and although these may be interpreted as a violation of the principles of fairness and impartiality, they are not regarded by the population as sufficiently problematic or damaging to the functioning of democracy. Scholarly notions of democracy would reject these types of social exchanges as pernicious to its legitimacy tout court. Yet, in countries where family ties have helped citizens to relate to the abstraction and impersonality of the Law and the State institutions and where the dividing line between public and private office is not so clear-cut, the daily relationships between citizens and their public administrations is characterised by these types of exchanges and it is our task to understand why. This chapter sets out to demonstrate the tension between legal/formal norms and citizens’ expectations regulating public office shaping the way in which Portuguese deal 43 with corruption: how they define it, how they judge it and how they go along practicing it. Corruption as a social construction Studies on corruption have too often relied on legal/formal criteria to qualify standards of corruption (Nye 1967). These tend to be regarded as stable and accurate indicators of what are the standing standards of corruption at a given time and place. Yet, even legal standards are not monoliths. They are the expression of what a society or, more precisely, a power group in that society perceived and determined to be pernicious practices/behaviours to its value system and functioning. By excluding public perceptions from the conceptual framework of corruption one risks to fall into legal dichotomising (i.e., legal “non-corrupt vs. illegal” corrupt) and miss most of corruption’s complex nature and dynamics. Not everything that is legal is approved ethically by citizens (Friedrich 1966; Gardiner 1992; Jos 1993). In other words, corruption is a social construction (Heidenheimer/Johnston 2005). The distinction between market and parochial corruption, proposed by James Scott (1972), is fundamental to the understanding of corruption as a social phenomenon. A market definition, focused on ‘the selling of government goods and services to the highest bidder’ (Scott 1972: 12) would also omit a considerable number of parochial forms of corruption, based on personal/familiar connections. Market corruption, i.e. “money for decisions”, is just one of the possible modalities of interaction between the citizens and their administration and needs to be understood within a brother set of social relations based on exchange, reciprocity and negotiation. Some corrupt interactions do not fit the definition of “market transaction”, because they are often characterised by a gap between incentive and reward. Many gifts 44 and hospitality do not entail an immediate offset for the active actor, nor do doctors perceive them as incentives with a corrupt intent. Instead they are part of a system of trust-building and proximity-enhancing between citizens and public servants which operates in the long term (Blundo 2003: 86). Corruption can be many things to many people and for that reason it is an extremely difficult phenomenon to define, measure, and explain. Public opinion surveys are in most cases a very limited and imperfect empirical tool to characterise and assess the evolution public perceptions, but they remain nonetheless too important a set of data to be overlooked and perhaps the only instrument available to disentangle the volatile and fluid nature of attitudes towards corruption. Constructing an index of social corruption Corruption is largely about perceptions (Heidenheimer 2005). Corruption is a chameleon in the public’s perception, changing constantly its meaning, a cluster of distinct practices/conducts which are labelled as corruption independently of the standing legal standards in a given society at a particular time. Corruption can be used to describe practices varying from bribery, extortion, influence trafficking, embezzlement, which constitute criminal offences in a large number of countries, to practices that have increasingly been object of reform, but still do not rally harmonious disapproval, to practices which are often exempt of any sort of regulation such as favouritism, nepotism and pulling strings. Assessing these cultural variations is a difficult task. If we were to ask every citizen what was his/her understanding of corruption, we would probably end up with as many definitions as the number of respondents. Instead, in order to capture the complexity and multidimensionality of public perceptions on corruption we have opted 45 to construct an index based on five dimensions through which a given action is evaluated in the public’s mind: a) its legality, b) its social normality, c) its just or noble intentions, d) its consequences or externalities and e) the consciousness/control of the actor. Each of these dimensions expresses a general attitude towards corruption and can be combined in multiple forms. The social index of corruption measures greater or lesser permissiveness towards corruption based on citizen responses to a national survey on Corruption and Ethics in Democracy conducted in 2006, through face-to-face interviewing to a representative sample of the Portuguese population. Respondents were asked to indicate whether they “strongly disagree“, “disagree“, “agree“, or “strongly agree“ with each of the five general attitude statements: • A conduct must be illegal for it to be called corrupt (Q10.A); • We cannot call an act corrupt if everybody does it (Q10.C); • If an act is done for the right reasons, it cannot be called corrupt (Q10.B); • If the result of an action is beneficial for the good of all one cannot label it as corruption (Q10.E); • If an act is practiced without knowing the Law we cannot say that the person who performed the action is corrupt (Q10.D). Let me briefly explain each of the dimensions of the social condemnation that we aimed to capture: Legal minimalism 46 The concept of corruption encompasses various dichotomies or dualities. One of its core definitional dichotomy concerns the public’s primary evaluation of the behaviour or practice in question, that is, deviation and conformity with the operating rules in a society. There is a general agreement that corruption entails deviation from certain standards of behaviour in public life. But an immediate problem arises, which has haunted comparative works on corruption hitherto: ‘What criteria shall we use to establish those standards?’ (Scott 1972). Legal norms are one of the most stable and consensual set of standards through which citizens can evaluate a given practice or behaviour (Nye 1967). Modern societies are governed by complex systems of roles and rules. To each role there is a set of rules that govern its function. The degree of appropriation of these rules varies considerably across individuals, groups and societies. Rules create output/performance expectations (Truman 1971: 346-7). Some of these “standardised expectations” are expressed by legal enactment, such as corrupt practices legislation or penal codes. However, a purely legal definition of what standards govern public life would omit from the universe of denominations all behaviours and practices which do not necessarily imply a breach of law or of codes of conduct, but still involve ‘a serious violation of the standards and expectations associated with a public role’ (Jos 1993: 359; Friedrich 1966: 74; Kjellberg 1992: 342). Even though, legal/formal standards allow for a more precise definition of the phenomenon in a given context, they do not provide an accurate one since social reaction/condemnation is precluded from its conceptualisation. It would be simplistic and 47 unrealistic to assume that everything that is legal is morally/ethically approved by citizens (Gardiner 1992: 115-6). Office holders (especially political ones) use recurrently the argument of legality every time they face an allegation of corruption. Aware of the difficulties facing investigation and prosecution of corruption cases,2 elective officials hold tightly to the legal norm since they know its applicability is meagre. Against such solid anchorage of judgments, public opinion is tainted by vagueness and portrayed as unsound allegations or unjustified suspicion on the probity of office holders. These diversion techniques are part of the process of social condemnation of corruption. Although public perceptions and legal standards do not necessarily coincide in labelling a conduct as corruption, the legal dimension of the phenomenon is a crucial element to its social condemnation in society and should not go overlooked. Social normality Corruption is also a socially constructed reality subject to historical, cultural and political connotations. The manifestations falling under this political label vary substantially from one person to another, from one group to another, from one political situation to another, across different societies and political systems and in time. Heidenheimer’s (2005) distinction of a black, grey and white corruption is an attempt to 2 Investigative bodies face the difficult task of gathering irrefutable evidence for a conduct/practice which is essentially an opaque pact. The interpretation and validation of the proof by the public prosecution offices is yet another added difficulty. Finally, magistrates have also difficulties in establishing “the corrupt intent” and evaluation the scarce or unclear evidence brought before them. More often than not, cases of corruption result in absolution, amnesty or simply filled without sufficient proof thus helping to crystallise a feeling of impunity amongst officeholders. 48 define the phenomenon in relation to a variation of elite- and public-based standards. The typology illustrates the existence of a certain gradation regarding the condemnation of corruption. This “more-or-less” mode of conceptualisation (Sartori 1970: 1036) allows for a more elastic and updated picture of the operating standards in society. A society’s ethical environment is, therefore, a complex ensemble of both legal/formal and social/cultural norms governing how individuals ought to behave in public life (Johnston 1991, 1996; Kjellberg 1992; Gardiner 1992; Jos 1993; Doig 1996; De Sousa 2002). Judgements are not made in a vacuum or in a context of isolation. People’s opinions interact with and are permeable to those of others. A person judges a given act or behaviour as corrupt also in relation to other people’s evaluation. This raises the issue of ownership of opinions in modern societies and the problem of stereotyping. This dimension tries to capture people’s blind attachment to “the normality of things”. People may tolerate certain occurrences because they believe (sometimes mistakenly) that these have become sufficiently diffused and tolerated in society. Bandwagoning with the majority is more comfortable and rewarding than standing as the odd one out. The just and noble intention This historical dispute between the oppressive, bureaucratic, obstructive and nonegalitarian State apparatus and the altruist, just and noble challenger of “the system” runs through the construction of the modern State and has given birth to a series of episodes and heroic figures common to most popular traditions. The Portuguese expression “a thief who robs a thief has 100 years pardon” is a good example of this Robin Hood syndrome that justifies wrongdoing in so far it is done for a just cause. Who 49 determines what is just or unjust is both a matter of context and of individual judgement and initiative. The Mayor’s initiative to charge 5% commission illicitly on each public work adjudicated to pay for his/her campaign would be unjust and abusive. However, if the money collected were intended to pay for a kindergarten for the underprivileged, then it would be considered a noble action notwithstanding being illegal. If the Mayor pulls a few strings to get a job for his daughter at the municipal library, he may face outright public condemnation for having taken advantage from his office prerogatives and influence, but his intention could still be just in the eyes of the beholder. One should notice that independently of the externalities or repercussions a given practice/conduct may have upon others, people also make judgements on the actor’s intentions. Honesty versus efficiency Another inconsistency of social condemnation of corruption singled out in the literature of the 1960s (Leff 1964; Huntington 1968) was the fact that people seemed to condole situations in which output legitimacy standards (such as efficacy) clashed with throughput or constitutional legitimacy standards (such as transparency, accountability and integrity). In other words, citizens would tolerate the office holder who stole or cut corners as long as he/she delivers. The attitude that “the end justifies the means” is likely be more diffused in communities where the standards underpinning the modern state were not sufficiently diffused and appropriated both by office-holders and the public at large and/or communities facing precarious living conditions. The corrupt intent and the unconsciousness of the actor 50 Finally, the idea that an act corruption requires an understanding on behalf of the wrongdoer of the severity of the act is often presented as a justification for tolerating certain wrongdoing or at least to attenuate its condemnation. Looking at some of the court cases on corruption, Triães (2004) was able to illustrate that people tend to immediately deny the act corruption when they are caught in a flagrante delicto situation. Their immediate reaction is to claim that 1) they were unaware of what they were doing, 2) they were law-abiding citizens and 3) they got trapped in a situation they could not discern it was a crime. This state of mind can be transposed to the macro level: a society that does not recognize certain unlawful conducts as severe, then it is likely to tolerate those transgressions. The degree of appropriation of legal norms is fundamental to the condemnation of corruption (Huntington 1968). How tolerant are the Portuguese in relation to corruption? The average of responses to this index is 2.7. The scale ranges from 1 corresponding to the maximalist definition of corruption (which involves not only those forms of corruption prescribed by law, but also a wider and heterogeneous set of conducts/practices against people’s expectations and the ethical standards governing public office) to 4 corresponding to the minimalist definition of corruption which is strictly related to the wording of the Law. The average (2.7) is closer to the minimalist definition. The majority of respondents have a somewhat permissive conception of corruption (54%), i.e. they display a large margin of tolerance for a whole series of practices/conducts unregulated or of difficult regulation such as conflicts of interest, political patronage, favouritisms, nepotism, pulling strings, etc. If we add to this value 51 those respondents who have a very restrictive conception of corruption (11.3%), i.e. that would not go beyond the wording of the penal code and crime laws, then we could conclude by saying that the majority of Portuguese (65.3%) hold a minimalist conception of ethical standards in public life. In fact, only 5.5% and 29.2% of respondents hold a broader and a somewhat broader definition of corruption, which means that little more than 1/3 of the population, holds a maximalist conception of ethical standards in public life (Chart 1). [Insert Figure 2.1 here] Does this mean that there is a culture of corruption in Portugal? The analysis of each individual dimension can help us to answer this question. The results obtained for these five questions confirm the idea that Portugal is a country tolerant to corruption, in particular non-market forms of the phenomenon, such as pulling strings. The Portuguese condemn corruption as a crime (bribery, abuse of office, extortion), but tolerate those occurrences tainted with contradictory or conflicting interpretations (conflicts of interest and party financing) or those susceptible of raising widespread indifference, such as petty influence trafficking. As we can observe (Chart 2), in what concerns the dimension of legality, corruption is foremost associated to those practices or conducts which are a clear violation of the standing legal/formal rules in society: 39% of the respondents believe the practice/conduct would have to be illegal in order to qualify it as corrupt, whereas 12.2% have a more elastic approach and believe that the label is also extensive to a series of other practices/conducts which do not constitute an infringement of the law, but are still improper. In this sense, the Portuguese would readily and severely condemn the public official who accepts/asks for a bribe to take an illicit decision (for instance, 52 granting a building permit in clear violation of urbanization regulations), but would condole the public official who uses his/her discretionary powers to favour a candidate in detriment of others without breaking the law. These results allow us to conclude that the Portuguese are tolerant in relation to a series of practices that are not regulated or are difficult to regulate, such as, conflicts of interest, favouritisms of all sorts (including nepotism), political patronage, petty influence peddling, etc. The unconsciousness of the act serves to whiten certain conducts and it is closely related to its legal dimension. In so far the individuals believe they are not breaking the law, their consciousness remains at peace: 66.7%3 of the individuals believe that the fact that an individual claims he/she was not aware of committing a crime, is sufficient to preclude the act from being labelled as corrupt; only 12.2% totally disagree. Even if, in legal terms, the lack of knowledge of the legal parameters does not serve as an excuse for breaking the law – ignorantia legis non excusat –, the survey results obtained leads us to speculate that the Portuguese underestimate the capacity of individuals to avoid committing a corrupt act. If we consider that ethics are broader than the legal parameters defining a corrupt behaviour, then we can easily understand why the Portuguese try to whiten certain conducts by anchoring their judgements in the legal dimension. In other words, individuals abstain from making a moral judgement on a particular situation, because they believe the law provides that clarification. If the law does not clarify if a certain conduct/practice is corrupt, then it becomes perfectly acceptable. This reasoning leads individuals to abstain on a daily basis from making their own judgments according to their personal ethics and professional experience and 3 39% agree and 27.7% totally agree. 53 confronting them with the evaluation others (their peers and their community) might do in those circumstances. The just and noble intentions of the act and its consequence are also two important dimensions to understand why the Portuguese display a restricted social definition of corruption, even if less determinant. In fact, the respondents agree or totally agree that if the corrupt act has a just and noble intention (56.2%) or if it is practiced to the benefit of the population in general (63.6%), then it is not corruption. It is therefore not surprising the high levels of public support enjoyed by Mayors who justify their systematic abuse of office with an alleged public interest. The famous expression “rouba, mas faz” (“steals, but makes”) of São Paulo’s Mayor, Adhemar de Barros (1901-1969) has great acceptance amongst Portuguese voters. Although very few Portuguese would publicly admit to vote for a politician who is allegedly involved in a corruption affair, in practice they have repeatedly done so. According to Jeanne Becquart-Leclercq (1984) citizens anchor their perceptions of corruption at both the symbolic (morals) and strategic (actions) levels. Although citizens abhor corruption in abstract terms and declare that they have never paid or been asked to pay bribes to a public official, in practice they are prepared to trade-off some of their idealised standards and expectations to satisfy their needs and pursue their interests. The discrepancy between morals and actions is crucial to understand why citizens notwithstanding condemning corruption openly, continue voting in corrupt politicians or close their eyes to some practices in their administration that have become a routine and socially acceptable. The social normality of the corrupt act is the least important dimension to explain the restricted conception of corruption in the public’s mind. The perception that 54 an act can only be considered corruption if everybody does it divides the Portuguese public opinion. [Insert Figure 2.2 here] Explaining the prevalence of corruption in the Portuguese society: cultural determinism or structural opportunism? Taking into consideration the minimalist conception of corruption that prevails across all segments of the population, we can comfortably conclude that the Portuguese frequently chose to do more than the law consents and less than ethics demand. The type of conducts/practices for which we will find less disputable interpretations and disagreement between sectors of the public opinion are those that come closer to the penal definition of corruption. The bribe paid to a public official is less contentious and more severely condemned than the individual who pulls some strings in order to gain privileged access to a good or benefit to which he/she is entitled (or not). The Mayor that charges 5% commission on each public work adjudicated and uses the money to allegedly pay social works in the community is regarded with less contempt than the Mayor who accepts a family holiday, luxury car or a flat from an important public work contractor. “Robin Hood” corruption, in which respondents ponder the “goodness” of the outcome against the “harm” the practice may cause to other democratic values. Not surprisingly petty influence trafficking (“cunha” or “puxar cordelinhos” = pulling strings) is the least condemnable conduct amongst the Portuguese. In a small country where bureaucratic powers are present in almost every aspect of citizens’ life, pulling strings is almost as inevitable as paying taxes. This is the most common type of corruption in Portugal as confirmed by the 2004 European Value 55 Survey. According to this Europe wide survey, carried out in 24 countries, Portugal stands as the country with the highest score for number of family or friendship based contacts people have in order to ask for a service or benefit they are not entitled to. These resources or social capital built over time through a variety of informal networks are very important in structuring citizens’ relationship with their administration. These cultural attributes are not inherent to the Portuguese DNA. They help to explain a predisposition to tolerate certain forms of corruption, such as petty influence trafficking, but it is not sufficient to understand the prevalence of corruption in the Portuguese society. There are also a series of organisational features that need to be taken into account. The “culture of corruption” is to a very large extent an informal response of citizens to a cumbersome, ineffective and unjust administration. Citizens not only mistrust their public officials, they also believe the State apparatus is obstructive to their initiative and primarily the exercise of their rights. A large proportion of citizens believe they always have to litigate with the State to get what they deserve and that they are often victims of injustices by the public administration which are never repaired in their favour. The widespread perception of a dishonest, ineffective and abusive administration makes citizens propensity to engage into informal ways of circumventing these hurdles (De Sousa and Triães 2008; De Sousa 2009). The so-called arte do desenrascanço (the art of disentanglement) is a living part of the Portuguese culture. This cultural trait expresses an ability to overcome adversities in the pursuit of one’s objectives/interests without the adequate cognitive tools to do so and by use of imaginative, innovative resourcefulness. Most Portuguese are conscious that this is both one of their most valued virtues and shameful vices. In abstract terms, they condemn 56 this type of conduct; in practice, they adhere to it, partly because the negative externalities are not targeting someone in particular, but the functioning of the State in general. In other words, since there is no visible direct victim, citizens downplay the severity and effects of their misconduct. This attitude not only hinders repressive action, since people will not come forward to report those practices, it also generates more incentives for corruption to endure. When we refer to a “culture of corruption”, we mean the consolidation of a mode of structuring citizens’ relationship with their administration that replicates itself in time inhibiting a gradual modernization of the State apparatus capable of overcoming these practices. The Portuguese case tests against the overall optimism of early modernization theories. Huntington’s belief (1968) that the modernization of society and the consolidation of the State of Law would pave the widespread appropriation of ethical standards in public life and increase the State’s capacity to uphold the law, and therefore reduce the magnitude and frequency of corruption, was discredited by the prevalence and adaptation of the phenomenon to newer and more complex forms of organization. Corruption is resilient because opportunity structures for corruption persists in a context where moral costs are not sufficiently high to prevent people from engaging in those practices. The co-existence of traditional conceptions of public and elective office, where personal or affinity ties between the office holder and citizens prevail, with modern principles, practices and procedures in public life, causes an ambiguous condemnation of corruption in the Portuguese society. The Portuguese hold a minimalist definition of corruption, permissive towards a series of conducts of a nonmarket nature, but this attitude has been made compatible with the citizens’ distaste for the continuous occurrence of such practices in their society. 57 References Becquart-Leclercq, J. 1984. Paradoxes de la corruption politique. Pouvoirs, 31, 19-36. Blundo, G. 2003. Décrire le cache autour du cas de la corruption, in Pratiques de la Description, edited by G. Blundo and J.-P. Olivier de Sardan. Paris: Éditions de l’École des Hautes Études en Sciences Sociales, 75-111. De Sousa, L. 2002. Corruption: Assessing Ethical Standards in Political Life through Control Policies. Florence: EUI. De Sousa, L. (ed.). 2009. Ética, Estado e Economia: Atitudes e Práticas dos Europeus. Lisbon: ICS Publicações. De Sousa, L. and Triães, J. (eds.). 2008. A Corrupção e os Portugueses - Atitudes, Práticas e Valores. Lisbon: Edições Rui Costa Pinto. Doig, A. 1996. From Lynskey to Nolan: The Corruption of British Politics and Public Service?. Journal of Law and Society, 23(1), 36-56. Friedrich, C.J. 1966. Political Pathology. Political Quarterly, 37, 70-85. Gardiner, J.A. 1992. Defining corruption. Corruption and Reform, 7(2), 111-124. Heidenheimer, A.J. 2005. Perspectives on the Perception of Corruption, in Political Corruption: Concepts and Contexts, edited by A.J. Heidenheimer and M. Johnston. New Brunswick: Transaction Publishers, 141-154. Heidenheimer, A.J. and Johnston, M. (eds.). 2005. Political Corruption: Concepts and Contexts. New Brunswick: Transaction Publishers. Huntington, S.P. 1968. Political order in changing societies. New Haven: Yale University Press. 58 Johnston, M. 1991. Right and Wrong in British Politics: “Fits of Morality” in Comparative Perspective. Polity, 24(1), 1-25. Johnston, M. 1996. The Search for Definitions: The Vitality of Politics and the Issue of Corruption. International Social Science Journal, 48(3), 321-335. Jos, P. 1993. Empirical Corruption Research: Beside the (Moral) Point?. Journal of Public Administration Research and Theory, J-Part, 3(3), 359-375. Kjellberg, F. 1992. Corruption as an analytical problem: some notes on research in public corruption. Indian Journal of Administrative Science, 3(1-2), 195-221. Leff, N.H. 1964. Economic Development through Bureaucratic Corruption. American Behavioral Scientist, 8(3), 8-14. Magone, J. 1997. European Portugal: The Difficult Road to Sustainable Democracy. London: Palgrave Macmillan. Nye, J.S. 1967. Corruption and political development: a cost-benefit analysis. American Political Science Review, 61(2), 417-427. Sartori, G. 1970. Concept Misformation in Comparative Politics. American Political Science Review, 64(4), 1033-1053. Scott, J.C. 1972. Comparative Political Corruption. New Jersey: Prentice-Hall. Triães, J. 2004. Aspectos Sociológicos da Corrupção em Portugal: Actores, Mecanismos e Recursos do Crime entre 1999 e 2001. Lisboa: ISCTE. Truman, D. 1971. The Governmental Process: Political Interests and Public Opinion. New York: Alfred A. Knopf. 59 Chapter 3 Diffusion of Corruption in Poland Grzegorz Makowski Corruption is a social problem. It seems an obvious statement, on first appearances. However, a sociologist should never accept such a statement as an indisputable fact, since in this sentence two phenomena, not necessarily identical, are identified – “corruption” and “social problem”. Before I pass on to the fundamental part of this text, I wish to start with a general digression about corruption as analyzed as a social problem. It is indispensable to understand the Polish (possibly not only Polish) specifics of this phenomenon, as well as the good and bad points of the research and corruption analysis method herein applied. The metamorphosis of the problem of corruption The concept of the social problem is quite fluid. As it is in the case of corruption. Sociologists, economists, political scientists and philosophers are in constant dispute over the boundaries of this phenomenon. An observation made by Michael Johnston many years ago is still valid. He remarked that, in a debate on corruption, all discussion is exhausted on the issue of its definition before anybody manages to become engrossed in its content (Johnston 1998: 89). I also share the standpoint of Andras Sajó, who once claimed that: “Experts will never agree on any single definition. […] The problem of contemporary corruption is that it almost always reflects moral opprobrium of outsiders” (cited in Miller 2002: 1). For the purposes of this article, I will not assume 60 any concrete definition of corruption in order to avoid getting involved in the aforementioned dispute. This decision will find its grounds in a theory, which I will use in order to present the construction process of the social problem of corruption in Poland. Within the framework of the constructivist paradigm, the definition of the corruption is seen as just one of the objects of research and analysis. At the same time, it is worth indicating the existing relation between these two concepts – corruption and social problem. Corruption might be useful? Firstly, corruption has not been always seen as a threat. What is more, sometimes it was perceived in a totally opposite way – it was considered to be of a certain value. It is enough to refer back to classical works of well–known western political scientists and economists from the 60’s, 70’s, 80’s and even the 90’s of the last century. Contrary to how many people commonly think about corruption nowadays, numerous advantages of this phenomenon were perceived in those times. To this day Samuel Huntington’s remark is cited. In the 60’s of the last century while observing how third world countries were trying to follow the western model of reform of their political and administrative system he came to the conclusion that: “In terms of economic growth, the only thing worse than a society with a rigid, overcentralized, dishonest bureaucracy is one with a rigid, overcentralized, and honest bureaucracy” (Huntington 1968: 68). With this statement, Huntington gave an impulse and a reason to disseminate and strengthen a point of view on corruption, according to which it might be treated as a grease that speed the wheels of commerce, unblocking the free movement of goods and services. James Scott (1969), Nathaniel Leff (1964) or, in the 90’s of the last century, Francis Lui (1996) and a famous economist, a Nobel Prize candidate Gordon Tullock 61 (1996), argued that to a certain degree corruption might be functional, therefore it shouldn’t be treated as a social problem. They proved that bribery, nepotism or favouritism - especially in the case of the developing countries, which did not have an efficient administrative system and whose political scene was unstable - might play a positive role, at least by clearing channels of communication and by connecting the public sector with the private sector and society. Thanks to such corruption, they claimed, investors and entrepreneurs had a chance to achieve greater effectiveness under the conditions of imperfect Third World economies. In addition, political scientists observed a positive influence of corruption on political party formation (Abueva 1966). In 1966 David Bayley came to the conclusion that, from the point of view of developing countries, of the two evils, it is better to corrupt the developing democratic institutions than to reject them completely before they even start working (Bayley 1966: 729). There were sufficient a reason then to think that the corruption, in practice, is not so bad and that it doesn’t need to pose a problem at all. By this conviction were guided not only scientists, but also practitioners – politicians and businessmen. Until the middle of the 90’s many Western European countries simply sanctioned corruption as an instrument of the foreign economic policy. Belgian, French or German entrepreneurs could legally include the money used for bribing public officials in other countries in their business expenses. With such creative accountancy, they could even get tax relief on this. “Le Monde”, 17th March 1995, reported that French companies gave a sum of money exceeding 10 billion French francs to foreign officials and politicians. A year later, the magazine “World Business”, 4th March 1996, estimated that the expenses of German companies related to their corrupt activities equalled 3 billion dollars per annum. This trade remained unrestricted 62 until the principles of a global anti-corruption policy were formulated by the UN, the World Bank, the International Monetary Fund and the OECD at the end of the 20th century. This fact was also crucial to the process of the construction of the social problem of corruption in Poland. International organizations put a lot of effort into changing the economic and political paradigms dominant at that time, according to which there was no need for any extraordinary anti-corruption methods (Tanzi 1998; Bukovansky 2002). In the middle of the 90’s corruption, which had been the driving force behind many Third World economies, changed into an obstacle impeding a globalising market and democracy. One of the most visible signs of that change was the adoption of the OECD convention on Convention on Combating Bribery of Foreign Public Officials in International Business This happened mainly under pressure from the United States, which, at that time, was the only country that had enacted appropriate legislation prohibiting the corruption of officials in foreign countries. During the Cold War Foreign Practices Corrupt Act was not of primary importance. It was rather a symbol of overcoming the political crisis of the Nixon era, resulting from Watergate and the Lockheed scandals. Such legislation was important primarily for Americans. After 1989 the geopolitical situation and the role of the United States changed dramatically. In the middle of the 90’s it was clear that in the new, rising markets of the former Eastern bloc it was becoming difficult for Americans to fight for economic influence with competitors from Western Europe. In such a situation provoked by, among other things, the lack of anticorruption legislation, the latter had less scruples in competing for governmental contracts and wealth created by privatization in the post-communist countries (see Krastev 2003; Smilov 2010). We could say then that globalization processes had a 63 direct influence on the change in perception of corruption. They brought about a redefinition of the phenomenon and became an impulse in its specialisation as a social problem. I will return to this subject in a subsequent part of the article. Corruption might be bad, but also useful Secondly, even if the general negative nature of corruption is not being questioned, it does not mean that it can be automatically considered a social problem. This is because political and economic systems may exist that are based mainly on informal and personal relations, which become usually a basis for corrupt behaviour. In such societies there are whole networks of the patron-client relations, which – from a contemporary point of view – while they do not constitute a form of corruption, they at least become one of its sources. In such cases it would be difficult to define corruption as a social problem, because it turns out to be an element which cements the economy, politics or even the whole public life. Feudal societies can be mentioned as an example of such societies in which clientelism reigned. This matter was perfectly described by the Polish Historian, Andrzej Mączak, who studied the relation between society and authorities in Medieval Europe. Without a professional civil service, a clear separation of church and state, politics and economy, and other elements that nowadays appear to us as obvious part of public life, corruption became equally important as a public service ethos in the contemporary state. It can be judged negatively but we have to be aware of the fact that it was not a problem at that time, because it constituted an indispensable element of social life. In conditions of medieval economy, characterized by serfdom and manorialism, corruption was an endemic but at the same time trouble free phenomenon. It was not a problem unless it deprived feudal lords of an important part of their income 64 (Mączak 1986: 239-241). It is a necessary supplement to an imperfect management system of the fortunes of medieval notables. Hence, following Jacobs van Klaveren, Mączak emphasizes the fact that in feudal societies there is no place for today’s socalled administrative corruption, that is, state appropriation. This is because, if we want to build a bureaucratic apparatus, we are faced with the following alternative – corruption or office selling, that is to say, corruption but a type sanctioned by authorities. Interestingly, it is not an irrational choice at all. Historians are correct to point out, citing Max Weber that since the state has the right to monopolise the legitimate use of violence, why wouldn’t it also have the right to legalise corrupt behaviours or other crimes (Mączak 1986: 239-241). That is why Mączak, while analysing the functioning of medieval state, prefers to talk about proto-corruption instead of corruption per se. In more contemporary times we also find examples of the systems, apparently very rational, which at the same time are based on corruption – condemned but not considered a social problem. We can take, for example, communist Poland. Jacek Tarkowski, an excellent Polish sociologist, who as early as in the 80’s analysed the dysfunctions of the communist system, showed that clientelism and corruption simply had to exist in those times, because they were functional from the point of view of the communist state (Tarkowski 1994). They facilitated the work of the fossilized bureaucratic apparatus, centrally planned economy and inefficient system of redistribution of economic goods. Corrupt behaviour was universal – from a shop assistant to a communist minister. It was not only a form of interaction between state and society, but also an everyday form of coexistence between people. Andrzej Rychard, while analysing communist institutions, showed that various informalities and 65 borderline legal behaviours stabilised the whole social system. Within the economic sphere, they created a peculiar “alternative market” of goods (Rychard 1995: 188-189). Krzysztof Kiciński, considering the phenomenon of corruption under the government of the First Secretary of the Polish Communist Party Edward Gierek (1970-1980), wrote: […] at a certain stage of the gradually deepening corruption some threshold has been crossed and since then the whole social system has started to be subject to a peculiar logic of the corrupt system. Until that moment corruption, in spite of the dimensions of the phenomenon, was some kind of foreign body tissue in the social order; since then, such a foreign body is more of what remains untouched by corruption (Kiciński 1992: 170). Nevertheless, corruption as a social problem practically did not exist during the communist period. Besides, this phenomenon applied to all communist countries. Corruption, at the outmost, “happened to be” a problem as in the Middle Ages, in situations only when communist notables considered the scale of certain behaviours too extensive and when they endangered or threatened their interests or in situations when corruption could serve as a good pretext in favour of cleaning their own ranks or curbing the opposition (Madej 2003; Kramer 1977; Karklins 2002; Kamiński 1997). All the scandals appearing during the communist period, which nowadays we would call corrupt, were hushed up or turned into a political spectacle. In the political sphere of the state, corruption did not exist as a social problem and it was not presented as one, even if it was becoming an object of research and analysis. The work of Polish criminologist, Tadeusz Chrustowski, might serve as the best example of such an approach. With the decline of the communism, in the middle of the 80’s, he wrote that corruption in Poland is of an “incidental dishonesty” character, which by no means is “a consequence of the socialist 66 socio-economic relations” (Chrustowski 1985: 159). Officially corruption was not then a social problem. To sum up, even if corruption is an evident and universal phenomenon, even if it is unquestionably the reason of dysfunction of a given system, it still does not have to be a social problem. What is more, paradoxically, from a certain point of view corruption might be indispensable in a given system. Constructivism – method of analysis of the social problem of corruption We therefore know that we are facing a difficult starting point in our reflection, because it is based on concepts difficult to operationalise, often changeable in meaning and which are determined to a great extent by the current scientific and political discourse. There is no obvious answer to the question of what the social problems are. We also do not know how to properly define corruption. The more difficult is then to determine when corruption is a social problem and when it is not. And yet, the fluidity of both concepts does not make the analysis mentioned impossible. The sociology of social problems has managed to create a paradigm, which in this situation seems perfectly applicable – constructivism. Using this approach, I will try to not only describe the construction process of the social problem of corruption, but also to determine its consequences and to indicate the possible directions for actions for those interested in reducing this phenomenon. There is no space for discussion on the wider context on which the constructivist theories of social problems are based. It would be difficult to present thoroughly the evolution of constructivism itself even on the basis of the sociology of social problems. I will limit myself to the conclusion that only one form of constructivism does not exist either in social science, or even in the sociology of the social problems. Nevertheless, 67 some aspects of the constructivist theory transformations are worth mentioning. That is because they are essential to the understanding of the approach, on which we will base the analysis of the social problem of corruption in Poland. The most important lessons from the first constructivist theories Malcolm Spector and John I. Kitsuse (2001) are considered to be forerunners of constructivism in the sociology of social problems. The essence of the theory proposed by them was that social problems exist totally independently of any objective conditions. They can be based on facts but the latter are not a necessary condition to enable us to define something as a social problem. To Spector and Kitsuse a social problem is pure process. It is a process of claiming to the change of putative conditions, which have been qualified by certain social actors as detrimental or violating particular values, convictions or interests. They pointed out four stages of the construction of social problems: (1) the stage of formulating working definitions of the phenomena perceived as undesirable; (2) the stage of making public demands on taking action against the phenomena mentioned to media and power structures, where the demands are officially legitimised and turned into public policies; (3) the phase of reaction to the execution of public policies, which usually leads to their rejection; (4) the redefinition of the social problem and the beginning of the new cycle of making claims. In this classical approach two elements are worth mentioning. First, Spector and Kitsuse assume that demands, which create social problems, usually arise at grass-roots level. Usually, they are made by dissatisfied citizens. Secondly, they indicate that the key moment of the construction of social problems is its introduction into the public forum (e.g. through the use of media) and provoking a reaction from the authorities. Even if the demands are made by a significant part of the society, they will not 68 automatically turn into a social problem. It will not happen until they appear in the public discourse and are recognized as social problems by those who administer the discourse mentioned. Hence, the media and the centres of power are the key elements of the construction process of social problems. The initial version of constructivism, presented by Spector and Kitsuse, soon became a subject of criticism (Rubington and Weinberg 2003; Woolgar and Pawluch 1985). Their categorical assumption of social problems being a strictly discursive phenomenon was questioned. It was emphasized that social problems can be, and probably are, in most of the cases, created in the way described by Spector and Kitsuse, though they do not arise in a vacuum. It was pointed out that, while studying social problems, you need to take into consideration the historical, political or economic context, the relations between given social actors, the usual ways of interaction, stock of knowledge, stereotypes, etc. Whether we like it or not, even if it is not an objective component of the social problem itself, it is at least the background of its creation. This belief contributed to the creation of contextual constructivism (Best 1995). The theory of Spector and Kitsuse was also supplemented by new elements. One of the crucial threads was Joseph Gusfield’s remark. He coined the term “organizational ownership of social problems” (Gusfield 1989). He pointed out that problems, regardless of who was the first one to make a claim or to initiate the process of their construction, change their “owners” and this fact does have an influence on the definition and possible solution of the problems. The concept of the ownership of social problem describes a situation, in which a particular actor decides on the character of a given problem and what kind of intervention should be taken. The formation of social problems and its existence are not only the process of its construction, but also an 69 incessant, symbolic struggle for control over them, because the ownership of the problems can be also an instrument of power. Furthermore, Gusfield observed that there are certain categories of actors who show special inclination towards the monopolization of these problems. These are “moral entrepreneurs” and “do-gooders” – groups of some type of fanatics convinced that problems, which they are dealing with, pose a threat to the foundations of society. They claim their exclusive right to define such a problem, adopting the role of guardians of threatened values. Also the agencies created by centres of power – the so called referral agencies and helping professions – sometimes turn into the owners of the problems. When the ownership of the problem is on their side, the struggle against it soon becomes their raison d’être. With time, they do not try to eliminate the phenomenon, but to maintain it to such an extent, that is sufficient to justify their existence. Gusfield came up with a further conclusion that was later developed by other researchers. Social problems do not have to be a grassroots phenomenon. The power structures are able to create them independently and they often do so in order to display their activity in creating and implementing various public policies (Szasz 1986). The Theory of Residualist Conversion of Social Problems In the 1990’s, some elements of constructivism started to be combined with another social problem theories. I would like to refer to one of them, namely the residualist conversion of social problems theory created by an Australian sociologist, Adam Jamrozik (Jamrozik and Nocella 1998). His version of constructivism combines some elements of critical theories and – which might be surprising at first glance – some elements of functional ones. We will not go into details of this topic however and will just focus on its most important aspects. 70 According to Jamrozik, a definition of the social problem does not differ significantly from contemporary constructivist interpretations. He proposed that we called “social problem” all the circumstances, attitudes, processes and structures that are perceived as threatening those values, aims, hierarchies, moral standards or institutions, which are seen as key stabilizing elements. The aspect of constructing a social problem clearly becomes of secondary importance, which does not mean that Jamrozik considers it unimportant. In fact claims and demands referring to the change of dangerous conditions are important. However since Jamrozik finds this obvious, he urges us to focus on the element neglected by previous versions of constructivism, that related to the reaction of centres of power toward already constructed problems and the creation of public policies. One of the most essential observations made by Jamrozik is one which states that social problems are phenomena of a dialectical nature. On the one hand, they are the supposed source of threat to standards and values, but, on the other hand, they appear as a consequence of endeavours to fulfil those standards, values and aims. That is why Jamrozik comes to the conclusion that problems are the negative residue of such endeavours, resulting from a system of values shared by the members of a given society. In practice, it means that those phenomena are embedded in a certain social system and they reproduce themselves with it. Hence, another important conclusion, is, that if we want to solve a social problem, we always have to carry out a systemic change, which is synonymous with interfering in fundamental values and aims of that particular society. The argumentation of Jamrozik supports even more strongly the idea of attributing a special role in the construction of social problems to the power structures since it is they who stand guard over concrete normative order, reflected in 71 the notion of the “public interest”. Theoretically they exist to protect public interest. In fact it is they who decide what poses a threat and what does not. And here we come across a paradox. The authorities, as structures responsible for the protection of public interest, are naturally prone to maintain the social status quo. Every possible change in the system of values and aims of a given society might lead to a challenge to the foundations of the system and, as a consequence, the mission of authorities. Thus, tackling social problems is not in the interest of the power structures. As they decide on systemic change, they are somehow obliged to admit their error when protecting the previous system or that they were doing so ineffectually. Therefore, in practice, social problems are rather moderated than solved. The centres of power “cope” with them but they do not eliminate them. They do not decide to legitimize the problem until they are sure that it is impossible to manage it and, consequently, there is a chance to confirm their role as guardians of public interest. Jamrozik identifies two general methods of problems’ management. First, social problems can be contested, that is, removed from the public debate as uncomfortable subjects. Secondly, they can be defined in a way that makes their presentation possible as individual or narrow social group problems. There is also a third way but I will come back to it in a moment. Despite the choice of the problem management method, a conversion process always takes place. While constructing social problems is, in a way, transforming private matters into public ones, conversion is mostly a reverse process. In practice it is the presentation of a problem in such a way that it does not seem to be a threat to society in extenso anymore, but more a phenomenon, which can be found in some specific social segment. 72 This described tendency can be seen clearly in endeavours to identify the source of problems in a concrete population. Simplifying – we can associate poverty with alcoholism (which, by the way, occurs quite often). Then, public policy oriented towards alcoholism prevention will be focused on poor people, rather than on an organizational form of public social assistance. Thus we will be dealing with a kind of personalisation of the problem amongst the segment of population on low income. Conversion also takes place on a different level. It is a transformation of the political problem into a technical matter. The authorities try to remove a problem, as soon as possible, from the political level, where open public debate occurs and, thus, the threat to the public interest is the most visible. When the problem is present in the political sphere it means, de facto, that the centres of power are not performing their functions correctly. They do not protect the public interest. This is the rationale behind the determination to present the problem as a phenomenon, which is manageable within the framework of economic, political and legal order in force. The activity of scientific and expert circles has an important meaning for this process (Jamrozik and Nocella 1998; Makowski 2008). Alvin Gouldner once said: the state needs social scientists capable of exposing those social problems, with which it is ready to struggle (Gouldner 1971: 349-350). Thanks to such technicisation the phenomenon mentioned gradually loses its political dimension. It can be seen when the centres of power manage to create appropriate documents, strategies, plans and legal solutions. At this level, conversion might be considered complete when, in order to struggle with a given problem, a special institution is created. Then there is material evidence that the problem is being “solved”, read – managed. 73 The “technicised” problem becomes less dangerous to the social status quo and the need for systemic changes is not a necessity anymore. Public policy regarding this given phenomenon veers away from the level of fundamental questions about values, basic interests and aims. It disappears even from an administrative level, where the need of more comprehensive approach to a given matter still exists. In the situation of farreaching institutionalisation, social problems policy is carried out at the operational level, where questioning whether the certain phenomenon is or is not dangerous to the whole social system loses its importance. The creation of new institutions specialised in fighting against different problems, while also extending competencies of already existing state agencies might serve as an indicator of the stage of conversion development. At this stage of conversion, the specialised institutions (referral agencies and helping professions mentioned earlier) use specific preventative measures to reduce the negative consequences of the problem. Therefore, conversion might be divided into two different processes taking place at two different levels: social issue-personal issue and political issue-technical issue (see figure 1). To bring this topic to an end, it is worth mentioning that if we want the conversion to be effective, that is, if we want to reduce it to an easily manageable problem, both processes should run in parallel. It is easier to implement certain legislation or establish the scope of an institution (e.g. police or social assistance centre) when it is clear who will be an object of its intervention. And, vice versa, it is easier to design instruments, which will be used to manage given problem, when it is clear whom it concerns. Diffusing social problems Sometimes the authorities face problems, which they cannot contest. It is impossible to remove them from the contestation sphere or personalise them and, as a consequence, 74 submit these to technicisation. Unfortunately they are also impossible to solve because it would bring about a reconfiguration of the whole social system or, at least, of its most important elements (e.g. constitutional system), consequences that the centres of power are not willing to address. This is a specific type of phenomena, which can appear in situations, where a very strong group makes demands and when that group is capable of preserving properties of the social problem even if it has been already legitimised by the centres of power. From the point of view of the latter, such a situation is extremely uncomfortable. The power structures have to deal with the problem, which they do not control, and at the same time they have to protect their role of the guardians of public interest. What is the consequence of this? Studies of the Jamrozik’s analysis have led me to an interesting conclusion, which can be seen as complementary to his theory. In the case described above there is still a possibility of problem conversion. In that case the problem is submitted to a specific process, which I have called “diffusion”. [Insert Figure 3.1 here] It refers to a definition of the problem under the category of a general social phenomenon, concerning everybody and each person individually. Theoretically, to a certain degree, there is even a possibility of technicisation of such a problem. Usually it takes place at an administrative level by formulating general policy in relation to a given problem. In special circumstances, there is a possibility of a far-reaching transformation of the problem into a specialist issue or even the creation of some specialised institution. The logic of the diffusion process obliges us to put forward a hypothesis that such a procedure would be quite risky and an excessive technicisation of the diffused problem would be ineffective or even counterproductive. The reason is quite obvious. 75 There is no point in creating special institutions, in order to counteract specific phenomena, until there is a possibility to precisely determine the source of the problem and the object of intervention. In case of those social problems, which can be easily submitted to personalisation and have a clearly defined problematic population – for example, poverty, unemployment, drug addiction or, not that long ago, homosexuality, whole systems of helping professions and referral agencies are being created, dealing with direct interventions among concrete groups or individuals. In extreme cases, the operationalisation of the social problem might assume the form of medicalisation (it’s worth remembering that e.g. homosexuality remained on the WHO list of diseases until 1990). Therapeutic interventions, taking place even in the middle of the 20th century, aimed at “curing” homosexuals may serve us as an example (Schneider and Conrad 1980). Whereas, the peculiar character of the diffused problem consists in the fact that it covers the whole population. The definition of the problem has to be very general and wide in order to make such diffusion possible. Such definitions are vague and unspecific though. Therefore, there is a big risk that creation of such a specialised body might lead to a twofold effect. An expensive, huge “super-institution” would arise, with very wide competences so that they could counteract social problems in every segment of the society and in every possible form. Maintaining such agendas might result in quite a risky undertaking. On the other hand, such institutions might be created that would be unable to take any effective actions in the face of such a diffused, unspecified phenomenon. Then the façade character of such an institution might discredit the whole public policy, making it impossible to manage the problem, which would put the centres of power in a difficult position. 76 Either way, regardless of the possible success of trying to reduce social problem to an operational level, in the situation of diffusion, the management of the problem and simultaneously keeping the status quo become possible. When dealing with a diffused problem and facing general confusion, the authorities have an opportunity to prove that they are the only ones capable of protecting the public interest. Using specialisation and diffusion of the problem, they can claim that all the instruments necessary for getting rid of any inconvenience have been worked out. We have protected the public interest so the system has risen to the occasion and there is no need to change it. But because the whole society is the source of the problem, everybody is responsible for fighting against it. We, the authority, are going to moderate this process. While preparing my PhD dissertation, I analysed in detail the discourse development regarding the phenomenon of corruption in Poland. In a historical perspective, starting with the communist period and reaching the year 2005, I examined the ways in which the fight against corruption and anti-corruption policy in Poland were postulated. My research led me to a conclusion that in the case of Poland corruption had been presented precisely as a diffused social problem. In the subsequent parts of this text, while referring to my previous research, I will try to illustrate this process and show its consequences. I will also make some references to the current events related to the corruption phenomenon and measures taken by centres of power in order to reduce the problem mentioned. Constructing the social problem of corruption in Poland after 1989 I mentioned earlier that during communism in Poland corruption, understood as a social problem, did not exist, however acts of corruption were commonplace. Economic, social and political conditions of that time, such as the enduring of shortages, inefficient 77 public structures, which strived to take full control over every sphere of social life and, in consequence, had very limited external controls on their own actions, were the background in which corruption was a real phenomenon. What is more, as early as in the 70’s corruption was already perceived by citizens as a threat, which was demonstrated in public opinion polls, hidden by authorities. In 1975 a government research centre carried out a survey about bribery, according to which 42% of citizens were sure, that this basic form of corruption was a common phenomenon (Ośrodek Badania Opinii Publicznej 1975). It occurred that claims related to the fight against corruption were reported by the grassroots social movements. In 1981, on the wave of success of the first “Solidarność” movement, one of the local branches of the union forced the removal of specific local authorities, precisely because of certain misuses1. Nevertheless, we cannot say that corruption at that time had become a social problem, because civil demands regarding this phenomenon were not legitimated by authorities. No strategy of fighting corruption was created; there was no anti-corruption policy. During the communist period, almost no specific anti-corruption legal solutions were adopted. Applying the theory of Adam Jamrozik, corruption in those times was not acknowledged or legitimised at all or it was moved to the contestation sphere. Of course, the regular pattern of unwillingness of authorities to acknowledge social problems, which we have mentioned previously, still worked. A totalitarian communist state, which controlled almost entirely the shape of public debate, because of its nature had exceptional powers to deny threats regardless of whether they were real or not. It was hard to achieve legitimisation of any social problem, like unemployment, which 1 http://www.sierpien1980.pl 78 officially also did not exist, not to mention corruption, which would constitute an obvious contestation of authorities’ competences. 1989-1999 Corruption being claimed, but contested 1989 can be named as zero point of our analysis. On the one hand we know that at that point the social problem of corruption did not officially exist. On the other hand after the collapse of communism there were many prevailing conditions to construct the social problem of communism. During the first years of market economy and democratic transformation the habits of living in a communist clientelist environment were still strong. Weak public structures, badly paid officials who remained unadapted to the new reality were vulnerable to abuse. The fast developing private sector often used non-legal measures to protect its interests. There are no proper methods to measure the scale of such corruption, but we can assume that in this opening period of a new Poland the risk connected with such a phenomenon was at its highest. Regardless of whether this assumption is right or not, the public is convinced that this important problem systematically developed from the start of Poland’s social and political transformation, a conviction borne out in public opinion surveys. Figure: 2 Survey data illustrating conviction of Polish public opinion that corruption is “big” or “rather big problem” (CBOS data) or happens “very frequent”, “rather frequent” or “frequent” (OBOP data). [Insert Figure 3.2 here] Source: Makowski 2009 and Boguszewski 2009 The chart shows, that in the first three years of transformation, public belief that corruption is a serious threat was common. In 1992 nearly 90% of Poles surveyed thought, that corruption was a serious and common problem. Such data are not strict 79 evidence of corruption. However, it is not important if these 90% Polish are right or not. Regardless of the real scale of phenomenon it was an important signal that large part of society felt threatened. However, for nearly ten years from 1989 the new democratic authorities, like their communist predecessors, were unwilling to recognise these claims. The Polish political elites, both old and those that emerged with the new political system were aware of the threat, connected with the abuse of power, corruption, protection or favouritism, was real. In 1990 Prof. Jacek Kurczewski, Sociologist, one of the precursors of corruption research in Poland, and at that time an active democratic opposition politician and vice-Deputy Speaker of the Polish Parliament, prepared an report on the sources of corruption and possible solutions (Kurczewski 1990). He pointed to an urgent need to establish and spread ethical rules among officials, to introduce rules of transparency for public institutions and to implement obligatory, explicit declarations of assets for the most important public officials. Kurczewski’s proposals were isolated. The voice of radical politicians, Jarosław and Lech Kaczyński, also was marginal. Since the beginning of their political careers they have focused on the fight against corruption. Thus in 1991 Centre Agreement (Porozumienie Centrum), the party founded by these two politicians, made proposals, that not only met with indifference on the part of political elites, but also provoked criticism from their own political environment. Adam Michnik, one of the main players of the Polish transformation, who remembered anti-corruption efforts during the communist Polish People’s Republic (PRL) commented on PC’s programme in the following way: The fight against corruption as a political programme has been always been a cover for acts, which have 80 limited human freedoms (Michnik 1991). The Kaczyńskis’ agenda found favour 15 years later. In effect, until the last years of the 20th century Polish authorities were not very active in the sphere of fighting corruption. No plans or strategies for combating corruption were prepared during that time. Hardly any legislation was implemented, which helped counter corruption. During that time only 2 more serious initiatives were made connected with fighting corruption. First in 1992 regulations, which forbade highranking public officials to hold jobs when also employed elsewhere or to have stocks in private companies, and also obliged them to disclose assets, were passed. Secondly new criminal law was implemented in 1997. This reform made explicit the regulations on corruption offences, changed the catalogue of officials who can be charged for bribery and also changed the rules of qualification on corruption crimes. But most experts opine that such reform as ineffective (Nowak 2004; Kubiak 2003; Mik 2003). Other than these two episodes in the last decade of XX century anti-corruption policy in Poland did not exist (see Makowski 2008; Kojder 2002). The very popular thinking of the time was that politicians did not have to engage in fighting the phenomenon of corruption. This situation was challenged, which highlighted not only the totality of actions of the Polish authorities (more accurately, their inadequacy), but also the opinions of their highest representatives. In 1994 Deputy Jerzy Jaskiernia, who later became Polish Minister of Justice, appearing at the Open Society Institute Conference in Budapest claimed, that: In Poland the Parliament is seen as incorruptible. Any actions (of a deputy – GM), which would be suspicious, like having lunch with someone outside of group of well-known persons, is immediately condemned (Jaskiernia 1994: 61-65). A distance to the corruption problem was still clear in 1998. During research, which was 81 made at that time among 101 deputies, 32 of them said that corruption is rare, and 41 were convinced, that the scale of the problem was at maximum average. There were a couple of elements, which influenced the lack of reaction by authorities. First of all, public opinion was unhappy with the high level of corruption, which has been seen in surveys. This was however, not enough to persuade those in power to recognise that corruption should be seen as a social problem. Activity and actions were needed, but despite general indignation in Poland organized groups of citizens, social movements or non-governmental organizations did not exist at that time that were able to formulate claims, which could lead to legitimizing corruption as a social problem. It was not the classical scheme of constructing the social problem of corruption from the bottom. Secondly, the other key factor, which could have impelled the authorities to name corruption as a social problem, the media was silent. It may sound strange, but for nearly a decade, since 1989, the media in Poland were not very interested in corruption. Małgorzata Fuszara was the first, who became interested in the media coverage of this topic in the early 1990’s and has analyzed 323 articles about corruption, which were printed in newspapers and magazines from 1992 to 1998 (Fuszara 2000). The results of her research showed, that approach of the press to corruption was one-dimensional in nature. Most of the articles focused on sensation, media dramatization, accusations and in negative labelling of the main characters in the articles. At the same time there was a lack of deeper reflection. Instead of informing about the problem they muddied its causes and did not initiate a wider public debate. In 2004-2005 I made my own research about the content of the press on a larger scale. I analyzed 1222 articles from the three main Polish newspapers (Trybuna Ludu, 82 Rzeczpospolita i Gazeta Wyborcza) from 1989 to 2004, in which corruption was the basic topic. The aim of the research was to show changes in debate about corruption. Its results confirmed the earlier Fuszara’s findings and gave an opportunity for more insightful penetration of the corruption debate. Figure: 3 Number of articles whose main theme was corruption (the word “corruption” was mentioned in the title or in the lead of the article), published in two main Polish newspapers Rzeczpospolita and Gazeta Wyborcza, between 1989 and 2004. [Insert Figure 3.3 here] Source: Makowski (2008: 184) The chart show the number of articles, whose main theme was corruption and which were printed in the two most popular newspapers in this period – Gazeta Wyborcza and Rzeczpospolita. We can see that in the first ten years since the beginning of the social-political transformation corruption was not often the subject of press articles. We can also see that this approach changed fundamentally in the first years of XXI century. A deeper analysis of press articles of the last decade of XX century shows some other interesting aspects. In 1990 corruption was not only a rare topic, but when covered it was not connected with affairs and scandals, which were common in the early stage of the transformation. Their reasons and effects were explained with connection to other categories – the stealing of public wealth or ordinary thievery, but not with corruption. At that time journalists, who wrote about corruption focused on affairs, which took place in other countries. Corruption in France, Germany, USA or China was featured. Corruption was presented rather as a “foreign problem” rather than a Polish one. When Polish affairs were described, it was most often treated as a case of “local 83 corruption”, which then became national scandals. One of the biggest corruption affairs of this period was the case of irregularities in the police force in Poznan. After a journalistic investigation the police chief in Poznan lost his job. Most of the articles, which were printed in the 2 years after this scandal covered the situation of the police in Poznan. In addition, it is worth underlining, that in the end it was discovered, that the real problem was not so serious after all. In general, the presentation of the phenomenon of corruption in the years 19891999 was not very complicated. Amongst the press materials the vast majority were short factual publications without any commentary. Most often isolated cases of bribery, favouritism or protection were written about but also there was coverage of all kinds of reprehensible behaviour like theft or crimes committed by organized groups. From time to time there were texts which included attempts to define or analyze this phenomenon. Usually high-ranking officials or businessmen were accused of corruption. Less often the main characters of articles were politicians or members of corporations, offices, companies or political parties. The effects of corruption cases covered were individual. It was not mentioned, that any case of corruption had a social meaning, it shows the country’s dysfunction or its dysfunctional rationale. There were practically no suggestions that showed corruption as a phenomenon, which created threats in a larger context – for human rights, the free market or the democratic national ideals. The articles usually portrayed the offender as suffering punishment or the negative impact on the victim was arising from bribery or protection. In general, the way that daily press treated corruption in 1989-1999 was chaotic. The media image of corruption was uncomplicated and one-dimensional, which presented corruption as an example of 84 ordinary crime. By the end of 1999 there was a change in the process of constructing the social problem of corruption. The way of writing about corruption also changed. Years 1999-2001. Social problem of corruption constructed In the last months of 1999 the global battle against corruption, unleashed by international institutions five years earlier, finally reached Poland. Among the most significant events of that period was the adoption between 1996 and 1999 of six UNresolutions calling for the international community to stand up against corruption. According to many experts, the actions by the UN were the result of a consensus over the functioning of the liberal free-market democracy (Bukovansky 2002; Polzer 2001; Krastev 2003; Makowski 2009). In September 1996, the IMF Interim Committee adopted a declaration on Partnership for Sustainable Development. Along with appeals for improvements in the efficiency and accountability of the public sector or the promotion of the idea of “good governance”, the document also called for tackling corruption. In the same year the World Bank’s Director, James D. Wolfensohn, announced his own soap-box campaign against corruption which was the aftermath of dedicated advocacy by Transparency International – an NGO founded by the Bank’s former top officer, Peter Eigen. Until 1996 The World Bank had been avoiding the topic of corruption as it was seen as too political at that time. In the mid 90’s the dogmatic approach was redefined and the Bank started disseminating proprietary anti-corruption model strategies on a global scale (Polzer 2001). In 1997, the OECD joined the anti-corruption front by obliging its member countries to adopt the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (strongly advocated by the US). In the same year 85 the European Union also took on the issue of corruption earnestly by preparing relevant directives and, above all, by formulating expectations with regard to candidate countries. In 1998 the EU published its first report calling for candidate countries (including Poland) to initiate wide-ranging anti-corruption activities (European Commission 1998). In 1998 the Council of Europe joined in by appointing the GRECO group consisting of 34 countries (including Poland) that committed themselves to initiate strategic anti-corruption actions. In the following years, the Council worked out two essential conventions – the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption – that aimed at greater harmonization of anti-corruption regulations among the signatory countries. Recapitulating, a strong international emphasis was put on a clampdown on corruption in the late 80’s which impacted on Poland also. Firstly, it provided a stimulus for the development of non-governmental organizations that initiated and facilitated claims against corruption. In 1998 the Polish chapter of Transparency International was established. It quickly started a fierce anti-corruption campaign (two years earlier the first Corruption Perceptions Index was calculated for Poland’s public sector). In 2000, the “Program Against Corruption” was started by the Helsinki Foundation for Human Rights and the Stefan Batory Foundation, established by the Open Society Institute. Soon afterwards, the issue of corruption caught the interest of many other organizations which all benefited from financial support from the World Bank and the European Union. As a result, the global pressure found its way to Poland. The media did not ignore this new trend either. The turn of the century was marked by a clear shift in the way corruption was reported. This can be clearly seen in the daily press, where corruption coverage increased significantly between 1999 and 86 2004 (see figure 3). The publications also changed in their form and quality. In the late 90’s most texts comprised news and short articles reporting single cases of corruption. However, more complex articles then followed with a deeper insight, written not only by the journalists, but also by pundits, experts, officials and even priests and monks. More and more publications included multifaceted analyses of corruption, showing it as a serious ailment of the Polish political system, a cultural issue related to the mentality of Poles or a deep dysfunction in the public administration. It was much more common to point out that the causes and consequences are systemic rather than peculiar, not isolated actions taken by a specific public official, politician or a businessman. It was emphasized that corruption was a serious threat to the state and that it intensified the moral crisis in the nation. Thus, the dramatic nature of the phenomenon was revealed. At the beginning of the 21st century the press started to publish summaries of reports from the European Commission, the World Bank and NGOs, as well as opinion polls and studies on the issue of corruption. The annual release of the CPI by Transparency International triggered whole a series of articles on corruption, whereas in the past corruption cases were just briefly reported. Press publications from that period confirmed that the media embraced the global anti-corruption discourse which, as a result, gained an initial level of public legitimacy. The learning process of defining corruption advanced among journalists, but they also eagerly began adopting terminology proposed by international institutions. There were however more changes in the language of those publications. The texts began to swarm with flamboyant parallels and metaphors painting corruption in dark colours. Such terms as plague, disease, pathology, decay, cancer, corrosive acid, illness or sin were widely used to 87 describe the issue of corruption. Before then, metaphors were rarely used and language of publications was certainly less emotional. The focus of the media also altered. On the one hand, corruption was no longer a foreign issue and, on the other hand, local individual cases tended to get less attention. From time to time the press released a series of articles investigating cases of corruption amongst highest-level authorities, ministerial officials (or ministers themselves), politicians from the front pages and involving well-known businessmen. One example may be the so-called Rywingate – one of the first scandals in the 21st century that broke out at the end of 2002 and caused a serious political crisis and a break-up of the leftwing formation that was ruling at that time. The scandal has never been fully cleared or explained, but it gained wide attention in the nation, as the main actors were the Prime Minister of the time – Leszek Miller, one of his ministers, a film producer, Lew Rywin (well-known as one of the producers of Roman Polanski’s Oscar-awarded film “The Pianist”) as well as the top-management of Agora – Poland’s largest media group. The alleged corruption issue included paid patronage and attempted bribery with regard to a bill on media regulatory law. In summary, in the late 20th century corruption appeared in the Polish media as a full scale social issue and reached its first level of public legitimacy. Furthermore, an analysis of press publications from between 2001 and 2004 provides evidence that the image of corruption had all the attributes of diffusion. The phenomenon was shown as all-embracing, with cultural roots and severe consequences for society as a whole. By the end of the 90’s Polish authorities could no longer afford to deny or contest the existence of corruption as a social issue. The international institutions played the role of claim-makers, who claimed ownership of the problem and imposed its 88 interpretation as well as possible solutions. The point in time when the issue of corruption was officially legitimized by the Polish government can be defined quite precisely. It took place in 1999, when the Deputy Prime Minister, Leszek Balcerowicz, asked the World Bank (recognizing its anti-corruption claims) for assistance on the framing of Poland’s anti-corruption strategy. By the end of the year the Bank’s experts prepared a report “Corruption in Poland” (World Bank 1999), that was supposed to initiate the debate over the strategy. Reactions to the report were emotional, although its content was of a disputable quality (the media focused on a non-documented allegation stating that a legal act could be “bought“ in the Polish Parliament for three million USD). However, the report achieved its goal. In 2000, The World Bank set up a working group on corruption in its Warsaw office. The team was very broad and included representatives of all key authorities, NGOs, media, academia and clergy. Poland adopted the classical model for the creation of anti-corruption programs that had been earlier proposed and tested by the World Bank in other countries. As a result, corruption was ultimately recognized as a social issue. During 2000 The World Bank’s working group prepared a strategy framework. The weak and internally squabbling government did not manage to consume the fruits of its own anti-corruption policy. In 2001 which was the election-year, anti-corruption proposals became even more popular and NGOs took advantage of this. The most active organizations (Helsinki Foundation for Human Rights, the Stefan Batory Foundation, Transparency International and Foundation for Social Communication) formed a coalition and held a nation-wide signature collection. The purpose was to petition 89 parliamentary candidates to compel them to fight corruption through the use of certain legislative and institutional solutions. The action, where 40 thousand signatures were collected, was the first and the only nation-wide initiative of this kind. Diffusion of the social problem of corruption in Poland and its consequences After the 2001 elections, the development of the social problem of corruption in Poland entered a new phase. When the phenomenon could no longer be contested, the left-wing government decided to direct the problem of corruption towards the conversion path. Apparently, one might think, the attempt to depoliticise and specialise the problem should be trouble-free in a situation where the international institutions propose comprehensive solutions that only needed to be adhered to. As a part of the accession process, the European Union required the ratification of several international conventions and the adjustment of domestic legislation in order to reach legal conformity. This course was in line with the requirements set by the World Bank or OECD. Thus, between 2001 and 2004, Poland ratified all essential conventions and implemented the majority of changes arising from them. In September 2002 the government adopted a special anti-corruption act (Urząd Prezesa Rady Ministrów 2002). This greatly deficient law, providing primarily for legislative changes, was structured in a chaotic way and lacked any criteria for later assessment of its execution (Makowski 2008: 307-327). Nonetheless, the act was a written confirmation that the Polish authorities were determined to fight corruption and considered it a problem serious enough to necessitate formulation of the state policy in that area. Interestingly, according to the act’s wording, it was adopted in order to adhere to the requirements set by the EU and other international institutions, and not as a result of public claims to clamp down on corruption. It is not a coincidence that the first report 90 on implementation of the strategy was written in English only and sent to the European Commission. The intensification of the state’s anti-corruption efforts was reflected in the fact that between 2001 and 2004 more than 70 new bills and minor legal acts were passed or amended – more than for the entire previous decade (Makowski 2008: 290-307); all these aimed at restraining corruption. Increasing the effectiveness of the fight against corruption was the main aim of the amendments introduced to the penal code in 2003. These amendments were of particular importance as they widened the definition of what constitutes a public official, the penalties for every form of corruption were tightened and some new types of crimes were introduced to the code – corruption in sport, corruption in the private sector or election-related corruption. Apart from such legislative changes, the authorities saw no need to implement downwards and engage at the operational level, as the available variety of tools for fighting corruption was considered sufficient. Concurrently, since 2002 at least, it was the authorities’ policy to disperse the problem of corruption. The concurrent government and the political elites were involved in corruption scandals that questioned their capacity to solve social issues which were expected by the electorate and provided an additional rationale behind presenting corruption as a universal and widespread problem. Moreover, despite the many legislative changes introduced as a part of anti-corruption campaign, social pressure remained strong. The public polls constantly showed that approximately 90% of the surveyed Poles were of the opinion that corruption constituted a fundamental social problem. Only by a dispersion of the corruption issue could the authorities avoid being 91 seen as perpetrators of the problem. Thus, the politicians started using a specific terminology. For instance, the Minister of Internal Affairs and Administration, reporting progress in implementation of the anti-corruption strategy in 2003 stated: Sources of corruption are various […]. Distrust of the state and its institutions is still deep-rooted in Poles. In other words, we have a weak civil society and consent to deceive is still prevalent in society. Corruption still displaces fair competition. We are in a situation where the value of fair competition and the rules that create it are still poorly internalized by large groups within society (Janik 2003). The Minister unambiguously declared that social consent stemming from a low ethical and legal culture was the source of the corruption issue. At the same time, he was promoting politicians, and his own government in particular, as a group fighting against corruption. A survey conducted by the author in 2004 revealed some even more important symptoms of diffusion of corruption as a social problem. Regardless of their political affiliation, members of parliament were of the opinion that corruption was a problem affecting society as a whole and not just the political elites. Despite having only a limited knowledge of the problem of corruption, they were very assertive in this area. According to opinion polls, at that time citizens were convinced that not only was corruption widespread, but that it was also most serious amongst politicians and public officials – 69% and 39% responses respectively (Makowski 2005). Members of the Lower House of Parliament strongly rejected the charge regarding their responsibility for the corruption problem in Poland. At the same time, they described the phenomenon as far-reaching, unacceptable and resulting from the deterioration of democratic values, social demoralization as well as the cultural heritage of communism. They viewed 92 themselves as moderators in the struggle against the evil of corruption which was in total contradiction with the view of public opinion. This situation can be aptly described in the words of the Hindu sociologist, Vinod Pavrala, who observed a similar pattern during his research on the corruption problem in India in the mid 90’s: […] I am not positing a simplistic thesis that influential elites create the problem of corruption […] I do think that the is widespread feeling among the public that corruption exists and that it is a problem. I merely contend that the elites attempt to (re)construct and (re)define this rather inchoate but widespread belief about corruption and harness it to suit own purposes (Pavarala 1996: 239). Such a vision of corruption was disseminated by politicians and translated into their decisions, legal measures, public disputes and electoral campaigns. It saturated the language of statements, articles and public appearances. The decision-makers quickly learned how to use the diffused problem of corruption. Citing the Norwegian criminologist, Nils Christie, one could say that they made corruption “the good enemy” (Christie 2004). Corruption became an issue that was being restrained only when it could demonstrate political efficiency. Otherwise, it was used to keep the society fearful of the imminent threat. This was eagerly stimulated by the media, who chased for sensation and drama. When commenting on the 2005 CPI index, one journalist stated that: […] handing in a bribe in order to settle every single matter in an office is going to become a standard in Poland” (Olczyk 2005). The left-wing government initiated the diffusion of the corruption problem, but was not saved by it. However, the social status quo has been maintained as anticorruption programs framed between 2002 and 2005 anticipated no fundamental shifts in the political or economic system. But the social dispute over corruption was far from fading away and society demanded firm actions. The institutional and legal solutions 93 implemented in bulk, as a response to the claims made by international organizations, were incomprehensible to an average citizen (see Smilov 2010). Thus, any attempts to convince the society that the authorities were fighting against corruption in an efficient manner were bound to fail. By the end of 2005 the diffusion of the corruption problem was transformed into a state of moral panic. Let us recall who the perpetrator was. According to the theory of Erich Goode and Nchaman Ben-Yehuda, it is a state of social threat that translates e.g. into poll results (see figure 2). Furthermore, the state of moral panic leads to antagonism between the majority who feels unsafe and those who are considered guilty. In the case of corruption, the political elite is always the latter group. According to the 2005 polls, the politicians were believed to be the most corrupt social group by two thirds of Poles (Makowski 2005). A state of moral panic also produces distortions in the public view of the threat when compared to reality. In the case of corruption distortions are created easily as it is not possible to measure and quantify the issue. The sense of looming threat can be easily created by the media, politicians, but also experts and scientists who can manipulate public opinion by referring to surveys and subjective interpretations of statements made by politicians and commentators. Moral panic is an utmost stage of development of the social problem (Goode and Ben-Yehuda 1994), and at the same time a strong driver for radical public policies. As early as in 2003, Piotr Sztompka, at that time the Chairman of the International Sociological Association, in an interview for Rzeczpospolita newspaper, when asked if the Polish society found itself in this peculiar situation replied: Undoubtedly, we experience the phenomenon of such a panic, generalization, exaggeration. […] It must be however clearly stated that this situation leads to a very dangerous state of mind: 94 everything sucks, we have achieved nothing (Sztompka 2003). This statement by Sztompka was premature at that time, but it was to become prophetic very soon afterwards. After two years, the symptoms of moral panic were already evident. Let us mention a few of them. More and more irrational actions leading to further specialisation of the problem can be considered the first symptom of moral panic. The examples of such actions include legislative initiatives that eventually proved unsuccessful or even threatening to the foundation of the democratic state. At the end of 2005, shortly before the elections, the bill on legislative lobbying was passed. The main motivation for adopting the law was to curtail corruption related to the legislative process. The purely political reasons were also of importance. At that time the government, along with its supportive formations, were trying to present this initiative as a sign of determination in their struggle against corruption (Wiszowaty 2006). However, already at the legislative stage, it was quite obvious that the act was not able to reach the goals that it was supposed to do. The list of its shortcomings is too long to discuss, even briefly (Makowski 2009: 162-165; Wiszowaty 2006). Enough to say, that the definition of lobbying was the most significant shortcoming of the Polish lobbying law. It has been decided that lobbying will be defined as: “[…] any action taken with legally permitted measures that aims at exerting an influence on the body of public authority in the legislative process.” In practice, it means that e.g. the constitutional right to submit a petition or to attend assembly meeting of an elected body should be treated as a form of lobbying. This obvious nonsense resulted from the fact that the lawmaker has not complied with the defined legislation rule and with the correct legislation rule (Zubik 2006). 95 Also in 2005, shortly before the parliamentary elections, for the same reasons as in case of the lobbying law, amendments to the local electoral law were adopted. The aim was to limit the risk of corruption among local councillors, village, town and city mayors. Failure by candidates to submit a property declaration was now penalized by the revoking of the public mandate. After one year, after the local elections, it turned out that more than 700 newly elected councillors had to resign due to a violation of this rule. Execution of the new regulations would have resulted in a need to repeat the elections in many places in the country. In 2007 the Constitutional Tribunal stated that the regulation violated the constitutional rule of penalty proportional to the penal act and ordered modifications to the rule (Makowski 2009: 165-166). Mentioned above are just some of the symptoms of moral panic caused by the diffusion of the social problem of corruption. The politicians, seeking new ways of showing their determination to fight the problem, were ready to adopt political solutions that were contradictory to fundamental values and norms needed to maintain status quo. This was clearly a paradox, as they were the ones who were supposed to protect these norms and values. In conclusion, diffusion of the social problem of corruption had two more consequences that should be mentioned here. The state of moral panic caused by this problem is likely to result in the radicalization of public policies. Moreover, the emergence of populist formations calling for social healing and restoration is naturally encouraged (Krastev 2006; Smilov 2010). And that is exactly what took place in Poland. The winner of the 2005 elections was the Law and Justice Party (PiS), a rightwing formation, founded by Jaroslaw Kaczynski, who was finally given an opportunity to hold his promises to curb corruption that he had been proclaiming for 15 years. PiS 96 won the elections on the back of those promises. It is noticeable that despite the fact that his promises were populist, Kaczynski’s formation really aimed at solving the selected issues by changing the system. When taking over the office, the leaders of PiS assumed that they would manage to create the Fourth Polish Republic, by changing the constitution and implementing deep reforms to the system (see Jasiewicz 2008). Potentially, this could have been a way to eliminate corruption seen as a social problem. As we recall from Jamrozik’s theory, the real solution of social problems are possible only through a systemic change. When applying this logic, one should admit that this was the real aim of PiS. Reconfiguration of the political system (e.g. implementation of the presidential system) might have been helpful too. However, PiS eventually caused a political crisis. Its propositions were not supported by the majority of the Poles and the party was swept aside in the 2007 early elections. PiS failed to implement the heralded social healing program. Also, it escalated the issues resulting from diffusion of the social problem of corruption, which is related to the second and the last aspect of diffusion of the social problem that I would like to mention. The diffusion of the social problem makes it difficult to manage it at an operational level, i.e. to form specialised institutions (mentioned above). In Poland the authorities decided to bring the anti-corruption policy to the operational level. As a result, in 2006 a specialised agency was set up – Central Anti-Corruption Bureau (CBA). Not surprisingly, it was founded by the government of PiS that mouthed radical anti-corruption slogans. CBA was supposed to be the ultimate solution to the problem of corruption. Unfortunately, almost all possible mistakes were made when establishing it (Makowski 2010). 97 First of all, international experience in the area was ignored, even though detailed research was available (Sousa 2009; Quah 2008; Meagher 2005). These papers suggested that more than ten different criteria should be fulfilled when establishing central anti-corruption bodies. The most important among them being: the correct timing and circumstances of the appointment, rational reasons for such a decision, a high level of accountability and – most importantly – a correct definition of scope. When applying these criteria, CBA cannot be considered a successful institution. CBA was set up in an atmosphere of a deep political conflict that precluded consensus with regard to the configuration and function of such an important institution. Thus, from the very beginning the institution was considered “shady”. In the eyes of many politicians and, in effect, many of their supporters, the Bureau was acknowledged as nothing more than an instrument used by the ruling formation in a political contest. Furthermore, the analysis of the documents related to the establishment of CBA (expertises, bills, foundations) shows that the Bureau has not been set up based on a deep analysis of corruption in Poland, but rather on political grounds. The documents contain no background depiction of the anti-corruption policy, no costs and benefits calculation and not even a simple SWOT analysis. As a result a special, secret anticorruption authority was appointed with minimal social control, but with huge power and ability to invigilate its citizens. The scope of competences turned out to be the fundamental problem of CBA. The institution was appointed by a legal act that embodied a wide and vague definition of corruption. As formulated in a particularly controversial provision, CBA was designed to fight corruption “endangering the elementary economic interests of the state”. As early as at the legislative stage, experts warned that such a formulation can be 98 over-interpreted and misused, posing a threat to fundamental civic liberties. Possible unconformity with the constitution was indicated, but such voices were ignored by the lawmakers2. But one year after the establishment of CBA the Constitutional Tribunal ruled that the legal act establishing CBA was unconstitutional and dissonant with the international Convention on human rights and fundamental values (Trybunał Konstytucyjny 2009). Many constitutional rules were breached by this law including the rule of law, the rule of legal offence definition, the economic freedom rule as well as a rule of proper legislation. From a formal point of view, the Bureau has turned out to be deficient and – as proven by the first three years of its work – unable to play its role in an effective manner. Not before long, politicization and misuse of CBA by the authorities prevailed (Makowski 2010; Bodnar and Sześciło 2009). Based on the theory of residualistic conversion of social problems, such occurrence could have been predicted. In order to deal with corruption as a diffused social problem the path of risky and technically advanced conversion was chosen. A decision was taken to manage the problem at the operational level. Unfortunately, the institution appointed to combat such a phenomenon has proven not only inefficient but also threatening to the social status quo. Conclusions To sum up, the corruption analysis from the point of view of the constructivist theory of social problems allows us to formulate, in case of Poland, at least a few conclusions. 2 One of the experts stated that: „A democratic state of law cannot protect economic interests ‘of its own’ by using a police-like formation before those interests are specified by relevant laws and judicial verdicts”. And this was not a case in Poland (Piotrowski 2006). 99 First, during almost a decade after the beginning of the transformation corruption was not a social problem, despite the fact that public opinion, already in the early 90’s of the last century, expressed strong conviction about the omnipresence of the phenomenon and perceived it as a threat. Therefore, from the point of view of the construction process of corruption as a social problem, the change of political system in 1989 was not of great importance. In the 90’s that problem was contested by the authorities, similarly as it happened during communism. The same reasons decided: general reluctance towards an official acknowledgement of social problems and the specific character of corruption – a phenomena that always directly refer to the centres of power. Secondly, the construction of the social problem of corruption in Poland did not arise in accordance with the classical model of the natural history of social problems created by Malcolm Spector and Robert Kitsuse. The fact that corruption eventually became a social problem was the result of the influence of international institutions, not from grassroots social movements. It was organizations such as the United Nations, The World Bank or The European Union, that led to the official recognition of corruption as a social problem in Poland. They also led the direction on the way of defining and counteracting corruption. Thirdly, in the way that corruption is presented in the public discourse, in the way it is perceived by the authorities, in the anti-corruption policy we will find empirical evidence that the phenomenon became a diffused problem. 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Ustawa o działalności lobbingowej w procesie stanowienia prawa – uwagi na tle sytuacji organizacji pozarządowych. Trzeci Sektor, 6, 9-19. 107 Chapter 4 Systemic Factors of Corruption in Romania. Evidence from Discourses on Corruption Iuliana Precupeţu The early years of transition in Romania have been characterised by an escalation of corruption which largely remained unacknowledged at the social level in a time of rapid economic and social deterioration. Only in the late 90’s was the problem of corruption placed on the public agenda, mainly due to two major factors. First, the media began to reveal some cases of grand corruption and discuss the topic extensively. Second, the process of integration of the country in the European Union played a major role in bringing forward the theme of corruption. At that time, there was also an increasing recognition across the world of the dimensions of corruption and the damaging effects it has on society, while the demand for practical strategies to curtail corruption grew considerably. Starting in 2000, a strong discourse about corruption emerged in Romania and overshadowed the more “classical“ and visible social problems of transition like poverty, unemployment, or issues related to the consolidation of democracy. After January 2007, the moment of integration into EU, the concern for corruption as the most crucial social problem continued to remain on the public agenda, although the pace of exposing corruption slowed down to a certain extent. Recently, the prominence of corruption on the public agenda took a back seat behind the more current and severe economic “crisis”. 108 There is little doubt that corruption in Romania is high. Various reports rank Romania as one of the most corrupt countries in Europe. According to the Corruption Perception Index 2009 (Transparency International 2009), which indicates the perceived level of public sector corruption, Romania is ranked 71st in the hierarchy of countries, with a score of 3.81. The score based on perceptions of country experts and analysts indicates a very high level of corruption. Romania ranks, along with Bulgaria and Greece, as last among the EU countries. Freedom House (2010: 413) also provides ratings for corruption based on experts’ opinions, according to which Romania scored 4.00 (on a scale from 1 to 7, on which one means highest level of progress and 7 the lowest level) in 2010. While in 1999 the score was also 4.25, the situation slightly changed over time, reaching a peak in 2002 (4.75) and then slowly improving to 2006. In comparison to the new EU members Romania scores highest along with Bulgaria. Other studies, using different methodologies to estimate corruption, also place Romania in the category of societies with high levels of corruption. Surveying the problem of capture by firms, the BEEPS survey2 measured both state capture and administrative corruption (Hellman, Jones and Kaufmann 2000). According to this study, the index of state capture (the share of firms affected by state capture) placed Romania in 1999 higher than many transition countries in Eastern and Central Europe such as Hungary, Slovenia, Estonia, Lithuania and the Czech Republic, but much lower than Croatia, Bulgaria, Latvia and Slovakia. In regard to administrative corruption measured as bribes as a share of firms’ annual revenues, Romania registered in 1999 the highest level of corruption among the transition countries in Central and Eastern Europe 1 No. of surveys: 8, confidence range: 3.2-4.3. 2 EBRD-World Bank Business Environment and Enterprise Performance Survey carried out in 1999, 2002, 2005. 109 surveyed (Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and Slovenia). However, an improvement was visible over time, as in 2005 the same survey showed a noticeable decline in all forms of bribery relating to business, while the value of bribes as a share of annual firm’s sales also decreased under the value registered by the average of European and Central Asian countries (Anderson and Gray 2006). In Romanian society, there is a wide-spread perception of generalised corruption. In a survey on corruption3, the majority of people (60.2%) considered all or a majority of public officials to be corrupt, one third of the population considered only some public officials to be corrupt, while less than 1% affirmed that there are no corrupt public officials. With regard to bribery, the most common form of corruption, a large share of the population (52%) defined it as a part of everyday life. 17% of respondents believed bribery was common but not as serious as others might think and only 16% considered it as unnecessary in order to “get by”, while 8% rejected it entirely as being useless and to be avoided if possible. Starting in 2000, a complex strategy was developed in Romania in order to fight corruption. The country embarked on a broad process of curbing corruption with legislative and institutional components as a result of a growing awareness of the level of corruption and the process of integration in the European Union. In fact, the process of joining EU proved to be the most significant factor in undertaking the steps for curbing corruption. Already by 2005, some progress was 3 The survey was carried out by CURS SA and the Institute of Sociology at the request of the Concept Foundation in August-September 2004. A representative sample of 1151 people was interviewed in regard to various aspects of corruption. 110 evident as showed by the “control of corruption” indicator of World Bank (Kaufmann et al. 2007), the steady decrease of Freedom House score, the good results showed by BEEPS survey in 2005 which were considered ”a significant success” (Anderson and Gray 2006: 66). However, the success proved to be convoluted. In June 2007, the European Commission report on Romania’s progress admitted that the government had successfully achieved the effective drafting of laws, action plans and programmes. However, it was noted that progress, especially in the judicial handling of high-level corruption, is still insufficient (CEC 2007: 15). More recently, the 2010 report from the European Commission stated straightforwardly that Romania “has not been able to keep the momentum of reform it had established by mid-2009” (CEC 2010: 2). This winding path of corruption might signify that corruption is a phenomenon with a heavy weight in society that, once established, could be very difficult to curtail. How can we explain the increase of corruption, what are those background factors that can account for its growth and persistence in Romania? This chapter renders several major accounts of corruption in Romania. Without aiming to be exhaustive or “representative”, this paper is an essay focusing on the systemic factors of corruption. This contribution is an endeavour drawing on perceptions of corruption4 as well as literature on corruption. The anchors of the 4 The paper draws on the research findings of the project “Crime as a Cultural Problem. The Relevance of Perceptions of Corruption to Crime Prevention. A Comparative Cultural Study in the EU-Accession States Bulgaria and Romania, the EU-Candidate States Turkey and Croatia and the EU-States Germany, Greece and United Kingdom” funded by the 6th Framework Programme of the European Commission. Empirical data consisted of documents and statements of the six target groups (legal requirements, statements of intention, agreements, programmes, administrative directives, procedural guidelines, standardised procedures, technical guidelines, 111 accounts of corruption depicted here are the perceptions of six groups that have important roles in targeting corruption: economy, politics, civil society, media, police and judiciary. The scientific literature has increasingly attempted to disentangle the factors that are conducive to corruption in recent years. Treisman (2000, 2003) analysed the effects of historical and cultural traditions, economic development and political institutions on corruption, Sandholz and Koetzle (2000) looked at the role of the economic structure, democracy and trade in corruption and Broadman and Recanatini (2002) examined the role that market institutions play in rent-seeking and illicit behaviour. Rock (2009) investigated the relationship between democracy and corruption, while Ades and Di Tella (1999) searched the links between corruption and the degree of foreign competition. Herzfeld and Weiss (2003) explored the relationship between corruption and legal (in)effectiveness, while Uslaner (2006) showed the intertwined relations between inequality and corruption. The growing preoccupation with explaining corruption has produced “mixed empirical evidence” on various dimensions surveyed (Lambsdorff 2006: 3). However, there seems to be a general agreement that the systemic factors of corruption are to be found in economic, political, social, cultural and historical backgrounds of societies. Against this background, the paper concentrates on systemic conditions that have been found to be protocols, reports, legal verdicts, etc) and fourteen semistructured interviews with experts from the six groups. All materials have been analised through content analysis. The period covered by the analysis is 2001-2007; the documents have been elaborated between 2001 and 2006 while interviews have been carried out between January and September 2007. The methodology is described in detail in I. Precupetu 2007, 2008. 112 conducive to corruption in Romania. The nature of the factors invoked is diverse, as they stem from economic, social, political as well as historical and cultural foundations. Economic accounts of corruption The early transition context in Romania Corruption grew in Romania as a result of the early context of transition. While corruption was also present in various forms during the communist regime in the country, the process of transition and the ensuing profound structural changes created large scales opportunities for rent seeking behaviour. The dual transition to the market economy and democracy required the creation of basic state institutions and the creation of foundations for the market economy. Romania had a difficult starting point in 1989 as it was controlled by one of the strictest communist regimes in Eastern and Central Europe. Other countries in the region were characterized by more “opening authoritarian regimes”, with reforms starting early on. In some countries in the Eastern Europe with legal and institutional traditions that emphasized the rule of law, the conditions were more favourable for a smoother transformation. Having adopted versions of market socialism already during the communist period, they entered transition with a greater state capacity, a strong civil society, more highly developed systems of public administration, better trained public officials, better accountability systems and a generally better receptiveness towards reforms (World Bank 2000). Countries like Poland or Hungary have been better prepared to take transition paths characterized by a more distinct rupture with the former system. 113 In Romania, the transformation started slowly, and was characterized in its early stages by a mixture of the old and the new regimes. The challenges of transition5 involved filling a large legislative vacuum, transferring wealth from the state to the private sector on a very large scale, building civil society from scratch, creating accountability mechanisms in order to check the abuse of public office and many more. With no previous experience with market-oriented institutions and civil society, this country with an underdeveloped public administration embarked on a meandering path of transformation. In Romania, the transition was deeply marked by its institutional and legal legacies and corruption multiplied with the opportunities for rent-generating activities while no mechanisms for accountability were placed on public officials. In general, it is acknowledged that corruption can grow in times of rapid transformation when the regulatory authority of the state is expanding and social norms are changing (Huntington 1968). The process of replacing the deeply rooted old policy frameworks with new policy structures was accompanied for a long period of time by a legislative and institutional vacuum. This has led to severe dysfunctions in society, while broader transformation was plagued by nearly inevitable difficulties. The weak social control of the first years of transition was a major driver of corruption. The rupture with the old communist regime was violent and was meant to be absolute. Consequently, any form of control was perceived as repression and therefore discarded. Early 90s were characterized by an utter rejection of rules as they were 5 A comprehensive analysis of transition paths and their consequences for corruption is provided by the World Bank (2000). 114 associated to a great extent with communist control. Therefore, the general social milieu was not favourable to law enforcement and allowed for an increase in illegal conduct. As a prosecutor back then, if I tried to enforce the law, I was considered a communist. There was no authority at the time (participant no 7). 6 The tough economic context of the early years of transition left enduring marks on the economic development of the country. Everything that is happening in the present is due to the transition period when transparency was nonexistent. During the first six years, up to 1996, the country was at the mercy of people who did whatever they pleased. The political colours did not matter as 7 “crows will not take out each others’ eyes” . They divided spheres of influence, interests, and now it is very hard to break this system. Everybody got what they wanted; they split the spheres of influence and they privatised) (participant no 8). The practices established during the first stages of transformation continued over a considerable time span and influenced the trajectory of growth. Behavioural models have been established during the first years of transition and consolidated in time. Short term opportunities for corruption: privatisation of state assets Privatisation of state assets has been reported to be a major source of corruption in many countries around the world (Kaufmann and Siegelbaum 1996; Goldman 1997; Manzetti and Blake 1997; World Bank 2000). In general, in Eastern Europe the transfer of state enterprises to private ownership has been associated with asset stripping and 6 The quotes given in this paper come from interviews and documents of the six target groups analysed. The interviews were numbered in the order in which they were carried out. No personal data such as age and/or occupation were provided in cases of quotes for the interviewed experts in order to insure confidentiality. 7 A Romanian saying signifying an understanding between those involved in the same type of illegal pursuit. 115 nomenklatura privatization. In these countries, some individuals have become enormously rich because of these abuses (Tanzi 1998). As part of the general reform effots, the transfer of ownership was slow and intricate in Romania. The privatization of state assets shaped to a great extent the form and level of corruption in the first decade of transition. The forms and mechanisms of corruption took various forms. Many state companies “have been kept alive” by the state for years through subsidies, loans, despite the fact that they were not making any profit and were accumulating debt. This choice, sometimes justified on social grounds by the respective government, departed from the basic rules of the newly established market economy. Instead of organising a competitive economy based on free competition and having as fundament the private property, personal wealth was acquired which does not encourage competition (participant no 9). In time, most of the state companies were shut down. Soon their market value dropped and they became an easy target for extracting rents for private interests. They were considered a burden from which the state should be relieved. In the absence of a strong legislative framework able to regulate a transparent privatisation, the transfer of state assets was plagued by numerous failures. The state companies were undervalued many times to the extent that the market worth of the land they were sitting on was much higher than the privatization value of their entire assets (Zamfir 2004). Sometimes these companies sheltered small private companies extracting advantages from their position within. Reports in the media at the time offered abundant stories describing how the managers of the state companies, who also held positions in the small private companies, drove state enterprises to bankruptcy. The state companies 116 were later bought by the managers themselves or associates at a very low price for their value. Even today, although most of the state assets were privatised up to 2007 and despite the massive change of legislation in the field, there are still questions being raised about the fairness of procedures8. The intricate overlapping positions: “the bread and the knife” Corruption was triggered to a large extent by the overlapping economic and political positions, which transcended the formal organisations of society and were organised around private interests. The fusion of economic and political powers is still a mere reality originating from the convoluted circumstances of early transition (Marginean 2005). Overlapping political and economic positions, although still important in corruption phenomenon, have been particularly significant for the privatisation process. In fact, it was revealed in many corruption cases that positions in the political, economical and judiciary system are strongly linked with one another.9 The major 8 In 2008 Romania faced an EC investigation into possible aid granted during the privatisation of several state-owned companies: SC Tractorul SA, SC Automobile Craiova SA and SC Petrotub SA (European Commission, press releases, 25 September 2007; 26 September 2007; 27 February 2008). 9 One case of high level corruption illustrates the overlapping positions and interests in the economy, political system and judiciary. A governmental councillor was sentenced to prison in 2003 for traffic of influence as he received a bribe for trying to stop the legal bankruptcy procedure of the International Bank of Religion. It was revealed in the prosecution investigation files that while occupying a position in government which granted access to information and people in top positions, he was also the owner of private firms and was engaged in “closed personal relationships” with magistrates. 117 privatisation process left room for corruption to flourish and created opportunities for state capture (Hellman et al. 2000) where “various groups knew how to monopolise through legislation, procedures that they imposed and give them mechanisms, especially in the area of licensing and public contracting” (participant no 11). An important way of amassing assets and attaining power over significant components of the economy was imposing privatization procedures that excluded free and fair competition. Political people are the ones who are behind the major economic activities (…) After the revolution of 1989 a powerful economic oligarchy was established which managed to lead the country out of the shadow. Now, they have their representatives in politics. At present (2007), there is an attempt to clean up this area, re-settle economic power and re-divide spheres of influence (participant no 9). State capture created unjustified privileges and produced misbalanced outputs in society. Public positions have been used many times to the extent that people occupying these positions legislated in favour of specific interests or overlooked the current legal requirements in order to fulfil private interests: In the process of privatisation of one state company, Jimtim Jimbolia, a special piece of legislation was enacted in order to favour private interests: “according to the existing laws, it was not legal to use direct negotiation but public tender procedure. Still, by the Order 151/25.08.2000 of the Minister of Agriculture, the list of agricultural companies that were about to be privatised by the rule of direct negotiation was approved and the company was included in the list” (prosecutors’ investigation files: 12). This type of corruption vanished due to the exhaustion of opportunities in this area. The current situation in the economic sphere tends to develop in a more independent way from the political area. While initially wealth accumulation was 118 largely based on connections between politics and economics, at present there is another emerging model, the one of the “clean” development of business in a free market economy. However, the models established early in the transition process turned into a heavy burden on the economy and society at the same time. Level of economic development The general level of economic development influences the extent of corruption. The higher a country’s GNP per capita, the lower its corruption rating (Treisman 2000). Romania suffered a serious economic setback in the early 90s. Its GDP started to decrease in 1990 and, despite some weak signs of recovery from 1993-1996, GDP remained at a very low level. A period of more considerable economic growth started in 2000, but it was only in 2004 that thecountry recovered to the GDP level of 1989. The economic growth which seemed robust for a while stopped in 2008 when Romania entered into a state of “economic crisis”. This winding road of the economy was accompanied by the loss of millions of jobs (there are five million jobs at present compared to more than eight million in 1990), a high inflation in the 90s and a steep decline in living standards. Moreover, poverty increased along with other phenomena of social disorganisation, while inequality grew rapidly. Social consequences such as low trust in people and institutions and weakened state authority turned into heavy burdens that are extremely difficult to address and are probably “here to stay and will not disappear during the lifetime of current generations” (Zamfir et al. 2010: 10). Besides the general level of economic development, a well-established system of market institutions, which facilitates a healthy competitive environment, reduces rentseeking opportunities and incentives for corruption (Broadman and Recanatini 119 2002).There is little doubt that a structurally sound market economy is less corrupt. In Romania, the tough economic reform was characterised in its early stages by a still high involvement of the state in the economy. The boundaries and the forms of intermediation between the state and the private sector have not been clearly established and the transitional state merged to a certain extent with the new private economy (World Bank 2000). The excessive involvement of the state in the economy was above all evident in the investment policy of the state when investing in state companies which were not profitable and when creating advantages for the monopolies and autonomous state companies. The dual structure of the economy, “half state and half private”, has been inadequate for encouraging competition for a long time. The underground economy increased to a large extent and a significant segment of non-formalised employment emerged. For a considerable time span, the market economy was not fully functional. A general poor economic environment characterized by lacking competition and transparency and many types of speculative trading encouraged corruption. Moreover, the excessive bureaucracy, a still insufficiently clear legislative framework, lack of transparency, disloyal competition created a broad background which was fertile for corruption. Transparency is not yet as it should be, there are many problems in the field of transparency and competition, there is still tolerance towards disloyal competition and favouritisms that government and other state institutions are practicing in a hidden way, maybe less than in the past but there is still this practice (participant no 9). While the costs of initial investment in private business were high, the lack of capital coupled with the reticence of banks to lend money based on business plans contributed to an accumulation of capital frequently through illegal means. Furthermore, 120 the high taxes encouraged illegitimate activities. Such actions persist nowadays even though measures have been taken in order to counter fiscal evasion, unregistered work and other illicit practices which go hand in hand with corruption. Excessive bureaucracy added to the other problems: all levels of society and economic exchange have been affected by bureaucracy: “there are many certificates, authorisations and much “re-re-doing” of all of these. A barber shop needs 17 approvals and you need to renew many of them annually (…). To get rid of this, you stay in line, speak to people and give them something. It is no longer the time for coffee or a drink10 - now we are talking money”11. Starting in 2000, steps were taken in Romania to promote a healthier economic environment and many regulations were put into place. Progress was noticed and the report “Doing Business 2006” (World Bank 2006) mentioned Romania among the top 12 reformers in 2004. While privatization of state assets constituted only a relatively short term opportunity for corruption, in the public procurement field corruption settled early and continued to present. There are frequent reports on public procurement contracts in the media, showing how public contracts are awarded to either political clientele or firms owned by politicians themselves. Although some progress was registered in this area as shown by a World Bank report (Anderson and Gray 2007) and firms reported declining frequency of bribery in public procurement between 2002 and 2005, this form of corruption remains a current issue. 10 In view of the very scarce resources under communism, administrative problems were sometimes solved with bribes in the form of cigarettes, packs of coffee or bottles of drinks. 11 2003. Press release of Alliance for Romania’s Economic Development http://www0.ccir.ro/hosts/ader/lupta_anticoruptie.htm [accessed: 16 June 2006]. (ADER). Available at 121 Before 1989 there was also corruption at another level in terms of advantages obtained. Afterwards, there was a greater possibility to have access to privatisation and public contracts. The state is also much weaker and people have little fear of it. Corruption maybe developed or embraced other forms (participant no 14). This is especially important as Mauro (1995) argues that the allocation of public procurement contracts through a corrupt system will lead to lower quality public services and quality of infrastructure. Politics and governance An immature democracy Apart from economic development, the maturity of democratic processes also influence corruption (Broadman and Recanatini 2002; Treisman 2000). The stronger democracy is, the lower levels of corruption are (Sandholz and Koetzle 2000). Democracy is still being consolidated in Romania. There is no doubt that democratic institutions have been built which perform the basic functions of a democracy. Nevertheless, there are many aspects that still need development and improvement. Democracy in Romania enjoyed huge popular support as the majority of population strongly rejected the old communist system and welcomed democracy (M. Precupetu 2007). This huge popular sentiment turned into a substantial source for the country’s post-communist reforms (Zamfir 2004). However, there are still features of the consolidation of the political system that pose difficulties for the countries’ advancement towards a mature democracy. A series of problems plague the political system today: the fact that politics has transformed into “a space of conflict between political groups, the occasional slip back to authoritative practices of the democratic institutions, the explosion of anomy through 122 the erosion of trust in people, institutions and in the rule of law. The consequences are the low quality of political decisions, the puzzlement of public action and the obstruction of cooperation in society for the public good” (Zamfir et al. 2010: 43). The electoral system in itself was blamed many times especially by NGO’s, the media and sometimes politicians themselves for corruption. Based on party lists until 2007, the electoral system favored incorrect strategies in order to enter the electoral lists. At the same time, the positions assigned in government based on party donations created the possibility for interested people to often buy their place in the future government during the electoral campaign. Indications of this were evident in 2004 in the case of a governmental councilor who was sentenced for bribery and was part of the “75 club”12, the group of people who contributed at least 75 million Lei to the electoral campaign. Although currently a different uninominal electoral system is in place, there is still room for substantial improvements in the quality of the political system. A feature of political life in Romania – politicians switching parties according to their position in power – was considered especially by NGOs as a main source of political corruption in Romania: 15% MPs and over 50% mayors have switched party from 2000 to 2004 in order to seek various positions or cash13 . The political system placed politicians above the law for a long time in Romania. This model was evident during the transition of the country. Once people obtained a political position, they were “untouchable” and they 12 As showed in the media: PSD spala, PNA aresteaza, Adevarul, Vineri 21 feb 2003. Available at http://www.adevarul.ro/actualitate/PSD-spala-PNA-aresteaza_0_80993886.html [accessed: 16 March 2006]. 13 Meet Your Candidates’ program. A proposal on behalf of the Romanian Coalition for a Clean Parliament. Project description. 123 were free to pursue private interests. This turned into an incentive for various people to enter political life and became a source of corruption (Eugen 2004). A system of political clientele maintained by the political parties, the political influence exerted in state institutions and the continuous reorganisation as well as the organisational instability of the political system can be considered features that trigger corruption. The interference of the political system into the activities of public servants has been a reality for a long time. The rotation in power has been accompanied almost every time with a “rotation” of public servants: Old people (from the previous electoral cycle) have been replaced with new ones following the principle “we change their people with ours”14. The presence of concealed political influence in public administration was for a long time a mere reality. In some counties, the whole local administration has been controlled by the representative of government (“prefect”), nominated on political criteria, who acted like a “local baron”, as in Gorj county between 2000 and 2004. These “local barons”, as a reflection of the politicised public administration, have been widely considered as patrons of corruption. At the macro level, the substance of corruption implies the process of politicisation of administrative structures of the state and consists in “state institutions having political masters”. In line with these various factors, the low quality of human resources having no competence and not assuming responsibility in the political sphere creates another basic setting for corruption. Governance 14 2005. Interview with the president of Federative Alliance of Public Servant Sindicates SED LEX. Available at: 5 http://www.sedlex.ro/main/noutati.php?section=2&id=64 [accessed: 18 March 2006]. 124 The governance sphere also contributes to corruption. The strenuous reform of governance which was not set off by a coherent strategy for the future of the society is also a structural condition that made its mark on the nature of corruption. In general, it made people feel disoriented and as if they lived in a social environment without firm rules and clear future. Kaufmann et al. (2007) identified six dimensions of governance: voice and accountability, political stability and absence of violence, government effectiveness, regulatory quality, rule of law and control of corruption. We briefly discuss two dimensions here: voice and accountability and rule of law. Voice and accountability refers to the extent to which a country’s citizens are able to participate in selecting their government, as well as freedom of expression, freedom of association, and a free media. There is no doubt that all these freedoms are granted in Romania. Still, many difficulties appear in enforcing them. In Romania voting represents almost the exclusive mechanism used by the most majority of people in order to control the development of matters in society. Even here, the choices are limited and sometimes people have to trade the bigger evil for the smaller one, as accusations of corruption frequently loom over many political candidates15. At the same time, control is not exerted from the bottom up in order to maintain the necessary equilibrium in society, in the relationship that citizens develop with institutions and especially political ones. The citizen does not fight the state; he fights it more now than in the communist period but still not enough for a democratic society. In Romania civic activism is very low (participant no 11). 15 This was the case in the presidential elections of 2004 when both political candidates were allegedly involved in corruption. Each candidate was accused of obtaining undue advantages from his position. 125 Without informed, conscientious and active citizens who act in line with their interests, the potential for bottom-up pressure exerted towards institutions is insignificant. This leaves the room for abuses of power. At the same time, the lack of trust in state institutions and lack of civic participation play an important part in corruption. A rather formal and rigid social dialogue which does not give voice to important groups in society can also be responsible for the uncontrolled spread of corruption. In regard to free media, there is a largely shared opinion that the media is not completely independent and sometimes is even corrupt. Some journalists themselves acknowledge the feeble position of the media in Romania We are as corrupt, stupid, idiots, and lame people as the rest. There are journalists who are doing their duty, others who write “on demand” and others who write what they think the owner of the media expects from them. This is very sophisticated censorship (participant no 2). Furthermore, the media, as an important social actor, is seen as teaming up with both economic and political interests and thus departing from its democratic role as a watchdog. Both politicians and the mass media are guilty of, using the subject of corruption with political and spectacle connotation. Politicians who talked for years about corruption did not believe it for a second, the journalists did not believe it either. It was a kind of assumed hypocrisy which was accepted by everybody (participant no 14). Rule of law refers to the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, the police, and the courts, as well as the likelihood of crime and violence (Kaufmann et al. 2007). Rule 126 of law is the key to democratic society in general and to controlling corruption in particular, as it safeguards the basic “rules of the game”. During the transition, the reforms of the legal framework and judiciary have been sluggish, uneven and incomplete. Legislation has been highly unstable and even more recently delays were reported in the alignment of Romanian legislation with the “acquis communautaire”. Today, a law meant to provide mechanisms to check the wealth of dignitaries was very difficult to produce and has been blocked in the Parliament. Two major problems have been constantly brought up in regard to the legislative framework. Many observers drew attention to the quality of laws and regulations which many times proved to be wrong, conflictual, incomplete or too tough and sophisticated. Even when the laws and regulations seemed well designed, a new difficulty surfaced, their enforcement. Law enforcement is a major weakness that leaves space for the flourishing of wrongdoings. For example, even if the law provides that all public servants are politically independent, this is not actually respected in everyday practice. For a long time, the judiciary was beset by conflicts of interest16, lack of independence from political influences, accusations of bribery, a very low public trust in the system. One of the most controversial notions in Romanian society during the past ten years has been the idea of “guilty verdicts”. Following a rather extensive period of powerful discourses on corruption, the design and implementation of a broad legislative and institutional framework, the public increasingly expected “visible” results from courts of justice in the form of guilty sentences. The public sentiment is that the guilty 16 Members of Supreme Council of Magistrates have also had executive positions in courts. 127 sentence from courts of justice would have the power to institute a social model of justice. Social accounts of corruption A communist legacy? Corruption was undoubtedly present in Romania during the communist regime. Even though sometimes recognised by the communist regime, “the various offences that could fall under corruption concept were not defined and punished as such but rather considered “deviations” of immoral individuals with an outdated mentality, who did not accept integration into the egalitarian socialist system” (Ioan et al. 2005: 49). Due to the strong social control, corruption did not thrive as such under the communist system. However, certain structural characteristics of the communist social setup and the associated behaviour might have made the present scenarios of corruption in Romania possible. Social relationships are still shaped to a certain extent by the communist heritage characterised by high distrust in people outside primary groups and in social institutions and by social self-isolation. During such times, people learned to develop survival strategies within their private sphere and, many times, in conflict with the outside world which was not worthy of trust. Helping relatives or acquaintances take advantage of those in power seems to be a natural approach in Romanian society, which is largely accepted. I think there is a pressure towards those in power, those around them like political friends, relatives or just friends who are waiting for a reward… This increases the pressure towards public servants (participant no 2). Moreover, a specific rupture between citizens and the state contributed to an impaired relationship that people developed with their society. Morality was not 128 assimilated in relation with the state but rather conveyed to the groups like family and friends within which people developed strong bonding relations. I believe that corruption has to do with the education we received. (…). I think corruption is essentially based on the legitimization of theft in communist times. Then, stealing from the state, which was the enemy of the population, was not in itself a very bad thing. This has persisted today (participant no 1). During the communist regime, the lack of resources led to the establishment of networks of informal social relationships which redistributed the rare supply of goods from public system to people. These relations established in communism transcended formal organisations in the attempt to access the scarce resources and to help people survive in the tough economic and social conditions. 17 Essentially it was a matter of survival, the networks of “pile” (…) took care of everything, from coffee, sugar, up to good books. Corruption used to function as the re-allocation of scarce resources. Money was not important, but the “pile” relations were (participant no 2). Generally, the whole net of interests and relationships which transcend all spheres of formal societal organisation, constitute an important foundation for corruption. Social capital turns into negative capital, playing an unconstructive role in society when favourable conditions and opportunities for corruption are met and institutional mechanisms are not put into place in order to prevent it. This type of social capital thus at times plays a negative role in corruption as relationships are used in unconstructive ways, especially in the situation specific for Romania in which members of the former “Securitate” (the communist secret service) were not revealed and still occupy key positions, according to some opinions. 17 Important connections. 129 This factor with roots in communism was invoked many times in the media: the fact that Romanian society did not take measures soon enough against the former members of the communist secret service led to the fortification of old relationship. Members of “Securitate” “spread in all parties, got involved in all big businesses, were connected to each other by mutual blackmail and became the ‘new rich’. They installed a mafia system in a country which was humiliated and perverted by the communist myths” (Roman 2002). Social models: “firing the canon” Socialisation during communist times conveyed a certain array of values (of the old communist society) and the associated attitudes and behaviours which now might still have an impact on the development of the society. Socialization during the communist regime has become less significant over time as generations change and the old generations still go through a process of life-long learning. Socialization becomes more important during transition as new generations take over. The social context of the transition, characterised by a steep economic and social deterioration, by a considerable increase in corruption created its own social models which became references for the newer generations. The wealth accumulation in Romania especially in the early 90s was rapid and considered unfair by the public opinion, as many personal fortunes were made in the intricate context of the beginning of transition when social control was very low. As a result, a new model of social success was imposed by those who acquired wealth which further encourages improper individual survival strategies. The high level of corruption thus became a model for ordinary people. An overused expression in common language, 130 “firing the cannon” (a da tunuri), signifies becoming rich quickly by a move that takes advantage of certain short-term opportunities, such as the privatisation of state assets: what used to belong to everybody before 1990 became the property of the few, through fraudulent methods (participant no 2). It seems that this is the prototype of the new rich which grew to become the most powerful model of social success in the eyes of most people. Their actions are encouraged by the fact that punitive action against corruption appears to be absent. The sense of injustice is specifically accentuated given that the wrongdoings are not punished accordingly. In 2008, one of the main topics of debate in Romania was the current results of investigations in corruption cases. The key issue in this respect was the seemingly high number of suspended sentences especially in high level corruption cases. This is the system: everybody sees that in order to get rich you have to “fire the cannon” and you can do it and nothing happens to you (participant no 2). One basic relationship in society was deeply disturbed - between education/qualification/work and payment. Generally, there is a rupture between social effort and reward in Romanian society. The correlation between labour and payment was utterly impaired during transition, when social status was no longer the result of hard work, effort and education, rather in many cases the output of a rapid affluence obtained in illicit ways. Education and qualification were no longer accompanied by the consequent incentives. The society became rather chaotic, with rewards being attributed to those knowing how to take advantage of the disorganisation of the transformation period and use it for personal private interests. The results are that people experience a sense of powerlessness when they feel they cannot influence the course of actions and 131 build meaningful life strategies. Consequently, trust in the moral paths towards social success decreases and frustration and disillusionment at individual level increases. People see that you get the car, the villa, the mistress and all other status symbols… and get frustrated (participant no 2). According to quality of life survey data in Romania in 2003, 24% of respondents strongly believe that success can only be achieved by doing incorrect things in comparison to only 10% in the EU25. This suggests a perception of a state of normlessness in post communist countries which is associated with weakening of social control, increased crime and corruption and erosion of moral values. These processes have been translated at the individual level into a feeling that society as such encourages behaviours and strategies that are not correct (Marginean et al. 2006). In the World Values Survey, 50% of Romanians in the survey said that people become rich by breaking the law and another 24% say that wealth comes from having connections; an additional 6% cite luck, and just 8% say that hard work brings wealth (Uslaner 2006). A “two speed society”? Romanian society seems to be developing “in two speeds” and on two major coordinates. First, there is a largely shared perception that there is a key difference between the public and private sector in Romania. They are seen as poles apart in regard to the values orienting their activity, the models of social action promoted, the actual performance of institutions and the grade of corruption affecting them. Second, there is another major division present in public perceptions - between social groups in society. The problem of social polarisation, the subsequent visible differences between social groups in society, the inequities and disparities that seem to characterise the social setup 132 are also considered a line of division in Romanian society. These two major divisions represent factors that are indirectly conducive to corruption. Weak and hesitant in the first stages of transition, the state later proved that it is unable to manage the complexity of institutional and capacity building in Romania. The private sector developed by struggling in a challenging context. Over time, public and private sectors seemed to grow apart without obviously and willingly supporting each other. Many opinions tend to point out that the public sector is more likely to be affected by corruption. Lack of responsibility towards public resources, the underfinancing of public institutions and the ensuing low salaries of personnel, the highly bureaucratic type of organisation all seem to contribute to a type of corruption seen as endemic for this sector. In general it is acknowledged that low incomes create certain structural opportunities for corruption. Where incomes are low, economic insecurity means that additions to income can positively influence a family’s living conditions (Sandholz and Koetzle 2000). This is the obvious situation of public administration as well as health and education in Romania. Domains such as health or education are plagued by essentially the same sort of corruption stemming from underfinancing. In both instances, the personnel working in these fields will find ways to round up their incomes through conditioning the quality of their work upon the informal payments received. In the case of the education system, the mode in which teachers conduct their work has led to the development of a parallel education system in the form of private tutoring which escapes legal arrangements and evades taxes. In the case of the health system, the payments under the table made in order to ensure a better quality of medical services are a typical model of corruption. 133 At the same time, the largely shared perceptions are that public sector including education, health and culture is oversized and that the large dimensions impede its efficiency. However, no assessment was undertaken of the public sphere in Romania to understand its clear dimensions, functioning and effectiveness. On the contrary, it was expended or diminished only through political decisions, mostly in relation to rotation in power by the various governments. This instability affected the public sector to a large extent and created a fuzzy image in society on its size and efficiency. There are also other features that differentiate the two realms, public and private. Strong accountability mechanisms are still not always in place in the public sector where there is a higher probability for corruption as people are not always held responsible for the public money. On the contrary, the private sector is considered as a powerful engine in society which has the capacity of showing desirable models of behaviour while the public realm continues to lag behind. In general, the flawed institutions functioning provide a fertile ground for corruption. There is a disjunction between institutions as they seem to function in almost parallel worlds, with little cooperation among them. Consequently, a certain social isolation is characteristic even for the activity of some institutions which escape the control exerted on their activity from the exterior. Generally, institutions in Romanian society, seem to be underperforming in terms of horizontal accountability. Besides the line of differentiation introduced in the configuration of corruption by the ownership system public/private, there is also a dividing line induced by social inequalities. Many inequalities and inequities seem to characterise Romanian society, constituting the sources of profound frustration among people. The Romanian society in general is perceived as severely unjust. First, it is a polarised society. According to 134 Eurostat data, Romania is among the countries with the highest inequality. In 2008 the GINI index was 36, much higher than the average of the EU countries which was 31. The perception of inequality along with injustice is also present in society. In fact, Romania is a deeply polarised society in regard to salaries; it is about the social condition. There are some who are very rich, like those from the top 300 who are billionaires, very rich. We don’t have a middle class as there should be in all civilised societies (participant no 7). Unequal wealth leads people to feel less constrained about cheating others (Mauro 1995). Inequality and corruption have the same effects; they tear apart the social fabric and conduct to a lack of confidence in government and demands for redistribution of income from the “dishonest” rich to the powerless poor. Also, there is vicious circle of inequality and corruption as they enforce each other (Uslaner 2006). Cultural and historical accounts: the burden of heritage Turkish cultural and historical heritage is frequently invoked as a major factor for corruption in Romania. The institutions imposed by Ottomans when Romania was part of the Empire may have left long enduring marks on the country under scrutiny here. The language was carried over in family words indicating corruption like “bacsis”, “pesches”. ”Romania has a tradition in corruption. We should not deny these things which perverted 18 19 our soul since Fanar . It is not an invention of the transition period” . 18 Walachia and Moldavia, two of the three Romanian countries at the time, were subject to so-called “Fanar rule” (regim fanariot) between 1716 (1711 respectively) and 1821. Although the two countries were not a part of the Ottoman Empire, the rulers (princes) were imposed by the Ottomans by choosing them from influential Christian, mostly Greek families living in the Fanar district of Constantinople. It was usual for those competing for such a 135 When asked in a survey about their reasons, most people who declared they paid bribes20 justified their behaviour with motives like “it was the only way to solve my problems” (35%), “this is the custom” (19%), and “thanks for solving my problems” (17%). The respondents also mentioned reasons such as “to avoid other problems” (10%), “to not wait in line” (7%) and “to avoid bureaucracy” (2%), while other motives were seldom indicated (0.8%). The relative important percentage of people declaring they paid bribe as a thank you as well as the share of those considering bribe as a custom might indicate a cultural component, suggestive of a certain way of carrying out social exchange. This is influenced by the current norms and values: people feel the need to respond to those “helping” them in ways which are not formalised by the modern society. In line with this idea there is an argument maintaining that the “institution of gift” is traditional in Romanian society, while several terms of Turkish origin (“plocon”, “pesches”) and the means associated with them “seemed to guarantee the balance of roles and positions: in the past21, the doctor, teacher and the priest received in exchange for their community services gifts as objects from people” (Ioan et al. 2005: 75). Countries with a lower level of social development are said not to differentiate bribes from “gifts”, tributes, and other burdens legitimated in the traditional, pre-capitalist society (Myrdal 1989). Although Romania can hardly be considered as a traditional position to pay bribes in order to obtain it. The regime was characterized by high taxes and it was regarded to today as very corrupt, while Fanar rule became a term used in daily language to name a corrupt administration. 19 2003. Transcript of meeting of secretariat of ADER, 24 January http://www0.ccir.ro/hosts/ader/lupta_anticoruptie.htm [accessed: 16 April 2006]. 20 Source: ICCV database “Romania 2004: people’s representations towards corruption”. 21 In the traditional society. 2003. Available at: 136 society as a whole, there are some forms of corruption that might have their origins in the historical paths of its development. We can include here nepotism, but also varieties of petty corruption, in which citizens are involved on a day-to-day basis: under the table payments for doctors, presents to teachers, presents to public servants, “interventions”22 etc. Nepotism could be considered as a form of corruption that has its roots in the particularities of the social development process, with the extended family still being important, especially when it comes to support of its members. Those holding important positions are expected to help their relatives or acquaintances to accede. This seems like a natural thing in Romanian society, being largely accepted. I think there is a pressure towards those in power because those around them like political friends, relatives or just friends wait for a reward… This increases the pressure towards public servants (participant no 2). Besides nepotism, there are other forms of corruption that seem to be based on norms that are largely accepted in society. Getting your right is one idea that defines the bribe for certain public positions such as that of policemen or doctors. In everyday language, it signifies that the one having the respective status is entitled to bribe, as a sort of privilege (“right”) associated with that position. This can signify that bribes are widely accepted among people as a natural supplement of the position occupied. In this respect, bribery acts as a virtual incentive especially for public positions. A juridical notion like the “right” is thus used in everyday language to denote an unlawful action which thus becomes a social norm. 22 “Interventions” represents a term with roots in communist times when, in order to solve a problem, people needed connections and someone to “intervene” for them. 137 It seems that in time some practices that seemed justified for a certain amount of time or under certain conditions, turned into deeply rooted social customs. This would be the case with the corruption in the health or education system. While in the public health system under-the table-payments are usually motivated by the low salaries of the personnel, in the alternative private health system where taxes are paid, the practice of extra-paying is still present to a certain extent. Even when you go to a private medical cabinet and you pay the cost for consultation, you still feel the need to give something to the doctor. It is like you don’t feel well if you don’t do it (participant no 3). According to largely shared perceptions, some cultural roots of corruption can be traced back to Ottoman experience hundreds of years or to the more recent communist past. It is evident however, that the “flourishing corruption has changed form and function” in time, mainly as a consequence of the modernization process (Taenzler 2007: 4). It is also obvious that the longer the various forms of corruption perpetuate, the greater the chance that they become conventions, customs, norms and finally traditions in society. As a conclusion … A series of factors of economic, social, political, cultural nature contributed in various ways to the escalation of corruption in Romania, especially after 1990. The phenomenon was counteracted in particular after 2000 by a wide range of legal and institutional anticorruption tools. The anticorruption mechanisms consolidated over time and are presently applied in order to decrease corruption. 138 Currently, the context might be less favourable for the same vigorous fight that was put up in the years 2004-2006, prior to Romania’s accession to EU. Although still monitored, the EU member Romania is no longer under the strong pressure of the Union which was such a strong pull factor for anticorruption in the recent past. Romania is now facing a severe economic crisis, which especially for country with a still fragile economy and a still unsteady political system might mean more social disorganisation and more corruption problems. It remains to be seen if the relatively newly established anticorruption tools will be successful in the future. References Ades, A. and Di Tella, R. 1999. Rents, Competition and Corruption. American Economic Review, 89(4), 982-994. Anderson, J.H. and Gray, C.W. 2006. Anticorruption in Transition 3. Who Is Succeeding … and Why?. Washington, DC: The International Bank for Reconstruction and Development/The World Bank. Broadman, H.G. and Recanatini, F. 2002. Corruption and Policy: Back to the Roots. Policy Reform, 5, 37-49. CEC (Commission of the European Communities). 2007. Report from the Commission to the European Parliament and the Council on Romania's progress on accompanying measures following Accession. [Online, 27.6.2007]. Available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0378:FIN:EN:PDF [accessed: 3 April 2008]. 139 CEC. 2010. Report from the Commission to the European Parliament and the Council on On Progress in Romania under the Co-operation and Verification Mechanism. [Online, 23.3.2010]. Available at: http://ec.europa.eu/dgs/secretariat_general/cvm/docs/com_2010_113_en.pdf [accessed: 15 July 2010]. Eugen, I. 2004. Several parties but just one piovra. Interview with Alina MungiuPippidi. Academia Catavencu, 11/2004, 5. Freedom House. 2010. Nations in Transit 2010. Romania. 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Bucureşti: Editura Luminalex. 140 Kaufmann, D., Kraay, A. and Mastruzzi, M. 2007. Governance Matters VI: Aggregate and Individual Governance Indicators 1996-2006, in World Bank Policy Research Working Paper 4280, July 2007, 1-93. Kaufmann, D. and Siegelbaum, P. 1996. Privatisation and Corruption in Transition Economies. Journal of International Affairs, 50(2), 419-459. Lambsdorff, J.G. 2006. Causes and Consequences of Corruption: What do We Know from a Cross-Section of Countries?, in International Handbook on the Economics of Corruption, edited by S. Rose-Ackerman. Cheltenham/Northaptom: Edward Elgar, 3-51. Manzetti, L. and Blake, C. 1997. Market Reforms and Corruption in Latin America: New Means for Old Ways. Review of International Political Economy, 3(Winter), 662-697. Marginean, I. (ed). 2005. Calitatea vietii in Romania. Bucuresti: Editura Expert. Marginean, I., Precupetu, I., Tsanov, V., Voicu, B. and Preoteasa, A. 2006. Quality of Life in Bulgaria and Romania. Luxembourg: Office for Official Publications of the European Communities. Mauro, P. 1995. Corruption and Growth. Quarterly Journal of Economics, 110(August), 681-712. Myrdal, G. 1989. Corruption as a Hindrance to Modernization in South Asia, in Political Corruption: Readings in Comparative Analysis, edited by A.J. Heidenheimer. New York: Holt, Rinehart and Winston, 405-423. Precupetu, I. 2007. Corruption in Romania. First steps towards a grounded theory of corruption, Discussion Paper Series No. 4. [Online]. Available at: http://www.uni- 141 konstanz.de/crimeandculture/docs/Discussion_Paper_No_4_ICCV_Romania_July _2007.pdf [accessed: 19 July 2010]. Precupetu, I. 2008. On the Nature and Causes of Corruption in Romania. Evidence from a Grounded Theory Approach, Discussion Paper Series No. 13. [Online]. Available at: http://www.uni- konstanz.de/crimeandculture/docs/Discussion_Paper_No_13_ICCV_April_2008.p df [accessed: 19 July 2010]. Precupetu, M. 2007. Democratizare postcomunitsa si integrare europeana. Bucuresti: Editura Academiei. Rock, M.T. 2009. Corruption and Democracy. Journal of Development Studies, 45(1), 55-75. Roman, T. 2002. Caracatiţa, Formula AS, no 589, 28.10.2002-4.11.2002, 5-6. [Online]. Available at: http://www.formula-as.ro/reviste_539__22__.html [accessed: 22 March 2006]. Sandholz, W. and Koetzle, W. 2000. Accounting for Corruption: Economic Structure, Democracy and Trade. International Studies Quarterly, 44, 31-50. Tanzi, V. 1998. Corruption Around the World. Causes, Consequences, Scope, and Cures. IMF Staff Papers, 45(4), 559-594. Tänzler, D. 2007. Cultures of Corruption: An Empirical Approach to the Understanding of Crime, Discussion Paper Series No. 2. [Online]. Available at: http://www.unikonstanz.de/crimeandculture/docs/Discussion_Paper_No_2_Dirk_Taenzler_June_ 2007.pdf [accessed: 25 September 2009]. 142 Transparency International. 2009. Corruption Perception Index. [Online]. Available at: http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_ table [accessed: 25 June 2010]. Treisman, D. 2000. The Causes of Corruption: A Cross-National Study. Journal of Public Economics, 76(3), 399-457. Treisman, D. 2003. Postcommunist corruption, in Political Economy of Transition and Development: Institutions, Politics, and Policies, edited by J. Fidrmuc and N. Campos. Boston/Dordrecht/London: Kluwer, 201-226. Uslaner, E.M. 2006. Corruption and Inequality (WIDER Research Paper No. 34, 1-23). [Online]. Available at: http://www.wider.unu.edu/publications/working- papers/research-papers/2006/en_GB/rp2006-34/ [accessed: 19 July 2010]. World Bank. 2000. Anticorruption in Transition. A Contribution to the Policy Debate. Washington, DC: The World Bank. World Bank. 2006. Doing business in 2006. Washington, DC: The International Bank for Reconstruction and Development/The World Bank. Zamfir, C. 2004. O analiză critică a tranziţiei. Ce va fi „după”. Bucureşti: Editura Polirom. Zamfir, C., Stanescu, I. and Ilie S. 2010. Raportul social al ICCV. Dupa 20 de ani: optiuni pentru România. [Online: Academia Romana]. http://www.iccv.ro/ICCV_Romania_dupa_20_de_ani.pdf 2010]. Available [accessed: 19 at: July 143 Chapter 5 New Public Management and Risks for Corruption: The Case of Sweden Staffan Andersson / Gissur Ó Erlingsson Introduction Since Transparency International started publishing its corruption perception index (CPI) 1995, Sweden has always been ranked top six among the least corrupt countries in the world. But does this imply that corruption is not a problem in Sweden? Just in the same way it would be deemed as malpractice if a physician rounded up 190 patients in a room, and declared those who were least ill perfectly healthy, that would be a seriously mistaken conclusion. And interestingly, questions about power abuse and corruption have reached the political agenda in Sweden lately. First, one can note that this seemingly non-corrupt country has lately been subject to international criticism from international organisations: (i) GRECO (2001) maintained that Swedish institutions have a poor ability to detect public corruption, (ii) OECD has criticized Sweden for discontinuing an investigation about bribe allegations when the Swedish fighter aircraft Jas was being sold (Dagens Nyheter 2010), and (iii) the Council of Europe has criticized Sweden for the lack of transparency concerning how political parties finance their activities (Sandgren 2009). Second, several scandals have been exposed throughout the past decades, not least at the local level, which has given the impression that corruption and abuse of power has become an increasing 144 problem in Sweden. In this chapter we ask if it could be the case that corruption and abuse of power have become increasing problems in one of the worlds’ least corrupt settings, and if so, if this development can be linked to the administrative reforms that have been carried out throughout the past decades. Our analysis starts with the observation that the politics of public administration in Western Europe underwent significant changes in the 1980s and 90s. The changes were inspired by the New Public Management-philosophy. The difference between the public and private sectors was de-emphasized. Management models and organisational structures from the private sector were seen to be transferable to public organisations. The purpose was to increase cost effectiveness and productivity by reducing bureaucratic procedures without compromising quality, goal attainment, political control or the rule of law (Christensen et al. 2005: 180). One component of the reforms was to reduce the size of the public sector by contracting with private actors for the provision of some public services (Lane 2000; Pollit and Bouckaert 2004; Gregory 2007). The reforms were also characterized by management by objectives and performance targets, decentralization, specialisation and increased competition. In Sweden, these reforms have prevailed at the municipal and county council levels of government. These levels are largely responsible for providing public services, particularly in education, healthcare, care for children and the elderly as well as zoning and public planning.1 1 Here, we use the words municipal and local interchangeably to refer to the level of government known in Swedish as kommun. Similarly, we use county council and region to refer to the Swedish landsting. We use the term subnational when referring to both of these levels of government. 145 While these reforms took place, the issue of corruption began to get increased attention throughout Europe. A number of corruption scandals were uncovered in mature democracies. Scandals also came to light in Sweden, albeit smaller ones. Most of them occurred at the sub-national level, although some cases were uncovered nationally, most notoriously those involving the Swedish Alcohol Retail Monopoly (Systembolaget) and the Swedish Motor Vehicle Inspection Company (Svensk Bilprovning) (Castillo 2009). There are, we believe, reasons to investigate whether NPM reforms are related to the increased attention corruption has received. The existing literature provides no clear answers to whether there is a connection between corruption and NPM: Some argue that NPM reforms can reduce the risks for corruption (deLeon and Green 2002), while others point to increased risks as a result of such reforms (Frederickson 1999; Erlingsson et al. 2008). A third position is that NPM, in itself, does not affect corruption. However, changes brought about by NPM affect the nature of the risks for corruption: whether NPM affects corruption levels depends on how mechanisms of control are constructed, and in particular the extent to which they are appropriate for the new administrative structures (Andersson and Bergman 2009). Need for additional research into NPM and risks for corruption is also motivated by the fact that corruption studies have paid relatively little attention to sub-national levels (Andersson 2008). This is a serious drawback in the literature on corruption in mature democracies, since there is considerable evidence that sub-national levels are particularly vulnerable to corruption. The decisions made and responsibilities carried out here are linked to risks for various forms of power abuse, for example zoning, 146 licensing, public procurement and social services (Huberts et al. 2008; Fjeldstad 2004).2 In addition, the sub-national level tends to be subject to less scrutiny and attention by external actors like the media than the national level. The combination of these three things – (i) NPM reforms have had a big impact at sub-national levels, (ii) local and regional governments are responsible for public services that are particularly vulnerable to corruption, and (iii) it is more difficult to uncover improprieties at the sub-national level – motivates a focus on the sub-national level. In this chapter we ask how reforms of local and regional government in Sweden have impacted on the risks for corruption. In the next section we present a theoretical background to the question of what influences an individual’s inclination to engage in corrupt activities. We then discuss the content and purpose of NPM reforms, and how they can influence what we call “the structure of temptation” that confronts individuals operating in the public sector. This is followed by a discussion of what this temptation structure looks like in Sweden, in order to illustrate how NPM reforms have in fact influenced it. We pay particular attention to two areas of risk that are influenced by NPM reforms: sweeping and rapid organisational transformation and public procurement. We conclude with a discussion of our overall results. An Institutionalist Approach to Corruption By corruption we mean abuse of a position of public authority for personal gain, or to benefit a relative/friend at the expense of the general public. In order to provide a 2 For example, public procurement administration, which has become an increasingly important part of public sector activity, is particularly vulnerable to corruption. It involves transactions that are costly to oversee and important economic interests are at stake for the party who is awarded a contract (OECD 2005; Anechiarico and Goldstock 2007). 147 satisfactory answer to the question of how we can understand corruption, it is necessary to think about what motivates individuals? Old explanations of corruption largely focused on the moral deprivation of corrupt individuals. Those who engaged in such behaviour were simply seen as ethically flawed. However, assuming that those who commit corruption are more devoid of moral ethics than others is not analytically fruitful. Instead, our premise is that many people may engage in corruption if they find themselves in a situation in which they could appropriate resources dishonestly without risk of being exposed. Hence we focus on how institutions influence the probability of individuals engaging in corrupt activities. Hence, our point of departure is simple: Public sector corruption can only occur if there are individuals operating in public sector organisations who have discretionary power (Aidt 2003; Jain 2001). When pondering on what influences an individual’s inclination to act corrupt, we can predict that in a situation where the structure of temptation is favourable, corrupt behaviour should be more frequent. We maintain that the structure of temptation is favourable when institutions: 3 1. Offer individuals many, rather than few, opportunities to appropriate resources through corrupt behaviour. 2. Make payoffs for corrupt behaviour large, rather than small. 3. Create a low, rather than high, degree of oversight/supervision/scrutiny. 4. Establish a relatively mild, rather than severe punishment, for corruption. 3 The first four variables come from Becker’s (1968) analysis of criminal behaviour. He explains criminal activity as a function of the profitability of committing criminal acts, degree of oversight and strength of punishment if a crime is uncovered. 148 5. Create an unfamiliar, unclear/blurry system of rules and regulations, so that individuals do not know what the lawful/appropriate behaviour is. By viewing corruption in this way, changes in the institutional environment in which politicians and civil servants operate are expected to influence the levels of corruption. This way to analyse corruption rests on rational choice theory. Individuals faced with a choice of acting in the common interest or enriching themselves or their friends/relatives at the expense of taxpayers, are assumed to act on the basis of a costbenefit analysis. Individuals chose to behave corruptly if they believe that they will benefit from doing so, and that oversight mechanisms are so flawed that there is little risk of being exposed (Paternoster and Simpson 1996). If the cost-benefit analysis suggests that the gains from corrupt behaviour are greater than the gains from lawful behaviour, then the individual chooses corruption. Moral costs of behaving corruptly, which depend on personal ethical principles, as well as those of relatives, friends and colleagues, are also expected to affect the calculation (Klitgaard 1988: 69).4 It should be noted that norms influencing behaviour can vary considerably between spheres: norms governing behaviour in the public sector, within firms and in the private sphere of the family differ. Within the family, individuals are expected to act in ways that benefit family members. In the public sector, in Scandinavia, behaving according to this norm would be considered nepotism, if not corruption. Hence, there are risks associated with blurring the distinction between the market and public 4 The non-corrupt alternative means that the individual has her/his normal income plus the moral satisfaction of behaving honestly (Klitgaard 1988: 69). The corrupt alternative is chosen when the benefit of doing so is greater than behaving honourably. 149 administration. Doing so might create uncertainty or confusion about which norms should guide behaviour. A civil servant acting in the public sector might find herself/himself in a situation in which it is difficult to determine whether a particular action is corrupt, despite the fact that it undoubtedly is according to the organisation’s traditional norms. When the boundary between the market and public administration becomes blurry, the risk that individuals will behave corruptly increases simply because they no longer consider certain behaviours as corrupt. Using the analytical concept structure of temptation as a point of departure, we will analyse public corruption at Swedish sub-national levels. Five questions are particularly important in exploring the connection between organisational reform and risk for increased corruption. Has the introduction of NPM: − Increased opportunities to appropriate private benefits – that is, have opportunities to engage in corrupt behaviour increased? − Increased expected gains from behaving corruptly? − Decreased likelihood of uncovering corrupt behaviour? − Decreased punishment for being caught engaging in corruption? − Made rules/regulations more ambiguous? How are NPM reforms related to corruption? An important step for realising the goals of NPM reforms – for example increasing flexibility and effectiveness without losing the ability to manage the public sector – is decentralising leadership to give heads of administrative units greater authority to direct the work of their organisations. The goal is to increase both political control over public administration and the responsibility of civil servants charged with leading public 150 bureaucracies (Pollit and Bouckaert 2004; Lynn 2007). Another important component of NPM reform is to distinguish administrative tasks from political ones; the latter defined as adopting strategies, shaping public opinion and making overarching decisions about the division of resources. By contrast, the operative, day-to-day work is carried out by professional civil servants, whose efforts are then evaluated by comparing them to performance targets established in advance (Pollit and Bouckaert 2004). While some countries, e.g. Great Britain and New Zealand, have gone further than Sweden in implementing NPM reforms, Sweden has gone a long way too. The first program of reform of this type was the so called “Renewal Program” launched by the Social Democrats in a 1985 report entitled The Renewal of the Public Sector. The basic idea was that the public sector should be more service-oriented, and users should have greater opportunities to influence it. The report also envisioned a more rational and effective public sector due to changes in the way civil servants carried out their tasks (Christensen et al. 2005: 159-60). Over time, “renewal” increasingly came to be more about how public administration could be managed and directed most effectively. Administrative reforms in Sweden have been motivated by a desire to decentralise, both by delegating authority to lower levels within the national level and by delegating authority to sub-national levels of government (Christensen et al. 2005: 163). As a result, the majority of public services are produced and delivered at the subnational level. Sub-national government expanded in the 1970s and 1980s, and in the 1990s, management of the public sector changed character, from detailed regulation to management based on the specification of administrative and performance targets to be 151 achieved.5 The state began transferring money in the form of general grants rather than earmarked allocations, and the public sector began to pay increasing attention to how management operates in the private sector (Gustafsson and Svensson 1999). In addition, the 1991 Local Government Act strengthened the right of municipal and regional governments to move from detailed regulation to management by objectives in their own spheres of responsibility. In particular, sub-national councils were given the freedom to decide whether to use management by objectives or regulations to direct the work of local boards, committees and other bodies under them. In sum, the 1990s increased the importance of market mechanisms in the public sector. Decentralisation continued, new organisational forms emerged and privatisation increased. The division of responsibility changed, as did the role of civil servants. As a result of these reforms, productivity and efficiency seems to have improved. However, the way in which these reforms influence democracy and rule of law must also been taken into account. How has the ability to manage and coordinate the public sector been affected? What impact have these changes had on civil servants’ attitudes towards their work and the public’s confidence in civil servants? There are a number of interesting results about the effects of reforms on oversight and control, the boundaries between politics and administration and the freedom of action of individual actors. Experiences from NPM reforms in Australia, New Zealand, Sweden and Norway show that political control over public administration has declined (Christensen and Laegreid 2001: 304), 5 Management by objectives requires, first, the formulation of clear, stable and compatible goals for an organisation/unit and indicators (targets) that will be used to measure how well the organisation is meeting them. Performance in terms of these indicators must be regularly measured and the results submitted to a designated oversight body. This body is responsible for reviewing the organisation’s performance and rewarding those who meet their goals and penalizing those that fail to do so (Christensen et al. 2005: 160-61). 152 since the distance between political leaders and the public administration and bureaucracies has increased. In addition, the independence of public sector actors increases. In cases where public sector agencies are privatised, they are no longer subject to direct political accountability and control, insofar as the goal of privatization is usually to free the operations from political control (Bovens 2007). This increased independence creates a need for stricter scrutiny and reporting systems in order to ensure that superiors can control public agencies, as well as evaluate their efforts to meet established goals (Christensen et al. 2005). In addition, today the public sector is managed less by rules and procedures and more by a focus on how desired goals are to be met. Other important consequences of NPM reforms depend on how responsibilities and roles of civil servants change when public sector becomes more instrumental and focused on individuals, at the expense of accountability and the collective. In those countries that have undertaken the most comprehensive NPM reforms, personnel policies have changed. Important aspects of the new system include performance targets for individual civil servants and evaluations based on their success in meeting those targets (Pollit and Bouckaert 2004: 148). Those who head public sector organisations also experience cross-pressure due to demands from politicians, on the one hand, and users of public services on the other. This situation makes their roles more ambiguous (Christensen and Laegreid 2001: 304-306). Reforms inspired by the private sector have also been combined with new patterns of personnel recruitment. More people are hired from the private sector, and often for a limited period of time. These individuals are often placed in leading positions and are expected to be creative and focus on results rather than emphasize rule of law or formal administrative processes and routines (Pollit and Bouckaert 2004: 159). 153 As a result, civil servants seem to have become less likely to view themselves as impartial providers of public services guided by the legal rights of users, and more as entrepreneurs or managers with an ear for the particular wishes of individual users (Peters and Wright 1999: 636). Proponents of NPM see this change as beneficial, since it allows those who head agencies and departments to exercise more professional leadership, which is believed to have positive effects for the public sector as a whole. Critics argue that this new type of leadership will develop strategies to avoid control and regulation. The goal of new leaders becomes running their organisation without interference, and they are satisfied if politicians direct and evaluate them only once a year (Christensen 2008: 459). Also, it is less likely that leaders recruited from the private sector have the same familiarity with the norms that public administration is expected to follow. How can this all be related to increased risks of corruption? Well, the most recent overview of crimes of corruption in Sweden, based on cases processed by the National Anti-Corruption Unit from 2003 to 2005, suggests that NPM reforms have influenced the structure of temptation and risks for corruption (Brå 2007).6 The overview identifies the blurring of the distinction between the public sector and private industry and commerce as a significant and important risk factor. In some cases public enterprises/activities have been organised in a way that has increased the risk for confusion over norms. Those employed in the private sector have not understood that stricter rules apply in relations with customers in the public sector. At the same time, civil servants in public enterprises who have adapted to the culture of private enterprises have failed to keep in mind that they must comply with rules that are not applicable to 6 The report was produced by the Swedish National Council for Crime Prevention, Brottsförebyggande Rådet (Brå). 154 private competitors. Also, many private companies do not understand the rules that apply when business is done with public sector actors. The evidence suggests that when public sector activities are contracted out to private actors, risks for corruption increase: 61% of those suspected of having engaged in corruption had done so in circumstances relating to either sales of some kind or procurement. The cases include a number of occasions in which friendships developed between civil servants and private contractors. Sometimes these friendships led to trips, largely for pleasure and at least partly paid for by the contractor. While those involved denied that the trips were bribes, the private contractors’ competitors perceived them as such. Some cases provide examples of how systems designed to reward job performance increase the risk for corruption. This tends to be the case when employees’ commissions are linked to performance in sale-focused organisations. Such reward systems tend to lead individuals to bend the rules in order to reach internal goals. Finally, there are cases in which organisational changes have reduced oversight and supervision due to lack of time and unclear organisational structure. Some individuals have used the opportunity this created to engage in corrupt behaviour. Overall, it seems clear that the structure of temptation is influenced by NPM reforms. On the one hand, privatisation can reduce the size of the public sector, thus reducing opportunities for corruption. On the other, hybrid mixes of public-private, as well as the use of different forms of management that change incentive structures and opportunities to engage in corrupt behaviour, make it necessary to establish new forms of supervision. In addition, it is clear that NPM reforms impact on rules, regulations, procedures and mechanisms of control. If the organisation fails to address the question of how this alters the risks for corruption, then the likelihood of uncovering corruption, 155 and punishing those guilty of it, can be expected to decline. Thus, we can conclude that there is reason to suspect that the structure of temptation in local and regional government in Sweden indeed has been influenced by NPM reforms. However, we need to know more in order to determine the actual impact this has had on risks for corruption. In the next section we turn to a discussion of what the structure of temptation in Sweden looks like at the sub-national level. We then discuss and show how NPM reforms have actually influenced it. The structure of temptation in Sweden What does the structure of temptation at the sub-national level in Sweden look like? First, as regards opportunities to engage in corrupt behaviour, local and regional governments deliver most of the services and production that the public sector is responsible for. This means that there are several opportunities for civil servants to engage in corruption, merely due to the sheer number of activities that they carry out. Furthermore, previous studies have shown that many of these activities are susceptible to corruption because they involve: − Managing procurement and purchasing − Granting permits and licenses, supervising and inspecting activities and operations (and shutting down those that violate the law) − Exercising authority (i.e. make authoritative decisions) in matters directly relating to individuals − Deciding how public resources are to be distributed, for example grants to support the activities of organisations and groups 156 Second, systems of oversight and control, which directly influence the likelihood of uncovering irregularities, are weak at the local and regional level. In particular, auditors have a weak position. Another problem is that oversight by the political opposition and local media are often considerably weaker than at the national level.7 Inadequate oversight and supervision at the sub-national level has been confirmed in the aforementioned Brå report (2007), which concluded that this, as well as a lack of oversight directed specifically at preventing corruption, are the two most common causes of corruption. In many cases, civil servants working in positions in which there are risks for corruption have conducted their work completely without supervision or follow-up by superiors. Routines for such measures have simply not been put it place. In some cases this is the result of a deliberate decision not to do so because such systems have been thought to contribute to ineffectiveness (Brå 2007: 45). In addition, studies by the Swedish National Audit Office (Riksrevisionen) have also shown that attitudes about what constitutes sufficient protection against corruption are naive. Systems put in place to protect an organisation from corruption are based on the beliefs that co-workers cannot be bribed and co-workers enriching themselves in impermissible ways are unthinkable. In contrast, National Auditor Kjell Larsson (2006) claims that the risks for corruption are significant and that: […] it is rare that cases of corruption are uncovered other than by chance. The level of protection against corruption in national public administration does not seem to approximate the level of the risks for corruption. 7 Many cases of corruption and abuse of power at the sub-national level are uncovered by ambitious reporters working for local media. Since newspapers are increasingly eliminating their local staffs, the system of supervision therefore is further weakened, reducing the likelihood that corruption will be exposed. 157 The National Audit Office’s investigations also show that protection against corruption is a low priority in many public administrative bodies and publicly-owned corporations. Neither the organisation nor routines have been designed to take into account the need to protect the organisation from corruption and other forms of the abuse of power. One thing that is particularly problematic is that single individuals are solely responsible for purchasing in many instances. Another problem is that there are no routines to prevent consultants who have been contracted to carry out particular functions from turning around and hiring other consultants, not infrequently their own colleagues or friends, to do the job. Nor are there routines for discovering irregularities after-the-fact (Larsson 2006). As previous Swedish research has pointed out, failure to gain acceptance for and to firmly root routines and systems of supervision are also risk factors. The National Anti-Corruption Unit also contends that only a fraction of all corruption is uncovered, and not all of these cases are reported further. Third, there is little possibility to impose sanctions in conflict of interest cases involving public appointments and public procurement at the local and regional levels. In practice, individuals are not punished in such cases (Falk 2009). This is particularly problematic in light of the fact that conflicts of interest create risks for corruption. Parties involved might choose to disregard the interests of their superiors. Alternatively, they might protect the interests of their superiors at the cost of disregarding the public interest (Brå 2007: 18). In this regard, it should be noted that the Swedish Competition Authority (Konkurrensverket) has identified lack of respect for the laws governing public procurement as a particularly significant problem. This includes, for example, ambiguities about when the law is applicable, particularly the degree to which public enterprises are bound by it, illegal direct procurement, the magnitude of which is 158 unknown8, and refusal to abide by court decisions. The latter, which occurs mainly at the local and regional level, refers to cases in which public actors refuse to follow court rulings, opting instead to implement a procurement decision despite the fact that the court has ruled that the process was flawed and must be re-done (Molander 2008). Fourth, a general criticism of Swedish law against bribery is that it is difficult to understand. A review of it is underway. A government commission report was completed in 2010 outlining proposals and legislative changes to make regulation on bribery and what constitutes a bribe clearer. It also proposed a code of conduct outlining what is acceptable interaction between the private sector and public actors (SOU 2010). In principle any benefit or privilege might be a bribe, but under existing Swedish law it is difficult to determine when a benefit or privilege actually constitutes a bribe. What is decisive is whether the benefit is judged to be “undue” or “unjustified”. A benefit that is given for the purpose of encouraging someone to act in a manner that contradicts her/his mandate is always defined as undue, but in many situations it is difficult to determine what exactly constitutes an undue benefit. Many of those suspected of corruption also argue that the relevant laws and regulations are unclear (Brå 2007: 10, 19). Actors also lack sufficient knowledge of the laws. Even as regards public procurement, Brå’s investigation reveals that people in positions of authority do not have sufficient knowledge of the rules and regulations governing procurement (Brå 2007: 39). This problem is frequently found in combination with a system of oversight and supervision that is either weak or non-existent. In these situations, the risk for corruption increases significantly (Brå 2007: 45). 8 Direct procurement is procurement without competition. 159 The purpose of conflict of interest-regulations is to protect the public’s confidence in the impartiality of the public sector. Thus, civil servants are not permitted to make decisions based on considerations that are irrelevant for the matter at hand in order to, for example, benefit relatives or friends.9 Whether or not a conflict of interestsituation can lead to sanctions depends upon whether it occurred as part of an exercise of public authority.10 If so, the action can be punished under the penal code, in particular in accordance with Chapter 20 on professional misconduct. If not it can only be punished if it can be regarded as a case of breech of trust, embezzlement or fraud. An important consequence of this is that when the public sector – for example a local or regional government – acts as an equal party in a contract relation, for example as a buyer, seller or employer, then this is not an exercise of public authority under the law (Falk 2009: 29, 44). For this reason, most legal experts, including the Law Council, Supreme Court and the Parliamentary Ombudsman, have not defined public procurement as an exercise of public authority (Molander 2008: 6). This means that the Criminal Code’s provisions as regards professional misconduct cannot be applied in such situations in Sweden, even in cases of undue influence resulting from conflict of interest. A great number of irregularities, for example actions that advantage one’s own 9 Under the Administrative Procedures Act (Förvaltningslagen), chapter 11, rules governing conflict of interest apply to civil servants involved in the handling of a particular case/question, including making a decision, preparing material to be used to make the decision and participating in the presentation of the case/question in advance of a decision. 10 “An exercise of public authority” is defined as decisions or particular measures that have legal consequences for or against an individual as a result of public laws/regulations. An exercise of public authority ultimately rests therefore on society’s right to exercise power. The exercise of such authority can involve measures that the individual is required to follow and/or measures that award the individual benefits or rights. 160 or someone else’s interests, can occur in connection with public procurement yet fall short of being actual bribes. However, since this is not considered an exercise of public authority, it cannot be prosecuted using the Criminal Code’s rules on professional misconduct. Similarly, there are risks for irregularities when the public sector acts in the role of seller. However, because this does not count as exercise of public authority, irregularities cannot be attacked on the grounds of professional misconduct. The practice by municipalities and county councils of defying the law and court decisions, i.e. simply ignoring decrees and decisions from courts, along with the fact that irregular behaviour cannot be dealt with under criminal laws, naturally increases the risks for corruption (Falk 2009: 40). As regards the risk of punishment, it should also be noted that elected members of local and regional councils in Sweden are granted immunity from prosecution for professional misconduct for actions carried out in this capacity. As regards other charges, breech of contract requires that there was intent to damage. Fraud requires intentional misleading and damage. This means that in cases in which procurement has been influenced by the private interests of civil servants or politicians, it is entirely possible that no misleading behaviour, harm or advantage have occurred. Since the behaviour is not considered to be an exercise of public authority and rules on professional misconduct do not apply, the result is that the behaviour can occur with impunity (Falk 2009: 8). In sum, the review provided here shows that there are elements of the structure of temptation that undoubtedly increases the risks for corruption in the public sector. The magnitude of the activities carried out by local and regional governments imply that there are numerous opportunities to engage in corruption. The rules about corruption are 161 also fuzzy, which increases the likelihood that they will be violated. Systems of oversight and supervision are relatively weak, so the likelihood that corrupt behaviour will be uncovered is relatively small. In some cases, particularly public procurement, the possibilities for sanctioning those engaged in corruption are weak. It can therefore be concluded that there are both opportunities for corruption and situations in which it can favourable for an individual to engage in corrupt activities. Illustrations: Corruption and Power Abuse at the Sub-national level The fact that NPM reforms influence structures of temptation, together with the fact that the reforms have had a relatively strong impact on sub-national levels, means that there are good reasons to suspect that they have significantly influenced temptation structures here. This section looks at two specific developments. First, we focus on those reforms designed to make the public sector look and act more like private enterprise in order to illustrate how they can influence incentives to engage in corruption. We do so by examining in detail a case in which radical reforms led to substantial problems. National Auditor Kjell Larsson (2006) has pointed to changes in traditional models of management as a risk factor for corruption: The trend by which administrative bodies and public enterprises go from carrying out all activities themselves to a model in which they largely rely on consultants and private firms has a greater influence than is commonly recognised. Second, we focus attention on a consequence of the increased use of alternative forms of operation (e.g. public enterprises, private firms providing a public service under the terms of a public procurement agreement, public subsidies to support the work of private organisations), that is, that public procurement has increased in magnitude and importance. 162 From hierarchies to NPM: procurement in a County Council Irregularities and corruption The year is 1995. After rumours of irregularities in the Älvsborg County Council’s procurement unit, Emma Care Products, subsequent investigations revealed inadequate internal oversight and improprieties regarding vacation periods, the use of company cars and paid work carried out on the side by higher civil servants. In the trials that followed, the district court found four persons guilty of fraud, breach of contract and embezzlement. The defendants were also charged with offering and accepting bribes, but these charges were not proved in court. The case was appealed and the Court of Appeals acquitted the administrative director of Emma Care Products (Hovrätten för Västra Sverige 2000a, 2000b). Those involved from Emma Care Products included the director, the personnel manager, the financial manager, and the purchasing manager. Also involved were an administrative manager at county council’s central administration and a researcher at Chalmers Technical University who worked as a consultant for the county council. Those employed by the county council government were suspended in 1996 and were later fired, with the exception of the purchasing manager who resigned (Vänersborgs Tingsrätt 1998: B10-12). Emma Care Product’s director and purchasing manager were suspected of having allowed the county council to pay for private expenses, including a trip to Bruges for themselves and their wives in connection with a conference in Brussels. The financial manager had encouraged the purchasing manager to use false names for the wives, so that the expenses would appear to be costs for official representation rather than private ones. The district court found the suspects guilty of fraud and aiding and abetting fraud (Vänersborgs Tingsrätt 1998). They were subsequently acquitted by the 163 Court of Appeals on the grounds that it was not clear that the director was actually prohibited from treating the costs as official representation (Hovrätten för Västra Sverige 2000a: 8-9). The district court found the director guilty of fraud for having taken vacation without reporting it, and for working for a private company without having been granted permission to do so. He was also acquitted of these charges by the Court of Appeals. The county council did not know that the director had his own company and worked as a consultant on the side. The council claimed that private paid work was limited under the terms of his employment contract, and that it had to be reported. The Court of Appeals found nothing in the employment contract that required the director to apply for leave in order to work as a consultant in his own company. The purchasing manager was acquitted of the same kind of charges for similar reasons. However, the financial manager was found guilty of fraud because he worked for the director’s company without applying for vacation (Vänersborgs Tingsrätt 1998; Hovrätten för Västra Sverige 2000a). Another charge involved bribery. The company EDP was founded in 1995 in order to enable Emilia, a company owned by the researcher and the Emma Care director, to merge with another firm. The researcher gave the director, the financial manager and the personnel manager stocks in EDP, which the prosecutor regarded as offering and accepting of bribes. All were found not guilty due to lack of evidence that the stocks were intended to influence them in the carrying out of their official duties and/or constituted undue benefits for carrying out these duties (Vänersborgs Tingsrätt 1998: C22). Emma Care Products’ Organisation 164 Emma Care Products was established in the early 1990s to improve efficiency and lower the costs of purchasing and distribution in Älvsborg County Council. It was a separate administrative unit with its own budget and annual report. It was not a public corporation. The purpose behind this organisational form was that the unit was to operate similarly to a private enterprise. The director and top management had considerable operational freedom. Emma Care Products’ director, financial manager and purchasing manager were recruited from the private sector. The director himself maintained that in order to meet the goals established for the unit, it was necessary to employ methods that were unconventional for county council government. He likened his role to that of a managing director of a private corporation (Vänersborgs Tingsrätt 1998: B13). The unit, which was responsible for purchasing, logistics and distribution, employed 105 people in 1991. By 1993 this number had fallen to 67 as a result of reorganisation and other measures taken to meet the demand to cut costs (Landstinget i Älvsborg 1994). The Services Committee (Servicestyrelsen) was the political organ responsible for Emma Care Products during 1992-94. What reforms were carried out and why? Throughout the 1980s the county council’s economy deteriorated. As part of the effort to improve efficiency and reduce costs, operations were decentralised and some administrative units were given greater freedom of action. In short, the idea was to increase flexibility and reduce the degree to which employees were constrained by regulations. The policy was dubbed “Green Light” (Landstinget i Älvsborg 1986, 1993). Due to severe economic difficulties, Älvsborg was required to cut spending by 10%. Since healthcare was exempt from budget cuts, attention was directed at other operations, including support services such as purchasing and inventory management, 165 two areas where high costs were a recognized problem. The procurement unit had been created in the 1980s, and its operations needed to be rationalised and made more business-like and cost-effective (Interview 1). The county council decided to adopt alternative operational forms and to decentralise and delegate responsibility. The role of elected officials was redefined. Rather than managing by detailed regulation, political leaders were to manage by establishing boundaries and goals for public sector actors. As part of the reform, support services were given control over their own budgets and operations – i.e. made into separate profit centres. It was not at all obvious that Emma Care Products would be run as an independent profit centre. Running support services, including Emma Care Products, as public enterprises had been discussed, while Emma Care Products own leadership preferred to privatise operations. When neither of these solutions won the support of a political majority, a compromise was reached that Emma would remain an administrative unit, but would operate on business principles (Vänersborgs Tingsrätt 1998: B39; Interview 2). With hindsight, it seems that the director and the presumptive partner, Bilspedition, continued to see privatisation as a possibility. This was the case even though the chairman of the county council (landstingsstyrenlsens ordförande) told the director, in response to his proposal for privatisation (presented after the county council’s elected members had decided to keep Emma Care Products public), that there was no interest in privatisation. Previous investigations by the researcher had shown that to obtain the highest possible level of efficiency, Emma Care Products needed larger volumes than those required by the county council. The researcher and the director thought that their company Emilia could clear the way for such a solution, and 166 to that end contacted a number of persons who might be interested as well as potential financers (Vänersborgs Tingsrätt 1998: B42, B22-24). The director of the county council had no knowledge of these activities. When he subsequently learned that Emilia was formally registered as a company, he asked the director about it and was told that the firm was inactive (Vänersborgs Tingsrätt 1998: B42-43). Had it been known that the director’s firm sought to prepare for the privatisation of Emma Care Products, it would have been regarded as disloyal behaviour. How was the system of supervision adapted? The county council’s need to save money created a strong incentive to reduce costs and rationalise operations. This explains the decision to turn to operational forms resembling private enterprises and the focus on flexibility, decentralisation and deregulation. But this also raised the possibility of corruption, even if it was by no means an unavoidable consequence. Other county councils carried out similar reforms in similar circumstances without changing the structure of temptation in a way that created a space for corruption (Andersson and Bergman 2009). There were a number of factors that interacted with NPM reforms in Älvsborg and thus increased the likelihood that corruption would occur. So, what explains this outcome? First, politicians paid very little attention to the question of how the public sector could be held accountable and how reporting requirements and supervision of Emma Care Products should be organised. Internal monitoring was seriously inadequate. Second, the information that the supervisory body, the Service Committee, received from Emma Care Products was also inadequate. Nor was there any significant interest from civil servants to increase elected officials’ insight into or understanding of how Emma Care Products operated. One interviewee 167 noted: “Emma’s view of the Committee was that they didn’t understand anything, they [Emma] had a different attitude towards the Committee [than did other subordinate units]” On the other hand, the Service Committee did not prioritise following up of delegated responsibility: “Nobody thought like that. Things just roll along like in other operations. They were supposed to work with fewer restrictions at Emma, how it would be monitored isn’t something we talked about” (Interview 4). The fact that systems for accountability and control were not given more attention was also a deliberate decision linked to the need to reduce costs. The decision was not a result of flawed intentions, but rather due to lack of knowledge about how important it is to adapt these systems when such comprehensive organisational reforms are undertaken, and when resources and time are in short supply. As one interviewee expressed it: It was a large organisation that had to be based on decentralisation and trust…In Älvsborg, you went from centralisation to decentralisation, you accepted business-like principles and recruited people with different backgrounds, and sure, there will be some culture clashes. When it comes to the scandals: even if our systems called attention to something dodgy, internal controls had big flaws, it was partially intentional. We had a policy that didn’t really rest on follow-up and control (Interview 5). Cuts in the county council’s central administration, to which the head of Emma Care Products reported, as well as weak auditing were also factors that contributed to the weakening of reporting and control mechanisms. At the same time, the county council had also recruited leaders from the private sector, and they were not wellschooled in the norms that prevailed in the county council. Not least at a time when significant changes were made without strengthening reporting requirements and supervision, this recruitment contributed to a general reduction in all types of oversight 168 and controls simultaneously. One interviewee also expressed the view that it was difficult to understand what the county council wanted: The county council sent mixed-messages. On the one hand we were part of the public sector, but on the other we were supposed to run our operations like a business. That’s impossible. The boss would have preferred to have a free-standing company (Interview 6). The case of Älvsborg is a clear illustration that NPM reforms, which are supposed to make operations more business-like and cost-effective, are not easily compatible with other important ideals like political control and accountability unless organisations and systems of control are adapted in appropriate ways. The organisation was responsible for activities that present opportunities for corruption. At the same time, the possibility to control the actors declined. It is also clear that there was ambiguity about the rules and norms that were to be followed and about how problems would be handled. The structure of temptation thus became more favourable: the risks for corruption increased. To reduce oversight in such a situation, as happened in this case, creates significant risks. The cost of failing to create well-developed supervisory mechanisms can be much higher than the savings one expected to reap by cutting costs. Public procurement: unclear rules, inadequate sanctions As a result of NPM reforms, public procurement has become a larger part of public sector operations. A number of estimates suggest that the value of goods and services in Sweden subject to public procurement regulations is 15-20% of GDP (Bergman 2008: 4). Given the magnitude of public procurement, the recognized problems associated with it are very important. It is generally acknowledged that there are substantial shortcomings as regards how rigorously public procurement regulations are observed. In 169 addition, knowledge of the regulations is inadequate, as is oversight and control of the processes that precede procurement (Molander 2008: 1). Various studies also suggest that there is dissatisfaction with the rules governing public procurement. A survey of top elected officials in local and regional government carried out by Dagens Samhälle (2009) revealed that, of the laws included in the study, politicians were most critical of the Law on Public Procurement (LOU). Moreover, the view that there are cases in which it is reasonable to circumvent LOU in order to support local business and industry is fairly widespread among municipal decision makers. This conclusion is supported by a survey in which about 25% of municipal politicians agreed that it was acceptable not to renew an agreement with a provider, even if it was cheapest or had the best product, in order to benefit a local producer. Support was somewhat lower among civil servants (Erlingsson et al. 2008). Owners of small businesses are even more positive to supporting local business and industry at the expense of LOU. In response to the question of whether municipalities’ procurement decisions should benefit local firms, 85% answered “yes” (Visma Infoline 2009). It is well known that procurement decisions are sometimes influenced by considerations that are irrelevant under LOU – i.e. by factors that, by law, are not supposed to be taken into consideration. For example, during a procurement process to purchase care services, politicians in two municipalities in the region of Jämtland, allowed one of the bidding companies to pay for trips for themselves and their wives. The head of the company and the politicians were subsequently found guilty of offering and accepting bribes, respectively (IMM 2009a). A similar case involved top employees of a municipal enterprise. A building contractor financed a trip abroad for the employees and their wives while a large public procurement process was underway. The 170 employees were found guilty of accepting bribes and the company’s representatives of offering bribes (IMM 2009b). However, there are also cases in which irrelevant considerations have improperly influenced procurement decisions, but no one has been punished for violating the law. Direct procurement is of interest in this regard. The Swedish Competition Authority (2008) conducted an investigation of municipal purchasing of waste management services. The study showed that contracts were often awarded without any advance public announcement and that almost one-third of contracts were awarded to firms without any open competition. Such decisions are not prohibited as long as they do not violate existing regulations, but research has shown that it seems to be more common that municipalities put themselves above the law when they know in advance that they want to favour particular providers of goods and/or services. Examples of such decisions are cases in which officials ignore LOU and take into account irrelevant considerations when making purchasing decisions, e.g. personal gain (including accepting bribes), nepotism, favours to friends and other similar considerations (Falk 2009: 40). One case where the appropriateness of direct procurement was questioned involved a county council director in Blekinge County. He employed a consultant to review the county council’s administrative organisation without following public procurement procedures. The consultant was a former colleague who the chairman had previously used in his private consultancy firm. The consultant was paid 250,000 Swedish crowns for two months’ work. Under county council regulations direct purchasing may not exceed an amount equal to five baseamounts, or approximately 214,000 crowns. According to the county council’s procurement manager, however, exceptions can be made in special circumstances. Such 171 determinations are made on a case-by-case basis. The county council director argued that the situation did not constitute a conflict of interest because he employed a colleague who he knew had relevant experience: “This is a person with good experience. We have previously worked together when he did work for my firm” (Blekinge Läns Tidning 2009). Another problem that arises in procurement processes is bidding cartels. In this case, potential providers come to an advance agreement about prices or divide up the market and make agreements about who will bid on which jobs (Sjöblom 2009: 3-4). In general, observance of the rules governing procurement is imperfect, which was shown in the Swedish Competition Authority’s (2008) examination of municipal waste management procurement. A subsequent, more in-depth study, uncovered defects in all 13 cases studied. Ignoring court decisions is also relatively common, particularly cases in which municipalities refuse to follow court rulings to nullify a procurement decision and re-do the process, opting instead to sign contracts with chosen providers. In such cases, to varying degrees, local governments have defended their actions on the grounds of local government autonomy (Molander 2008: 4). The question that arises is what do the rules and regulations intended to ensure that goods and services are purchased correctly look like? Since 2008, public procurement is mainly regulated by the Law on Public Procurement, LOU (SFS 2007: 1091), and the Law on Public Procurement in the areas of Water, Energy, Transportation and Postal Services, LUF (SFS 2007: 1092). These laws replaced the old law on public procurement. Public authorities responsible for procuring goods and/or services are required to follow LOU. This includes municipal, regional and national public bodies, as well as their public corporations (Bergman 2008: 6). 172 Between one-half and two-thirds of all Swedish public procurement is below the threshold values set by the EU to regulate public procurement. This is significant in light of the fact that EU rules are binding for some procurement decisions but not others and, in addition, that the procedures to be applied differ depending on the value of the goods or services to be purchased. The rules are binding for goods and so-called “A services” over the threshold values for which formal procurement procedures are mandatory (open, restricted or negotiated procedures). As regards procurement under the threshold values and procurement of all “B services” above what is regarded as a “low” value, less formal procedures can be used (such as the simplified procedure and, if special circumstances apply, direct procurement).11 Below this defined low value direct procurement is applicable. The definition of what constitutes a low value is determined by the public authority itself. The value that most Swedish public authorities apply is between one and seven base-amounts, that is, between 40,000 and almost 300,000 crowns. There are usually different values set for goods as opposed to services (Bergman 2008: 12-13). What happens if the rules and regulations governing public procurement are violated? What sanctions can be applied and how do they work? The existing system of regulation has encouraged actors to steer purchasing over to forms – e.g. framework 11 ”A services” include advertising, management of real estate properties, organisation consultants, air transport, land transport other than rail services, financial services, and telephone, computer and information-technology services. “B services” include legal services, healthcare, social services, education and training, and rail and water transportation services (Bergman 2008: 13). Under LOU, for 2008, threshold values were 1.2 million crowns for national authorities and 1.9 million crowns for other public authorities. For building contractors the threshold was 48 million crowns. The same threshold applies to building contractors under LUF, while the threshold for other goods and services is 3.8 million. 173 agreements or direct purchasing – in which the risk for appeals and judicial processes are lower. This creates less favourable conditions for openness and competition (Edwardsson and Moius 2009: 9-10). The Swedish Competition Authority has noted that a public purchasing authority that makes some relatively small error, despite its ambition to make procurement decisions in accordance with existing rules, can wind up in court. It might then be ordered to re-do the process and can be required to pay damages. At the same time, a public authority that ignores the rules completely probably does not run the risk of any sanction at all. To reduce the use of direct purchasing there are efforts underway to set an upper limit of five base-amounts, about 214,000 crowns, for all such transactions (Sjöblom 2009: 2, 5). As regards efforts to reduce the risks of improper procurement and the practice of taking into account irrelevant considerations, the need to increase the openness of the process, better external and internal supervision and more effective sanctions have been highlighted (Edwardsson and Moius 2009: 88). An example of this is the National Competition Authority’s proposal that national authorities be required to report suspected cases of provider cartels (Sjöblom 2009: 4). Today, the sanctions that can be applied in cases of flawed public procurement include appeals, payment of damages and requiring the advantaged party to use its resources to mitigate the errors. In addition, it has also been pointed out that existing law places a heavy burden on the knowledge and ability of disadvantaged providers to pursue irregularities in cases where flaws are not obvious. Moreover, providers might be reluctant to act, e.g. to appeal, if they fear that they thereby risk being excluded from future procurements (Molander 2008: 3; Konkurrensverket 2009). Nor are there any statutory sanctions that the National Competition Authority can use against public 174 authorities who chose to ignore the law governing public procurement (Sjöblom 2009: 2). For this reason the Competition Authority would like to have a mandate to pursue the claims of small and medium firms vis-à-vis public authorities responsible for procurement decisions. The Competition Authority has also called for the establishment of a “market damages” fine and the right to impose penalties in order to strengthen sanction possibilities (Konkurrensverket 2009). Molander (2008: 9) expresses doubts that market damage fines or penalties will be effective against municipalities who ignore court decisions. He argues that personal sanctions are probably the most effective instrument, in keeping with the Criminal Code’s provisions on professional misconduct. However, since public procurement is not defined as an exercise of public authority, the law would have to be changed so that the process of awarding a contract as part of the public procurement process would be defined as exercising public authority. To summarise this discussion, there are a number of problems associated with public procurement. Ambiguous rules lead to ambiguous norms as regards what is loyal and disloyal behaviour. The risk for punishment is small. In cases where mistakes are prosecuted there is little possibility to impose sanctions. The situation is also made worse when organisations openly ignore court decisions, thus signalling that they are unimportant and presumably lowering the moral cost of this form of corruption. Given this, our conclusion is that the growth of public procurement leads to a more favourable structure of temptation for corruption. Summary and concluding reflections To understand why individuals behave in unethical ways, we needed a point of departure. We have argued that it is not useful to explain corruption by referring to 175 those who engage in corruption as ethically flawed. Such an explanation is borderline tautological and therefore unsatisfactory. Instead, corruption researchers should learn from rationalist theory and focus on the structure of temptation that politicians and civil servants face: institutions determine whether individuals will benefit themselves and/or their relatives/friends to the detriment of the general public. We have maintained that the likelihood that an individual will behave corruptly increases if institutions: 1. Present individuals with many, rather than few, opportunities to obtain resources through corruption. 2. Make the payoff for corrupt behaviour large, rather than small. 3. Create a low, rather than high, degree of oversight/supervision 4. Establish relatively mild, rather than severe, punishment for corruption. 5. Have unclear, rather than clear, rules for what is illegal/impermissible When institutions have these characteristics, we argue that there is a favourable structure of temptation for corrupt behaviour. With this point of departure, we have examined the question of how public administration reforms carried out in the last 2030 years under the mantel of NPM reform have influenced the structure of temptation in Swedish local and regional governments. Our conclusion is that the risks for corruption indeed have increased in Swedish public administration. Note that even before considering the role of NPM reforms, it is possible to conclude that the activities carried out by municipalities and county councils are particularly vulnerable to risks for corruption. This is because these activities include potentially lucrative ones such as licensing and purchasing. Thus, the possibility to make a profit from corruption is relatively large. In addition, politicians and civil servants at the local level get considerably less attention than their national counterparts. 176 They are subject to less probing scrutiny from political opposition and the mass media. Thus, the likelihood of being caught engaging in corrupt behaviour is relatively low. Finally, the possibility to impose sanctions is not always very strong, even if corruption is uncovered. We have shown that NPM reforms have a direct effect on the individual’s opportunity to engage in corruption as well as on risks of discovery and punishment. However, this does not automatically mean that there will be more corruption in an organisation. This is because the outcome depends on how oversight, supervision, follow-up and evaluation practices are adapted in response to changes in organisational form. This means that organisational changes that lead to corruption in one case do not necessarily lead to it in others. If systems of oversight, supervision and evaluation are not adapted to new organisational forms, then there will be more opportunities for individuals to secure benefits over and above their salaries while, at the same time, the risk that such irregularities will be uncovered declines. Even so, a combination of actors’ internal ethnical codes and the organisation’s own “culture” – i.e. the codes that dominate the organisation – will also have an effect on corruption. The other effect we have highlighted is that one consequence of the reforms is that organisational forms that have traditionally been identified as vulnerable to corruption have become more important, particularly public procurement, at the municipal and regional level. What should be done to avoid the risks associated with NPM reforms? That is, what should be done to make the structure of temptation less favourable to corruption? Should public administration go back to operating as it did in the 1970s? Was everything better in the old days? No, naturally not. Corruption is only one, albeit important, factor that must be considered when discussing and evaluating issues of 177 democracy and effectiveness. What we want to say is that when public administration undergoes significant reorganisation, it is necessary to evaluate how risks for corruption and abuse of power, both of which are of fundamental importance for public sector legitimacy, will be affected. Without offering a pat solution to the question of how risks can be reduced, our hardly controversial conclusion is that comprehensive organisational changes must be accompanied by the adaption of the organisation’s system of oversight and control. This does not mean that actors should have no freedom of action, but it does mean that it is necessary to reflect carefully about the balance between a focus on efficiency, on the one hand, and control and accountability, on the other. In this chapter we have seen concrete examples of the high costs of paying too much attention to increased flexibility and efficiency. It is true that auditing, oversight and various systems of control are costly. On the other hand, as our examples have shown, efforts to save money in these areas can also be costly in the long run. If a system of control is to be capable of uncovering corruption, it must be adapted so that it is appropriate for the reformed public sector and capable of overseeing operations in new organisational forms. Our conclusion might seem obvious, but experience suggests that it cannot be repeated and emphasised too many times. Systems for control and accountability must be strengthened and must be adequate for the operations to which they are to be applied. In addition, organisations must clarify the rules and regulations that are to be followed. This is a matter of actively working to ensure that those within the organisation are familiar with existing standards and to make it an organisational “norm” to follow the rules – i.e. part of the culture of operations. At the same time, reacting to each and every 178 corruption scandal by increasing controls and reducing freedom of action will, over time, create an inefficient administration (see Anechiarico and Jacobs 1996). In addition, in the long run there is a risk that civil servants’ confidence in and support for the rules will decline, and they will seek ways to circumvent them. Thus, the goal must be an ongoing process to find the right balance. While this is not an easy task, it is nonetheless a necessary one.12 References Aidt, T.S. 2003. Economic Analysis of Corruption: A Survey. The Economic Journal, 113(491), 632-652. Andersson, S. 2008. Studying the Risk of Corruption in the Least-Corrupt Countries. Public Integrity, 10(3), 193-214. Andersson, S. and Bergman, T. 2009. Controlling Corruption in the Public Sector. Scandinavian Political Studies, 32(1), 45-70. Anechiarico, F. and Goldstock, R. 2007. Monitoring Integrity and Performance: An Assessment of the Independent Private Sector Inspector Generals. Public Integrity, 9(2), 117-132. Anechiarico, F. and Jacobs, J.B. 1996. The Pursuit of Absolute Integrity. Chicago: The University of Chicago Press. 12 Many thanks to Cynthia Kite for translating an earlier Swedish draft of this chapter into English and for checking the language. 179 Becker, G. 1968. Crime and Punishment: An Economic Approach. The Journal of Political Economy, 76(2), 169-217. Bergman, M. 2008. Offentlig upphandling och offentliga inköp. Stockholm: Konkurrensverket. Blekinge Läns Tidning. 2009. Han betalar kvarts miljon för konsult. [Online, 19 March]. Available at: http://Blt.se/nyheter/blekinge/han-betalar-kvarts-miljon-for- konsult(1218207).gm [accessed: 19 May]. Bovens, M. 2007. Public Accountability, in The Oxford Handbook of Public Policy, edited by E. Ferlie et al. Oxford: Oxford University Press, 182-208. Brå. 2007. Korruptionens struktur i Sverige. Stockholm: Brottsförebyggande rådet. Castillo, D. 2009. Statens förändrade gränser. Stockholm: Stockholms universitet, Sociologiska institutionen. Christensen, T. 2008. 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Fighting Corruption and Promoting Integrity in Public Procurement. Paris: Organisation for Economic Co-operation and Development. Paternoster, R. and Simpson, S. 1996. Sanction Threats and Appeals to Morality: Testing a Rational Choice Model of Corporate Crime. Law and Society Review, 30(3), 549-583. Peters, G.B. and Wright, V. 1999. Public Policy and Administration, Old and New, in A New Handbook of Political Science, edited by R.E. Goodin and H.D. Klingemann. Oxford: Oxford University Press, 628-664. Pollit, C. and Bouckaert, G. 2004. Public Management Reform: A Comparative Analysis. Oxford: Oxford University Press. Sandgren, C. 2009. Hög tid att partierna redovisar sina bidrag. [Online: Dagens Nyheter, 9 November]. Available at: http://www.dn.se/debatt/hog-tid-att-partiernaredovisar-sina-bidrag-1.990174 [accessed 13 July 2010]. Sjöblom, D. 2009. Speech by the director-general for Konkurrensverket at a conference in Växjö, 16 April 2009. [Online]. Available at: http://www.konkurrensverket.se/t/NewsPage____4850.aspx [accessed: 1 July 2010]. SOU. 2010. Mutbrott, SOU 2010:38. [Online]. Available http://www.regeringen.se/sb/d/108/a/147524 [accessed: 12 July 2010]. at: 183 Visma Infoline. 2009. Småföretagare tycker kommuner ska främja lokalt näringsliv. [Online]. Available at: http://www.mynewsdesk.com/se/pressroom/visma/pressrelease/view/smaafoeretag are-tycker-kommuner-ska-fraemja-lokalt-naeringsliv-310298 [accessed: 13 July 2010]. Vänersborgs Tingsrätt. 1998. Sentence in legal case B 207/96, 1998-06-05. Interviews Interview 1. Top elected official, Älvsborg County Council. Interview 2. Top civil servant, Älvsborg County Council. Interview 3. Top civil servant, Älvsborg County Council. Interview 4. Top elected official, Älvsborg County Council. Interview 5. Top civil servant, Älvsborg County Council. Interview 6. Civil servant, Älvsborg County Council. 184 185 Chapter 6 Integrity issues in the United Kingdom: An Emerging Debate David Hine / Gillian Peele Introduction The debate on ethics in British public life has many of the elements found in other advanced democracies: concern about conflict of interest, trading in influence, party finance, public procurement, and post-employment of office-holders. Nevertheless, while the British debate periodically touches on the adequacy of arrangements to deal with corruption in the sense defined by hard law, criminal corruption alone does not define the debate. This is the distinctive aspect of the UK’s contribution to the transnational debate on public ethics, and it is particularly appropriate to discuss it in a book about the social construction of corruption. The extent to which standards of public ethics are culturally or socially defined is central to much discussion of corruption. It helps us understand why some societies see certain forms of political behaviour – clientelism and patronage for example – as valid mechanisms of political linkage, while others see them as corruption. But there can also be value clashes within societies. Values may change over time, in the face of changing circumstances, and as this occurs the values of the political class and the values of the public can get out of line. This has certainly happened in the United Kingdom. In the last fifteen years, in response to a series of episodes of questionable behaviour, and in the face of mounting 186 concern by the media and the public, the authorities have made strenuous efforts to strengthen the machinery underpinning public integrity, but the process has not been straightforward or fully successful. As we shall see, in some ways it has fed public doubt rather than resolved it. Despite successive reform initiatives, public trust in elected representatives has seemed to diminish steadily. The climax, just ahead of the 2010 general election, was a wide-ranging controversy over parliamentary expenses. This episode, described later, highlighted the gulf between popular conceptions of probity in public life and the ethical standards which appeared to guide a significant part of the parliamentary elite (Winnett and Rayner 2010). The chapter deals with these matters in four main parts. In the first we discuss the conceptualisation of integrity issues and distinguish between the different kinds of ethical problems which face the British political system. Broadly this divides into formal corruption defined by criminal law, and secondly behaviour regarded as corrupt by some, and certainly as improper by many, but which would not usually attract a criminal sanction. It is the second area that has proved to be the most sensitive and difficult, not least through repeated instances of improper behaviour that have been controversial, but which cannot easily be punished, except by the political sanction of the ballot box: a sanction which, over time, has become increasingly ineffective. The key point we emphasise is that new circumstances have ignited controversies which had previously been fairly dormant in British politics. Changes to sources of political finance, to the composition and attitudes of the parliamentary class, to boundaries between the elected politician and the professional civil service, to the regulatory and hence the lobbying environment, and to the style of political competition between the 187 main parties have all contributed to this atmosphere of ethical ambiguity and uncertainty. In the second part we consider the UK’s main institutional response: the lynchpin of the modern integrity system, namely the Committee on Standards in Public Life (CSPL), and the broad range of innovations in principles, codes of behaviour and ethical oversight it has introduced. The CSPL was given the role of clarifying the normative framework for the different levels of British government and its work over the last fifteen years has directed a spotlight on the working practices of the many corners of the British state. In the third part we highlight the impact of its deliberations right across representative assemblies, the executive and civil service, and local government. A broad range of administrative and political practices has been reformed, though the continuing need for new investigations and new rules – particularly that relating to the recent expenses affair – shows how the evolution of the integrity system is a rolling process, apparently without a clear end-point in sight. The fourth part suggests some explanations for this. It recognises that rulecreation alone does not produce an adequate regulatory regime. The rules have to be proportionate, they have to be underpinned by appropriate and independent enforcement, and they must not have adverse side-effects. We examine the institutions performing these roles and the leadership available to develop and sustain supportive cultural values through education and training. In the final part we draw the threads together in an assessment of the positives and negatives of the UK’s peculiar ethics revolution of the last two decades. Conceptualising the Problems 188 Criminal corruption The UK does not appear to suffer from endemic or pathological levels of criminal corruption, but this may be the result of the curiosities of UK criminal law itself, because there is no organic statute defining it. The absence of a strong public-law tradition, and of a criminal code that defines corruption in generic form in relation to holders of public office, means that anti-corruption legislation is found in several different and rather outdated statutes, overlapping with various even older common-law offences (Law Commission 1998; Alldridge 2000). The statutes had originally been passed hastily in response to particular scandals in the late nineteenth and early twentieth centuries. They include the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916. They still form the basis of the UK’s corruption legislation. The 1998 Law Commission report recommended their replacement by a comprehensive new statute, little has yet altered other than the replacement recently of the common law offence of bribery by a new Bribery Act. MPs accused in 2010 of falsifying their claims for parliamentary allowances were in fact charged with an offence under the Theft Act 1968. When recently it was suggested that some donations to political parties had been made in exchange for peerages, the 1925 Honours (Prevention of Abuses) Act, only deployed once before, was invoked (though ultimately not used) as the possible source of infraction. The law is in need of reform, therefore. Its shortcomings probably did get in the way of prosecutions in cases of local-government corruption that surfaced from time to time. A major local government scandal – the Poulson Affair – in the 1970s resulted in a Royal Commission which recommended reform of corruption law (Royal 189 Commission on Standards of Conduct in Public Life 1976). Weaknesses in the law also facilitated corruption in some police forces, especially in London, though perhaps the real driver of this corruption was a lack of political will to tackle it (Reiner 1992). Moreover the executive’s discretion over prosecution was also used (ostensibly on security grounds) to stop the prosecution of British Aerospace officials under the AntiBribery Convention.1 All that having been acknowledged, it is striking that from the 1920s to the 1990s there was very little discussion of criminal corruption in British politics. The 1976 Commission looked at the broader question of how much corruption might exist and what should be done. It acknowledged the difficulty of quantification2, but concluded that probably the amount was modest. And this remained the dominant narrative about public ethics in the UK for many decades: that standards were, by international comparisons, very high and that such slim evidence as existed in crossnational rankings such the Transparency International Index supported this view. If then we are looking at prosecuted criminal corruption, and reactions to it, we see a country 1 Announcement of 14 Dec 2006 by the Attorney General in the House of Lords that the Serious Fraud Office would discontinue the investigation “on national security considerations”. See http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/61214-0014.htm. 2 The Report (Royal Commission 1976: 140-53) suggests that excluding attempts at bribery rejected by officials, in the years 1966-75, there were only 70 convictions for corruption under the various Prevention of Corruption statutes: nearly all trivial and local. Use of the Prevention of Corruption Acts remained rare thereafter. The Home Office reported 8 prosecutions and 7 convictions under the 1906 Act and 7 prosecutions and 3 convictions under the 1889 Act (in England and Wales) (Council of Europe, Group of States Against Corruption (GRECO) 2001: 3). An International Crime Victim Survey in 2000, reported in the same GRECO evaluation, based on 5500 UK respondents suggested a very low level of corruption according to the measure of solicited bribes: only 3 respondents said government officials (including police and customs) had sought a bribe. 190 that seems relatively free of the problem, and tends to get a fairly clean bill of health from outsiders such as Transparency, GRECO, or the OECD. Values, principles, and ethical complacency Complacency can breed contempt, however, and this was the trap that many political actors seem to have fallen into during the 1980s and 1990s, as circumstances changed in British public life. These changes occurred very broadly: • At the parliamentary level, the political class seemed to believe that the traditional self-policed parliamentary honour code was, even in the absence of a clear ban on paid advocacy, an adequate safeguard against legislative impropriety. It ignored mounting evidence that the age-old system of sponsorship of MPs by trade unions and other interest groups was creating opportunities for extremely questionable relationships between MPs and outside interests, particularly as multi-client lobbying firms were developing on the fringes of Westminster and Whitehall in an imitation of the world inside the Washington Beltway. • At party level, the comparatively low cost of political parties and election campaigning in the UK for some time diverted attention away from the fact that as traditional party-membership contributions diminished, parties were becoming ever more dependent on the contributions of high net-wealth donors. The UK had almost no regulation of party finance, other than a cap on spending in elections at constituency level by individual candidates. Increasingly it needed legislation to ensure, at the least, some transparency as a minimum tripwire against manipulation. 191 • At the administrative level, the new public management revolution of the Thatcher era had also changed, and blurred, the boundaries between public and private sectors, creating new and lucrative opportunities for individuals to shift from the former to the latter at great personal, and perfectly legitimate, benefit. • And finally, at the level of political communications, the style of partisan competition in UK politics altered in ways that made those in office increasingly determined to establish tighter control over the machinery of government, including the control of information and the tools of policy presentation. Competition grew to be less about fundamental programme differences and more about implementation capacity: targets and claimed achievements. In the battle to control the news agenda, the presentation of information, and public perceptions, communications became an ever more important resource, and was used in ways that became extremely controversial. “Spin” became one of the most derogatory words in the British political vocabulary. Very little that happened under these various headings constituted illegality, but a great deal of it was a source of controversy and public concern, and the most egregious cases were seriously weakening the dominant narrative of the essential decency and honesty of British public life. These issues burst on to the public agenda during the Major premiership from 1990-7. The story is by now very well known and need not be repeated here (Ridley and Doig 1995; CSPL 1995; Leigh and Vulliamy 1997; Gay and Leopold 2004). A divided and unpopular government that was in little position to respond effectively was destroyed by a series of revelations about the conduct of MPs, about who financed their election campaigns and who paid them retainers (albeit modest ones), in return for 192 favours (albeit also mostly rather minor ones), allegations of malfeasance in one high profile local authority (Westminster), and allegations about overseas donors financing the Conservative Party. The regulatory response The Major government’s reaction, born of weakness, was to have a profound effect on the future course of the debate on public ethics. John Major clearly hoped to head off the political damage by establishing a new but innocuous body – the CSPL – to investigate the growing ethical crisis. Far from ending debate, however, the CSPL’s establishment raised the profile of integrity issues and the Committee itself proved far more important than anyone had anticipated. Its survival long after the preliminary report it delivered in 1995 has the effect that further controversies could not be sidetracked because the Committee was there, developing a growing independence from government, to monitor the implementation of reform proposals and keep the debate going. Although it had no formal powers, and did not investigate particular cases, let alone judge them, or sanction miscreants, the CSPL quickly developed a capacity to work with other bodies, including parliamentary select committees, to build up pressure on government and to shape public opinion on integrity questions. Constitutionally the CSPL was an unusual arrangement found in no other advanced democracy. Despite a modest budget and a tiny administrative secretariat, the Committee established a central role in public discussion of ethical standards that governments could not ignore, even though they have been under no obligation to implement all the Committee’s recommendations. It has produced highly authoritative reports, albeit non-binding ones; and it can make recommendation about rules, laws, and practices. Its initial terms of reference were to clarify the basic understandings and 193 principles of the UK’s ethical machinery, focusing on issues generating public concern: the behaviour of MPs, ministers, senior civil servants, senior office-holders in other public bodies, and office-holders in local government. Its task was to identify inadequate procedures and unclear boundaries to acceptable behaviour. Its approach was profoundly principles-based: better and clearer articulation of ethical values across the public service and representative institutions. So its goal was to promote positive virtues rather than the prevention of vice. It certainly supported a reform of the outdated law on corruption, but criminal corruption was not its real concern. Instead, from its very first report in 1995, it laid out principles, and the seven so-called “principles of public life” – honesty, openness, integrity, objectivity, selflessness, accountability, and leadership – discussed below, formed the keystone of the Committee’s ethical discourse, constantly restated in its publications. That influential 1995 report had several consequences. Firstly, the supportive reception it received from both government and opposition legitimised the universality of the ethics agenda: all public bodies, it was implied, faced an ethics and propriety agenda, all should use the seven principles as guiding ethical principles, and all should introduce systems of guidance and training, with internal systems supported by independent scrutiny. Secondly, it mandated the Committee to begin its long march through UK institutions identifying how its general recommendations were to work. Already in its first report the Committee ranged very widely: conflicts of interest in Parliament, relationships between ministers and civil servants, and issues of individual propriety concerning both non-departmental public bodies, and National Health Service bodies. Thirdly, as we shall see, it set in train an enduring debate about what “independent scrutiny” was, how it related to self-regulation, and how adequate, and 194 from another perspective how appropriate, the structures put in place proved to be in practice. Permanent Ethical Audit: the Long March through British Public Life The CSPL’s first inquiry covered the most important topics of the Major years: the conduct of MPs, ministers and civil servants, the relationships between ministers and civil servants, and the appropriateness of appointments to many types of non-elective public bodies including the National Health Service, where there were serious concerns that partisanship and patronage were creeping in to the appointment process. The integrity issues in each area were distinct. Parliament. The CSPL was a response to the discovery that a number of MPs had been exploiting membership of the House of Commons to their own advantage by entering into relationships with lobbying companies. The initial concern was about MPs, though problems later emerged in the House of Lords too. Several factors contributed to the scandal: the declining relative pay of MPs, enhanced workloads, changes in the lobbying industry, and changes of attitude towards public service. Of particular importance was a lack of clarity about the rules governing MPs’ conduct – rules which had simply not kept pace with the political environment. A series of provisions protecting MPs’ independence and imposing certain integrity requirements on them had been in place since the seventeenth century. Resolutions of 1848 and 1947 reiterated that paid advocacy commitments binding MPs or limiting their independence were unacceptable, but these strictures in the late twentieth century did not (to MPs) always appear incompatible with giving advice to interest groups. Advice in return for payment, many of them supposed, did not necessarily limit an MPs independence. The distinction was a fine one, for as the CSPL 195 later argued “the impression can easily be gained, however unfair this may be in individual cases, that not only advice but also advocacy had been bought by the client.” The CSPL was left in little doubt that this impression that MPs’ services could be bought was “one of the most potent sources of public suspicion about the true motivation of Members of Parliament” (CSPL 1995). The CSPL did not itself believe that the majority of MPs viewed politics primarily as a way to make money. But it noted the scale of MPs’ financial relationships with outside bodies: according to the 1995 Register of Interests 389 of 566 eligible MPs – almost 70% – had such relationships which were directly the product of membership of the House. In the wake of the CSPL’s first report, the House of Commons instituted a new integrity regime, although the basic principle of self-regulation was maintained. There was a strengthened Register of Interests, a new disciplinary body in the House of Commons in the form of the Standards and Privileges Committee, a new Commissioner of Parliamentary Standards to investigate allegations against MPs and make recommendations to that Committee, and a Code of Conduct to make the rules plain. An explicit ban was introduced both on paid advice and on paid advocacy. This regime was one which the CSPL revisited on subsequent occasions and one which, as our later discussion of the expenses saga will show, was not altogether effective. In particular, in so far as the seven principles identified by the CSPL (which included honesty, openness, and ethical leadership) applied explicitly, the regime could be said to have been contumaciously ignored. Ministers and Civil Servants. As the first CSPL report noted, very high standards of conduct were rightly expected from ministers and civil servants. Although the committee suggested that the range of issues of public concern applying to these two 196 categories was fairly narrow, the Committee did identify some areas where change was needed. A code of conduct had recently been announced for civil servants; but the CSPL thought that more needed to be done to ensure that all civil servants were aware of the standards required in the public sector. A better system for investigating staff concerns about ministerial impropriety where this required the civil servant himself to act in possibly improper ways was also needed. The CSPL thought that the existing code for Ministers (Questions of Procedure for Ministers, later known as the Ministerial Code) should be drawn together into a clear set of principles. It also thought that, although ministerial misconduct was normally a matter for the Prime Minister, allegations of misconduct should be promptly investigated. It also wanted the rules governing the so-called “revolving door” for civil servants to be extended to ministers and special advisers (this is discussed later in this chapter). Appointments. Patronage for party benefit is a source of ethical concern in all democracies and in the UK over the late twentieth century a good deal of criticism had emerged about the scale of ministerial appointments to what are known as nondepartmental public bodies (where there were estimated to be some 9000 appointments available to ministers at their discretion). Many of these attracted salaries or at least expenses. One concern was clearly the use which Ministers made of the appointments to reward or promote party sympathizers. A second was the extent to which this use of the appointive power was compatible with appointment on merit. There was, as the CSPL put it, a widespread belief that appointments were not always appropriately merit-based. The Committee recommended that, although Ministers should continue to make appointments, the process should be overseen by an Independent Appointments 197 Commissioner who would audit it and encourage the development of best-practice rules. Beyond the First Report. The first report of the CSPL constituted a major agenda of reform. Over the following decade, the Committee gradually broadened attention to new areas of public life, and did so at least to some degree under its own initiative. It examined integrity at local government level, where there had always been a level of vulnerability to unethical conduct, delving into local spending bodies and then local government standards more generally. In 1998 its remit was extended to the controversial issue of party finance where it issued a major report that formed an important basis for the landmark Political Parties, Elections and Referendums Act, 2000. The Committee also developed the habit of auditing progress on its past recommendations. Its fourth report reviewed progress in appointment processes in public agencies, NHS Trusts and local spending bodies. In 2000, a report entitled “Reinforcing Standards” reviewed everything which had been achieved in the field of ethics and integrity in the past five years, while also identifying new issues on the expanding public-integrity agenda. One of these was the House of Lords – formerly an arena where an honour-code of unstated assumptions about peers’ integrity ruled supreme. Subsequently the CPSL revisited its earlier investigation of the lower chamber, questioning how far the code of conduct for MPs was effective, and how robust the new Commissioner for Parliamentary Standards was proving. It also turned its attention more deliberately towards the executive, and in particular, (much to the ire of the Blair government which had originally prided itself on its ethical standards) started to probe the integrity aspects of internal relationships inside the executive. It 198 main concern here arose from its perception of changing constitutional and political dynamics resulting from the increasing use of special advisers to ministers. It identified a number of concerns, especially that special advisers acquired executive powers similar to those of civil servants, but were under none of the same probity requirements to act according to public service values. In 2006, in one of its most controversial investigations, the CSPL reviewed the work of what was in many respects its own creation, the Electoral Commission. Here too, it found cause for serious concern. Initially hailed as a major innovation in protecting many aspects of electoral administration from party manipulation, the Electoral Commission had run into a series of operational troubles, and the CPSL argued vigorously in its report that the Commission’s mandate was too broad and its accountability too weak. Controversially, the CSPL saw a part of the blame for some spectacular party funding scandals (the socalled “loans for peerages” affair) as stemming from the Electoral Commission’s own weaknesses. This continuing energy did not make the Committee popular with those whom it monitored, and it appears that there was some thought given in government to abolishing the Committee altogether. Its combative chair, Sir Alistair Graham, was not reappointed in 2008, and his post was left vacant for some time, before being filled by a perhaps less controversial figure in the shape of Sir Christopher Kelly. But these episodes were in their way a testimony to the place that the Committee, through its own efforts, has come to fill at the heart of the UK’s integrity framework: troublesome and uncomfortable to the authorities, but sufficiently prestigious to be difficult if not impossible, to remove. 199 Parliamentary expenses. Although the CSPL was controversial and prestigious, its work remained of public interest only periodically. While it could claim there was public concern about integrity, and that issues were appearing on the public agenda with a frequency that had no parallel in the decades before the 1990s, none of its work, not even its response to the sleaze of the Major era, had the impact of the scandal that was unleashed on to the public in 2009 in the shape of the parliamentary-expenses scandal. This affair focused on the system for reimbursing MPs for the housing and travel costs they incurred as MPs. It had various aspects and touched not just on expenses but other matters including outside paid employment, and the employment in MPs’ staff offices of spouses and children – a practice which the public viewed far more negatively than did MPs, especially after revelations that at least one MP had been employing family members inappropriately (CSPL 2009). (The CSPL in its report on expenses had recommended a ban on the employment of family members by MPs but the newly established IPSA took a different view and reduced the number of family members who could be employed at any time by an MP to one. See CSPL 2010.) Crucial to the emergence of the scandal was the complex system of allowances introduced incrementally in an effort to compensate parliamentarians for the additional costs incurred for housing, travel and office maintenance, including staffing and communications. In 1971 the Additional Costs Allowance (ACA) was introduced to cover the reasonable additional cost to MPs living outside London of staying either in London or their constituency when engaged on parliamentary duties. Sensitivity to public sector salaries meant that the Conservative governments of 1979-1997 preferred to boost MPs’ remuneration by adding to allowances rather than to salary directly. As a result MPs came to see the allowances as entitlements rather than payments which 200 needed scrupulous justification. Moreover, the form the allowances took encouraged exploitation. MPs were advised in 1985 that there was no reason why mortgage interest should not be charged against the ACA. This permission, together with the enhanced size of the ACA which had been increased regularly over the period from 1971 (sometimes on the recommendation of the so-called Senior Salaries Review Body, sometimes – as in 2001 – by backbench amendment), became a major factor in bringing the system into disrepute, especially since it enabled MPs to profit from the burgeoning property market. Other factors added to the potential for abuse. The administration of the allowances system was the responsibility of the Fees Office, a department of the House of Commons, and hence dependent directly on MPs themselves, who became their own paymasters. Although some MPs later sought to blame the Fees Office for inaccurate or misleading advice, the Fees Office was clearly caught in an awkward position. In retrospect it adopted far too lax an approach to the authorisation process; but the administrative staffs were in a weak position to resist MPs’ claims. The consequence was the systematic use of the expenses system to maximise personal gain. This was especially marked by the manipulation of the second homes allowances and the socalled ‘flipping’ of properties nominated as the main home to avoid capital gains tax, a practice sometimes repeated in serial fashion across a succession of alleged “main homes”. In some cases, what emerged were claims for food and/or household expenses, which revealed errors of judgment or proportion, or that seemed to be inappropriate uses of public money. Yet most such claims were squarely within the rules – a matter which most members of the public found utterly unacceptable. 201 The release of information did however show very varying attitudes across the House of Commons. Numerous MPs had not exploited the system in any way and expressed deep anger at the political fallout from the revelations. However, at the other end of the spectrum there were a few cases in which the abuse suggested fraud. Three MPs (Jim Devine, Elliott Morley and David Chaytor, and a fourth, Eric Illsey MP, after the 2010 election) were charged with theft although at the time of writing the outcome of that prosecution was not known. They sparked further controversy by their attempt to use parliamentary privilege to protect themselves from prosecution. Interestingly, had it not been for freedom of information reforms, the systematic, if relatively petty, abuse would never have come to light. Many of the claims would probably never have been submitted had MPs known that they would become public knowledge. However, the undignified and ultimately unsuccessful battle fought by the House of Commons to resist freedom of information requests in the end only exaggerated the sense of public outrage when all was revealed. The degree of public anger was intense, fuelled further by the general sense of economic insecurity. During the main revelations about expenses abuses in the four months April to July 2009, there was a rising tide of protest. A June BES/You Gov poll found that an astonishing 95% of respondents had heard of the expenses scandal and 91% of respondents said it made them “very angry”. A solid majority of 59% agreed with the statement that the scandal proved most MPs were corrupt and 82% of respondents said they thought MPs who had abused the system of expenses should resign immediately. Beyond Rule Construction The Committee on Standards played an important role in the endgame of the expenses affair. It was entrusted with the task of constructing a new expenses regime, and its 202 recommendations were a major, though not exclusive, part of the new arrangements. That it was turned to, almost automatically, in a crisis to help define standards where they were inadequately defined showed how solidly the Committee has entrenched itself in public life. Nevertheless, the approach adopted by the Committee requires close and critical analysis, for it generated in the UK a style of ethical regulation that has left a series of clear legacies, not all of them unequivocally positive, and it is to these matters that we now turn. As we have seen, one of the most marked aspects of the Committee’s approach has been the attention given to clarifying the general principles governing different parts of public life. The foundation was the seven principles incorporated in most of the more detailed codes of conduct governing particular roles: the Code of Conduct for Members of Parliament, the Civil Service Code, the Ministerial Code, and the Model Code of Conduct for elected officials in local government3. The seven principles are however only general principles, set at a high level of abstraction. Codes of conduct require detail and specificity to be enforceable. They also depend on the support of robust institutions and well conceived programmes of education and socialisation to reproduce strong value systems inside institutions. And they require commitment from those in leadership positions in parties, parliament, public administration, and local government. 3 Links to the first three of these codes are found on the Ethics and Propriety section of the Cabinet Office website: http://www.cabinetoffice.gov.uk/propriety_and_ethics.aspx. The Code of Conduct for Members of the House of Commons is listed in the references section of this chapter. The latest (2007) version of the Model Code of Conduct is found in: Statutory Instruments, 2007 No. 1159, Local government, England and Wales, The Local Authorities (Model Code of Conduct) Order 2007. 203 Exactly how this is to be achieved, however, has never been entirely clear or consistent across the areas of public life involved, and herein lie three basic difficulties for the British system. • The first is ambiguity over whether agencies established to promote and enforce behaviour deriving from codes of conduct should be fully independent of the institutions within which such behaviour is being enforced. Should they, in other words, be self-regulating bodies internal to the institutions, subject simply to independent scrutiny or accountability, (for example, through regular reporting to Parliament) or should they be fully independent regulators with their own powers to punish and dismiss officeholders? • The second difficulty is moral hazard. To the extent that internally enforced value-systems are replaced by enforceable rules, is there a risk that individuals and whole institutions outsource their moral judgements to those institutions of ethical enforcement. Office-holders in such circumstances may cease to ask what is right and ask only what is legally permitted. • The third difficulty again arises from the development of more detailed rules. More detail can often create more controversy over culpability and sanction, and the appearance not only of more improper behaviour but also of tolerance for such behaviour on the part of senior office-holders. We assess each of these three difficulties in turn. Independent regulation. Should all agencies regulating ethics be independent of the areas of government they are regulating? There are certainly good reasons why not all aspects of the public service should be subject to exactly the same form of 204 regulation, and in particular the same degree of independent regulation. The contrast between elected politicians and permanent civil servants is an obvious case. Politicians are subject to the rough and tumble of electoral accountability. Historically, they have been subject to efforts at persecution, as the executive has sought to silence dissent or opposition. So there is a good reason for protecting elected politicians through various types of privilege or immunity, even though it can be abused. The need for political accountability through the ballot box is why legislative self-regulation on matters of ethics and integrity is still the norm in most democracies, except in clear cases of corruption (and even then some legislatures must still lift a ban of immunity). Civil servants, in contrast, have historically developed as a permanent cadre of career office-holders. They are subject in their work to much more precise rules of behaviour, with tenure depending on managerial authority and a contractual relationship. So integrity is defined and enforced through a managerial structure, and has more precise and objective criteria of judgement than could possibly apply to elected officials. In the UK in recent decades, this has been more and more explicitly set out in detailed employment contracts incorporating the Civil Service Management Code and, within this, the ethical requirements expected of civil servants.4 4 Today, they include: avoiding real and apparent conflicts of interest between public duty and private interest, (share- dealing, contracting, and purchasing from government departments), never using office-holding to further private interest, avoiding private personal activities (gambling, speculation) that bring discredit on the service, not taking positions on matters of public and political controversy, observing strict procedures concerning gifts and hospitality, not disclosing official information or using it for private gain, full disclosure of outside activities (Civil Service Management Code 2009, Chap. 4. The Code has not been issued in hard copy since 2000. The most recent version was issued in January 2009. Accessed 4 May 2010 at: http://www.civilservice.gov.uk/about/resources/csmc/CSMCIntro.aspx). 205 However, that is not quite the end of the matter. Most civil services, and certainly the British one, are rooted in a normative perspective about public service, generally known as the public-service ethos. It tends to stress the positive as well as the proscriptive: that public servants actively accept society’s civic principles – the rule of law, transparency and accountability, impartiality, consistency, commitment, efficiency – and have a special responsibility, through their permanence in office, to enact and defend them. Some of these higher-level principles were incorporated in abbreviated form into a new Civil Service Code, first enunciated in 1996, emphasising integrity, impartiality, objectivity and honesty. Later editions of the Code attached short descriptors to these one-word virtues, and indeed this new Code is now incorporated fully into the Management Code as part of the contractual conditions of service.5 But whether the Code’s principles add anything that could be used for disciplinary or judicial purposes is very doubtful. Indeed, this aspect of the integrity regime for civil servants seems to show that emphasis on the positive rather than the proscriptive increases the difficulty of establishing objective criteria by which to judge behaviour. Two of the most obvious instances of this are the rules governing political impartiality and objectivity on the part of civil servants, and the rules governing post-employment for civil servants. On the former, in the UK it has been very difficult to establish precisely what rules of conduct should apply to temporary – politically-appointed - civil servants, particularly as regards the principles of objectivity and impartiality (CSPL 2003: 43-54). On the latter, where a semi-formal board of independent scrutiny – the Advisory Committee on Business Appointments or ACOBA – has long existed to vet the private-sector appointments civil servants who wish to take up on leaving the 5 http://www.civilservice.gov.uk/about/values/cscode/index.aspx (accessed 4 May 2010). 206 service, there continues to be a steady traffic from public to the private sector which is difficult to prevent (Cabinet Office 2004: 14-15). The result is at the least the appearance of real and serious conflicts of interest, but because the conflict of interest is hard to detect in particular cases, there is a continuing flow of such problems. A further area where independent regulation has proved hard to establish – in fact a sub-category of the “elected representative” problem we have just discussed – is that of government ministers. Here too, the UK has moved in recent years in the direction of something looking superficially like a regime of formal and independent integrity enforcement, in the shape of the Ministerial Code, but here too, the reality is anything but independence, despite efforts in Parliament to make the Code “enforceable by Parliament” (Public Administration Select Committee 2006). The ethical constraints on government ministers come from a variety of sources including the code of conduct applying to MPs, the fact that they work with permanent civil servants who are under a professional injunction to uphold lawfulness in government, accountability to the legislature, and the need, sustained also by the Freedom of Information Act, to be transparent in their operation. A further element of this armoury is the so-called Ministerial Code, which imposes a number of obligations on Ministers in how they resolve potential conflicts of interests. However, a significant conflict that is more difficult to deal with is one which arises after a minister leaves office, which his or her knowledge and experience of government policy and the contacts it leaves them with, give them a market value to business as advisers, consultants and even lobbyists. As with senior civil servants, the Advisory Committee on Business Appointments long played a role in considering the appropriateness of roles ministers sought to take up in the private sector on leaving office. 207 The problem with both the Ministerial Code and the ACOBA system was its status. The ultimate judge of whether the Ministerial Code has been broken is the Prime Minister of the day. In the case of all but the most egregious cases of impropriety, the Prime Minister, whose only sanction is dismissal from the government, has a strong incentive not to dismiss the minister, since this would be a tacit acknowledgement of the failings of a key colleague, and hence of his own judgement. The fact that Prime Ministers sought the advice of their Cabinet Secretaries on whether their Ministers had broken the Code was generally dismissed as itself containing an implicit conflict, since the Cabinet Secretary has to work closely with the Prime Minister, and is unlikely to want to issue clear findings which will make life for his Prime Minister difficult. The ACOBA system too is essentially no more than advisory, since there is no real sanction against the Minister not seeking advice, or following if he does not like it, other than reputational damage. Despite publication as a formal Code in 1997, the exact status of its ethical requirements has been controversial. Following a number of awkward cases under Tony Blair’s leadership, the government finally yielded to demands from Parliament for the appointment of a special adviser on ministerial interests, distinct from the Cabinet Secretary, which would investigate when claims of ministerial violation arose. Gordon Brown’s 1997 revision of the Code also involved a change to emphasise that Ministers were required to seek ACOBA’s advice about appointments on leaving office, and to follow it (Cabinet Office 2007)6. Since that date there have been no seriously controversial cases, but critics, especially in the House of Commons Public Administration Select Committee, and the CSPL have continued to 6 Note this is a web-based publication. The 2007 version was subsequently replaced by a 2010, but the wording on the relevant point remained unchanged. 208 press for the special adviser on ministerial interests to be accountable to Parliament, and for ACOBA’s decisions to be enforceable. Even regimes of ethical regulation that do involve very clear features of independent arbitration have not proved problematic. The integrity rules for elected representatives in local government are a good example. Local government is a key area of public procurement and contracting, a major public employer, and takes decisions on development and planning. Decision-taking here does not always attract the same transparency and scrutiny as at national level. Beyond laws dealing with bribery and corruption, the UK has, since the 1974, operated a code of conduct for elected councillors.7 However, until 2000, unless the criminal law was broken or public money spent recklessly or improperly, the only sanction against violations of the code – especially where unresolved conflicts of interest were concerned – lay at local level through suspension from council membership by the peers of the transgressors themselves. In a similar way to the difficulties with prime-ministerial adjudication of the Ministerial Code, the source of ethical judgement was often likely to be far from non-partisan (Doig and Skelcher 2001: 87-101; CSPL 1997: 17a). In the Local Government Act of 2000, therefore, Tony Blair’s government introduced a major change, both to the content and enforcement of the code of conduct. The code was strengthened to define conflict of interest much more precisely, and a national system of enforcement was established, with two agencies, the Standards Board and the Adjudication Panel, to investigate breaches of the code and impose penalties. They were given power to suspend councillors for up to five years for the most egregious violations, such as failure to register interests or to abstain from participation 7 The 1989 version of the National Code is reproduced as appendix I in CSPL 1997: 84-88. 209 in decisions where prejudicial interests were involved. The new framework was set out in Part III of the Local Government Act 2000, and subsequent Statutory Instruments.8 The system proved to be cumbersome and expensive, however, and under the pressure of a huge flow of complaints about breaches of the new code9 was quite quickly modified so that all but the most serious cases were, as previously, dealt with at local level, albeit by new ethics committees headed by independent chairmen not themselves part of the elected council. Under the Local Government and Public Involvement in Health Act 2007, the Standards Board retained a supervisory and monitoring role, and the conflict-of-interest provision itself was retained, so local-determination was not a complete return to the loose self-regulation of the past. But the difficulties showed that, as with reform of the Ministerial Code, there were no simple answers to the complex issues involving conduct which was unacceptable and generally regarded as inappropriate, though not strictly against the criminal law itself. (House of Commons, 2006) A similar difficulty involved legislation governing party finance. Historically, the UK has a rather relaxed system of regulation for party finance, and in fact a set of parties whose operational costs were, compared to most democracies, quite modest. This has changed greatly in the last three decades. Costs have risen, old sources of finance, corporate, trade-union and individual, have diminished, and parties have 8 Statutory Instrument 2001, No. 3537, The Local Authorities (Model Code of Conduct) (England) Order 2001; Statutory Instrument 2001, No. 1401, The Relevant Authorities (General Principles) Order ; Statutory Instrument 2003, No. 1483, The Local Authorities (Code of Conduct) (Local Determination) Regulations 2003; Statutory Instrument 2004, No. 2617, The Local Authorities (Code of Conduct) (Local Determination) (Amendment) Regulations 2004; 2001. 9 In the years from 2002-8 some 21,000 complaints were filed (Standards Board 2008). 210 become much more reliant on wealthy individuals, some of whom domiciled abroad. The Political Parties, Referendums, and Elections Act 2000 introduced a new and farreaching system for registering party finance, making it more transparent, and introducing limits on national party spending during elections that complemented longstanding and quite effective caps on spending by individual candidates. The intention was simple and clear, and in the shape of the new Electoral Commission involved a system of independent enforcement. In practice, however, the system proved challenging to operate satisfactorily. The Electoral Commission’s mission proved too diverse for the resources available. Its role also lacked adequate clarity and political and institutional backup. Party finance involves many donations, the sources of those donations will sometimes be ambiguous and obscure, as will their precise form (the most controversial proved to be the matter of whether loans – which were exempted from the declarations regime – were really disguised gifts when made at noncommercial rates). The Commission found itself being criticised from several different directions. As a whistle-blower, it proved to be little noticed and to lack political support at the level of executive and parliament (where even the Commission’s creator, the Labour Party, was circumspect about the powers it had given the Commission). As an enforcer, it was slow and cumbersome. After an election, events tended to move on quite quickly, and reprimands by the Commission for late or inaccurate information on party income was not going to change much. So while it was unquestionably the most independent integrity regime among the various changes to ethics and integrity introduced by the Labour governments of 1997-2010, even the system of party finance control showed serious weaknesses. 211 Ultimately, the problem that has arisen as the UK has attempted to move from self-regulation to independent regulation of public-service ethics is linked to the UK’s peculiar constitutional framework. The UK has moved – without a written constitution or any experience of one – from a political system based on strong executive government with counter-powers based only in the rule of law and a robust parliament and media, to one of multiple checks and balances and complex institutional adversarialism. Within that framework checks and balances on ethics is a part, albeit a smaller part than, for example the introduction of devolved government or the Human Rights Act. In any case, for most matters, including responsibility for ethics and propriety the central executive continues to be seen by citizens as having ultimate responsibility. The executive therefore remains unwilling to pass over full responsibility to independent counter-powers. Clear cut forms of regulatory accountability ought in principle to involve separated and mutually independent institutions, but given what is at stake in the ethical arena – careers and reputations in particular – some form of final arbitration lying beyond the independent agency of judgement is quite likely to be sought by participants. This has happened extensively in the area of public ethics. Because the system of public and constitutional law is relatively weak, the UK has had to work its way slowly towards a new and more complex and bargained equilibrium. That equilibrium was unlikely ever to be stable and certainly not in its early years. The weight of majoritarianism remains a heavy one, imposing pressures that make effective operation of new institutions quite difficult, sustaining an enduring argument over exactly how much independent regulation there should be, and how vigorously it should be enforced. For the most part then, at central government level, the authorities have been unwilling 212 to give way completely, and the result has been a battle over arbitration of the Ministerial, Parliamentary, and Civil Service Codes. Government and Parliament have wanted to keep final decisions to themselves, while reformers have wanted more independent regulation without final appeal to a potentially partisan source. Without a consensus on how far public ethics in the UK should move from self-regulation, or light-touch regulation, to a rule-based, sanctions-driven system of separated institutions, the arguments over ethical regulation have remained, periodically set alight by episodes that suggest to one side or the other that what has been done is inadequate, or has been taken too far. This is summarised in Figure 1. What is striking is that despite the complex architecture which has been put in place since the mid-1990s, in most areas there is a final tier of authority where the judgement is a potentially a partisan one. It may not in practice prove to be a partisan judgement, but the potential for it to be seen as such is inherent in the way the institutions relate to one another. INSERT Figure 6.1 HERE Moral hazard. A second difficulty in introducing tighter and more detailed ethical regulation is that it introduces a degree of perverse moral hazard. This is a recurring dilemma in ethics policy. It is clear that a system without rules and sanctions would be an inadequate one. Yet a system that depends entirely on rules and sanctions, and not at all on the socialisation of office-holders into strong values that enable public life to police itself, would be equally inadequate. Few students of comparative ethics discount the fundamental importance of national value-systems, and the procedures by which they are reproduced across societies, even if such values, and the processes by which they are passed on, are difficult to measure. To rely entirely on the repressive apparatus of detection and punishment seems likely to generate societies which pay 213 punctilious lip-service to law and law enforcement, yet experience chronically high levels of systemic corruption. We cannot prove with any certainty that internally-enforced value-systems in the UK have in any particular area been replaced by the formalism of enforceable rules. Nevertheless, the risk of this type of ethical outsourcing may be similar to that which is alleged to affect businesses which, for example, outsource to consultants and legal advisers advice on compliance in areas such as corporate social responsibility, ethical product-sourcing, equal-opportunity provision, or compliance with anti-corruption treaties. The risk is of a degeneration into formal compliance, underpinned not by any particular self-policed value-system, but rather by a legally-driven compliance mentality. The potential for this is apparent in a number of areas of UK public life. A striking case is the attitude taken by the CSPL in its inquiry into the operation of the Electoral Commission. The Committee proposed that the Commission should take what it called a “risk-based approach to regulation” in examining of the veracity of the returns made by political parties in reporting financial income. In particular, the Committee recommended that the Commission should take a more sceptical approach to the willingness of parties to comply with the spirit, as well as the letter of the law (in the case in point, this concerned the extent to which a donation to a party was a commercial loan or a disguised gift). The Commission’s response was that its rules were clear and that at a certain point it had to assume that political actors, faced with such rules, would internalise the values they implied. But by far the most startling example of this difficulty came with parliamentary expenses scandal discussed in the previous section of this chapter. One of the most striking features of this affair was repeated claims by 214 MPs – when confronted with the excessive and inappropriate claims they had made – that their claims had been “within the rules”. The problem was that the rules on expenses, and their implementation by the House of Commons authorities, had evolved in ways that turned out, when public scrutiny was finally turned on them, to be utterly inappropriate rules, allowing claims for housing and travel that applied in no other area of public life, and that most ordinary voters found profoundly shocking. That there could be no sanction against such rapacious claims because they were within the rules was even more alarmingly. The rules on expenses, particularly those concerning mortgages for second-homes, have evolved in detail over the last quarter of a century. It is impossible to show, of course, that an earlier generation of MPs, given similar opportunities by formal rules, would have acted in the same way. It is possible that MPs have become more avaricious about their pay and expenses for reasons other than the existence of the rules themselves. But it looks quite likely that generous rules helped the UK’s MPs towards a collective moral blind spot that had far-reaching consequences for trust in politics, and originated ultimately, from the moral hazard of abdicating personal judgement for excessively permissive rules. Rules that undermine trust? The possibility that clearer and more detailed ethics rules have a perverse effect on public trust in politics and politicians is widely recognised in the academic literature on public integrity, especially in the US context where ethics laws have a much longer tradition than in Europe, and where some have argued that experience shows that tighter formal rules go hand in hand with declining trust in institutions and office-holders. Trust has certainly declined in the US. Some argue that the causes of this decline lie to a large degree outside the realm of ethics and propriety, and that trust in institutions and office-holders might have declined a good 215 deal further without tighter, more formalised procedures governing ethics and propriety. Others, however, have argued that the increase in regulation and formal compliance itself has actually contributed to a declining belief in office-holder integrity (Orren 1997; MacKenzie and Hafken 2002; Anechiarico and Jacobs 1996). The argument has two variants: one is that more resources devoted to detection leads to higher levels of successful prosecution; the other that tighter rules mean more investigation and more possibilities of accidental or marginal transgression. In both cases, it is possible to imagine that without any increase in improper behaviour, if a society increases its efforts to publicise and deter improper behaviour – whether through hard law, conflict of interest rules, or simply codes of conduct – it may increase perceptions of ethical failure, and therefore undermine trust (Witt 1992; Kerns and Sampson 2003). This seems more likely to be the case where the rules themselves are controversial. This in turn may be because the rules do not work properly, or because they are cumbersome and require a good deal of vigilance on the part of office-holders – as is the case with declarations of interest, and with the reporting of party funding. More detailed rules have inevitably created more controversy over culpability and sanction, and in this sense have created not only the appearance of more improper behaviour in absolute terms, but also the appearance of tolerance for such behaviour on the part of senior office-holders. This tolerance arises not just because the forms of investigation and sanction seem less than fully independent, but also because the rules themselves and their objectives are unclear, and the resources available to secure these objectives are inadequate. The Standards Board, the Electoral Commission, and the office of the Commissioner for Parliamentary Standards (especially during the controversial tenure of Elizabeth Filkins) all expressed concern over the adequacy of their resources and the 216 complexity of their mission. Certainly, new agencies take time to bed down, and effective organizational culture depends on recruitment, retention, leadership, management, priority-setting, and coordination with agencies with overlapping functions. In their early life, especially, new institutions will frequently be vulnerable. In the UK, these difficulties have been compounded by ongoing tension between bodies charged with various types of institutional oversight, and the ethical regulators themselves. Earlier we noted that the CSPL was able to work effectively in coalition with parliamentary select committees, especially the House of Commons Public Administration Select Committee (PASC). In recent years, however, as each has awarded itself a wide brief to report on various aspects of ethics and integrity, they have each at times become critical of other ethics watchdogs. As we saw the CPSL was especially critical of the effectiveness of the Electoral Commission in its 11th Report in 2007, and in 2008 the PASC produced a broad survey of the entire field of integrity regulators, calling for a major overhaul. Since it is rarely in the institutional interest of such oversight bodies to find that everything is in order, both have tended to find a good deal of fault, both with procedural arrangements, and underlying standards of integrity. In short there has been a degree of what looks like competitive outbidding in the race to appear the most resolute defender of ethical standards. In such circumstances, it is hardly surprising that ethics and integrity in one way or another is rarely out of the headlines. Not only are there more rules to be followed and to be broken, but there is continuing controversy about the rule-enforcers. However high-minded the intentions are of those who raise such questions so regularly, to have an ongoing argument about the adequacy of the UK’s integrity safeguards, seems to raise the profile of debate about ethics in a perverse way. The repeated inquiries and 217 reports and recommendations that result, and the complex blame game that accompanies this, may be generating a widespread belief that standards are eroding when they are not necessarily doing so at all. Conclusion We have suggested that the United Kingdom’s position in relation to integrity issues is by no means as straightforward as is sometimes assumed. Although the British state is not one which is subject to widespread or systemic corruption, it is one which has pockets of vulnerability to unethical conduct. The last twenty years have thrown up a series of ethical controversies prompting a sustained and wide-ranging debate about how best to handle integrity issues and a substantial amount of reform in the process of regulating standards across the country’s public life. We have detailed some of that debate in our earlier sections. Here we attempt to evaluate and interpret what has happened. We do this under three heads. First we ask whether there is any explanation of why these issues should have become so dominant in recent years. Then we turn to the relationship with public opinion and its attention to such themes. In particular we try to establish how the general public distinguishes between acceptable and unacceptable behaviour in public life. Thirdly we evaluate how successful the attempts to create new normative frameworks for British public life have been both in terms of its operation and in terms of its effect on public trust. Why have integrity issues become so significant? One theory about why integrity issues have become so important in British public life in recent years relates to the change in the character of elites in British politics. Rather than going into politics to perform a public service it is suggested politics now attracts 218 careerists and self-promoters. Of course the professionalization of politics has received a lot of attention from various sources (Riddell 1993) but actually nailing how those change relate to probity is more complex. Certainly for some commentators the change is linked to partisanship. Sir Archie Hamilton in evidence to the CSPL noted that the dispassionate adjudication of standards cases was more difficult in the House of Commons because of the disappearance of what he called MPs who were “above the fray” (CSPL 2000: Vol. 2, § 91). A second and linked explanation for the growth of integrity concerns relates to the dilution of the private - public sector divide. With the rise of a more free-market philosophy – epitomised by Thatcherism – in the 1980’s it is suggested that the culture of central government and British elites was subtly changed. On this account some of the distinctive traditional features of the British public sector were lost and a higher value was placed on private sector culture. Many ideals of process which had been celebrated were deemphasised in the quest for successful outcomes. The institutional ethos of the private company and the entrepreneur were lauded above those of the public official. The shift to free-market values in the 1980’s did produce a number of important institutional changes – especially in the civil service where the New Public Management generated demands for more competition in recruitment and a radical alteration of style and ethos. Outside the civil service local government experienced massive transformations with the advent of contracting out and the replacement of direct delivery of services by councils to the new role of enabling authority. A third factor explaining the rise of integrity issues was that the period after 1997 saw little alternation between the parties in government. 1979-1997 saw the 219 Conservative Party enjoying a long period of power which brought with it an inevitable complacency. Then Labour’s three victories of 1997, 2001 and 2005 put it in a similar position of dominance. As Clive Soley put it to a CSPL Inquiry “Any party – be it Tory Labour or anything else – that is in power for some considerable period is in danger of slipping below the standards we would like to see” (CSPL 2000: Vol. 2, § 130). Media attention has of course also been a factor in making integrity issues more salient. Of course, as reports from the CSPL have frequently emphasised media interest is not the main cause of the either the concern with these issues or any subsequent failure of efforts to deal with them. But clearly the way the media handles integrity issues determines how the public perceives them. In the two cases which in a sense book-ended the most recent concern with corruption and sleaze – the cash for questions affair and the expenses scandal – newspapers such as the Guardian, Sunday Times and Daily Telegraph were active players in the way the dramas unfolded. The role of the media ties into one final point. Policies and institutional innovations designed to promote greater transparency (such as freedom of information reforms) may have the unintended consequence of adding to public distrust of politicians. As one analysis recently commented “Transparency and access to information can provide a restraint against abuse but it does not provide a mechanism for the building of trust in and of itself” (Fox 2010). What has been the role of public opinion in all of this? If we ask how public opinion in the United Kingdom interprets integrity issues, we are immediately presented with a series of problems. The first is that in many ways our understanding of public opinion is inevitably fragmentary. Some research was done for the first CSPL inquiry and polls tracked aspects of the sleaze issue through the 1997 220 election. But until the eruption of the recent expenses scandal, evidence about public opinion on integrity issues was difficult to find not least because few polls had been commissioned. However the CSPL itself has conducted surveys since 2002 and these provide an invaluable source in attempting to understand how the public evaluates wrong-doing in public life and how its opinions are shaped. While the material is complex the evidence suggests a marked fluidity in the public’s appraisal of integrity issues in public life. Thus while it is true that over the period in which the surveys were conducted (2002-2008) the values of honesty prudence and selflessness have remained primary concerns, by 2008 there was evidence that people were attaching increasing importance to explaining the reasons for decisions and actions and to being in touch with the public’s priorities. In terms of the behaviour considered extremely important among public office holders, the top three criteria were not taking bribes, telling the truth and making sure that public money was used wisely. The 2008 CSPL survey went on to look at how the behaviour of ministers in the UK government was evaluated in terms of their integrity. Broadly speaking, as the Report noted, the results presented ministers in an “unflattering“ light (CSPL 2008: 31): While only a minority of people think that ministers are overtly corrupt, as many as 21 per cent do think that at least half of ministers take bribes. This could be seen as disappointing particularly when added to the 20 per cent who say that they do not know whether or not ministers take bribes. On each of the other dimensions the Report noted, less than half of respondents felt that most or all ministers exhibited the positive behaviours associated with the seven principles of public life. As in previous surveys ministers performed particularly badly on owning up to making mistakes (only 10 per cent felt that all or most ministers did this) and relatively poorly on being in touch with what the public think is important, 221 telling the truth, explaining their reasons for actions and decisions, and making sure that public money is used wisely. This research when coupled with a series of other polls taken in the wake of the expenses scandals surely at the very least suggests that the predominant narrative about confidence in the probity of the central pillars of the British state has been eroded in recent years. The last two years , as a recent pamphlet has underlined , saw the British public’s trust in Parliament decline to just 17% a decline of 13% on the previous year. This figure (drawn from a Eurobarometer survey of 2009) found that despite the traditional complacency about British institutions, the recorded degree of trust in parliament was 15% lower than the average level of trust in national parliaments across the EU (Fox 2010). Taken together with long-established doubts about standards in local government, party funding and the police as well as about party funding and more recent doubts about the British prosecution procedure and electoral fraud we have an altogether more ambiguous picture of British public life than traditionally presented. Even if this picture is not darkened with systemic corruption it is spattered with behaviour which the public finds unacceptable. How do we evaluate the success or otherwise of the reforms? As we have shown the CSPL has accomplished a significant amount of reform of the British ethics infrastructure. Nevertheless doubts remain about the effectiveness of some of this work. In part, the doubts spring from the inherent difficulty of the subject matter. Devising rules and codes often seems like trying to find a cure for the last epidemic. The CSPL was thus easily overtaken by events. Public concern and political priorities were often subject to rapid change as the expenses scandal showed. In addition there are doubts about the stability of the institutional machinery and its fitness for purpose. 222 Sometimes the concern reflects doubts about independence and longevity. Even the CSPL itself is a product of the executive with no statutory foundation. It could be abolished by any prime minister sceptical of its role. Sometimes the doubt is about accountability – as in the case of the Electoral Commission. Sometimes as with local government and to some extent the appointments process what concerns observers is proportionality and whether the in some cases applying stringent conflict of interest rules may for example have damaging side effects for example on recruitment into public life. But there is also a leadership dimension which is not entirely straightforward. The CSPL reports to the prime minister but prime ministers have not been consistent in their support. Indeed, perhaps not surprisingly, prime ministers may find integrity machinery irksome. The CSPL itself was established to deflect criticism of Major government and one may surmise its existence was a necessary burden for him. Although his successor Blair had exploited the sleaze issue against the Conservatives in the 1990s and extended its remit to cover party funding, he was not personally very interested in integrity issues as matters of principle. Blair’s pragmatic approach to such questions as party funding and appointments, together with his administration’s involvement in new forms of ethically questionable behaviour in the form of spin and cronyism – further diminished any potential for ethical leadership which Blair might have had. Although Brown in theory adopted a more austere approach to standards when he succeeded Blair, his administration was quickly caught up in the expenses scandal and the scramble to provide solutions. Above all the long period of reform of the United Kingdom’s ethics machinery since 1994 has not restored public confidence in the integrity of its elites. In a sense one 223 of the major puzzles about the last twenty years has been indeed the failure of regulatory reform to stem public anxiety on these issues. Part of the reason for that, as already noted, is that the extended investigation of areas of vulnerability increases rather than allays public suspicion. Moreover increased formalisation of the rules inevitably produces new offences of non-compliance however trivial. In addition as recent research has suggested there is a sense in which the public expects politicians to be held to higher standards than the ones they would apply to themselves (Birch and Allen 2010; Fox 2010). In such circumstances reforms geared towards restoring confidence in the standards of conduct in public life would seem doomed to disappoint. This is not to say that the measures recommended by the CSPL over its short life have been worthless. Far from it since it is an important part of our argument that corruption in its broadest sense is more prevalent in British public life than was hitherto acknowledged. However it is to suggest that integrity reforms must be justified primarily in terms of their capacity to make the institutions to which they apply work more effectively and to make those who are public office holders know what is expected of them in that role. Of course public opinion has to be taken into account in that process but it is inevitable that in a complex and fast moving society there will always be a tension between those who occupy positions of public responsibility and those who appraise them. References Alldridge, P.A. 2000. Relocating criminal law. Aldershot: Dartmouth. 224 Anechiarico, F. and Jacobs, J.B. 1996. The Pursuit of Absolute Integrity: How corruption control makes government ineffective. Chicago and London: University of Chicago Press. Birch, S. and Allen, N. 2010. How Honest Do Politicians need to be? Political Quarterly, 81, 49-56. Cabinet Office. 2004. The Advisory Committee on Business Appointments, Sixth Report 2002-2004. London: COI Communications. Cabinet Office. 2007. The Ministerial Code. London: COI Communications. Committee on Standards in Public Life (CSPL). 1995. First Report: Standards in Public Life. 2 Vols. London: HMSO. CSPL. 1997. Third Report: Standards of Conduct in Local Government in England, Scotland and Wales. London: TSO. CSPL. 2000. Sixth Report: Reinforcing Standards: Review of the First Report of the Committee on Standards in Public Life (Vol1: Report. Vol 2: Transcripts of Oral Evidence) Cm 4557, CSPL. 2003. Ninth Report: Defining the boundaries within the executive: ministers, special advisers and the permanent civil service. London: TSO. CSPL. 2007. Eleventh Report: Review of the Electoral Commission. London: TSO. CPSL. 2008. Survey of Public Attitudes Towards Conduct in Public Life, 2008. London: The Committee on Standards in Public Life and BMRB Social Research. CSPL. 2009. Twelfth Report: MPs Expenses and Allowances, Supporting Parliament, Safeguarding the Taxpayer. London: TSO. CSPL. 2010. Response to the Independent Parliamentary Standards Authority consultation on MPs expenses. 2 February. [Online.] Available at: 225 http://www.publicstandards.gov.uk/Library/OurWork/Response_to_IPSA_consultation_final__2_.p df [accessed: 1 July 2010] Council of Europe, Group of States Against Corruption. 2001. Evaluation Report on the United Kingdom, Eval I Rep (2001) 8E Final. Doig, A. and Skelcher, C. 2001. Ethics in Local Government: Evaluating SelfRegulation in England and Wales. Local Government Studies, 27(1), Spring 2001, 87-108. Fox, R. 2010. What’s Trust Got to Do With It?. The Hansard Society, The Political Studies Association, The Centre for Citizenship, Globalization and Governance. Gay, O. and Leopold, P. (eds.). 2004. Conduct unbecoming: the regulation of parliamentary behaviour. London: Politico’s. House of Commons, ODPM: Housing, Planning, Local Government and the Regions Committee. 2006. The Role and Effectiveness of the Standards Board for England: Government Response to the Committee's Seventh Report of Session 2004-05. [Online]. Available at: http://www.publications.parliament.uk/pa/cm200506/cmselect/cmodpm/988/988.p df [accessed: 1 July 2010]. House of Commons, PASC. 2006. The Ministerial Code: the case for independent investigation: Seventh Report of session 2005-06. [Online]. Available at: http://www.publications.parliament.uk/pa/cm200506/cmselect/cmpubadm/1457/1 457.pdf [accessed: 1 July 2010]. Kerns, P. and Sampson, G. 2003. Do Ethics Laws Work?. State Legislatures, 29(7), July/August 2003, 40-43. 226 Law Commission. 1997. Legislating the Criminal Code: Corruption. [Online]. Available at: http://www.lawcom.gov.uk/docs/lc248%281%29.pdf [accessed: 1 July 2010]. (see associated Consultation Paper 145). Leigh, D. and Vulliamy, E. 1997. Sleaze: the corruption of Parliament. London: Fourth Estate. Mackenzie, G.C. and Hafken, M. 2002. Scandal Proof: Do Ethics Laws Make Government More Ethical? Washington, DC: Brookings Institution Press. Orren, G. 1997. Fall from Grace: The Public’s Loss of Faith in Government, in Why People Don’t Trust Government, edited by N. Nye et al. Cambridge, MA: Harvard University Press, 77-107. Reiner, R. 1992. The Politics of the Police. London: Harvester. Riddell, P. 1993. Honest Opportunism: the Rise of the Career Politician. London: Hamish Hamilton. Ridley, F.F. and Doig, A. (eds.). 1995. Sleaze: politicians, private interests and public reaction. Oxford: Oxford University Press in association with the Hansard Society for Parliamentary Government. Royal Commission on Standards of Conduct in Public Life. 1976. Royal Commission on Standards of Conduct in Public Life, 1974-1976: report. London: H.M. Stationery Office. The Standards Board. 2008. Cumulative Monthly Statistical Digest 2008. [Online]. Available at: http://www.standardsboard.gov.uk/CaseInformation/MonthlyStatisticalDigest/Sou rceofallegations/Archive/ [accessed: 4 May 2010]. 227 Winnett, R. and Rayner, G. 2010. No expenses spared: the riveting story of the investigation that brought the British Government to its knees. London: Corgi. Witt, E. 1992. Is Government Full of Crooks or Are We Just Better at Finding Them?, in Essentials of Government Ethics, edited by P. Madsen and J.M. Shafritz. New York, NY: Meridian. 228 229 Chapter 7 Corruption in France: Structural and contextual conditions Hervé Rayner French society is usually seen as moderately corrupt, less corrupt than the Italian society, which is supposedly “structurally corrupt” with a mafia-dominated State, but more than the apparently “clean” English and German societies. These common assumptions seem to be confirmed by various surveys. According to the 2009 Transparency International Corruption Perception Index (CPI), which was based on various surveys about the perceived level of public-sector corruption, France comes in place 24 of 180 listed countries1. Bribe payer index levels of corruption appear low in international comparison, but high among European States. Of course, this index is a problematic indicator and, without empirical data, “corruption” sounds like a black box. Curiously, we know very little about petty corruption in France. Since French social scientists do not focus on ordinary corrupt practices, we lack ethnographic observations. By contrast, this statement is not true concerning large scale corruption. In order to analyse corruption, we adopt a relational approach. From this sociological perspective, we should learn some more about large scale corruption in France by questioning the interactions that take place within and, above all, between some of the central sectors of this highly differentiated society: the political field, the judiciary, the economic field and the media. We will start by looking back at the history of corrupt 1 Its neighbours: Belgium comes in place 21, Luxembourg in place 12, Germany in place 14, Switzerland in place 5, Italy in place 63, Spain in place 32, United Kingdom in place 17 (Transparency International 2009a). 230 practices and the way they were perceived. We will also ask what corruption scandals can tell us about French society. Then, we will focus on the institutionalization of anticorruption. In the last section, we will try to explain why corruption is still perceived as convenient. The practices of corruption: a long history Path dependency? The weight of the past Corruption is both a social practice and a value judgment of that practice. Its definition, in particular its moral framing (blame, permissiveness or indifference), significantly varies from one society to the other, from one social group to the other and from one situation to the other. That is also why the meaning of the notion “corruption” changes through the context. Undue advantages and bribes are not always morally condemned. They are sometimes seen as a normal exchange. This depends on the schemes of perception and judgement because corruption is shaped by culture and history, by the dominant social norms and the institutions. The judgement and labelling of corruption depends on the socialization of the actors. Their social position and values affect how they are (in)disposed to corruption. As they are shaped by the habitus (social dispositions in Pierre Bourdieu’s terms), perceptions of corruption can change significantly. These perceptions are also determined by the social position occupied by the actors. For instance, élite perceptions of corruption mainly differ from the working-class point of view. Businesses and other members of upper socio-economic classes consider corrupt transactions as a necessary and ordinary arrangement, a sort of pragmatic and tacit solution to the state “overregulation” and the weight of administrative rules (Lascoumes 2007). What is defined 231 as a corrupt act by law is not necessarily perceived as negative or illegitimate among these actors. By contrast, people from lower classes tend to see corruption in moral frameworks, assuming that high social status is correlated with corruption being more endemic. While the public trust in politicians is traditionally low, it does not automatically generate indignation. Resignation is much more common than protest, and loyalty more common than voice and exit. If the actors’ social properties have a great importance, sociographic explanations are not sufficient to capture the reason for high levels of corruption in France. From a relational approach, the context is crucial too. Policies, sanctions and perceptions of the risks are decisive to understand what makes corruption (un)acceptable. A sudden change in the context, such as an important scandal, changes what seems (im)possible to do and to say publicly: corrupt exchanges usually perceived as inevitable and, by the way, not particularly transgressive suddenly became unacceptable. It is important to consider that corruption scandals have frequently been prominent in French contemporary history and some have had a considerable sway in the public opinion. Political and financial scandals of the nineteenth century revealed how practices of influence-buying were generally wide-spread in many sectors (judiciary, journalism, industry, politics, etc.). The Panama scandal showed the extent to which corruption plays a major role in Parliament. Many studies have highlighted how French people frequently encountered bribery at the beginning of the twentieth century, as bribes were commonly used by businesses (Verdès-Leroux 1969; Jeanneney 1981; Mollier 1991; Garigues 1997; Blic 2005) and were prevalent in politics. 232 It has been argued that corruption belongs to a vast and longstanding set of practices deeply rooted in French society such as clientelism, patronage, nepotism, favouritism and patrimonialism, which are often rejected by modernization theorists as pre-modern. On the one hand, there is a centralized state which inculcates a strong civil servant ethos and universalistic norms. On the other hand, the political control over a vast public administration seems a favourable condition for a patrimonialistic use of public resources. Recent cases of bribery of elected officials remind us that clientelism remained an ordinary way of conducting politics both in Paris and in Corsica, and both in the northern region as well as in Provence-Côte d’Azur (Briquet 1997; Tafani 2003). In the long run, we can establish some historical and institutional factors that seem to stimulate corruption. For instance, colonial practices were very conducive to corruption. The great size of the state (government spending represents 53% of the GDP) apparently increases opportunities for rent-seeking. However, this is not always the case, as is demonstrated by the Scandinavian states. It is important to note that 90% of the funds from one million non-for profit associations come from public funds determined by an imposing political class consisting of 500,000 representatives. A significant part of the MPs as well as the managers of large private groups come from the civil service: the pentouflage system allows public officials to enter politics or business, and return to public administration. Many of those who have decision-power within various sectors followed the same type of social trajectoire. They met at the ENA and/or other grandes écoles (Bourdieu 1996). Giving this socialization process, it is therefore unsurprising that they shared certain ways of thinking and acting, if the relationships between politicians and businesses are based on connivance. Above all, many French multinational companies operate in corrupt and very lucrative areas (arms, 233 energy, construction, cleaning and water). In this regard, path dependency means that many political economic and political elites have been socialized within the belief that corruption, despite being illegal and contrary to the universalistic norms, is the one best way to accelerate their career. From generation to generation, this self-fulfilling conviction enforces the inevitability aspect of corruption as a common expectation. Behaving differently becomes costly. The 1982-83 “decentralization” passed by the first socialist government of the Fifth Republic gave a wide range of fiscal powers to local elected officials. It was mainly interpreted as a crucial step in the evolution of corruption. The more the “territorial collectivities” (36,000 municipalities, 102 departments and 22 regions) gained power, the more their public officials accumulated decision-making leverage and the more they were captured by private firms soliciting them for authorizations and licenses. Many of the local public officials become managers of the sociétés d’économie mixte (semipublic local enterprises) and use their intermediary position (between the centre and the periphery, the private and the public sectors) as a form of rent seeking. President François Mitterrand said in private that “decentralization decentralizes corruption”. The local high-ranking public officials (mayors, president of the general council, president of the regional council) became central actors to the detriment of the prefect. Many cases of corruption reveal how much they bypass the law, the official rules and formalities; and how the bribers buy their decision (or their omission) in order to obtain contracts, employments or other favours. In 1983-84, the conversion of the Socialist Party, which led the government towards neo-liberal policies, triggered a new programme of economic liberalization. It was part of a facilitating context for 234 corruption, something quite new in French society, which is traditionally hostile to the celebration of money (Blic and Lazarus 2007). By evoking this list of profound transformations of French society, we shall indicate some of the structural conditions linked with corruption. However we still do not know how corruption emerges as a regular social practice. Ordinary and tolerated misconduct We have seen that “corruption” comprises a wide range of practices, from big business contracts to occasional and petty corruption. Petty corruption concerns street level bureaucratic officials who provide an authorization or a sanction to a private (a visa, a building permit, a driving license, a diploma, a fine, etc.), and the interaction is often limited to a single face-to-face deal. The level of corruption widely varies from one sector to another and from one situation to another. For instance, in the pharmaceutical sector, there can be small-scale, medium and large-scale corruption. It all depends of the size of the actors, who range from a single doctor to a medium-sized company, from a ministerial agency to a multinational firm. Concerning small-scale corruption, it is very hard to distinguish marketing from corruption. The gifts given by companies to doctors are part of the rules of the game. In large enterprises, especially those that operate within the construction sector, water supply and the retail sector, donations to political parties and their local representatives are regarded as a sound practice, and corruption is still an important source of funds for the most important political parties2. As some CEOs admitted, firms seeking legislative favours and administrative authorizations make such payments. The 2 For corruption in the water supply industry, see Stefanovitch 2005. 235 impressive expansion of those three sectors, with a few French groups among the largest in the world (Vinci, Bouygues, Veolia, Carrefour), played a major role in the extent of corruption. We understand corruption as an illegal transaction between at least two parties. Most of the time, it is a pact, a meeting of minds, a mutual understanding: the different parties are complicit. That is why we do not distinguish between active (the corrupter or the giving party) and passive (the corrupt or the receiving party) corruption, between corruption and misappropriation of public funds, because the actors of the barter are accomplices and, incidentally, the boundary between the offences is blurred: there is no clear distinction between the perpetrator and the victim. If corruption is often an agreement between the briber and the person receiving the bribe, it is not limited to a dyadic relation. Other actors intervene in the chain of corruption and act as brokers at the interface between public administrators and private companies’ businessmen. These intermediaries take charge of the mediation services in order to secure the transaction and reduce the risks by transferring the bribes to offshore places. They became gatekeepers and transformed corruption into a triangular partnership. For the executives of large companies, corruption is much less risky when resorting to such middlemen who facilitate plausible deniability with their sophisticated financial camouflage and the growing complexity of their savoir-faire. The professionalization of these third party beneficiaries (Lenglet 2007) provides a significant contribution to the institutionalization of corruption, a process based on the standardization and the perenniality of the actors (corrupters, mediators, corruptees) and on the stabilization of their roles and dealings, which are generally conceived as pragmatic rules of the game 236 (Bailey 1969). Accordingly, corruption consists in repeated exchanges with a fixed percentage of the sum of the contract. These arrangements reinforce the power of all their participants (undue decisions, profits, material advantages, reputation of power) and change corruption into a routine and almost riskless operation. Multiple intermediaries and accomplices linked by complex and carefully concealed transactions make corruption very difficult to unveil. Very few chairmen, directors, and managers are judged guilty of corruption by the courts, as they usually succeed in the cover up. It is difficult to prove the materiality of bribery with evidence and clues and equally difficult to prove the link between the bribe and the advantage obtained. Thus many defendants are aquitted. In many situations, especially at the intersection of social sectors such as politics, economy and media, corruption seems to be the correct and anticipated way to behave. The diffusion of such practices across the entire society and the perception of their everyday dimension (the conviction that it is everywhere and has always been that way) make it very difficult to combat and eradicate. “Perceptions of widespread corruption contribute to reinforcing the phenomenon, creating a snowball effect” (Tänzler, Maras and Giannakopoulos 2007: 16). If we suggest that corruption is a deeply rooted social process which looks like a vicious circle, we should also consider that it might, as any social phenomena, be sensitive to social transformations. Social transformations and new perceptions Bribery was not always seen as corruption or as illegitimate. In the 1950s and the 1960s, ordinary collusions between businesses and public officials were tolerated, and legal proceedings were the exception. Most of the time, the justice system shut down these embarrassing cases: such perceptions and attitudes were prevalent among many of the 237 judges and public prosecutors. Those who did not play by this rule of the game, especially low-ranking petits juges, were stigmatized in the 1970s as “red judges”. From the 1980s, transformations within the social composition of the judiciary challenged this consensus and double standard. Social proximity and collusions between magistrates, businesses and politicians were no more obvious. The judiciary and the economic spheres became highly differentiated from one another with the consequence that the general sense of impunity was less evident (Roussel 2002). According to the new generations of magistrates, “law is equal for everyone” and bribery is clearly considered as an offence. This change is due to an increasingly differentiated and complex society, a transformation that strongly contributes to the autonomization and the pluralization of free-associations networks, which are at the same time the result and the producer of a public critical state of mind relayed in various social spheres. On the one hand, these new expressions came from deeply rooted social processes such as economic growth, improvements in the standard of living, urbanization, secularization, the lengthening of school attendance, and the large-scale of educated middle classes. Characterized by their “cultural capital” (Bourdieu 1984), their ethical claims, democratic norms and meritocratic values, these new groups were able to act jointly and openly for public (indivisible) goods such as anti-corruption. They gave rise to and, in return, were reinforced as collective actors by some civic entrepreneurs: syndicat de la magistrature; Libération or Charlie Hebdo within journalism; consumer associations such as UFCQue choisir; resident, taxpayer or ecologist associations, etc. On the other hand, these groups depend on the context for creating or exploiting political opportunities and for 238 promoting moral crusades. Contextual and situational factors can explain why they succeeded or failed in mobilizing public support. Our hypothesis is that circumstances are very important, in the sense that “the context” counts. It counts because most of the actors concerned with fighting corruption, which is a risky commitment, evaluate their action in terms of what seems (im)possible to do: the way they estimate their chances, the potential costs and benefits, convince them or dissuade them to engage. However, this is not a hypothesis based on rational action theory. We suggest that the cost-utility calculation is shaped by the habitus (Bourdieu 1977) and by the context: embodied dispositions and collective environment mould the perceptions of what is (im)probable. The social substrate of an anti-corruption movement is strong, the ground is fertile, and associationism has taken root, but the context is not always favourable to its political statement. Social actors are cognitive creatures. They behave on the basis of their expectations of what may happen, and then, the perceptual factor is decisive for the understanding of what makes them act. This specular (i.e. like a mirror, mutual observation) interdependence also explains how contingent “events” (concomitant oscillations of the perceptions of what seems possible) could produce chain reactions, convincing the actors to change their behaviour. Privatization became a reality during the first cohabitation (1986-1988) between a right-wing government led by Jacques Chirac and the presidency of François Mitterrand. Such constellations of dual power are particularly conducive to scandals3. 3 As we will see, the second cohabitation during the Balladur government (1993-1995) was even more conducive: the executive was under divided control and the rivalries inside the RPR, between Balladur and Chirac, both candidates for the presidency, were very strong. 239 This was a starting point for financial deregulation; corrupt exchanges probably increased, but the public impression that there was an explosion of corruption might have been a misperception. We could say that there has been a much stronger interest and concern, a change due to various social transformations both at the domestic and international levels: the autonomization of some parts of the judicial sector and the media, the strengthening of administrative control over the public officials at the national and the local levels, a growing international concern - especially after the fall of the Berlin Wall - about the best way to manage democracies (the “good governance” theme promoted by international institutions, NGOs and think tanks), the emergence of anti-corruption associations and other watchdog groups, etc. In the same way, “civil society” was emerging as a daily and polyphonic topic, a rhetorical resource that means everything and refers to almost everyone but politicians. This category was used as a positive label by political challengers, newcomers, international institutions and spokespeople of local associations, journalists and intellectuals. With this discursive weapon, they argued against those representatives accused of being too distant from their constituents. Used as an antonym, “civil society” was the valorised side of the opposition “state/civil society”. We know that this dichotomy is sociological nonsense: with the differentiation of society, both “the state” and “civil society” are made up of continuous flows of interactions between partially autonomous and differentiated social spheres. Nevertheless, we should pay attention to the performative effects of that dualistic way of thinking, especially in the debate on corruption. Not surprisingly, the “state” is often presented as corrupt and “civil society” as virtuous, partly because denunciation of corruption is also an argument for the 240 outsiders against those who are in charge of the executive and partly because it is a discourse promoted by neo-liberals. A web of corruption scandals The web of corruption which began in the middle of the 1980s was mainly attributed to a huge expansion of corruption. What was probably new during this period was not a striking (quantitative or qualitative) change in corrupt practices but the dynamics produced by those scandals which were the result and the trigger of changing perceptions of the feasibility of denunciation. An anti-corruption campaign suddenly became conceivable, and politicians and businesses, who were unfamiliar with the possibility of being convicted for corruption, suddenly became aware of that risk. In a few years, the likelihood of being caught and punished considerably changed. What is a scandal? Firstly, the discovery of corruptive acts does not necessarily lead to a scandal. For a scandal to arise, there must be multisectorial mobilizations towards a denunciation. Even if this denunciation is not justified, mobilizations that occur at the same time in various sectors produce a scandal. Thus, a real transgression is not indispensable for the scandal to occur4. Secondly, the persons accused of corruption are not necessarily discredited: a delegitimizing process only takes place if these persons lose their supporters and allies. We argue that the unfolding of a scandal depends on the extent of the mobilization. Scandal is a complex configuration; it is not just a political struggle with other means. Given its multisectorial localization, the situation is disruptive and 4 On this point, we disagree with John B. Thompson: “Some form of transgression is a necessary condition of scandal: there would be no scandal without it” (Thompson 2000: 14). 241 out of control. Scandal has desinhibitory effects, which entail uncertainty (Rayner 2007). Some suggest that turning corruption into scandal is more difficult now than it was at the end of the nineteenth century (Blic 2007). In any case, we have to remember that scandal is the exception: very few cases of corruption give birth to a scandal. Most of the studies in that research field (Mény 1992; Mény and Porta 1995; Daniel 1992; Cartier-Bresson 1997; Lascoumes 1997, 1999; Williams 1998; Garrigues 2004) focus on corrupt acts because social scientists try to explain corruption scandals with evidence of the so-called “scandalous practices” which damage the principles of modern democracies: “good governance”, “transparency of the public choice”, “free market”. From that normative perspective, scandals are seen as the disclosure of hidden (because immoral and/or illegal) activities involving politicians, holders of public office and businesses. The more these transgressive activities are considered to be outrageous by the “public opinion”, the more the scandal is supposed to be important. Therefore, social scientists confuse scandal with corruption: this means that the occurrence of the scandal is linked with the discovery of corrupt acts which are considered as the cause of the scandal or assimilated as the scandal itself. In this manner, the scandal seems obvious and automatic, the mobilization is not studied and the social process of the scandal is ignored. A scandal could be understood as a sequential phase of multisectorial mobilization and this mobilization as the constitutive elements of any scandal. We suggest that this mobilization is linked with important variations of the actors’ perceptions. A scandal is the product and, in return, the trigger of changing anticipations, which we have called relevant oscillations of the perceptions of what is (im)possible (Rayner 2005). For instance, during an important corruption scandal, 242 judicial actors (magistrates, judges and lawyers), politicians, economic actors (entrepreneurs, managers, bankers) and journalists do things never done or even thinkable before. That is why a big scandal is an event, i.e., a series of strong oscillations of what seems (im)possible to do here and now. These new anticipations are conducive to new kinds of action and self-fulfilling, but still very contingent and reversible. A corruption scandal is a complex, moving and disruptive reconfiguration of the relationships between the actors we have mentioned. This process occurs and expands with strong oscillations of their perceptions. During that emergent process, perceptions can wildly vary – that is why scandals are unanticipated, out of control and tend to cluster. This helps us understand the web of scandals during the 1890s, the 1930s and the 1980-90s. People are mobilized by the scandal and react to their own changing perceptions of the situation. This specular dimension gives the scandal its random dimension as intricate events and chain reactions. Therefore, what indicates the importance of the scandal as an event is not the seriousness of the transgression, but the magnitude of the fluctuations of the perceptions. Any scandal is partly contingent. The initial information often comes from insiders of the illegal transaction (mostly as anonymous informants) after a dispute over the distribution of the payoffs. Persons to whom a bribe or a favour had been promised may feel abused and break with their accomplices. Rivalries within a party or a firm can be a powerful driving force: as we will see, the ELF case is partly due to rivalries inside the oil company as well as inside the Gaullist party RPR, which was divided between Balladur and Chirac supporters. In other cases, the information could come from spouses or cohabitees who decided to inform the prosecutors during a private quarrel with their partner. In other words, to understand a single scandal we must pay attention 243 to the details and the circumstances of its dynamics. Thus, it involves an in-depth analysis which is not possible in this paper. A long series of corruption scandals Since the middle of the 1980s, a long series of scandals took place and suspicions about the integrity of the politicians were widespread. The principal political parties – RPR, UDF, PS and PCF – were heavily implicated. Many local and national politicians, industrial leaders and intermediaries were investigated, and some were found guilty. Very few of them were sentenced to jail, but that possibility was a very important change. Before the 1990s, important politicians or businessmen were not tried for financial offences. This is why the arrest of Didier Pineau Valencienne (1994), chief executive of electrical giant Group Schneider (charged by Belgian magistrates), the conviction of Michel Noir, mayor of Lyon, of Alain Carignon, mayor of Grenoble, and other former ministers were seen as important signals that the times were changing. This web of scandals was seen as an indicator of increasing corruption, a decline of the spirit of public service, and the eradication of the public ethos. It indicated that new ways of using the law were part of an objectivation process of corruption. Innovations came from the magistrates to overcome some of the legal obstacles on combating corruption. For instance, instead of corruption, they suddenly and widely used the forgotten charge of misuse of corporate assets (abus de biens sociaux introduced in 1935 after the Stavisky scandal), which involves acts of corruption and appears easier to prosecute. By using that kind of offence, it was easier for them to qualify and establish acts of bribery. Through a series of judgements, the Cour de Cassation (the highest appellate jurisdiction) confirmed the validity of that charge. On the one hand, the charge lost some of its moral dimension (and the prescribed prison 244 sentence is shorter). On the other hand, this scaling down of the offence progressively appeared to be effective, much more easily prosecutable, mainly because the statute of limitation differs5. Introduced in 1991 and strengthened in 1995, the charge of favouritism was another case of invention and interpretation of the law that allowed a major control over the contract procedures. In 1986, the Carrefour du développement affair, one of the first scandals of that long series, involved the Minister of Cooperation Christian Nucci and showed how the bilateral aid with African states was exploited as a source of financial and political resources by French politicians. Many other scandals remind us how much the colonial past of France is still present within the relations between French political networks (among free masonery, secret service, oil companies and diplomatic personnel) and African leaders. The Urba affair revealed how the Socialist Party became dependent on corruption. Urba was a study office (bureau d’études) set up for collecting bribes: the water company Compagnie générale des eaux (CGE) gave 6 million francs to Urba in 1988 and 1989. Later investigations have demonstrated that all the major political parties used their own bureau d’études to collect bribes and other forms of unreported “donations”, very often with overpayed advertising in the political and municipal reviews (Gaetner 1992; Robert 1996). There is no proportion between the seriousness of the “scandalous practices” and the extent of the scandal. While taxpayers had to pay for the bankruptcy of Crédit Lyonnais, protests remained limited (Blic 2000). Concerning the amount of the bribes, 5 The statute of limitation on criminal proceedings for the offence of corruption is three years and begins running on the day the offence is committed, for the offence of misuse of corporate assets or misappropriation of public founds, the period of limitation starts on the day the offence is discovered. 245 the ELF scandal was one of the biggest: 400 million € in commission paid for armaments (up to 25% of the total sum), oil contracts (2%) and other kickbacks through series of offshore accounts came to light. Commissions and retro-commissions were also paid by ELF and Thomson-CSF, a major industrial firm and shipbuilder, to Taiwanese, Chinese (Beijing initially opposed that arms trade) and French officials for the sale in 1991 of French frigates to Taiwan for more than 2 billion € (Garigues 2004). The senior executives of the state oil company ELF Aquitaine and Thomson-CSF, the former foreign minister and current president of the Constitutional Court Roland Dumas, a close friend of the President Mitterrand, his mistress and many intermediaries were accused of corruption. The ELF case had many ramifications, including party funding in Germany (to the former chancellor Helmut Kohl’s party CDU) and bribes for African presidents. During the trial, some defendants pleaded that corruption was inevitable. The government covered up the retro-commissions received by French politicians, opposing the defence secret to the magistrates; Chirac and Dumas colluded by protecting each other; while the convicted intermediaries, such as Alfred Sirven, did not collaborate with the magistrates. The president of ELF Aquitaine and other top managers of the company were condemned and jailed, but the politicians were absolved. The Paris City Hall affair revealed that the French capital municipality was organized as a rent-extraction political machine. Fictitious employments and low-price apartments were routinely attributed to members of the RPR. As the leader of the RPR and mayor of Paris, Jacques Chirac benefited from this system of corruption mixing endemic bribes, patronage, nepotism and electoral fraud. Embezzlement, overpayments, fictitious jobs and illegal voter registration were the rule. The Elf and the Paris City Hall affairs shed light on the Masonic connections of almost all their protagonists: some 246 freemasonry lodges were used as an opportunity to secure this king of illicit transactions (secrecy, cross sectoral connections, protection, reputation of power). In 2000 and 2001, President Chirac’s position was in danger; he was tacitly accused of being the principal organizer and beneficiary of that illegal system of payoffs. His successor as mayor of Paris, Jean Tiberi (RPR), sent messages indicating that his loyalty to Chirac was at risk. Nevertheless, the “Méry tape” (before dying, Jean-Claude Méry, a long-term bribe collector of the RPR, made a filmed confession about the illegal finances of the gaullist party) was published on the front page by Le Monde. The concomitance of large variations in the perception of what one is permitted to do within the political, journalistic, judicial, and employers’ sectors strongly contributed to that uncertainty. A chain reaction of changing perceptions and changing practices led to a reconfiguration of these respective social spheres and their interactions. Retrospectively, since Chirac politically survived this scandal with his 2002 re-election, we can infer that the perceptions of what is possible did not oscillate enough to convince some key actors to be disloyal. In 2005, the Ile de France regional council affair showed how corruption was almost institutionalized, and how the outcry of public opinion cannot be taken for granted. Investigating magistrates discovered the ongoing payment between 1991 and 1996 by five big construction companies of 2% of the value of their contracts (which amounted to 1.4 billion €) for the renovation of 300 high schools in the Paris region to the major political parties (1.2% for the RPR and its allies, 0.8% for the Socialist Party and the Communist Party). And corruption became a political problem 247 The evidence of illegal party funding emerging from the scandals, the electoral rise of the Front National, whose leaders stigmatized the “corrupt élite”, more detailed journalistic investigations6 and the discovery of secret accounts by some magistrates constrained the authorities from reacting. To understand how corruption has been constructed as a public problem (Gusfield 1981), we should pay attention to the increasing number of condemnations for offences linked with corruption (corruption, trading influence, breach of trust, forgery and use of forgeries, money-laundering, embezzlement or misappropriation of public funds). According to the anti-corruption association Ifrap, this number rose from 69 in 1984 to 133 in 1987 and 286 in 1997. The number of financial offences for which penalties were imposed grew rapidly in 19931994 and remains at the same level until 2002. As a sign that the times were significantly changing, almost 1 000 officials, including 53 ministers and more than 100 MPs, were placed under investigation for corruption between 1992 and 2002. According to many surveys, public opinion believes that corruption is the rule in the relationships between political parties, public and private companies7. Other surveys demonstrate that for many voters corruption was an incentive (the second most important) to support the National Front. Electoral defeats were more and more frequently presented in the media as a consequence of the scandals and as a punishment of politicians guilty of the abuse of power. It is true that the scandals seriously damaged 6 Many editorial offices competed with each other with regard to the scandals. The satirical weekly Le Canard enchaîné lost its quasi-monopoly on investigative reporting: L’Evénement du jeudi, Libération, Le Monde, L’Express and TV shows on the new channel Canal + boosted their investigative teams and covered the scandals. 7 According to a series of surveys realized by the Cevip of between 2003 and 2006, 60 % of French people thought that their representatives are corrupt. 77.9 % thought that corruption is wide-spread at the government level (Lascoumes 2007). See also Bezes and Lascoumes 2005. 248 the image and the performance of the Socialist Party during the 1993 elections and strongly contributed to the defeat of former Prime Minister and long time favourite candidate Edouard Balladur in the 1995 presidential election. Above all, the sudden conviction among politicians and businesses that corruption was becoming sanctionable strongly contributed to a new context. Members of the government, the staff of all major political parties and businessmen were on the defensive and no longer believed they were “untouchables”. Party treasurers and mayors were particularly scrutinized. In 1988, the amnesty promoted by the Michel Rocard government and passed by the Parliament benefited various politicians and public officials convicted of corruption. The two laws of 11 March 1988 on financial transparency of politics were another part of this attempt to uphold the legitimacy of the government, and represent the first legal instruments concerning the funding of political parties and election campaigns. The new legislation was supposed to prevent possibilities for corruption by forbidding the corporate funding of political parties (donations by legal persons were prohibited) and by imposing maximum spending caps on political campaigns. This spending restriction trend was confirmed by the law of 15 January 1990 on limiting electoral expenditure. If the government succeeded in creating and enforcing political finance laws, the definition of the situation promoted by most of the politicians consisted in a moral and political distinction between illegal party financing (presented as minor) and personal enrichment, supposedly much more reprehensible. In response to the extension of the Urba scandal, a new amnesty law was adopted in 1990. This amnesty was even more unpopular than the first one and politicians were portrayed in the media as the “villains” (while businesses were not considered as corruptors, rather as passive accomplices or 249 victims). Moral crusaders against the “pervasiveness” of corruption tried to constitute corruptive acts as scandalous. Nevertheless, the mobilizations of protest remained limited in comparison with what occurred in Italy during the first years (1992-1994) of the “Clean Hands operation” (Rayner 2005), or with the blood contamination scandal which produced a considerable public opprobrium between 1991 and 1993. Many say that illegal party financing has diminished. The number of convictions for illegal party funding has considerably decreased, while it is also true that the parties greatly benefit from generous public funding and limited their election expenses (partly reimbursed). Yet political parties are not required to make their accounts public. They used to turn to state funding and small donors (private fundraising) which are facilitated by deductions from taxable income (tax incentives for individual donors: tax rebate on donations up to 7,500 €). If law enforcement could be seen as an emerging effect of the web of corruption and party financing scandals, the same could be said about the institutionalization of anti-corruption. The institutionalization of anti-corruption A response to the scandals The political response to the scandals led to an institutionalization of anti-corruption, which signifies the codification and reinforcement of the legislation, professionalization and specialization of the investigative magistrates, and the creation of a series of institutions and agencies. The policy of detection and prevention of corruption consists in the complicated coordination of various institutions, regulatory authorities and agencies vested with powers of detection. The Audit Court (Cour des Comptes) and the regional audit 250 chambers monitor the use of public funds. The annual report of the Audit Court underlines cases of corruption. In 2003, with the new law on financial security, the stock exchange watchdog Autorité des Marchés Financiers (AMF, Financial Markets Authority) replaced the Commission des opérations de bourse (COB), and received new investigative powers. With the Banking Commission (Commission bancaire), the AMF monitors the compliance of the financial sector. The Central Office for Fighting Major Financial Crime (Office central pour la répression de la grande délinquance financière OCRGDF) and the financial units (Brigade financière) are overloaded with work and their collaboration with the magistrates is sub-optimal. Created in 1990, the Commission Nationale des Comptes de Campagne et des Financements Politiques (National Commission for Campaign Accounts and Political Funding, CNCCFP) influences the standardization of the accounts of the political parties, but without investigating power, it cannot effectively exert control over them. The fight against corruption had also been institutionalized within the Unit for Intelligence Processing and Action against Secret Financial Channels (TRACFIN), which is part of the Ministry of Finance and was set up by the anti-money laundering Act of 12 July 1990. Created by the Act on the prevention of corruption and transparency in business and public proceedings of 29 January 1993 and attached to the Ministry of Justice, the Central Service for the Prevention of Corruption (SCPC) is directed by a magistrate. Its task is to centralize information (and share it with TRACFIN but also with GRECO, OLAF and OECD), train and mobilize the business community (helping in drafting codes of ethics, teaching in business schools, etc.) and propose measures. In contrast to the Ministry of Justice, SCPC rapidly lost its investigative powers, which were declared unconstitutional. The central anti-bribery 251 brigade (BCLC, Brigade centrale de lutte contre la corruption) was created within the National Division for Financial Investigations (Interior Ministry) in 2004. These organizations do not cooperate sufficiently, as rivalries and the lack of information exchange are very common and many of the provisions have not been implemented. For instance, the internal secret service (Renseignements généraux) usually does not alert the public prosecutors about bribery. It is also important to consider that the judicial police did not cooperate with the investigative magistrate during the Paris City Hall affair, refusing to search the mayor Jean Tiberi’s house. A specialization process took place in the judiciary. In 1998, economic and financial specialised prosecutions units (pôles financiers) composed of investigating magistrates and public prosecutors assisted by various assistants (police experts, members of the Audit Court) were created. The Paris pole was composed of 30 magistrates, but they lack statistical database, other logistical resources and human resources. As was underlined by an OECD report (OECD 2004: 34), “expertise acquired on the job is in any case undermined by the high turnover of both prosecution staff and investigating magistrates”. All this anti-corruption machinery was greatly due to international pressure. The anti-corruption law of 13 November 2007, influenced by the Council of Europe and the UN conventions, introduces protections for whistleblowers in the private sector (in order to protect informants who fear reprisals from their superiors) and empowers the anti-corruption units with the authorization of techniques (secret hearings, filtering through) used by the organised anti-crime units. Nonetheless, three years later, this arsenal did not lead to stringent investigations and did not change the costs of revealing corruption. 252 The international pressure The pressure to adopt anti-corruption regulations, laws and norms began at the end of the Cold War. It came from different places: international organizations such as OECD (Convention on Combating Bribery of Foreign Public Officials), UN (2003 convention against corruption), IMF (through conventions and critical reports), EU (OLAF, European anti-money laundering directive), the World Bank Institute (with its index of control of corruption), the Council of Europe (GRECO, Groupe d’Etats Contre la Corruption, joined by France in 1999), NGOs like Transparency International and various think tanks. This composite pressure based on conventions and other forms of prescriptions is not surprising given the weight of the French economy. France ranks second in the world for the export of services and fourth for the export of manufactured products. Many French firms occupy worldwide dominant positions in industries traditionally linked with corruption, such as armaments and aeronautics (Dassault, EADS, Airbus), construction (Vinci, Bouygues), industrial equipment and other public works contracts (Thales, Alstom), oil (Total), and water distribution (Veolia). This configuration explains why the international pressure is viewed by the French authorities as particularly sensitive. On the one hand, the government has to take into account the international conventions and treaties and on the other hand, it has to protect French firms from the international competition. This international pressure has an impact on the evolution of the laws. Anticorruption became a policy-making programme. France has made various amendments to its legislation to bring it in line with international treaties and conventions; there is an ongoing process of transposition of the international anti-corruption regulations into French law. In one of its reports, the GRECO evaluation team concludes that “France 253 has an effective and comprehensive legal armoury that enables it to respond, in very large measure, to the requirements of the Criminal Law Convention on Corruption” (GRECO 2009a: 27). Through its Working Group on Bribery in International Business Transactions (CIME), OECD exerted pressure on France to initiate legislative and institutional reforms concerning the corruption of foreign public officials by French companies, euphemistically known as “commissions” or “exceptional commercial expenses”, and for many long time tolerated at the point that the companies were entitled to a tax deduction. On 31 July 2000, France ratified the OECD Convention, which made the bribery of foreign officials an offence, but these efforts are still ambivalent (CIME 2004; OECD 2006). At the international level, French official portray France as a leader in the battle against corruption. On 11 July 2005, it was the first G8 member to ratify the United Nations Convention against corruption (UNCAC, known as the Merida Convention), and it is co-chairman of the friends of the Merida Convention. The government is updating its legislation with stronger legal constraints against corruption, and ratified the Criminal Law Convention concerning the bribery of national public officials on 25 April 2008. Anti-corruption was changed into a “powerful industry” (Tänzler 2007: 4) characterized by an Anglo-Saxon way of thinking, inspired by new public management and based on techniques of marketing with corruption indexes and cross-national benchmarking. International organizations and many scholars (Rose-Ackerman 1999) recognised corruption as a governance challenge, which is very “free-market friendly”, i.e., ideologically prone to denounce the state’s corruptibility. They seem prone to turn a blind-eye on British and American institutions (such as Anglo-American fiscal 254 paradises) and favour the common law legislation at the expense of civil law legislation. From that perspective, the wrongdoers are the public officials, and public markets make corruption possible. This point of view underestimates the misbehaviour of the “free market” and occults the fact that most of the time businesses are accomplices or initiators rather than victims. Ethics in economy: business as usual A process of institutional mimetism that results from the international pressure is also ongoing in the economic sphere. Usually, corruption is not one of the major items on the agenda of the business sector: “Business speaks about corruption through the discourse of silence” (Tänzler, Maras and Giannakopoulos 2007:13). When businessmen talk about corruption, they often portray themselves as the main victim with the help of business lawyers, company and corporate lawyers. The scandals made it obvious that all the large companies were easily prone to regularly pay kickbacks relating to public works contracts and that businesses were, at least, accomplices of the politicians in manipulating the “free market”. One of the most prominent examples is the software Drapo, invented by Bouygues and used by other large construction companies in order to monopolize public contracts. Meanwhile, the legal affairs departments of those large firms used to plan new defence strategies against the accusation of corruption and trained their top managers with regard to the risks of scandal (training course such as “how to manage an indictment”, “how to react to an arrest”, etc.), business circles recently adopted ethical discourses in the name of transparency. Responding to the SCPC’s council, most large companies, in both the public and the private sectors, changed their internal statutes, adopted codes of ethics and put in place ethical committees, set up internal control 255 mechanisms and warning systems for employees. However, their will to combat corruption is not convincing: while they generally continue to bypass laws and distort the market with cartels and collusive price-fixing, why would they respect their own regulation? Evading anti-corruption laws appears easy for companies, the National Tax Investigations Department (Direction Nationale des Enquêtes Fiscales) is not deterrent. Auditors (commissaires aux comptes), who certify the annual accounts of the firms, are obliged by law to report any act of bribery to the public prosecutor, but the number of disclosures is very low. Collusions and conflicts of interests between auditors, chartered accountants and the senior staff of the companies are frequent8. With two acts in 2001 and 2002, the figure of “protected witness” was subject to a criminal procedure. In the absence of collective denunciation (class action), it is hard for magistrates to find witness statements. In 2004, the MEDEF (French private employers’ federation) introduced protective measures for employees who report suspicious acts. Denouncing a colleague to the judicial authorities remains very risky for a vigilant employee. Trade unions are very weak in France, and collective action like a civil party petition for a judicial investigation is very rare in corruption cases. With the 4 July 2005 law, France extended, at the invitation, of the EU the field of application of the offence of corruption, in particular in the private sector, and the duration of prison sentences from two to five years and the fine from 30,000 to 75,000 €. The criminal liability of legal persons was reinforced in 2006, in order to facilitate prosecution. 8 In 2003, the High Council of Statutory Auditors was set up. One of its tasks is to guarantee the independence of the auditors. In 2005, a code of ethics was approved. 256 Nevertheless, the effectiveness of the ethics codes adopted by the private and the state-owned companies as well as the extensive legal arsenal recently harmonised by the Parliament depends on the perceptions and the practices of the actors. The context, constructed and experienced by them determines to what extent the companies, the courts, the government and other political institutions apply or do not apply these provisions. This entire institution building process, new regulations and the continuing transformation of the legislation cannot empower the fight against corruption as long as the government maintains its control over the judiciary, and as long as the gains from paying and receiving bribes do not decrease. Corruption is still perceived as convenient Impunity, a powerful incentive Only a very small proportion of corrupt transactions are uncovered, the inspection structures are not very stringent and the detection system appears to be a weak spot. The number of conviction is stable: 60 convictions of active bribery of national public officials in 2004, 63 in 2006; 44 convictions of passive bribery of national public officials in 2004, 48 in 2006; only 2 convictions of active bribery in the private sector in 2004 and 14 in 2006, 7 convictions of passive bribery in the private sector in 2004, 15 in 2006 (GRECO 2009a: 8 and 13). The institutions in charge of the monitoring of the use of public funds and the various investigators know that their control capacity is very limited. We saw that businesses and politicians quickly react to the wave of convictions. In order to gain control over a scandal that is expanding, their strategy consists in reducing its multisectoriality with pre-trial guilty pleas, a solution sponsored by the MEDEF. 257 For politicians and businesses penalties are rarely implemented and, by the way, are not dissuasive; the risks are not calculated as insurmountable. On paper, the anticorruption legislation is stringent, but in reality this is not the case. “Most convictions for bribery result in fairly moderate fines and suspended or partly suspended prison sentences rather than actual imprisonment, and in no case has a legal person been convicted (…). Of the 160 convictions for active bribery passed between 1999 and 2001, although almost three quarters of them resulted in prison sentences. Just over half of these sentences (52.5%) were suspended in their totality and 13.5% in part” (OECD 2004: 56). Unfortunately, we cannot say that “there can be little doubt that corruption undermines the legitimacy both of government and those who govern in many countries” (Transparency international 2009b: 19) because there is no direct link between the misconduct of officials and public distrust. This legalistic and juridist concept, which comes from a literal interpretation of democratic theories, is asociological. In recent years, documented allegations of corruption against politicians did not lead to their resignation. On the contrary, these politicians, together with defence lawyers, managers and accommodating journalists, succeeded in obstructing the investigations. The judicial punishment of offenders is not obvious; it is the same with regard to political and electoral sanctions. Some of the politicians convinced of corruption used to return to electoral competition after being banned from public office for two years. During the last decade, the popular expression “prime à la casserole” described the electoral benefit of being corrupt. This expression emphasizes the apparent paradox that the citizenry did not punish corrupt or supposedly corrupt politicians during the 258 elections. A few politicians found guilty of corruption were removed for a while and then re-elected. In 2002, Chirac was portrayed by many caricaturists as a robber, but he won the presidential election again. After enjoying total immunity from prosecution during his Presidency of the Republic mandate, Chirac is now charged with few offences relating to corruption, but his popularity in the polls has never been so high. Convicted in the Paris City Hall trial, the former Prime Minister Alain Juppé lost his civic rights for two years. Then he obtained 56% at the first round of the municipal elections in Bordeaux. Despite several convictions, Patrick Balkany, a close friend of Sarkozy, was also re-elected in the Parisian suburb of Levallois-Perret. The mayor of Grenoble Alain Carignon (RPR), who was found guilty of corruption9, attempted a comeback in 2009 with the public support of President Sarkozy. This reminds us that delegitimation only occurs when collusions are in crisis. Otherwise, a request to proceed against a representative or even a conviction does not produce much damage for his/her career. A rehabilitation of corruption? As we already said, corruption is very sensitive to the context, i.e. to the way actors attach a meaning to their environment. The interweaving of politics, business and media was never more visible than during the beginning of Nicolas Sarkozy’s presidency. As a business lawyer specialised in the real estate and former mayor of Neuilly sur Seine (1983-2002), an upper-class Parisian suburb, and as President of the General Council of the Hauts de Seine (2004-2007), Sarkozy is connected with the big business community 9 He received 6 millions francs from the company for the concession of supplying water to the city. In 1999, the CGE was found guilty of active corruption and liable for damages to the customers’association UFC/Que choisir. 259 (Constanty and Lautrou 2008). Succeeding Jacques Chirac, Sarkozy was elected President of the Republic on 7 May 2007. At the end of the election day, the French economic elite (Arnaud Lagardère, Martin Bouygues, Bernard Arnault and many other CEOs) celebrated his victory in a famous restaurant. The expression “business community” never has been more pertinent. The first years of his mandate were characterized by the so-called “bling-bling” style He spent his first holidays as President on the yacht of his friend Vincent Bolloré, a billionaire industrialist; the message conveyed corresponded with the enormous emphasis placed by the media on “the rich and famous”. While most of the journalists remain cautious about corruption, especially on television where self-censorship is very strong, the tabloidization appears as a diversion. The way politics and economy are covered by “junk food news” based on gossip has become more personalized, homogenized and sensationalized. Inspired by Berlusconi’s government policies, President’s project to depenalize the business offences fits well with his celebration of easy money and individual selfinterest. Members of his entourage enforce this tendency, as political marketing guru Jacques Séguéla said: “If you don’t have a Rolex at 50, it means that you missed your life”. The social inequalities are increasing in a context of deshinbition and deculpabilsation for the richest: the distribution of the national income is more and more unequal (Castel, Chauvel, Merllié, Neveu and Piketty 2007; INSEE 2010), a situation conducive to corruption as Eric M. Uslaner showed (Uslaner 2008). By abolishing the criminal classification for many acts of financial misconduct, including those relating to corruption, the reform of the judiciary prepared by the government considers whitecollar crimes as irrelevant. 260 Recent measures tend to put the pressure on judges and three decrees adopted in December 2008 decrease the level of transparency in public works procedures. There is an increasing trend for ministers and high-ranking public officials to join large private companies, which gives the general impression that political power positions are mainly and quickly (mis)used for private gain. By nominating his 22 year old son, who was elected by the Hauts-de-Seine General council, for the presidency of the EPAD, a public agency in charge of supervising the expansion of La Défense, Europe’s largest business district, the President appeared to operate in a clan-like fashion. This last attempt did not succeed: for the first time, he faced public outcry, the accusation of nepotism spread and public protests dissuaded him. The decline of inhibitions with regard to corruption can also be observed in the academic and intellectual sphere, as some philosophers and writers no longer hesitate to show themselves as being very close to big businesses and politicians. A few authors have recently tried to rehabilitate corruption. In her essay Eloge de la corruption, psychoanalyst Marie-Laure Susini considers anti-corruption as a typical totalitarian regime program (Susini 2008), while philosopher Gérard Kœnig pleads the “discrètes vertus de la corruption” (Kœnig 2009). Conducive conditions In recent years, the conflict between the government and a part of the judicial sector reappeared as unequal. The investigative magistrates feel powerless in fighting largescale corruption. In the 2008 report from the CEPEJ (Commission Européenne Pour l’Efficacité de la Justice, Council of Europe), France ranks 35 of 43 countries listed (it was ranked 18 in the 2004 report) for the budget of the Justice Department which represents 0.19% (3.35 billion €, 8.73 billion € for Germany) of its GDP. This helps to 261 explain the gap between the anti-corruption legislative arsenal in the books and how it is (not) put into practice. The anti-corruption personnel, particularly the Parisian camp, is demoralized and feels isolated. Most of the leading investigative magistrates of the 1990s (Eva Joly, Laurence Vichnievsky, Eric Halphen) resigned and made their disappointment public (Halphen 2002; Joly 2004). Investigative magistrates do not have any autonomy. A project defended by President Sarkozy in 2009 proposes to extend the use of Secret State Privilege to impede the magistrates to pursue; tries to reinforce the hierarchical organisation of the judiciary and to minimise the autonomy of the judiciary by cancelling the figure of the investigating magistrate (juge d’instruction). In case of monopoly of penal prosecutions by the public prosecutor, successful prosecutions of cases of corruption would be the exception given the statutory subordination of the public prosecutor to the Minister of Justice, the statutory subordination of the prosecutor’s deputies (substituts du procureur) to the public prosecutor and the discretionary principle which relieves prosecutors from their obligation to initiate proceedings in respect to an act which looks like an offence if they think it is not appropriate to prosecute (opportunité des poursuites). The civil law does not allow for the investigation resources and the government refuses to put the class action possibility in its political agenda. While the ideological depolarization facilitates interpartisan collusions, the leaders of the Socialist Party refuse to exploit corruption scandals, as clearly was the case during the Paris City Hall affair when it was made public that the former Minister of the Economy Dominique Strauss Kahn had a copy of the Méry videotape and kept it secret. At the exception of the Green Party and the National Front, all the major political 262 parties renounced to use anti-corruption as a political argument. From that perspective, it is not surprising that, in its Evaluation Report on France Transparency of Party Funding, the GRECO evaluation team “very much regrets that only two political parties and no media representative agreed to a meeting with it” (GRECO 2009b: 2). Another conducive condition lies in the fact that lobbying activities are not sufficiently regulated. The influence-peddling of the large companies is very strong on the MPs, who are not accountable to the public concerning the choice of their assistant, with the recruitment of MPs’ relatives by those companies, financed study trips, sponsored symposia and other forms of gifts and advantages. The two chambers of the Parliament are captured by lobbies (Constanty and Nouzille 2006). Lobbying recently became an industry and the number of lobbyists significantly increased, from 11,000 in 1982 to 130,000 in 2009. All those events took place in a context of apparent apathy towards the “civil society”. The weakness of anti-corruption mobilization After two decades of scandals, the context that prevails in 2010 is characterized by the apparent locking of the opportunities for a massive anti-corruption movement. The discovery of large-scale corruption activities, such as the pact between big private firms and politicians from various political parties, did not provoke many protests or public outcry. There are very few anti-corruption non-governmental organizations and they do not succeed in mobilizing public opinion. For instance, Anticor, which was founded in 2002 by several politicians, public servants and intellectuals (the investigating magistrate Eric Halphen has been its honorary president) has a very modest following. Founded in 1985 by jurists and social scientists and exclusively financed by private founds, the Institut Français pour la Recherche sur les Administrations et les Politiques 263 Publiques (iFrap) is presented as “the think tank of civil society” (Société Civile is also the name of its monthly journal) and became a Foundation in 2009. One of its 2001 reports is entitled “Corruption at the heart of France”. Sherpa is an association founded in 2001 by a Parisian lawyer to promote the notion of social responsibility among enterprises. These anti-corruption associations are not allowed to join criminal proceedings as plaintiffs, as was confirmed during a parliamentary debate in October 2008. Presented as civil society initiative, they do not find enough support among opinion makers. Domestic NGOs, civic associations and think tanks are not powerful enough to put the pressure on the government and, for the moment, to trigger a significant movement among public opinion. The customary association UFC/Que choisir that succeeded in various cases in mobilizing a vast movement is one of the exceptions10. This weakness of the anti-corruption movements is one of the reasons for not reporting bribery. In the absence of class action and with a very recent and modest protection of whistleblowers, victims feel a strong sentiment of isolation, powerlessness and helplessness: they are prisoners of that intersubjective trap. The public and precise denunciation of corrupt practices remains costly and risky. Without powerful watchdog groups, no anti-corruption crusade is possible and corruption produces a vicious circle. Conclusions Our findings suggest several conclusions about the extent of corruption in France. Corruption remains very difficult to quantify. Surveys and indexes are just one 10 UFC (Union Fédérale des Consommateurs) was set up in 1951 and has been authorized since 1976 to take legal action. The redaction of its review Que Choisir is famous for its investigations. 264 tool at our disposal. More pervasive than generally acknowledged, corruption is not very visible because of the general efficiency of the public administration and the provision of services. Public services are exposed to an increase in prices, at the disadvantage of the state and the taxpayers, but public services are usually carried out effectively and this is a significant difference with Italy (Rayner 2009). Corruption does not affect a vast part of the population in its daily life, but its cost could be considered as an externality. The few who benefit from it transfer the damage to society as a whole. Large-scale corruption consists of amicable dealings at the intersection of the political and the economical spheres. These dealings are reinforced by strong collusions within the judiciary and the media. Most of the social construction process of corruption lies in these inter-sectoral protections. These arrangements are reinforced by the dependence of the media on large companies involved in corruption and the complicity of the opposition and the fact that the Ministry of Justice is still empowered to give instructions to the magistrates. Illegal electoral campaign contributions may have decreased, but the configuration of corruption has changed due to conflicts of interests. The most powerful media outlets belong to large companies which cultivate their good relations with politicians: privatizations as well as public programs are often motivated by hopes of bribes and/or favours, pantouflage encourages reciprocated favours between public officials and private firms. In this manner, the “market” is intertwined with politics and media; corruption consolidates the collusions between large businesses, top politicians, high-ranking public officials and journalists. This trend resembles a privatization of corruption. The government gives contradictory signals, mixing in its policies obstacles to and opportunities for corruption. On paper, the legislation is more incisive, and various 265 institutions and agencies are supposed to improve the monitoring of public administration, public works contracts and the finances of political parties. We saw that the government and the large companies put anti-corruption on their agendas because they were incited to do it by a vast series of scandals and increasing international pressure in the name of “good governance”. The effects of theses pressures are tangible but still ambivalent; they constrained the government to pass legislation on party finance, the political parties to reduce their expenses and the companies to establish ethics committees. This pressure from the international organizations and governmental counter-corruption measures alone does not dissuade people from engaging in corruption. Campaigning against corruption is not a governmental priority. While the executive control over the judiciary remains very strong, the human and financial resources allocated to investigations and proceedings are very weak. One of the principal obstacles in combating corruption arises from this political dependency of the judiciary. Investigative magistrates have little latitude, but corruptees and corrupters have many reasons to feel secure and enjoy impunity: the courts are not in order to apply the law. After a decade of unusual insecurity, economical and political elites succeeded in protecting themselves from the judges. In recent years, very few convictions of big businesses or politicians have been made. Corruption is hard to mitigate because its embeddedness opposes its own inertia to reform. The institutionalization of payoffs deeply influences the way businesses, politicians and public servants behave and interact. The payment of bribes is almost invisible due to sophisticated camouflage (offshores, intermediaries); the difficulties connected with proving the existence of a corrupt pact are often insurmountable. 266 The relevance of perceptions to crime prevention is crucial. In France, public institutions and private companies are perceived to be corrupt while complaint mechanisms are not seen as effective. As the context is apparently “locked in”, it will not be easy to tackle corruption. Meanwhile public opinion does not seem to be outraged, and judicial and electoral sanctions are not wide-spread. Nevertheless, fighting corruption is not impossible. Structural and contextual conditions of corruption are sensitive to changing circumstances; social actors adjust their behaviour in accordance with the context. An event, which decisively changes actors’ perceptions about what is (im)possible to do in their respective social sphere, could occur and corruption may be seen as much less convenient. 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Edinburgh: Keele University Press. 271 Chapter 8 When anticorruption policy fails: The Italian case eighteen years after “mani pulite” investigations Donatella della Porta / Alberto Vannucci It would be unfair if a man with the qualities of Di Pietro would not use them in the political arena. … His moralizing push as a patrimonial asset for us all and could be useful for the country. My newspapers, my TVs, my groups have always been in the front line in supporting the Clean Hands judges (Silvio Berlusconi, Ansa, 8 December 1994) The Italian anomaly is not Silvio Berlusconi, but rather the communist public prosecutors and the communist judges in Milan. Just since Silvio Berlusconi went down to the field, taking away power from the Communist judges, he has suffered from 103 judicial proceedings (Silvio Berlusconi, Reuters Italia, 28 October 2009). Corruption in Italy: An Introduction Corruption is by its nature a subterranean phenomenon. When it occasionally emerges – normally through judicial inquiries, sometimes thanks to investigative media – often a scandal and a public reaction follows. Corruption and scandalization cycles are in fact related, but the first in neither a necessary nor a sufficient condition for the latter, as the Italian case clearly shows. Two political effects may then follow exposed corruption: a 272 physiological failing of consent and support towards involved politicians and parties; a pathological increase of frictions and conflict between the judiciary – as well as the media system – and the political power. Both consequences, in different phases, have invested the Italian political system. When corruption is successful, however, it develops well in the depth, invisible to almost all, perceptible only within a very close circle of insiders, beneficiaries or accomplices. The widespread nature of corruption in Italy became a major political issue during the 1990s. February 1992 saw the start of the mani pulite (“clean hands”) judicial inquiry in Milan, with the casual arrest of the socialist manager of a public hospice and the subsequent expansion of the investigations to the whole country, following a sort of “snowball effect”: more than 500 MPs were finally implicated, former ministers, five former premiers, thousands of local administrators and public functionaries, the army, the customs service (responsible for investigating financial crimes in general), the main publicly-owned companies, even sectors of the magistracy itself. The scandal led to a dramatic breakdown of the political system, which since the end of the Second World War had been characterised by a high degree of stability, with a permanent pivotal role being played by the Christian Democrats. In a few months, most leading political figures were forced to resign or go into exile, like the former socialist premier Bettino Craxi; the major parties disappeared or underwent radical transformation; new parties emerged on the scene – as the Forza Italia party, lead by the media tycoon Silvio Berlusconi – to fill the political vacuum. Surprisingly enough, the issue that acted as detonator of the crisis – the evidence of extensive corruption – quickly disappeared from the agenda of Italian politics. The persistence of corruption and the lack of anti-corruption policies have disappeared from 273 public debate since the mid-nineties; neither has the involvement of the Prime Minister, Silvio Berlusconi, in several corruption inquiries since 1994, when he started his political career, produced significant political consequences, both at electoral and institutional level. On the contrary, in his vehement defence Berlusconi has exacerbated a tension between the political and judicial branches of the State. The (constantly asserted) need for a reform of the administration of justice in order to reduce the allegedly arbitrary power of judges who, it is claimed, are politically biased, or to safeguard the privacy of persons under investigation-- have become in the last years main issues on the political agenda.1 Political sanctions against politicians involved in corruption scandals, which had traditionally been quite mild (della Porta 1992), have become virtually non-existent in the last decade, as epitomised by the case of Prime Minister Berlusconi who, as centreright leader, won the elections of 2001 and 2008 despite being under investigation in several corruption cases and inquiries.2 Social sanctions and stigma against entrepreneurs and other private agents involved in corruption have been similarly non- 1 In the last decade the “moral question” of corruption in Italian politics has known some temporary revivals in coincidence with some scandals, but in general it has been marginalized, having become the trademark of a minor party, Italy of Values (Italia dei Valori, IdV), led by the former public prosecutor, Antonio Di Pietro, who initiated the mani pulite inquiry. 2 Following the introduction of the closed-list system of proportional representation, used for the first time in 2006, the selection of parliamentarians has been placed in the hands of parties’ leaders, who have paid little attention to the criminal records of candidates. A popular campaign, “Clean Parliament”, launched by the comedian and blogger Beppe Grillo, denounced in 2006 the presence in Parliament of 25 members carrying convictions (21 belonging to the centre-right coalition, 4 to the centre-left). Following the election of 2008, the corresponding figures were 18 in total (consisting of 16 for the centre-right, 2 for the centre-left). 274 existent (della Porta and Vannucci 2007b). The suspicion that candidates might have been involved in corrupt practices does not worry Italian electors anymore.3 In what follows we will use statistical and survey data, judicial and newspapers sources, to show some aspects of the “hidden face” of corruption in Italy. Some hypotheses will then be formulated to explain the reasons of its evolution in the last decade, including the failure of anti-corruption policies and their emergence of internal governance structures of corrupt transactions. Empirical evidence on the scale of corruption in Italy Estimates on the real diffusion of corruption are controversial. Methodologically, corruption is akin to the so-called victimless crimes, that none of the parties involved has an interest in reporting.4 In this case, official statistics do not represent a reliable source of information on its real evolution. Due to ambiguity on the interpretation of 3 Whereas in 1996 91.8% of Italian electors considered corruption to be a very or quite important problem, and 30.6% saw it as the first or the second most important social and economic problem of the country (only unemployment scored a higher percentage), following the general election of 2001 the percentage of those who considered it as one of the two most important problems fell to 5.5%, even if 92% still believed that it was a quite or very important problem. After the 2008 election, a mere 0.2% of Italian electors considered corruption the most important problem that government should take into consideration. Source: ITANES (Italian National Election Study) data for the 1996, 2001 and 2008 general elections (http://www.itanes.org/index.asp?s=dati). 4 Corruption is not a victimless crime, however, but rather a crime whose victims are unaware that they are such. The victims of corruption are citizens and taxpayers, who bear the burden of increased costs of public-works and other contracts, of inefficiencies in public administrative procedures, of de-legitimation of public institutions, of distortions in competitive mechanisms, etc. The General Prosecutor of the National Audit Office (Corte dei Conti) Furio Pasqualucci has defined corruption as an “immoral and hidden tax paid by citizens (…) one whose social impact may affect negatively the economic development of the country”. Its monetary cost in Italy has been estimated to amount to between €50 and €60 billion per year (Il Sole-24 Ore, 25 June 2009). 275 heterogeneous data, in the public debate optimistic and pessimistic stances both can find arguments to support them.5 We will combine different here different sources of information, in order to provide some consistent evidence of the dynamics of corruption in Italy in the last decade. Judicial proceedings provide figures about the number of reported instances and the number of people involved in acts of corruption. As shown in Figure 1, in 2004 the number of crimes and people reported is still between two and three times the number for the pre-1992 (that is, the pre-mani pulite) era. There are two peaks – in 1995 and 2002 – but overall, the trend is a decreasing one. This is confirmed for the last five years by Interior Ministry data which, following a peak in 2005 show a decline in the number of corruption crimes reported to police.6 In 2009 reported cases of corruption will presumably be at one of their lowest level since 1992 (see figure 2).7 The number of convictions for corruption has fallen even more rapidly in the last decade. Figure 3 illustrates the trend. In 2006 there was just one seventh the number of the convictions there had been ten years previously, with some extraordinary decreases: in Sicily the number falls from 138 in 1996 to 5 in 2006; in Calabria from 19 in 1996 to 5 A rather positive assessment can be found, quite surprisingly, in the last reports to Parliament of the Anti-corruption authority. The reports emphasises the encouraging judgments of some foreign observers, the decline in the number of reported allegations, the low levels of corruption actually experienced by Italian citizens, the unreliability of adverse corruption perceptions index scores, the impact of administrative reforms currently being implemented (SAET 2009a, 2009b). 6 The absolute values of the two time series are not comparable since their sources (the National Statistical Office- Istat and the Ministry of the Interior) differ. 7 The more-than-proportionate increase in the number of people involved in reported cases after that year reveals another interesting, qualitative aspect of the corruption that emerged thanks to the mani pulite inquiries: it required more complex, more extensive networks of illicit exchange, as qualitative analysis confirms (Vannucci 2009). 276 zero in 2006; in Lombardy from 545 in 1996 to 43 in 2006 (Il Sole-24 Ore, 2 February 2008: 1-3).8 [Insert Figure 8.1 here] [Insert Figure 8.2 here] [Insert Figure 8.3 here] Opinion polls represent another source which can be used to estimate the diffusion of corruption. Several surveys converge to confirm that corruption is a salient feature of public activity in Italy. According to Transparency International’s Corruption barometer, in 2005 50% of Italian citizens perceived that levels of corruption had increased in the years 2002-2005, only 12% that it had declined: surprisingly, in the same years official statistics showed the opposite trend for the number of reported crimes. In 2005, 41% of Italian citizens expected a further increase in the future; only 12% were optimistic. In 2007 pessimism had increased: 61% thought corruption was bound to increase in the following three years (Transparency International 2005, 2007). According to the Eurobarometer surveys (2005, 2008a, 2009) corruption is considered a relevant problem for the country by 84% of Italians, with an increase (the largest among the EU countries) of 9% between 2005 and 2009; 70% of Italian citizens (the largest percentage in the EU) consider corruption to be related to the presence of organised crime; 89% of citizens believe that corruption is rather frequent in national government and institutions. In 2007, 10% of Italian respondents said they experienced corruption directly by being offered or asked for a bribe. In 2009, the percentage increased to 17%, one of the highest in Europe, twice the average in EU countries (9%). 8 The ineffectiveness of mechanisms of legal enforcement tends to strengthen expectations of impunity within corruption networks. 277 In February 2010, according to a Demos-PI opinion poll, 35,5% of Italian citizens believe that political corruption is more diffused than in the “first republic”, 48,3% consider it at the same level, only 11,4% less diffused. Most citizens think that corruption is widespread at the national political level (72,6%), at local level (54,2%), in large public contracts (52,4%).9 [Insert Figure 8.4 here] Similar pessimistic expectations and beliefs are confirmed by the trend in the Transparency International Corruption Perceptions Index (CPI), which measures perceptions of corruption by combining the results of surveys conducted among foreign entrepreneurs, analysts and experts such as journalists. As shown in Figure 5 – which reverses the scoring normally used so that 10 represents the highest rather than the lowest levels of perceived corruption – in 2009 Italy reaches a ten-year high. [Insert Figure 8.5 here] Since 1995, when the CPI was first developed, Italy has occupied one of the lowest places among Western countries in terms of transparency (see Figure 5), with the Scandinavian countries, New Zealand, Iceland and Singapore achieving instead the highest scores. After a significant improvement in Italy’s position in 2000 and 2001, the country fell from 41st (among 179 countries) to the 55th (among 180 countries) and 63rd position between 2007 and 2009 (the country’s CPI scores for 2007, 2008 and 2009 being 5.2, 4.8 and 4.3 respectively). In 2009, Italy is perceived as a country more corrupt than Cuba, Turkey, Namibia, Malaysia, Jordan, Botswana. Figure 6 presents the evolution of corruption perception index in the last two years in Eu-27 and G-8 countries. 9 Cfr. Demos-PI, XXI Atlante politico, in “la Repubblica”, March 7, 2010. 278 [Insert Figure 8.6 here] A third type of source of evidence about the incidence of corruption-related crimes can be found in newspapers and other media, which, in presenting them to the public, “filter” episodes that have emerged, usually thanks to judicial proceedings (Cazzola 1988: 22-24). This selection process is influenced by some specific characteristics of the illegal exchanges – identity, role and number of people involved; size of the bribes paid; sector of activity and consequences of the alleged corruption, etc. – but it is obviously biased also by newsworthiness, editorial choices, and the political influence over the media system. Italian political scientist Franco Cazzola (1988, 1992, 2007) has provided an extensive analysis of Italian corruption based on media sources. As shown in Figure 7, in the newspaper, la Repubblica,10 the trend in the number of corruption cases reported approximately reflects the trend in the number of cases reported to the authorities.11 There is a significant difference, however: after the “big bang” of the mid-1990s, a sort of habituation to corruption stories appears to take place, lowering the level of public interest and raising the “scandalisation threshold” for news of bribery. This takes place rapidly following the upheavals of 1992 to 1994 and the political debut of media tycoon Silvio Berlusconi. In 1995 and 1996, when the number of cases reported to the authorities reaches its peak, newspaper coverage of 10 La Repubblica, which is the second Italian newspaper, was selected by Cazzola because of its traditional tendency to offer wider-than-average coverage of public malpractices (Cazzola 1988: 58), something that is probably related to its relative independence of political influences. Moreover, it has recently made available online a database of its articles. 11 A similar declining trend, after the peak of mani pulite, can be observed in the number of articles on corruption subjects in la Repubblica: on average per year there are 592 articles in 1984-1992; 1,761 in 1992-1996; 809 in 19971999; 517 in 2000-2004; 391 in 2005-2006 (Cazzola 2007). 279 corruption is less than it had been on average in the period from 1987 to 1991, when the numbers involved in inquiries was almost one tenth. Newspaper’s coverage of corruption cases has decreased rapidly in the last decade and in 2007 and 2008 it is much lower than it was in the 1980s, when instances of corruption reported to the authorities were fewer than half. This is the Italian miracle, as Cazzola ironically calls it: “After tangentopoli [‘bribesville’] the country has never been so virtuous, at least in appearance” (Cazzola 2007).12 The trend presented in Figure 8 indicates in fact the general decline in the media’s interest in corruption scandals, which may reflect resignation or habituation on the part of the public. [Insert Figure 8.7 here] [Insert Figure 8.8 here] The hidden reality of Italian corruption Empirical data for exposed, perceived and reported corruption show three distinct trends. The first and the third decline after the mid 1990s – gradually and with fluctuations in the opposite direction in the first case, more sharply in the case of media coverage. The perception of corruption, by contrast, shows a clear, though fluctuating trend upwards since 2001. In recent years exposed (and sanctioned) and reported corruption have reached their lowest levels since 1992. On the contrary perceived corruption has reached a ten-year high. Combining these sources of information we may infer that: 12 Cazzola (2007) enters two caveats concerning the comparability of the data: before 1992 they include only political corruption, i.e. corruption involving political actors or political representatives; after 1995 they include administrative corruption. Moreover, la Repubblica has introduced, for the main Italian cities, local editions where some of the minor corruption cases are now reported rather than in the pages devoted to news of national interest. 280 (1) If we take perceptions of rising corruption as an indicator that its real incidence is spreading, lower figures for the number of people, and for crimes reported and sanctioned, imply an increase in the number of corrupt exchanges which do not result in prosecution or incur penalties. In other words, in the last decade the probability that corrupt agents are able to undertake their transactions successfully, without the interference of control agencies, has grown (Davigo and Mannozzi 2007: 114). And if corruption is safer, then there is a stronger incentive to engage in it. Robust impunity expectations seem in fact to characterize the behaviour of several actors in recent corruption cases. Ad observed by judges inquiring on corruption in civil defence contracts: “leading actors beyond the awareness of an almost unlimited power show a real impunity syndrome; speaking with his brother […] (entrepreneur that he wanted to favour in spite of the reluctance for the inadequacy of his firm) directly and literally tells him that they have the licence to kill and they can do and take whatever they want”. (Tribunale di Firenze 2010: 44). In the individual cost-benefit calculus, increased expectations for impunity encourages public administrators, entrepreneurs, middlemen to demands their inclusion in the close, restricted, oligarchic networks of corrupt exchange, to get access to its internal redistribution mechanisms of rents and bribes. (2) The perception of an increasingly widespread corruption does not seem to derive from a more extensive media coverage. On the contrary, there is a striking divergence between the beliefs and opinions expressed by the public and the salience given to corruption by the mass media. If newspaper coverage is constantly falling in the case of the independent la Repubblica, then presumably the decline is even greater in the case of the broadcasting system owned or directly influenced by the Prime Minister, Silvio Berlusconi. If perceptions of rampant corruption are not induced by 281 official sources of information, arguably their origins are to be found in informal channels of communication or personal familiarity, as in those 17% of Italian citizens who declared having personally experienced bribe-requests in 2009 (see figure 4).13 (3) There is an evident decline in media interest in exposing corruption at national level after the huge impact of media interests during the mani pulite investigations a kind of “saturation effect” has accompanied an increase in the tolerance threshold. Moreover, as denounced by Freedom of the Press, there is a high risk of abuses and undue interferences caused by political pressures and control over media: “Italy suffers from an unusually high concentration of media ownership by European standards. (…) Berlusconi’s return to power in April 2008 gave him the potential to once again control up to 90% of the country’s broadcast media through the state-owned outlets and his own private media holdings” (Freedom House 2009).14 At first the fear of being prosecuted and publicly exposed was a real deterrent for corrupt politicians, even stronger than the threat of any legal sanctions, since it implied a public judgement, made in the public sphere – with the possible consequence that their reputations would be destroyed. But, as Pizzorno observes, if these cases become too frequent, then they lose their value. “Like medicines that become the less effective the more you take them, so it is with inquiries, legal notifications and indictments: the more they follow one after 13 The Transparency International Corruption Perceptions Index is based on the evaluations of both resident and non- resident country experts and business leaders, who have specific knowledge of the country’s situation. In both cases we may assume that the Italian media influence opinion-making processes. Nevertheless, perceptions of increasing levels corruption are also evident in surveys limited to Italian citizens, who are presumably more exposed to the conditioning effects of national newspapers. 14 In 2009 Italy is penultimate in Europe, followed only by Turkey, in the Freedom of the Press ranking for freedom and independency of media, being classified as a “partly free” country. 282 the other, the less people pay any attention to them, and the less they give rise to public judgments that count or have any lasting impact” (Pizzorno 1998: 114). Thus it was that media attention shifted progressively from corruption to disputes about the alleged political bias of “left-oriented” judges, exacerbating friction between the political and judicial systems. (4) Comparing Italian and European data on the experience and the social alarm caused by corruption (Eurobarometer 2008b, 2009) we may find an indirect signal of a high level of social habit to corruption. In 2009 83% of Italians believe that corruption is an important issue, a percentage which is slightly decreasing from the 84% of 2008, and a little above the European average (78%). In the same years personal experiences of corruption, in the contrary, almost doubled – from 10 to 17% – while the European average was only 9%. Similarly rising was the corruption perception index, in 20082009 falling from 4.8 to 4.3, second-to-last European performance. While social alarm is more or less stationary, perceptions and reported daily experiences of bribe-related practices considerably increase: this could be considered an indicator of a higher threshold of public tolerance towards corruption. To sum up: the Italian scenario is one of deep-rooted corruption, more often unpunished, in a context where scarce attention of media combines with a growing weakening of social alarm and a general mistrust towards the honesty of the whole political class. More than open reactions in the public opinion and the electoral punishment of corrupt politicians, the widespread acknowledgment of corruption has produced a broad mistrust in the political class in general. “New” corruption has however some distinctive tracts when compared with evidence emerged from “mani pulite” inquiries. 283 The governance structures of Italian corruption The trends discussed in the previous section suggest that during the last decade in Italy corruption has become more widespread and less risky; that efforts to detect and punish it have lost momentum; that in a climate of mistrust and dissatisfaction, public and media attention to it has become almost non-existent. Such an outcome is not surprising. If anti-corruption policies are absent or ineffective, while the prevailing value system still reflects individualistic or familist values and the lack of a civic culture, the voice of supporters of legality will fade or find few listeners, with the result that the dominant strategy for many will remain that of seeking to be included in the networks of corrupt exchange. This does not means that everything remained the same in the hidden corrupt marked, from an analysis of qualitative sources – judicial records and newspaper reports – it seems in fact to reflect new equilibria, with some differences in the distribution of roles and shares of resources among actors involved (della Porta and Vannucci 2007a). The “Italian anomaly” of uncommonly high levels of corruption in an advanced western liberal-democracy has traditionally been explained as the combined effect of several macro-variables, among them: (i) the long-standing absence of alternation in government, which undermined the possibility of reciprocal control in the party system; (ii) the rising costs of politics and the regulations concerning the public financing of parties, with their inflationary effects; (iii) the collusion or corruption of magistrates and the representatives of other control agencies; (iv) the weakness of electoral sanctions against corrupt politicians and parties; (v) the lack of independence and political control of the media system; (vi) the structural inefficiency of Italian public administration; (vii) the de-facto arbitrariness of many decision-making processes, where excessive formal regulation coexists with the attribution of special derogatory or emergency 284 powers; (viii) the extent of state intervention and the over-regulation of economic and social activities; (ix) the formalism of administrative procedures and controls; (x) the legislative and procedural inflation, which produces uncertainty and increases the arbitrary power of agents who apply or interpret norms; (xi) the collusive dynamics in the relationships between politicians and bureaucrats; (xii) the familistic governance of private enterprises and their collusive attitudes in market interaction; (xiii) the presence, in several regions, of organised crime with its enforcement apparatus underwriting agreements in illegal markets; (xiv) the lack of general support and confidence of citizens in the state and the political class; (xv) the structure of social values and the political culture, orientated both to strong ideological attachments (at least until the fall of the Berlin wall) and to particularistic relationships; (xvi) the lack of a “sense of the state” and of universalistic attitudes in the public service (for a survey see Pizzorno 1992; Comitato di studio 1996; della Porta and Vannucci 1994, 1999a, 1999b). Most of these explanatory factors are still valid, with the possible exceptions represented by the emergence of government alternation since 1994 elections; the partial privatisation of several public enterprises (which provided new occasions for corruption, reducing at the same time the potential for control); the on-going reform of the processes of public administration and control; the weakening of ideological appeals.15 But the persistence of other dimensions, inducing strong economic incentives and weak moral barriers, delineates an ideal combination of corruption-enhancing factors. The robustness of Italian corruption also owes much to its internal dynamics, i.e. to the deep-rootedness of the endogenous features of the relationships between the 15 See Lambsdorff 2007 for a survey of empirical analysis on the relevance of macro-social, economic and institutional causes of corruption. 285 political, administrative and economic actors involved. One of the most striking features of the Italian corruption revealed by judicial inquiries is that illegal activities, both at local and at national levels, were and often are closely interrelated thanks to complex networks of corrupt exchange. In other words, corruption in Italy has been shown to be – and presumably still is – a system, not the mere aggregation of many dispersed, isolated illegal acts. It has become a market, which, as in the case of every functioning market, has developed internal rules and codes of behaviour – a regulated market, in which the exercise of public authority in many crucial areas – public contracting procedures, licensing, urban planning, etc. – is governed by the laws of supply and demand (Vannucci 1997; Belligni 1998). Extensive judicial investigation on corruption during the nineties, paradoxically, has had a number of negative side-effects on the possibility to curb corruption. First, a “sense of impunity”, due to the ineffectiveness of attempts at prosecution, seems to shape the beliefs of leading actors in corruption. The effects of the inherent inefficiency of Italian judicial procedures have been reinforced by the approval of several laws which have obstructed inquiries, de-criminalised formerly illegal activities and shortened the time period before the statute of limitations comes into effect.16 A second factor has been vividly described by the judge Piercamillo Davigo: “The repression of criminals has the same effects as those typically exerted by predators in processes of natural selection, namely improvement of the abilities of the prey. We caught only the slowest prey, leaving free those who ran fastest” (Barbacetto, Gomez and Travaglio 16 Davigo and Mannozzi (2007: 253) describe a “funnel effect”, analysing a combination of factors – both external and internal to procedures – which in the end resulted in a rate of imprisonment of agents found guilty of corruptionrelated crimes in Italy of just 2%. 286 2003: 678). In this evolutionary “natural selection” process, the less “adapt” or capable corrupt agents were caught and therefore eliminated from the “corruption environment”, the more talented ones survived. At the same time, “new” agents have learned the lessons, adapting their operations to the conditions of risk revealed by previous enquiries, thanks to which they have acquired knowledge and skills which make it more difficult to discover and punish their illegal activities. The adoption, for instance, of sophisticated financial mechanisms for bribe payments in tax havens, or the “dematerialisation” of bribes through crossed participation of relatives in corrupting enterprises, or the fraudulent services of pseudoconsulting firms, represent “emergent challenges in the fight against corruption, including new and more complex techniques of criminals to circumvent existing legislation, prosecutions being repeatedly time barred” (GRECO 2009: 7). Recent changes in the public administration and in the party system have not brought about less corruption, but have simply encouraged the actors involved to develop new skills and abilities. Similarly, new leading figures in Italian corruption have adapted to the privatisation of juridical architecture – in public enterprises with a private governance – to manage public contracting avoiding risks of penal sanctions; have multiplied conflicts of interests, both at national and at local level (della Porta and Vannucci 2007a) “New” corruption, as it emerges from judicial acts, presents however a fundamental common feature with “old” corruption exposed by “mani pulite” inquiries. It is a systemic corruption, where strategies, activities, styles, languages are framed within prefixed scripts, following informal but codified rules. Several governance mechanisms ensure order and certainty in these illegal contractual relationships, 287 reducing their transaction costs. In some cases, guarantors play a central role, assuring strong defensive barriers against the internal risks of quarrels and attempts at free-riding as well as the external risks deriving from the ever-present threat of judicial intervention. A conspiracy of silence is the prevailing tendency within the political and economic elite, even among those who are not personally involved in corruption: the contrast between the number of allegations made by politicians and entrepreneurs – almost none – and the number of corruption episodes exposed by inquiries in the last two decades – many thousands – is striking. When corruption becomes widespread, as in Italy, certain operating mechanisms or governance structures emerge and become institutionalised to meet the demand for “certainty” and protection in the expanding illegal networks. Obviously, when governance mechanisms emerge, they influence both the rational calculus and actors’ cultural attitudes, lowering the moral barriers against illegality (della Porta and Vannucci 2005). In most areas of the public sector in Italy (as, for instance, in public contracting; fiscal, administrative and police inspections; urban planning; the health sector; the administration of the armed forces and the issuing of driving licenses, etc.) corruption can in fact be described as systemic. As the GRECO evaluation report (2009: 3, 6) on Italy stated: Corruption is deeply rooted in different areas of public administration, in civil society, as well as in the private sector. The payment of bribes appears to be a common practice to obtain licenses and permits, public contracts, financial deals, to facilitate the passing of University exams, to practice medicine, to conclude agreements in the soccer world, etc. […]. Corruption in Italy is a pervasive and systemic phenomenon which affects society as a whole. 288 Systemic corruption has at least four distinguishing features: (a) all, or most public activities within a certain public organisation are oriented or related to the collection of bribes; (b) all, or most agents in the organisation are implicated in an invisible network, which is regulated by unwritten norms and a commonly understood allocation of tasks and roles. Its activities include the collection of bribes and their distribution; the socialisation of newcomers; measures of camouflage; the definition of internal rules; regulation; enforcement; (c) all, or almost all, private agents in contact with the organisation know the “rules of the game” and are willing to pay bribes in order to obtain the benefits allocated as a result of them; (d) enforcement mechanisms and actors guarantee the fulfilment of norms and illegal contracts, imposing sanctions and costs on opportunistic agents and free-riders of corruption. Ample empirical evidence of systemic corruption has emerged in past as well as in more recent Italian judicial inquiries (della Porta and Vannucci 2005, 2007a; Vannucci 2009). Corrupt exchanges emerged as far from being occasional events in a chaotic and disorganized market. On the contrary, they are regulated by a defined set of norms of behaviour, establishing who to get in touch with, what to say (or not to say), what expressions can be utilised as part of the “jargon of corruption”, how much to pay, and so on (della Porta and Vannucci 1999b). Similar norms absolve some basic functions: the identification of trustworthy partners, the weakening moral discomfort, the socialization of newcomers; the banishment of honest actors. The “basic norm” of the invisible order of systemic corruption states the unavoidability of bribes, so generating and confirming expectations that corruption can not be avoided in order to obtain from (or within) the public structure involved valuable “resources” such as contracts, licenses, concessions, red-tapes, information, lack of controls or fine. As one 289 entrepreneur puts it: “In that public organisation you have to pay bribes to virtually everyone, I mean from the ushers to the Minister. […] The stream of bribes has been standardised for at least 20 years […]. I can say this because I am in touch with countless entrepreneurs, all of whom have told me the same thing” (Davigo and Mannozzi 2007: 266-267). This type of corruption simply overlaps with the whole range of public activities. In this context precise rates of bribe-payment often tend to emerge – a situation captured by the expression used in public contracting, namely, the “X per cent law” – and this regularity reduces information and bargaining costs, since there is no need to ask and negotiate the amount of the bribe every time. Corruption then becomes a sort of self-fulfilling prophecy. The perception that such a norm is widely implemented increases the economic advantages to be had from complying with it, as well as lowering the moral barriers against doing so. Paradoxically, the moral aspect is acknowledged within the system of corrupt exchanges when, through internalisation of the associated norms, “honesty” (as respect for the corrupt agreements) becomes trustworthiness in illegal dealings, as in the case of Italian party treasurers who were selected precisely for their reputation for reliability in the management of bribes (della Porta and Vannucci 2005).In systemic corruption several actors can specialize as guarantors of the efficient and peaceful functioning of the market for corrupt exchange, acting as a sort external authority, a “third-party” enforcement mechanism. Basically, a guarantor must be able to credibly threaten and if necessary to impose costs on other agents included in the network, or related to them by exchange relationships, so assuring, through respect of the norms of behaviour, order against the potential “state of nature” of the corrupt environment: “The essence of enforcement power is in the enforcer’s ability to punish (i.e., to impose costs). These 290 costs can be imposed both by the use of violence of by other means. […] Different third parties impose costs by different means” (Barzel 2002: 38-39).Several means may be used by individuals and organizations in order to enforce corrupt agreements. Thirdparties sanctioning power may be based on violence, as in the case of organized crime. Criminal organizations, when available as supplier of protection like in some Southern Italy regions, enforce such illegal exchanges using force (as well as their reputation of violent guarantors) to adjudicate disputes (Gambetta 1993). Another crucial sanctioning resource is the control on long-term relationships (Barzel 2002: 42). The enforcers – which in our cases are brokers, entrepreneurs, political bosses, party leaders, highranking bureaucrats – can threaten to deprive the partners from the expected benefits of future corrupt interactions. More specifically, some of them can make strategically use of their position within a web of relationships to credibly prospect exclusion of actors involved from future opportunities of exchange. As the Italian (old and new) judicial investigations indicate, the influence of political leaders and cashiers, as well as top bureaucrats, over the allocative power of party machines and public organizations adds a further resource to their enforcement power. They can, in fact, use as an enforcing mechanism their ability to realistically rule out parties to corrupt contracts from other benefits deriving from repeated legal interactions with the public bodies or the party structure: perspectives of carrier for lower-level bureaucrats, support for nomination in publicly appointed positions or candidatures, awards of public contracts or licenses to entrepreneurs, etc. Within the party organization leaders may also make appeal to common ideological values to obtain compliance of corrupt members to their enforcing pronouncements. 291 There are some differences between “old” and “new” corruption in Italy in terms of the ways in which the tasks of protection are distributed within the still widespread networks of systemic corruption. The protective activities of the traditional political parties, once carried on within an iron triangle consisting of the parties themselves, cartels of entrepreneurs and senior administrators, were destabilised following the parties’ declining fortunes.17 Political bosses have consequently achieved heightened autonomy in supervising the operation of corrupt dealings in their areas of informal control (della Porta and Vannucci 2007a). Since mani pulite, entrepreneurs too have played a major role in administering contacts, coordinating activities and imposing sanctions. The scandal involving a Neapolitan entrepreneur is paradigmatic of this “new equilibrium” in systemic corruption. He was, apparently, the organiser of a large network of politicians and officials – including center-left as well as centre-right parliamentarians; regional, provincial and municipal councilors; criminal and administrative justices; administrators – all involved in complex exchange mechanisms thanks to his control of several resources: money (bribes, as well as subtler forms of political financing through pseudo-consulting contracts, etc.), political and administrative careers; the recruitment of relatives; the subcontracting of publicprocurement work. As explained by the judges (Procura di Napoli 2008: 2-3), he was the organiser of a veritable “committee”, composed of public officials, professionals, councilors and public-sector managers who, with him at the centre, used their power and duties to help him obtain public contracts for construction and the provision of services, receiving in exchange the rewards that he could distribute (the recruitment of selected 17 According to the Corruption Barometer, however, in Italy the areas most touched by bribery are still the political parties (mentioned by 44% of respondents), followed by public officials (27%), Parliament (9%), the judiciary (8%), business (7%), the media (4%) (Transparency International 2009). 292 people; consulting contracts and assignments; money). They assured him that in contracting procedures public invitations to bid would be planned to meet his requirements, these actually being written by [him] and his staff, his bids later being accepted by the public bodies involved. For instance, during the course of an intercepted telephone conversation the entrepreneur asks a centre-left parliamentarian to “obtain credit” for a public contract that was unjustifiably awarded to a competitor: “They excluded me because of a friend of his … they managed the deal”. “If you want, I can stop the procedure”. “No, it is not necessary; let him have it, poor guy. But they will have to pay for this”. According to the investigating judges, in Naples public contracts and procedures were shaped to match the characteristics of his firms “with the purpose of guaranteeing him the award of contracts worth billions” (la Repubblica, 18 December 2008). Middlemen – the so called faccendieri – have also become pivotal actors in systemic corruption, thanks to their ability to manage information, to include reliable actors in or to expel unreliable ones from networks. As exemplified by the case of one of these middlemen in his confession to judicial investigators, the careers of would-be middlemen require consistent investment in connections and the building of contacts, which can be particularly expensive when they aspire to the highest levels of intermediation and have to satisfy potential partners’ secret tastes: I wanted to meet President Berlusconi and therefore I had to bear considerable expenses in order to get to be one of his intimate acquaintances. Being aware of his interest in women I introduced girls to him telling him they were my friends, concealing the fact that I sometimes paid them. I asked him to introduce me to the person responsible at national level for civil defense, Guido Bertolaso, since I wanted a friend of mine, with whom I had reached a collaboration agreement, to have an opportunity to illustrate to him the qualities of his industrial group, with the prospect of obtaining future contracts. One evening 293 President Berlusconi introduced me to Bertolaso […]. I want to state that the use of prostitutes and cocaine is related to my project of creating a network of connivance within the public administration, since at that time I believed that girls and cocaine were the key to success in high society (Corriere della Sera, September 9, 2009). Senior officials too can manage networks of corrupt exchange in the areas subject to their authority, doing so both internally, with respect to subordinates, and externally with respect to private counterparts. In civil defence contracting activity, one of the leading enforcers of the complex networks of corrupt exchanges, according to judges, was the highest level bureaucrat, who had the capacity “to manage his power distributing favours among several entrepreneurs under his protection, and composing possible quarrels deriving from unsatisfied expectations on public contracts, therefore avoiding potential denounces of disappointed entrepreneurs” (Tribunale di Firenze 2010: 64-65). Concluding, the actual power to sanction illegal dealings of third-party enforcers in corrupt exchanges is related to – although not always coincides with – their official roles, or their strategic positions within market structures. Less visible resources, like the power to blackmail, confidential information, networking skills, social capital, etc. are also very important in this respect. Anti-corruption and corruption-enhancing measures in Italy: a questionable balance According to various sources (including judicial records) Italy has experienced and presumably still experiences levels of corruption significantly higher than in most Western democracies. At the same time, through the clean hands investigations, it has experienced maximum public exposure of corruption, with a scandal that triggered a 294 crisis of the so-called First Republic. In the aftermath of the initial revelations certain reforms were launched which indirectly affected opportunities for corruption. They included amendment in November 1993, of those articles of the Constitution that concern parliamentary immunity; reform of the electoral system (following a referendum); the re-organisation of public procurement processes; wide-ranging reforms of the public administration involving a significant simplification of administrative procedures (GRECO 2009: 39). A large number of anti-corruption measures were the unintended consequences of reforms aimed at solving other problems, such as administrative inefficiency, or stronger executives. However, when politicians intentionally sought to pass measures to combat corruption, vetoes and controversies ensured the failure of reform efforts.18 Anti-corruption policies first came into the political agenda with the centre-left government lead by Romano Prodi, in office between 1996 and 1998, mainly through the work of a legislative committee of the Chamber of Deputies. Despite the broad nature of the proposals formulated, only one of them was approved by Parliament – and then only in 2001, during the last days in office of the centre-left government lead by Giuliano Amato (2000-2001). A symbolic “dividing line” can be drawn with the national elections of May 2001, won by the centre-right coalition led by Silvio Berlusconi, several times indicted for crimes of corruption. From then on, a contrasting tendency became predominant. A number of measures, that many observes judged as tailored to the judicial needs of the Prime Minister, were passed to restrain and weaken the impact of the judicial investigation of corruption. The issue of anti-corruption 18 For a detailed analysis of the results achieved by the political class between 1992 and 1999 in the struggle against corruption, its limits and the consequences for the political system, see della Porta and Vannucci 1999b. 295 policies completely disappeared from the public debate and the political agenda alike. At the present “Italy does not have a coordinated anti-corruption programme. No methodology is currently in place to estimate the efficiency of anticorruption measures specifically targeting public administration” (GRECO 2009: 28). Anticorruption activity has therefore been restricted to the sphere of investigation and punishment, with all the resulting limits and drawbacks in terms of institutional conflict. An outline of the main laws to have shaped the existing Italian anti-corruption framework over the last decade, or – vice versa – to have potentially increased opportunities for corrupt activities are presented in Table 1. Only direct measures only are here considered, i.e. those which had the fight against corruption as their stated object, or those which were criticised in public debate as likely to guarantee immunity or to limit the investigative capacity of the judicial system into corruption crimes.19 The analysis of these measures suggests some general considerations: (1) In the last decade measures that potentially encourage corrupt activities and protect the interests of the governing class have been more in evidence – both in quantitative and qualitative terms – compared to anti-corruption measures.20 (2) Anti-corruption measures have developed occasionally. In two cases out of seven, have come about thanks to external inputs, as product of the signature of international treaties (ratified after delays of three and six years respectively); the 19 Measures which may have indirectly increased opportunities for corruption are, for example, the weak law regulating conflicts of interest (Law 215/2004), the “legge obiettivo” (Law 443/2001) concerning large-scale public works, and the law of delegation concerning infrastructure (166/2002). 20 Public perceptions confirm this negative course: according to the 2009 Corruption Barometer, 69% of Italian citizens believe that Italian governments have proven ineffective in the fight against corruption; only 16% have a positive opinion (Transparency International 2009). 296 institution of an anti-corruption authority, provided for by two laws, also derives from international commitments. Other international agreements remained in-influential, however: e.g., in 1999 Italy signed the Council of Europe Criminal Law Convention on Corruption, which has not been ratified in the ten years since. Three out of seven were approved during the final months of the centre-left government, between the end of 2000 and June 2001. All these laws focus on minor aspects of the problem, however, and none of them reform legal aspects of corruption-related crimes. One of them has been partially abrogated as a consequence of three rulings of the Constitutional Court. (3) Two measures focus on the establishment of an anti-corruption body, one of them abolishes the former High Commissioner for the Prevention and Repression of Corruption and creates the Anti-corruption and Transparency Service (Servizio Anticorruzione e Trasparenza, SAET). However, the new authority, like the Commissioner, is placed in a position of functional dependence on political institutions – the Prime Minister in the first case, the Minister for Innovation and the Civil Service in the latter case – and is endowed with meagre financial and human resources – resources which have been considerably cut with the transition to SAET.21 The lack of any significant outcomes of the anti-corruption initiatives of these authorities is an indicator of their symbolic nature as policy instruments, ones designed to maximize the public visibility of political action and to generate attention, mere gestures in the direction of seriousness (Blühdorn 2007). Finally, SAET – as well as its predecessor – 21 In the transition in 2008 from the High Commissioner to SAET there was a cut of 80% in the financial and human resources made available: the number of employees was cut from 57 to 17 (GRECO 2009: 29); a budget of approximately €6.5 million in 2006 was cut to €3.8 million in 2007, €2.5 million in 2008, and €1 million in 2009 (SAET 2009a). 297 has advisory, research, sensitisation, co-ordination and stimulus functions, but its responsibility does not extend to the collection of information about, the investigation into or the sanctioning of specific corrupt dealings. Its most notable activity has been the signature of two preliminary agreements, in October 2009, with the Authority for Public Contracts and the Association of Italian Municipalities (Associazione Nazionale Comuni Italiani, ANCI). The aim is to promote the introduction, with the input of Transparency International, of integrity pacts as a model for the adoption and dissemination of best practices in public contracting procedures. This new approach represents a shift from a never implemented regulatory model of anti-corruption policy, with universal requirements and state monitoring of their application and enforcement, to a contractual model, where the definition of rules to prevent “misbehaviour”, their acceptance and the eventual sanctioning of their violation is delegated, on a voluntary basis, to the agreement of private and public parties. The presumable outcome will be a patchwork of anti-corruption initiatives, whose effective implementation will be a matter of the goodwill of local political and business actors. (4) In several cases, measures potentially encouraging corruption have had much wider impact and ambitions, as is evident in the general reform of corporate law and related offenses, which de facto de-criminalises a number of crimes related to false accounting; in the unpopular measure reducing prison terms by three years in the case of crimes committed up to and including May 2 2006 – the most questionable measure passed by a centre-left majority in the last decade – and in the law reducing the time limit specified by the statute of limitations, which has had a number of negative sideeffects. A emphasized by the GRECO report on Italy: a disquieting proportion of all prosecutions for corruption fail because of the expiry of the relevant time limit specified in the statute of limitations. […] There was a high chance of 298 the limitation period expiring before the trial could be concluded, even if the evidence was strong. This is a significant shortcoming which clearly undermines the efficiency and credibility of criminal law […]. Moreover, sanctions lose much of their dissuasive character where justice is so seriously delayed that the accused person has a very good chance of avoiding them altogether as a result of the expiry of the limitation period (GRECO 2009: 15). The debate on the real nature and effects of such measures was not limited to the political arena or the public sphere, however, but, having being pursued through the relevant institutional channels, eventually gave rise to a discussion before the Constitutional Court. The low technical quality of the laws and the questionable motives driving them is confirmed by the high number of adverse judgments, with ten rulings of partial and one of complete unconstitutionality in the case of ten laws.22 (5) Complete abrogation and partial abrogation by the Constitutional Court, in October 2009 and January 2004 have sunk two measures potentially enhancing corruption which were directly designed to provide legal safeguards for Prime Minister Berlusconi against pending judicial inquiries into his affairs. The result in both cases has been a heightened dramatisation of the tensions between the executive (supported by its parliamentary majority) and the judiciary, and a further shift of the focus of public debate from the issue of corruption to the allegation that judges are politically biased. 22 The low technical quality of these measures can also be partly attributed to the pressure for rapid approval in order to provide legal protection – that has nevertheless proven quite effective – in ongoing judicial proceedings. In two of his sixteen lawsuits (All Iberian/2 and Sme/Ariosto/2), Berlusconi has been acquitted thanks to the decriminalisation of false accounting; in five cases (All/Iberian/1, Lentini, Fininvest budget 1988-92, Mondadori, Fininvest black funds) he has been acquitted thanks to a combination of extenuating circumstances and a reduction in the time limits stipulated by the statute of limitations (la Repubblica, 20 November 2009: 1). 299 Following its rejection of the Lodo Alfano, providing for immunity from prosecution of the holders of the four highest offices of state, the Constitutional Court was for the first time dragged into the institutional conflict when Berlusconi remarked: With a Constitutional Court having eleven left-wing judges out of fifteen, approval was impossible (…). We have a minority of red judges which are very well organised and use the system of justice for the purposes of waging a political struggle (…). We have constitutional judges nominated by three left-wing Presidents [of the Republic], who have turned the Constitutional Court into a political organ, rather than an organ guaranteeing the citizen’s fundamental rights and freedoms (Il Sole-24 Ore, 7 October 2009). As reported in the media, after a summit meeting of the centre-right coalition, the Prime Minister evoked the prospect of a “civil war” between “subversive” prosecutors and an executive legitimated by its electoral majority, bringing about a further dramatisation of this institutional conflict (la Repubblica, 26 November 2009). (6) Legislative measures currently under discussion could further undermine judicial efforts to combat corruption. A bill sponsored by the Minister of Justice Angelino Alfano, published in June 2008 (in May 2010 under examination by a Senate Commission), would amend the rules concerning special investigative techniques and wire-tapping, restraining for corruption-related as for a number of other crimes the condition to start wire-tapping, the time-limit for which they could be used and their cost. Moreover, very severe penal sanctions (up to three years of imprisonment) would punish journalists and editors publishing news on individuals involved in a judicial procedure before the conclusion of its preliminary phase. In November 2009 the centreright majority proposed several constitutional amendmenti in order to reintroduce a general immunity for all members of Parliament, and provide for a special guarantee for holders of the highest offices of state. Finally, in November 2009 a bill was presented 300 by the centre-right majority to limit the duration of trials to a maximum of six years. To be applied also to proceedings already underway and to corruption-related crimes, such a measure would provoke the termination – according to the estimates of the High Council of the Judiciary (Consiglio Superiore della Magistratura, CSM) – of between 10 and 40% of criminal proceedings currently in progress, and between 20 and 47% of civil proceedings (La Stampa, 25 November 2009: 3). It was also observed that, incidentally, the new regulation would also benefit Berlusconi by extinguishing two of the lawsuits in which he was then accused of corruption (the Mills case) and corporate crimes (in the purchase of broadcasting rights for Mediaset) (la Repubblica, 23 November 2009). In March 2010 an anti-corruption law-project was also introduced in the institutional agenda by the government. The law-proposal, however, seems primarily intended to reassure the public opinion on the government’s ability and good-will to face the scandal in civil defence contracts that in February 2010 hit several leading figures of the ruling center-right coalition, with charges or suspects of bribery. As an heterogeneous patchwork of different norms (promoting transparency, increasing penalties, fixing ineligibility criteria, etc.), which do not seem to change significantly the institutional structure of factors facilitating corruption, the proposed measures, even if approved, will presumably limit their main effects to a symbolic, cathartic dimension. [Insert Table 8.1 here] Some concluding remarks The persistence of corruption and the failure of anti-corruption policies in Italy can be explained, from a neo-institutional perspective, by elements of the two main approaches that have been applied to the study of corruption: an economic and a sociological one 301 (della Porta and Vannucci 2007a). Several macro-factors still characterizing the Italian institutional matrix, the political processes and the normative system pull – through economic incentives – and push – with internalised codes and shared principles – individuals towards corrupt exchanges. Amoral familism (Banfield 1958); an alienated, fragmented and particularistic political culture (Almond and Verba 1963); lack of social capital and civic-ness (Putnam 1993), the “set off” of vicious circles generating bad social capital (della Porta 2000): all these explanations have been mentioned precisely to explain certain enduring and long-established characteristics of the Italian value system, those “cultural traits of clientelism, nepotism and tax evasion in which the activities of the Tangentopoli defendants were ultimately rooted” (Newell and Bull 2003: 48). Those political institutions which generated economic incentives to corrupt exchanges have not significantly changed since the clean hands investigations, if not in the direction of a further reduction in the risks of corruption. No reform has modified the structure of opportunities for corruption, nor raised the obstacles in the way of corruption-related crimes by improving the efficacy of judicial efforts to combat the phenomenon. At the same time, the allocation of economic rents through new mechanisms – like project financing – in public contracting procedures has allowed to side-steps the competitive principles stipulated by the European Union, while the spread of public/private partnerships in the management of public services has multiplied local conflicts of interest, obscured accountability and encouraged arbitrary decision-making. Moreover, we have to consider the internal dynamics of corruption. Once a certain organisational texture and “cultural adaptation” to systemic corruption has developed, as in the Italian case, governance structures and enforcement mechanisms 302 provide for internal stability and order to illegal dealings in specific areas of public activity, reducing uncertainty. The evolution of economic incentives and cultural values favourable to corruption, in other terms, may present positive feedback that generates a path dependent evolution (Pierson 2003). This is the potential heritage of widespread corruption, akin to the equilibria revealed by “clean hands” investigations. High levels of corruption in the past produce increasing returns in the present by neutralising moral barriers; shaping more lucrative opportunities for illegal dealings rooted in formal procedures and decision-making processes; providing organisational shields and mechanisms of protection against external intrusion by the authorities and internal friction among corrupt actors. The influence of the legacy of bribery operates through several mechanisms. Widespread corruption generates “skills of illegality”, governance structures and informal norms whose strength is based upon adaptive expectations and coordination effects. Moreover, as evident from analysis of the legislative measures adopted during the last decade, past corruption’s shadows may influence its present spread also through the intentional activities of actors implicated in corruption networks, who can obstruct judges’ inquiries and strengthen expectations of impunity through corruption-enhancing reforms. The clean hands investigations had only a short-term impact on corruption. The overemphasis on the role of magistrates turned out to be a boomerang: its political legacy has been an escalation of institutional tensions been political powers – especially the coalition lead by Silvio Berlusconi – and the judiciary (Pizzorno 1998). Its social legacy has been a generalized disappointment for the results of inquiries, too often nullified by the time-limit in the statute of limitations; a deep-rooted pessimism concerning the integrity of political and economic elites; a delegitimation of almost all 303 institutional authorities; reinforcement of the widespread tolerance of illegal practices. Its economic legacy has been deregulation and the emergence of mixed public/private arrangements in the delivery of public services, especially at local level; a multiplication of conflicts of interest due to the political careers of entrepreneurs, and increased entrepreneurial vocations of politicians – factors which have made corruption more widespread, as well as more difficult to detect and sanction. Such a controversial heritage of the clean hands investigation can be interpreted as a consequence of the inability – or bad-will – of the Italian political class to implement adequate anti-corruption policies in the last decade, in spite of an evidence of rampant corruption. Repression of crimes through judicial initiatives has therefore been the main institutional answer to the corruption issues. At the same time, however, judges’ activity has been harshly obstructed and continuously delegitimated through several corruption-enhancing measures and public accusation of partisanship, which produced severe adverse practical and symbolic effects on the functioning of the judicial system. References Almond, G. and Verba, S. 1963. The Civic Culture: Political Attitudes and Democracy in Five Nations. Princeton: Princeton University Press. Banfield, E.C. 1958. The Moral Basis of Backward Society. New York: Free Press. Barbacetto, G., Gomez, P. and Travaglio, M. 2003. Mani pulite. Roma: Editori Riuniti. Barzel, Y. 2002. A Theory of the State. Cambridge: Cambridge University Press. Belligni, S. 1998. Il volto simoniaco del potere. Torino: Giappichelli. 304 Blühdorn, I. 2007. Sustaining the Unsustainable: Symbolic Politics and the Politics of Simulation. Environmental Politics, 16(2), 251-275. Cazzola, F. 1988. Della corruzione. Bologna: Il Mulino. Cazzola, F. 1992. L’Italia del pizzo. Torino: Einaudi. Cazzola, F. 2007. Dopo “tangentopoli”. Ovvero: storia di un paese miracolato, in Politica e società. Studi in onore di Miguel Beltran, Universidad Autonoma de Madrid. Comitato di studio. 1996. Rapporto al Presidente della Camera dei deputati. [Online: Comitato di studio per la prevenzione della corruzione, Roma, 23 ottobre]. Available at: http://www.diritto.it/articoli/amministrativo/rapporto.html [accessed: 1 July 2010]. Davigo, P. and Mannozzi, G. 2007. La corruzione in Italia, Roma and Bari: Laterza. della Porta, D. 1992. Lo scambio occulto. Casi di corruzione politica in Italia. Bologna: Il Mulino. della Porta, D. 2000. Social Capital, Beliefs in Government, and Political Corruption, in Disaffected Democracies, edited by J.S. Pharr and R.D. Putnam. Princeton: Princeton University Press, 202-222. della Porta, D. and Vannucci, A. 1994. Corruzione politica e amministrazione pubblica. Bologna: Il Mulino. della Porta, D. and Vannucci, A. 1999a. Un paese anormale. Come la classe politica ha perso l’occasione di mani pulite. Roma and Bari: Laterza. della Porta, D. and Vannucci, A. 1999b. Corrupt Exchanges. New York: Aldine De Gruyter. 305 della Porta, D. and Vannucci, A. 2005. The Moral (and Immoral) Costs of Corruption, in Dimensionen politischer Korruption, edited by U. von Alemann. Wiesbaden: VS Verlag, 109-134. della Porta, D. and Vannucci, A. 2007a. Mani impunite. Vecchia e nuova corruzione in Italia. Roma and Bari: Laterza. della Porta, D. and Vannucci, A. 2007b. Corruption and Anti-Corruption: The Political Defeat of “Clean Hands” in Italy. West European Politics, 30(4), 830-853. Eurobarometer. 2005. Opinions on organised, cross border crime and corruption, n.245/Wave 64.3, March. Eurobarometer. 2008a. The attitudes of Europeans towards corruption, n. 291/Wave 68.2, April. Eurobarometer. 2008b. Citizen’s perceptions of fraud and the fight against fraud in the EU27, Flash Eurobarometer 236, October. Eurobarometer. 2009. Attitudes of Europeans towards Corruption, 325, wave 72.2, Brussels, November. [Online]. Available at: http://ec.europa.eu/public_opinion/archives/ebs/ebs_325_en.pdf [accessed: 1 July 2010]. Freedom House. 2009. Freedom of the Press 2009. [Online]. Available at: http://www.freedomhouse.org/template.cfm?page=251&country=7631&year=200 9 [accessed: 1 July 2010]. Gambetta, D. 1993. The Sicilian Mafia. Cambridge: Harvard University Press. GRECO (Group of States against corruption). 2009. Evaluation Report on Italy. [Online]. Available at: 306 http://www.coe.int/t/dghl/monitoring/greco/evaluations/round2/GrecoEval12(2008)2_Italy_EN.pdf [accessed: 1 July 2010]. Lambsdorff, J. von. 2007. The Institutional Economics of Corruption and Reform. Theory, Evidence, and Policy. Cambridge: Cambridge University Press. Newell. J.L. and Bull, M.J. 2003. Political Corruption in Italy, in Corruption in Contemporary Politics, edited by J.L. Newell and M.J. Bull. London: Palgrave McMillan, 37-49. Pierson, P. 2003. Politics in Time. Princeton: Princeton University Press. Pizzorno, A. 1992. La corruzione nel sistema politico, in Lo scambio occulto, edited by D. della Porta. Bologna: Il Mulino, 13-74. Pizzorno, A. 1998. Il potere dei giudici. Roma and Bari: Laterza. Procura di Napoli. 2008. Comunicato stampa in relazione all’ordinanza per l’applicazione di misura coercitiva a Romeo Alfredo + 19. [Online: Direzione distrettuale antimafia, 17 dicembre]. Available at: http://static.repubblica.it/napoli/pdf/nota_procura.pdf [accessed: 1 July 2010]. Putnam, R.D. 1993. La tradizione civica nelle regioni italiane. Milano: Mondadori. SAET (Servizio anticorruzione e trasparenza). 2009a. Primo Rapporto al Parlamento. [Online]. Available at: http://www.innovazione.gov.it/ministro/pdf_home/Rapporto_Parlamento_SAeT.p df [accessed: 1 July 2010]. SAET (Servizio anticorruzione e trasparenza). 2009b. Relazione al Parlamento. [Online]. Available at: http://www.innovazionepa.it/ministro/pdf/RELAZIONE__al_PARLAMENTO_de l_SAeT_ottobre_2008_ott_2009.pdf. [accessed: 1 July 2010]. 307 Transparency International. 2005. Global corruption barometer 2005. [Online]. Available at: http://www.transparency.org/policy_research/surveys_indices/gcb/2005 [accessed: 1 July 2010]. Transparency International. 2007. Global corruption barometer 2007. [Online.] Available at: http://www.transparency.org/policy_research/surveys_indices/gcb/2007 [accessed: 1 July 2010]. Transparency International. 2009. Global corruption barometer 2009. [Online]. Available at: http://www.transparency.org/policy_research/surveys_indices/gcb/2009 [accessed: 1 July 2010]. Tribunale di Firenze. 2010. Ordinanza di custodia cautelare in carcere, proc.n.1460/09 R.G.I.P. [Online, 8 febbraio]. Available at: http://www.corriere.it/Media/pdf/ORDINANZA_CUSTODIA_CAUTELARE_11 0210.pdf [accessed: 1 July 2010]. Vannucci, A. 1997. Il mercato della corruzione. Milano: Società aperta. Vannucci, A. 2003. La corruzione nel sistema politico italiano a dieci anni da “mani pulite”, in Il prezzo della tangente, edited by G. Forti. Milano: Vita e pensiero, 370. Vannucci, A. 2009. The Contorversial Legacy of “Mani Pulite”: A Critical Analysis of Italian Corruption and Anti-Corruption Policies. Bulettin of Italian politics, 1(2), 2009, 233-264. 308 309 Chapter 9 The German Myth of a Corruption-free Modern Country Dirk Tänzler / Konstadinos Maras / Angelos Giannakopoulos The views on corruption have essentially remained the same over time and in different locations: despite the seemingly never-ending scientific dispute on the definition of the phenomenon, corruption is regarded as the abuse of a public or private office for private objectives. However, what that means in concrete depends on the cultural knowledge basis of a society, i.e. thus the social and moral as well as practical technical definitions of reality, which essentially serve to routinely cope with everyday problems and thus safeguard livelihood (see Schutz and Luckmann 1974; Berger and Luckmann 1966). Viewed pragmatically, corruption appears to be a solution to a problem in a concrete socio-historical situation. This leads to the assumption upon which this article is based, namely that there are culturally specific patterns of interpretation of and attitudes on this phenomenon. The perception of corruption by leading business professionals just as clearly from that of a policeman, a public prosecutor, or a judge as that of a civil society actor or a politician or journalist. There is thus a plurality of cultures of corruption not only in different countries, but also within a society (see Giannakopoulos/Maras/Tänzler 2010). In the following article we will restrict ourselves to outlining the basic patterns of the social construction of corruption in Germany by looking at individual cases of what Germans define as corruption and to explaining what potentially are the reasons for an understanding of corruption which is indeed rather strange for some outside observers. However, in our analysis of corruption we deal not only with the practice of 310 corrupt conduct in the narrower sense – i.e. the illegal and perhaps illegitimate exchange of services and services-in-return at the expense of an uninvolved third-party defined in institutional economics as the “principal” – rather with all forms of corruption-related thinking and action in a society. The discussion on corruption in Germany appears bizarre, and indeed at time schizophrenic. On the one hand, the press is full of reports on corruption, while on the other hand one gains the impression that this does not affect the country. A policeman, whom we interviewed as part of the Crime and Culture Project, provided some initial clues on this broader societal and thus “typically” German understanding of corruption.1 Even though this official successfully fought against corruption for half of his life and enjoys an extraordinary reputation as an expert on corruption, when asked about his views on corruption in Germany, he surprisingly answered that there is none. This view can hardly be reconciled with his previous work as a policeman, but is consistent with the general German view on corruption: the Germans perceive themselves as citizens of a modern country and that of course also means that corruption is not a problem and issue in Germany. Corruption is regarded as un-German, as inconsistent with the cultural self-image of decent and responsible citizens. In fact, corruption is not an issue in public and political debates. In the perceptions of outsiders or in the academic discourse Germany is also regarded as “clean” by international comparison: In the Corruption Perception Index (CPI) of Transparency International, which takes into consideration the assessments of international political and economic experts among others, Germany is ranked 14th (CPI 2009), thus among the most respectable 1 The article is based on data and findings from the mentioned EU research project (see: www.uni- konstanz.de/cimeandculture/index.htm) 311 forerunners. It remains to be explained how this persistent pattern of perception and interpretation has not been shaken by the scandals in German politics and business, which have pained a different picture of reality for many years now. The perception of corruption among the German population blends out a part of reality. The focus of cognitive sociological analyses is the relationship between reality and the perception of reality, namely in terms of how social reality is conditions by the perception of reality. While citizens of Greece, Turkey, Romania and Bulgaria view their state and society as being infested with diffuse, but omnipresent corruption and regard corrupt conduct as a legitimate strategy to cope with hardship, in more modern Great Britain and German corruption is seen simultaneously as non-existent as well as illegitimate, i.e. true to the motto: what should not be does not exist. In other words, the attitude on corruption itself reveals something about the reality of corruption in a society. The quoted policeman resolves the contradiction between the stereotypically positive self-image and a less flattering reality by introducing a fundamental distinction: what the policeman wished to refer to was the double standard and contradictory practice in German with regard to different forms of corruption. On the one hand, the expert confirmed the experience shared by laymen that there is (almost) no petty corruption in the everyday lives of Germans. Instead, structural corruption as a form of organized crime is wide-spread and well-known in German society, in particular in the construction branch, in the health care system and among automobile suppliers. Why is there this misconception that Germany as a whole is entirely free of corruption? While petty corruption is regarded as a heinous violation of public standards, grand corruption is regarded as a trivial offence and under certain conditions (e.g. if committed abroad) until recently as a tax-deductible and legitimate entrepreneurial practice. Both forms of 312 corruption correlate with the perception or non-perception and thus intolerance or intolerance towards corrupt conduct. This relationship constitutes the fundamental pattern of perception of corruption in German society. However, in their conscience, corruption is equated with petty corruption and, since it is stigmatized as the behaviour of “foreigners”, it is despised. Yet the taboo of shabby petty corruption tends to appear as a disguise for the more elegant grand corruption, which is secretly accepted by everyone and is part of the business practices of the highbred elite – and not only “abroad” and “coerced” through the purportedly applicable customs and ethics there (see Tänzler 2008: 69-84). This German ideology inevitably comes into conflict with the new anti-corruption discourse, which perhaps makes it understandable why Germany tends to only hesitantly fight corruption – to put it mildly (with several exceptions, e.g. the public prosecutors of Frankfurt and Bochum). Besides this basic German attitude towards corruption though, there are also clear and significant differences between politics, the economy, the justice system, the police, civil society and the media. Facets of the social construction of corruption in different spheres of action Among politicians one might expect differences among politicians with regard to their perception of corruption relative to their political convictions. Politicians of parties represented in the so-called “Kohl commission”2 unanimously recorded that corruption is not a structural problem in Germany. A left-leaning politician, whose reputation is to 2 This pertains to the parliamentary investigation of the German Bundestag (14th and 15th legislation period) between 1999 and 2002 on the illegal donation activities of the German Christian Democratic Party while Helmut Kohl was Chancellor (1982-1998). Data from the official transcripts and interviews with members of the committee were evaluated. 313 be the embodiment of the conscience of the nation, stated entirely candidly that all political issues, including corruption, go in cycles. He rejected a tightening of anticorruption legislation, as long as they are not recognized and complied with in all of Europe. In light of the different degrees of obedience of laws, it was feared that Germans would be at a disadvantage to the notoriously corrupt Italians, for example. Of particular significance was also the consensual rejection of the entirely open disclosure of incomes from side jobs, which are well known to be one of the sources of political corruption. These findings can be interpreted to the extent that politicians like to be guided by political ideologies in their public speeches to their voters. Otherwise they follow the “logic” of political action, i.e. a strategic orientation towards conquering and securing political power. From this perspective, political corruption cannot be viewed as a structural problem, rather only as a means to an end. It is only politically relevant what is on the agenda and put into function as an object to promote the party’s and politician’s profile. What can be viewed within the political sphere as the rational compliance with the applicable rules and what citizens expect from politicians, i.e. to give power to the ideas and interests that they advocate, can also simultaneously appear to be opportunistic to these citizens as outsiders and laymen and confirm their prejudice of “dirty politics”, which is wide-spread in Germany. Once again here, the debates surrounding the Kohl affair in the German Parliament can serve as an example. The attacks of the governing Social-Democrats (SPD) on the former chancellor and his party were countered by members of Kohl’s Christian-Democratic Union (CDU) with references to the scandals of the (SPD) in North Rhine-Westphalia, which came to light at approximately the same time. In this 314 manner the CDU’s members of parliament countered the accusations of the Social Democrats by deploying the rhetoric figure of the double-bind of moral arrogance: Instead of outrageously decrying the defaults of the opposite side one should rather downplay the whole affair lest its moral gravity turn back upon the accusers that are in no way better (as the Opposition is constantly at pains to point out – the illegitimate use of public transport for private use and the corruption affair in Cologne in the Federal State of North Rhine-Westphalia, governed by the Social Democrats, suffice to disqualify them as judge of morality). The offence of moral arrogance among MPs of the opposition thrust at the government sometimes develops into a full blown suspicion of the legitimacy of the whole investigative procedure, which in the eyes of the opposition comes close to, or even, coincides with a tactical manoeuvre to discredit the previous governments, while at the same time disregarding fundamental law principles. Moreover, this exploitation argument, i.e. the parliamentary investigation committee being set up as means to discredit the former ruling parties, mobilises an additional charge that the committee violates one of the fundamental preconditions for fair play and competition between the political powers: the equality of chances. Since it purports to ruthlessly expose its financial resources, it deprives the party of certain advantages that accrue from the fact having diverse and powerful donors thus decreasing its ability to act. Thus, according to these arguments the activities of the inquiry committee could at best be seen as oscillating between party tactical machinations and the will to bring about total transparency. The claim of the Conservatives that the investigative activities were disastrous for the party and detrimental to essential preconditions of political competition is countered by the Social Democrats who claim that it was exactly this 315 system of secret and illegal party financing that enabled the Conservatives to maintain a hegemonic position of power for years. For many members of the parliament the difficulty to come to grips with the party financing scandal of the Kohl era comes down to defining the exact demarcations between sanctionable corrupt conduct and the general exercise of influence. This in turn is for Conservatives and Liberals as well a welcome opportunity to mount their counterattacks by claiming that this very same Social Democratic Party controls a huge print media empire and thus acts as an economic agency. This accusation may of course not contribute substantially to fending off the allegations of the ruling parties that the conservative opposition systematically engages in illegal party financing. Having powerful connections to businessmen from the mass media sector, the Conservatives themselves cannot but be made accountable for what they otherwise level at the governing parties, i.e. intermingling economic and political interests –, but this helps pinpoint the fact the Social Democratic Party itself engages in market strategies. Besides, the Cologne corruption affair has shown clearly that all the corruption criteria are met: criminal acts, fiscal frauds, personal enrichment. The somehow nebulous notion of political corruption is for the conservative Opposition an unwilling acknowledgement of the fact that the illegal financing committed during the Kohl era could not be proven by the parliamentary investigation committee to be the cause of certain political decision processes. Nevertheless the governing parties represented by the chairman of the investigation committee like to insist that corrupt conduct took place, albeit not in relation to the illegal funds. They contend that the whole scandal affair should rather be located in that grey zone between sanctionable corruption and the general political exercise of influence. 316 Thus, an attempt was made to downplay corruption as a consequence of the unsolved problem of party financing, i.e. as an inherent necessity or a makeshift strategy. In this regard the head of the investigation committee acknowledged that the parties in Germany are actually sufficiently state-financed and that additional fundraising by individual members of parliament had become a matter of course for the single purpose of oversized personalized electoral campaigns. If the political system (including public administration) as the advocate of the public interest is the preferred target of corruption, its source and power node lies in the economy as the hoard of private interests. Therefore it is both surprising and telling that business representatives as well as politicians do not view corruption as a structural problem. However, there are different reasons and motives for this viewpoint. From the viewpoint of businesses, corruption is not an economic, rather an individual, purely psychological problem. According to the deep conviction of economic leaders, a market economy can only thrive when businesspeople act honestly, which does not rule out that there are black sheep, who give into their weak character and do not act rationally from an economic viewpoint. This pattern of interpretation is also very evident in the account given by a regionally influential business leader. The successful founder of an innovative high-tech firm – now a joint-stock company of which he is managing director – and leading member of the Chamber of Industry and Commerce admitted to have secured a large order and illegitimate competitive advantages by means of corruption in the start-up phase. In retrospect he deemed this misstep to be improper and unnecessary from a business standpoint. The decision was in his view irrational because it was psychologically motivated by the fear and uncertainty of the novice, and not by 317 economic rationality. He retroactively painfully experienced the dependence and the limitations of his decision-making capacity, which resulted from this action. He presented his conduct as the youthful sin of an honourable and socially committed representative of the German economic elite, who bans every form of corruption in his firm, e.g. through rigorous controls of the purchases and sales in the most endangered areas. He also views his business success as the result of his rejection of any form of corruption. This assessment becomes plausible when one looks at the structure of his firm. In comparison to firms in the construction sector (which are also frequently midsized businesses) or large-scale manufacturers, which at times secure their production capacities and market power through corrupt practices, as was the case with Siemens, Siemens, Daimler, MAN, this is a less promising strategy for a niche supplier of tailormade and innovative hi-tech solutions. In the latter case, corruption would disturb the trustworthy relationship between the client and supplier as well as within the firm between corporate management and developing engineers.3 Against this background, it is not astonishing that this business leader believes that it is entirely absurd to assume that an economic sector or branch in Germany such as the construction branch could be 3 The importance of the issue of trust from the viewpoint of the executive director became clear during a conversation on art at the workplace. The art lover placed works of art everywhere in the firm’s offices. His intention was not to stimulate the artistic pleasures of his employees. The only thing he requested of his employees was that they learn to respect things that they did not understand, e.g. the works of art that they are confronted with each day, as worthwhile products of human activity, thus to put faith in the value of the work of other people, even though they may not comprehend it. Art symbolizes the division of labour in the firm and is used by the manager as a means of creating trust and thus strengthening the corporate culture, in which corruption would be an undesired disruptive factor. 318 structurally corrupt. There is no discussion on corruption in his association and he sees no reason to engage in a discussion. Entrepreneurs, managers and politicians search for opportunities for successful business activities and reject any type of (over)-regulation, which restricts their entrepreneurial freedom. They prefer the strengthening of individual ethics as means to prevent corruption over strong institutional control of the economy and politics. Accordingly, the relevant economic measures are limited to the definition of ethical principles and the designation of a guardian of the company’s morals or in current terms: compliance officer. The issue also tends to be neglected in labour unions, in particular due to their involvement in the scandals of the previous years. There is a sense of commitment towards protective measures for members who act as whistleblowers and provide information on dubious procedures in their own company and then are denounced as spies or betrayers. Labour union officials, who actively speak out against corruption, are in the minority and usually can be positioned on the leftwing. They view corruption as an elite problem and claim that the scandals led to the strengthening of the morale and solidarity of the “common people”. Corruption as the ethical evaluation of conduct also plays a large role in the attitudes of state functional elites. Judges, public prosecutors, and policemen (criminal justice officials) demonstrate in their professional actions and anti-corruption measures not only a legalistic basic attitude, but also a strong ethical orientation. They regard themselves not only as the guardians of the law, but also as the moral institution of society. From this position, they arrive at an entirely different and indeed contrary attitude compared to that of the political and economic actors. They lament that in Germany the awareness for the magnitude and consequences of corruption is not very 319 strong to the extent that people see a danger for public order, because ultimately notions of equality and justice would be violated and the sense of justice would be undermined. Successful investigations and criminal proceedings could lead to changed attitudes here. However, practical experiences in fighting corruption show that the police and justice system definitely rely on support from the political system, civil society and the media, without which they cannot fulfill their responsibilities amid the massive pressure from political and economic interest groups. The representatives of the justice system ultimately see the causes for the improper conduct of the German political and economic elites as rooted in shortcomings of the education system, in particular the secondary schools and universities. They contend that during the “German economic miracle” (Wirtschaftswunder) after the Second World War the culture was too onesidedly oriented towards success. However, in the long-term corruption cannot be fought with more legal paragraphs, rather only through changes in how values are conveyed through the educational institutions. The perception of corruption in the German legal system is highly influenced in its own right by the German legal culture. Typical of judicial rationality is the fact that jurisdiction is always produced on a case-by-case basis. This results in the casuistic problem of the application of a general rule to an individual case. According to German legal traditions, only actions which are defined as corrupt with regard to applicable laws and there specified elements of an offence and can be “objectively” proven through individual legal procedures are cases of corruption according to penal law. The ethical character of the accused, which is at the heart of Anglo-Saxon law, is of much lesser significance in German law with its strict process-oriented legal procedures. While lying in court is a legitimate form of self-defence from the perspective of German jurists, i.e. 320 in liberal terms a natural interest, it is already evidence of guilt from the Anglo-Saxon viewpoint. The process-oriented disposition of German jurists may contribute to the fact that many cases of corruption, which are presented for example by police officials to public prosecutors, are not recognized as such, because they cannot be “objectified” according to the conventional rules. The investigatory work of the police, who operate on the basis of “common sense”, then appears as a sheer subjective, ethical judgment without relevance for the courts. Thus, the analysis reveals that the formation of judgments of German jurists, which is frequently strictly based on procedural logic, leaves us in the dark about many aspects of corruption and the accused – one could even say the justice system proves to be a “dull sword”. On the other side though, the analysis of the classification of corruption shows that jurists here take recourse to actors’ motives and evidence from everyday experience. This circumstance is very apparent in the definition of corruption: in legal terms, corruption (even despite the anticorruption law) is hardly tangible because, it is does not constitute a clearly definable and delimitable action, rather a holistic category, which puts individual actions in a larger context: fraud, bribery, breach of trust, etc. are corruption when they – as stipulated in the new anti-corruption law – can be proven to be part of an “implicit contract”. The difficult-to-grasp character of corruption also is evident in police investigations, as it requires specific knowledge and experiences among officials and the public prosecution authorities. The investigators’ ends and efforts are concentrated on trying to catch and fix the unfathomable in a cognitive and sensitive meaning. Police investigation is the hermeneutical process of the translation of a personal intuition into a comprehensible logical definition, or into professional language: the translation of 321 intelligence in evidence. As in the case of the judiciary, there is also a productive ground differentiation and contradiction between the formal legal framework and the substantial professional pragmatics in the field of police-work. The difference to the legal system is to be seen in the fact that the “ultimate value orientation” and legitimation (Max Weber) of the policeman’s work is not part of an ethical code of office (“justice”), but the public spirit or integrity (in German “Anstand”). With regard to the public spirit, police activity is not only a state function, but a form of politics, i.e. activity for the common good. This original historical meaning of the police as moral institution seems to be reanimated in the anticorruption task forces of the present time. Police investigations need to pursue a comprehensive approach based on a wide understanding of corruption. The factor of perceiving some facts as suspicious, i.e. susceptible to criminal detection, frequently proves all the more necessary, particularly when one considers the relations between the criminal police investigation and the judicial prosecution carried out by the general attorneys. Here the question often revolves around the issue whether the suspicious moments picked out by the investigation officer can be acknowledged by the attorney as substantial evidence necessitating the opening up of a corruption case. In this way perceiving some facts as deserving investigation and prosecution is, from the view of the anti-corruption work of the police, inextricably connected with an analogous perception of the judicial authority that is accordingly willing to see sufficient evidence in these facts. The question of where to start from (police investigation) or how substantial the initial suspicion can be from a judicial standpoint can only be answered on a case-tocase basis. Nevertheless there seems to be a criterion that qualifies certain events as deserving police and judicial attention: conspicuous regularity. For example in the 322 framework of communal economic management, when the rules of an open call for tenders are conspicuously ignored, i.e. certain local contractors regularly being favoured, then such facts can substantiate the initial suspicion – though as such they do not immediately call for penal prosecution. Such cases validate the insight that corruption as a social phenomenon that goes well beyond codified laws is up to the investigating individuals to perceptively grasp and detect what “stands out”, thus making it relevant for criminal investigation. From the perspective of the general attorney who often turns down investigation procedures due to lack of substantial evidence, the sensibility attending to such “outstanding” conspicuous events demands more than just the observance of the rules of investigation. What is called for and what can act persuasively on the prosecution authorities is overcoming the (apparent) lack of evidence with a reasonable account of the probable causes underlying the conspicuous matters. For the criminal police, this means the reconstruction of their rationality on the basis of common-sense knowledge and experience. It also is clearly apparent that German law and the German prosecution system have difficulties with the phenomenon of corruption.4 Besides political pressures there are also process-immanent factors, which make it difficult to prosecute corruption and pose great obstacles. Against this background it is understandable why police officials, public prosecutors or judges with experience in punishing corruption-related crimes emphasize their extraordinary ethical commitment, without which these obstacles could not be overcome. Therefore it is not astonishing that the passing of an anti-corruption 4 Jurists therefore propose e.g. the introduction of a penal law code for associations, i.e. the extension of punishments previously applicable to legal persons or organizations (see Hetzer: 2008: 59-75.) 323 law and increased police and court activities only were a reaction to a fundamental change in the attitude of the public towards corruption. Of crucial importance for the current changes in the perception of and fight against corruption is Transparency International, which initiated the anti-corruption discourse in the past years from a civil society standpoint. Civil society actors and representatives of non-governmental organizations are by definition members of a moral institution and therefore strive to set the legal framework for social commitment. They regard themselves as the inventors of new “common goods”, new values such as environmental protection, human rights and anti-corruption, which they advocate in public and attempt to put on the political agenda. For these civil society activists, corruption is the fundamental economic and political evil of our time and anticorruption a mission, which however cannot be enforced against powerful political and economic actors, rather only as a broad coalition and new social contract between all members of the world civil society. The work of the NGOs is usually connected to the issue of legitimate representation of public interests. The legitimation problem is influenced by the idea of transparency, i.e. democratic control and enlightenment. There are two types of legitimation/transparency: a) representation and b) accountability. Whereas representation is political/public legitimation, accountability is regarded as private legitimation. Civil society in the liberal discourse is designed as a world of competing private interests of bourgeois individuals, not as the sphere of the political citoyen. Legitimation of private power is success, legitimation of public power is a common good such as social welfare, the security or the raison d’être of the state. Looking at the work of Transparency International (TI), one observes that the issue of societal 324 perceptions is the key term, because awareness of corruption is the essential goal of this Non-Governmental Organisation (NGO), and transparency is simply the corollary to the perception/sensibility/awareness of corruption. In this sense the Corruption Perception Index (CPI) is an important tool to attract attention to the scientific legitimation of TI’s activities, i.e. enhancing the anti-corruption discourse in society, putting it on the political agenda, moving a bill and, finally, initiating a better practice of the executive agencies. However, an innovative idea of a private initiative - i.e. an idea perceived as a sound/legitimate reason for broader engagement and as a subject worth fighting for - is not always sufficient. In a certain sense it resembles the way an innovative product idea takes root in a market or an intellectual market place. From this standpoint civil society organisations like Transparency International should not at all be thought of as organs of representation: As the market-place metaphor suggests, the legitimacy does not consist of articulating “pre-existing” interests, but in succeeding in establishing the issue they stand for as a social state of affairs which deserves public attention, organised action and institutional policy making. Since they do not represent any clear-cut segment of the societal whole and are not elected, the only way to substantiate the claim of pursuing a valid issue is public resonance, effective dissemination, inducing institutional action. Thus legitimacy boils down to success and this in turn is like in business. Therefore the anticorruption-discourse is shaped by strong management rhetoric. Besides these civil society actors, the media in particular exert influence on citizens’ awareness of and attitudes on corruption. The (print) media, the Süddeutsche Zeitung (SZ) and the Frankfurter Allgemeine Zeitung (FAZ) were selected according to 325 the left-right scheme for our analysis. They demonstrate clearly different patterns of perception and interpretation.5 The reports and commentaries on the political corruption in Germany during the 1980s (“Kohl affaire” and “SPD donation scandal in Cologne”) in the “Frankfurter Allgemeine Zeitung” do not place the main emphasis on the consequences for the legal order and democracy in Germany, rather the clarification and personnel strategy with which the CDU attempts to minimize the damage and manoeuvre out of the crisis. A “breakdown of morals in the CDU” is the general diagnosis. The CDU donation scandal is viewed as a kind of “accident at work” for the party, which is only attributed a temporary negative impact for the situation of the state and society, because the German constitutional state has time-tested self-cleansing mechanisms in order to successfully confront this dark side of political activity (and genuinely human weaknesses), which can never be fully abolished. Therefore, there is little reflection on whether and how the case of corruption could affect the state, which is based on the rule of law, and what consequences could be drawn from this for the German party system. The latter should be left up to the voters as politically mature citizens. Against this background (and before it is too late for the party), the “Frankfurter Allgemeine” asserts that the party 5 These two national, so-called quality newspapers, which – along with several others – can be attested a certain guiding function as opinion makers and thus under this assumption can be regarded as representative for the press media and the German media landscape as a whole. The themes that these two newspapers deal with are usually also addressed by other print media. Along with that, these two print media not only generate public debates or are at least authoritative in such debates, rather – and even more importantly – they are recognized by the political decisionsmakers as important voices along with the mass-circulation paper “Bild”. Hence, these two print media make an essential contribution to the political effectiveness of public discourse. 326 should actively participate in the clarification of the case, free itself from its “selfinflicted immaturity” and rise again like a phoenix, thus assume responsibility towards the country and society – and in particular towards Europe – in a refined and strengthened manner. In somewhat poignant terms, the demand for restoring “business as usual” is derived from the trust placed in the “self-cleansing forces” of German democracy. And it is precisely here that the “Süddeutsche Zeitung” detects a danger: “They say that all institutions are operating normally and as always. But this is exactly what is disturbing: the government is governing as if nothing had occurred. And the Parliament meets just as it always meets.” In sharp contrast, the articles in the “Süddeutsche Zeitung” attempt to deliberate on the damage for the constitutional state and democracy, which was caused by the conduct of Helmut Kohl. Ultimately, the view is advocated that this case of corruption was not merely equivalent to the wrongdoing of just a few politicians and party operatives, rather a crisis of the German party system. This wrongdoing is primarily the product of the “arrogance of power” which comes to bear when a governing party is given the possibility of equating itself with the state or even putting its own political and party interests above those of the state. In Helmut Kohl’s case the wrongdoing was the consequence of the paternalistic conviction that “governmental power also means proprietorship over what is governed”. The tenor of the line of argument in the “Süddeutsche Zeitung” is the grievance that the immoral conduct of the political class which came to play during the cases of corruption endangers the stability of the democratic system in Germany. While the “Frankfurter Allgemeine Zeitung” continually expresses concerns over the status of Germany in Europe, the “Süddeutsche Zeitung” advocates the more disillusioned view that both cases of political corruption 327 show that Germany has arrived in Europe in a figurative sense. “The history of the Kohl era is not only the history of great political successes. It is also an era in which things illegal have become a part of everyday events.” Indeed, increasing skepticism towards political and economic elites can be observed among the German population, but there has yet to be a change in attitude towards corruption. The political significance of the media for democratic systems consists in the public which they help to create. The media enact the democratic principle of the visibility of power, which is worn away by the “foul play” involved in corruption. Therefore the theme corruption not only has an entertainment value for the media. Corruption gives the media the opportunity to act out its purported role as the “fourth branch of power in the state” and as the representative societal control of the political system and enforce democratic values vis-à-vis the representatives of the political system. It is evident in the perceived role of the media that moral and system-technical aspects do not necessarily exclude each other, rather could merge into a pattern of interpretation. The discussion always revolves around the question whether corruption should be primarily regarded as a breach of trust in terms of human morality or more in technical terms as a control problem. Fundamental questions concerning political culture in a democracy are concealed within this: What distinguishes the political practice of a democracy from that of a non-democratic system? Is it primarily marked by an attitude towards certain values or by certain technical procedures of exercising power? In both cases, it is ultimately about the legitimacy of the acquisition, the exercise and the control of power in a community. Corruption is then understood to be an indicator of the misuse of power (violation of the “spirit of the constitution”, “nuisance”) and as a failure of the institutionalized procedures of the political system. Is 328 corruption an expression of human weaknesses (“The spirit is willing, but the flesh is weak”) or structural construction error in the political sphere, in particular the party system? General Features of the Social Construction of Corruption in Germany The comparison between the six target groups in Germany shows a clear opposition: Representatives from politics and business agree that corruption is not a structural problem in Germany. On the other side, police officers, attorneys, lawyers and activists of the civil society or from non-governmental organizations believe precisely this and view corruption as a serious and widespread problem that exposes society to a great danger. Especially representatives from NGOs regard it as the core problem of our times. Apart from these “clear cases”, only the media produce different perception patterns. State and civil society agents refer to a liberal doctrine, economic and political actors (regardless of political-ideological differences) use a conservative legitimating strategy, and the media relative to their political tendency represent the liberal (SZ) or the conservative (FAZ) mode of perception (Table 1). [Insert Table 9.1 here] Representatives from politics and the economy relate the problem of corruption to functional factors like success and opportunity. State and civil society actors tend to have a strong normative evaluation of corruption, which has to do with either their legal framework of action or their nature as a moral institution. In both cases they are related to the “common good” as their ultimate value orientation. This is also true for politics 329 and economics, but in a more indirect manner. Entrepreneurs, managers and politicians are strategic actors with a strong success-orientation. Morality is seen as a functional requisite of economic or political rationality. They evaluate all means relative to their economic or political success and by doing so they realize – according to the liberal doctrine – the common good as a more or less intended consequence of their actions (Table 2). [Insert Table 9.2 here] As entrepreneurs, managers and politicians are charismatic individuals looking for opportunities, they are against overregulation that restricts their liberty of action. Instead of strong institutional control over economic or political action they vote for strengthening individual morality as a means to fight corruption. Thus ethics became a rational management strategy. The police and judiciary also show a strong ethical bias but at the same time are used to acting in institutionalized legal frameworks and believe in the power of the law even as a moral guide. They believe they are the watchdogs of the law and the morals. On the other side and in practical terms, police and court investigations – as legal anti-corruption procedures – require moral support from a) politics, b) civil society and c) media to counteract the pressures from political and economic interest groups to fulfil this task. Civil society activists or representatives of NGOs are by definition members of a moral institution and they intend to enforce the legal framework for moral engagement and its results. Actors from media with conservative tendencies prefer a functional explanation of corruption as an irritation that enforces a renovation and consolidation of the social order in the sense of a self-healing 330 system. In progressive or liberal media, corruption is seen as a violation of social norms (justice) that led to a de-legitimization of the political order and therefore demands for a structural reform to strengthen the institutions (Table 3). [Insert Table 9.3 here] Corruption as a “disease” of the social and political body conflicts with the principles of a modern social and political order and therefore has to be examined in relation to modern social and political thinking. In this sense, liberalism functions like an “umbrella-concept”, i.e. democracy and market economy are the shared principles on the fundamental pillars of modern society, but there are purist (economic liberals) and moderate versions (social liberals) of liberalism. Apart from self sustainability the moderate versions acknowledge social values as a distinct source of motivation and legitimation and therefore are also found in conservative and social-democratic parties. The semantics of the term “liberal” is ambiguous. On the one hand, it represents the fundamental values of the political culture of western democracies and on the other side it expresses a political opinion in contrast to étatist conceptions of either socialist/communist or (Christian) conservative nature. For liberals (or nowadays: neoliberals) the market is the key institution of a modern society, whereas for socialists or conservatives it is the (welfare-) state. Liberals behave individualistically, socialists and conservatives act according to cultural norms and social responsibilities. [Insert Table 9.4 here] 331 The cleavage is represented in the media by the two “high-quality” newspapers in Germany, the left-wing/liberal Süddeutsche Zeitung and the right-wing/conservative Frankfurter Allgemeine Zeitung. Surprisingly the conservative FAZ reproduces a perception scheme that shows similarities to the reasoning of the political and economical elite in Germany, independent of the political and ideological standpoint. In other words, the FAZ represents a perception of corruption similar to the professional attitude in the fields of politics and economics in general (Table 4). The comparison shows that the two well-known definitions of corruption – the infringement on a law or the violation of a social norm (German: Rechtsverstoß oder Normverletzung) – not only exist empirically in a plenty of forms, but function as a basic differentiation that generates the corruption- and anti-corruption discourse in general, which is very visible in the target groups police and judiciary. The scheme of perception and interpretation of the articles in the FAZ is worthy of particular attention, because it reproduces the view of the economic and political elite, albeit in an elaborate form. The identified contradiction between the claim that corruption is not a structural problem and the contrary facts are removed when corruption is explained as a disruption which mobilizes the self-healing forces of the system or – following Mephisto – as a manifestation of power which always wants evil and always creates good. Corruption as the effect of human, i.e. all too human, misbehaviour not only damages the political system – which in this “social medicine” model is only a temporary and superficial effect–, and rather leads to its renewal and expansion in the long run. The explanation of corruption as a vehicle for the self-healing of the system proves to be a refined variation of the social construction of the myth of corruption-free society. This myth not only provides the basis for the – to put it mildly – 332 restrained, if not ignorant attitude among leading political and economic figures (including those from labour unions), but also for the general tolerance of society towards white collar corruption, which is still viewed as a harmless and trivial offence. References Berger, P.L. and Luckmann, T. 1966. The Social Construction of Reality. Garden City and New York: Doubleday. Giannakopoulos, A., Maras, K. and Tänzler, D. 2010. Cultures of Corruption in Europe. London: Ashgate. Hetzer, W. 2008. Corruption as Business Practice?, in Review 2008. Second International Anti-Corruption Summer School, edited by M. Kreutner. Vienna: Federal Bureau for Internal Affairs, 59-75. Schutz, A. and Luckmann, T. 1974. The Structures of the Life-World. London: Heinemann. Tänzler, D. 2008. Korruption als Metapher. Mittelweg 36. Zeitschrift des Hamburger Instituts für Sozialforschung, 1/2008, 69-84. 333 Chapter 10 Corruption discourse as a wild card: Politics and Media in Greece and the “modern” triumphalism of anti-corruption Effi Lambropoulou Introduction Since the 1990s, corruption has increasingly attracted the attention of the media, becoming an issue of public concern, and has resulted in political intervention and the creation of new legislation in Greece. Additionally, These national developments have been embedded in a global movement involving major international organisations, such as the Organization of American States (OAS 1996), the European Union (CoE 1997, 1999a, 1999b), the World Bank (1997, 1999), the Organisation for Economic Cooperation and Development and the International Monetary Fund (1997), and the United Nations (1997, 1998) and has affected countries all around the world. The developments were justified in the “corruption eruption” of the mid 1990s, the end of the Cold War and the new priorities in global politics. Similarly, affecting the developments were the expansion of international trade and the negative consequences which corruption was widely assumed to have had for development; hence the issue became a central aspect of good governance initiatives (Transparency International, etc.). Several institutional changes have also been introduced to promote transparency, such as the General Inspector of Public Administration (November 2002), an extension of the Ombudsman’s responsibilities (January 2003), the Police Service of Internal 334 Affairs (September 1999) and many others. Yet, the more the country improves its normative and administrative instruments (public sector, private sector) to prevent corruption and increase transparency, the lower its score on the Corruption Perceptions Index (CPI). In particular, Greece’s score on the CPI went down from 5.05 to 5.01 in the period from 1988-1996 and plummeted further to 4.3, where it remained between 2003 and 2005, slightly increasing after 2006 (4.4, 2007: 4.6, 2008: 4.7). In 2009, the score fell dramatically to 3.8, giving Greece the seventy-first position out of 180 countries.1 The usual argument about the low scores is the “non enforcement” and/or the “fragmentary” or “inefficient” implementation of measures and improvements for which no further explanations are given (Syrigos 2005). In general, the evaluations of implemented policies are often restricted to quantitative data of the issued and ratified measures, laws etc. The lack of or inadequate law enforcement argument requires qualitative research for long time periods. Since such research has yet to be conducted, there are no reliable data to be used as a basis; thus the most popular everyday theory is usually prevalent. According to results of a 2005 survey on Crime and Safety in Europe (EU ICS 2005) and in particular, information on nonconventional crimes such as petty corruption (bribe-seeking by public officials), Greece has the highest rating, 13% vs. a 2% EU average among the 18 countries participating in the research (response rate 43.6% (880 1 Cf. Transparency International, Corruption Perceptions Indices http://www.transparency.org/policy_research/surveys_indices/cpi/previous_cpi__1); 1996-1998 see also (available at: Transparency International, Country report – Greece 2009 (in Corruption and the private sector. Cambridge, New York: Cambridge University Press, 338-42). 335 persons) of the 2,020 residents over 16 years old, national subsample, EU ICS 2005: 14). However, in the European Values Survey of 1999/2000 (Halman 2001), Greeks (1999: 65G) considered “corruption-bribery” in the group of highly disapproved of behaviours (1,116 (97.7%) out of 1,142 respondents; see also WVS 1999-2004: Greece 1999/WVS 2000, F116, F117, F146) and 83.3% confirmed that citizens must always abide by the law, rising to first place, followed by the UK (76.5%), Portugal (65.5%), Spain (62.1%) and the Netherlands (55.4%) (EKKE/NCSR 2003: 29). Apart from the non-enforcement argument, the inconsistencies between Greece’s very low score on the CPI index, attempts to facilitate transparency, the high disapproval rate of citizens, as noted above, and the endless criticism from the media (e.g. Moschonas 2007 for the EU ICS 2005 results) can be attributed to several factors; though none of them is adequate to explain it fully. Some studies note that moral disapproval of corruption is not necessarily associated with the willingness to make a complaint about it (Killias 1998), or that the followed (illegal) behaviour does not necessarily coincide with the legitimisation of corruption (Karstedt 2004: 389-390, 397408; WVS 1989-1993). In addition, if we accept that legislation on corruption is not fully enforced or is selectively used against certain offences or offenders, which does not end up making a difference to the scores, it eventually indicates that there are certain problems in the legislation. For example, the legislation may not successfully target the right offenders or its mechanisms do not affect the general system to which these offenders belong and where the focus should be; or the problem lies in the law enforcement agencies, e.g. complying with procedural rules instead “getting results”. Therefore, it is beyond the possibilities of such anti-corruption legislation, institutional reforms and other measures, to positively influence the CPI indicators for the country, 336 unless the indicators are affected by certain factors much more complicated than we have so far considered. This article will present in brief the use of corruption rhetoric as an empty discourse in Greek politics, in particular from the two big rival parties, and occasionally a method of ensuring each one electoral supremacy. Furthermore, to show that corruption rhetoric is also used as a means for contemporary media to dispute the power and prestige of politics in the public eye and serve herewith various needs. In this context, the influence of international organisations’ measurements and publications on corruption, cause there to be a nihilistic view of Greek society, the state and the political culture in the country for the country itself. Greek scholars contribute to this by restricting themselves to a rather ideological criticism of a simulacrum and reliable research material is blatantly non-existent. Theoretical approaches and research evidence Politics There is an increasing amount of analysts attempting to describe corruption at the national level. Most of them use older political studies or are political studies that focus on the development of democratic governance and the Greek state. Empirical research, apart from the CPI and the Global Corruption Barometer surveys carried out by Transparency International (TI), and the telephone interviews recently conducted for TIHellas (Public Issue 2008, 2009, 2010), does not exist (see also EU ICS 2005). Political patronage, clientelism and rent seeking have been the main topics of the analysts’ discourse since the 1980s, with some variations; as no new information exists, this concept is still being used today. 337 The rest of the studies refer to elements or activities that have already been or can be included under the term corruption, in particular, regarding preventive and preconventional judicial control. Suggestions are made concerning legal and organisational improvement, the need for stricter laws, and the roles of specific institutions are examined, such as the contribution of Ombudsman and the effectiveness of General Inspector of Public Administration on fighting corruption, etc. Moreover, few studies attempt to describe Greek society on the basis of corruption. The majority of these studies consider the term corruption as given, using it with ease, while only few show some scepticism as to what it actually means. Predominantly, corruption is associated with economic and political development, which, in turn, is associated with political patronage and clientelism. Other approaches, in the main ontological interpretations, are those that focus on the modern or post modern state, the political system and globalisation. Most studies analyse political corruption, which is the exploitation of public power and the abuse of public interests, benefiting politicians’ personal interests (see more in Bratsis 2003: 8-14). In the national (anti-)corruption literature, corruption is simultaneously connected to a series of other unfavourable perceived phenomena, such as public distrust of the political system, reproduction and reinforcement of social inequality, value erosion, violation of human rights and democratic principles as a cause and result (e.g. Koutsoukis and Sklias 2005). Political patronage, clientelism and rent seeking Patronage has several meanings in military history, in literature, and in religious history. In political science, the patron (politician) provides various resources or privileges to the client (voter), bypassing the formal mechanisms and regulations for their provision; the client on his/her part, provides political support for the patron. Such relations entail 338 reciprocity and mutuality (Stokes 2007). In international bibliography, there are several definitions of political clientelism. According to Hopkin (2006: 2), “clientelism is a form of personal, dyadic exchange usually characterized by a sense of obligation and often also by an unequal balance between those involved” (see also Stokes 2007: 2). The same author distinguishes between “old” and “new” clientelism. The former is regarded as operating mainly in developing countries and involves patron-client proximity and exclusively selective benefits (Hopkin 2006: 8). In contrast “new” clientelism entails less proximity in patron-client relations and is characteristic of more advanced economic settings. Besides, in “new” clientelism the patron is less autonomous, being an integral part of the party organisation and bureaucracy; in this type, the real patron is the party organisation. According to several Greek authors (e.g. Sotiropoulos 1996: 60-62; Lyrintzis 2005: 248), “new” clientelism corresponds better to contemporary Greece. The new form refers not to individual clients but to organised interests, which provide political support (e.g. through the media, financing, or other means) to certain politicians or parties for certain privileges and benefits. This type of political clientelism is regarded to have prevailed after the 1980s in the country, along with the re-organisation of political parties. Thus, while “old” clientelism is connected with poverty and social inequality, which are regarded endemic in most developing countries, “new” clientelism is associated with the expansion of the role of the state in the economy and society, which is called “bureaucratic clientelism” (Lyrintzis 1984). High-income voters tend to support a party or candidate (e.g. with campaign contributions) on an ad hoc basis in return for a (non-)excludable good which will tend to benefit them more than others. Some good examples are fiscal or regulatory advantages for particular industrial sectors, 339 or public investments for specific territories, tariffs, regulations or tax breaks protecting a particular industry or occupational group, or providing some kind of welfare benefit made available to a particular social category (Hopkin 2006: 8-10). There are three approaches regarding clientelism and political patronage in Greece. It is noteworthy that historians have argued against the extended use of patronage as a key concept for the explanation of Greek politics, even of the 19th century, without success (Hatziiosif 1994; Hering 2004). The first approach is regarding the issue as an “instrumental relationship between patron(s) and client(s)”, operating in favour of both sides “as contractually founded” (state corporatism; Mavrogordatos 1988: 5). The second approach is to consider clientelism a “way of political participation of the masses” (Lyrintzis 1984), which are otherwise excluded. It is seen as a “vertical” political participation of the citizens (incorporatism; Mouzelis 1987). The third approach is a combination of the previous two and is described as “clientistic corporatism” (Tsoukalas 1987). Based primarily on face-to-face interviews with members of parliament and politicians and much less on the documents studied during 42 months of research2, clientelism is conceived by several interviewees3 as a non-unusual way of dealing with 2 My colleagues, S. Ageli (MA), E. Bakali (MA, MBA), and N. Papamanolis (MA), and the author participated (January 2006-December 2008) in the EU Research Project Crime and Culture (Project no.: 028442, FP6-2004), while for a different length of time and on various parts of the research E. Bakirli (MA), Dr. Th. Iosifides (Assistant Prof., Univ. of Aegean), P. Salihos (MA), and Dr. Garyfallia Massouri also participated. The project was coordinated by the University of Konstanz, Germany, Department of History and Sociology (see more at http://www.unikonstanz.de/crimeandculture/index.htm). The results of a common piece of work between Th. Iosifides, N. Papamanolis, E. Bakali and myself are presented in the article. 3 From November 2006 till July 2007 we carried out 24 face to face interviews with 27 persons and finally analysed 22 interviews with 25 persons from politics (MPs), public administration, justice, police, media, NGOs and economy. 340 the civil service and as a form of social and political organisation in Greece. At first glance, we see that academic-expert views and interviewees’ views coincide. But when those interviewed were repeatedly asked during the course of discussion to provide more information about their own experience from their work and be more concrete, they restricted their answers to generalisations and could not, in the end, give any example, apart from those made known by the media. By that, we can assume that even if most of the population is not involved in corrupt exchanges, people consider them as given, confirming our hypothesis about the influence of the media discourse on the public. As previously mentioned, although the “old” type of clientelist relations is regarded as a reason for the increase in social inequality and discrimination against people who are not part of intense clientelist networks, the “new” type absorbs social inequalities, producing conflicts and strain, and balances the state of confusion and uncertainty through rent seeking. In this sense, it is an institutionalised form of social organisation and behaviour which is indirectly legitimised (Petmesidou, as quoted in Sotiropoulos 2007a: 100). Consequently, clientelism is not an inherent characteristic in the sense of value or culture but the product of historical events, political organisation and functions of the state mechanism during its development, in which a rational and general redistribution mechanism of social wealth, welfare benefits and social protection was missing (Sotiropoulos 1996: 60-62, 2007a; Lyrintzis 2005: 248). Arguing that clientelism has developed from a mechanism of balancing social inequalities with an established mentality (Koutsoukis 1998) thus producing corruption (usually petty), is 341 arbitrary, unscientific, and cannot be supported without further systematic empirical research. These viewpoints distinguish between the countries in the south with those in the north, though clientelist relationships do exist to some degree and in various forms in all modern societies (Legg 1975; Schmidt-Hieber 2003). In these northern societies, overt political patronage, probably reviewed or approved by the legislature, is seen as a tool for rewarding and enforcing loyalty (Scheuch 2003: 67). Loyalty is the criterion for selecting a person rather than merit. Only the selection process might be seen as questionable. In the U.S. for example, the president-elect must appoint approximately 7,000 new federal positions (powers of appointment). The appointments range from top officials at U.S. government agencies, to the White House Staff, and members of the US diplomatic corps. Many, but not all, of these positions are appointed by the president with the advice and consent of the Senate4. As head of the executive branch, the president appoints the top officials (1,000) for all of the federal agencies becoming the president’s “administration” and may be subject to non-competitive appointment nationwide. These positions are listed in the Plum Book5 which outlines the government policy and the bureaucratic positions that the President has the right to fill. In the case of ten agencies, the President is free to appoint a new agency head at his will (Deeben 2005). 4 PAS/full-time and part-time presidential appointments, senate confirmed; PA/full-time and part-time presidential appointments not requiring senate confirmation; Non-Career Senior Executive Service (10%) and Schedule C positions not requiring senate confirmation. 5 See Committee on Oversight and Government Reform, available at: http://www.oversight.house.gov. 342 In the British Civil Service, the patronage office still exists; its role is to check that political honours are not given to inappropriate people, as in the period from 1916 to 1922 when they were sold by Lloyd George6. The British prime minister has patronage in the appointment of junior ministers, senior civil servants, bishops and judges. Such power allows the prime minister to appoint people into these positions if s/he is certain that they will support his/her policies and not present a challenge to his/her power. Decisions made by government are taken after committees’ meetings. Advisors and “special advisors” that are not elected officials but political appointments participate in the committees too7. Certainly, the recruitment of civil servants is based on merit, fair and open competition under the responsibility of Civil Service Commissioners who are independent of government. In Greece, apart from the appointment of the cabinet office, chairs of the public utility organisations, heads of various corps (e.g. diplomacy, defence, police – Government Council of Foreign and Defense Policy (KYSEA)) and some committees, the rest of the appointments are regarded as patronage and clientelism, being strongly criticised, in particular over the last twenty years. Thus, the recently elected government under George Papandreou (October 2009) posted job advertisements on the Internet (www.opengov.gr) to fill some advisory and administrative positions (mostly high ranking). This process, however, turned out to be rather unsuccessful because it lasted, in some cases, four to eight months (PD 63/2005, Αrt. 10(5)). In addition, the government changed the selection process for the heads of Ministries’ divisions (general 6 7 Political dictionary: Patronage, available at: http://www.answers.com/library/Political%20Dictionary-cid-59993. Government, citizens and http://www.direct.gov.uk/en/. rights. The Government, Prime Minister and Cabinet, available at: 343 directors), as well as the constitution of the civil service councils disengaging the authorised ministers from the task (Law 3839/29.03.2010). Nevertheless, appointments made by government party members as a reward to special social groups for their support are clientelistic, since they ignore the method of politically impartial recruitment in the civil service, which is based on merit and fair competition, and supervised by an independent authority, the Supreme Council for Civil Personnel Selection (ASEP) (Law 2190/1994). ASEP members include high-ranking judges, public servants, executives of public organisations or commonwealth enterprises and academics (Kontoyiorgis 2005). The Greek social system with its subsystems has been researched by several native specialists (sociologists, political and media scientists) on the basis of differences and not of similarities with other developed countries in Western Europe. These studies begin with the peculiarities under which the modern Greek state was formed after liberation from the Ottoman Empire. So, the starting viewpoint gives the meaning of the issues under examination. We read other things when we observe a society under the point of reference internal security and other under social justice; we understand different things when we examine deviance as one of the products of change in power relations and different as value crisis or threat of internal and public safety. Consequently, the different diagnosis ensues from different confrontation and therapy methods. According to some of these views, the main difference is that parliamentarism was established in Greece before industrialisation, contrary to other European countries. During the industrialisation era, Greece, along with the rest of the Balkan countries, was under Ottoman rule. The “premature” institution of parliamentarism in the country without the respective development of productive forces led, among other things, to the 344 formation of a strong state and a weak civil society (Komninou 1989: 361; also Lyrintzis 1984). Corruption turned out to be one of the negative effects of this system. Even though the concept of civil society is a recent construction, analysts consider it a characteristic of mainly high developed countries of the Western Europe (Bernhard 1993: 310) and not of Greece (Voulgaris 2006; cf. Pantazopoulos 1993, 1994). It seems that communitarianism, communities and the communal idea, having a long and strong tradition in the country vital during the Ottoman occupation, enhancing the liberation forces, were not taken into account. Moreover, the first National Assemblies of the newly constituted state maintained the community as the first degree of local administration, only to be disabled later by the establishment of a monarchy and the constitution of a centralised western-state type. Eminent Greek law historians referring to the legislation of that period (1833-34) have often stressed in their works that “the extreme concentrated system withered the vitality” of the communities (Angelopoulos 1879: 4-5, 74-75; Pantazopoulos 1992: 13 and note 5). Later attempts to reorganise the communities based on the Danish model, 80 years after the abolishment of the community system (with Law (447) $ΝΖ΄/1912; Karavidas 1981: 146-150), proved unsuccessful (Arts. 35, 43). This was because “the legislation used community as an administrative institution and not primarily a cultural one associated with the personal rights of the Greek citizens” (Pantazopoulos 1992: 21 and note 58, 1994: 53-54). Foreign models, along with social changes, economic development and the country’s hardships led to the decay of the institution (Pantazopoulos 1993: 75). Thus, the concept of community and its operation is no longer active but is not unknown. 345 In any case, as some analysts claim, weak civil society is the outcome either of “state corporatism” (Mavrogordatos 1988: 198-201), “clientism” and “populism” (“incorporatism”; Mouzelis 1987: 73-75, 1995: 24) or “clientistic corporatism” (Tsoukalas 1987: 92-95, 1993: 20-21). Other analysts argue that due to the inflated state and clientelism, not only is civil society in Greece weak but the state is weak as well (for an overview, see Sotiropoulos 2007b). Another justification for the weakness of Greek civil society is low social capital (Jones et al. 2008: 177-182, 187-188). Many national analysts consider Greece’s social capital to be low because of the low level of trust (see Science and Society 2006), and a low level of trust is a breeding ground for corruption. What is more, clientelist relations are regarded as a form of “negative” social capital (Iosifides et al. 2007: 1344-1345) and low levels of trust in the relations between citizens and the state in Greece indicate that are reinforced by the persistence of clientelistic relations. As illustrated by Jones et al. (2008: 177-178): A significant outcome (…) was the gradual formation of a utilitarian political culture leading to problems of cooperation and trust between citizens and the state (…). The state is conceived as an “obstacle” to the everyday needs, while politicians are an alternative “path” for the disregard of state regulations for the achievement of individualistic objectives (…). As a result of such political intermediaries, a tendency of infringement of social norms was developed (…) along with a decrease of interest in politics (…). From all the previous analyses we see that a complex scheme is reproduced: “clientism”, patronage, weak civil society, low social capital and a low trust level are interrelated, resulting in corruption and the reverse. Corruption reproduces low trust that consists in a negative social capital reflecting a weak civil society, the operation of which depends on clientelism and patronage. Finally, clientelism absorbs social 346 inequalities and operates as a redistribution mechanism because the resources are not accessible by all. The question is why the resources aren’t accessible by all. Is it because of their shortage, because only few have access, because of an unjust state which is inflated and weak as well? Why, one may ask is the state weak? It is strikingly obvious that a general point of reference is missing. Our research has shown, that MPs, politicians in general, the press and private broadcasts, with few exceptions, identified corruption with “scandals” in politics, or in the interface of politics with the private economy8. Most of them did not promote any clear-sighted and dispassionate discussion. According to our data sources, media followed mainly two lines. The first one focused on legislative and institutional shortcomings using the “corruption jargon” diligently. They attempted an analysis of social and political structure in order to define the “causes of corruption”. The second one concentrated on the specific case(s), littered with “corruption”, “opacity”, “scandal”, “synchronizing of interests”, etc., finally demanding for effective control mechanisms (Lambropoulou et al. 2006). MPs and principal party leaders of the two big parties occasionally called for society’s “organised reaction” to prevent the “evil” and the outbreak of the “disease” 8 For this part of the research, official documents were analysed; namely, either texts referring to corruption and “scandals” (e.g. Ombudsman and Inspectors Controllers Body reports, 1999-2005; reports of the Parliamentary Committee on Institutional Issues and Transparency, 2000-2005; electoral programmes of political parties, reports of the Police Division of Internal Affairs, 1999-2005; NGOs Reports, 2000-2005), or texts referring to the case studies (e.g. parliamentary proceedings, 2001-2005; prosecutors’ findings and court decisions, 2001, 2002; findings of party committees, 2001; articles of three high circulation daily newspapers (2003-2005); the news transcripts from a state TV channel (2003-2005); the archive of a private radio station (October 2001 - September 2002) etc. 347 (“the dry rot of democratic institutions and society”)9. They used the word “misgovernment” rather than to corruption, but when a specific case emerged, either they denied responsibility (“such things happen … they are inevitable … unavoidable”) or their discourse became mostly party-political (fixed expressions/words repeated, such as “major political issue”, “very serious case”, “rotten/decayed status-quo”, “country’s misery”, “indifference of the government”, “deliberate negligence”, “governmentinertia … – complicity … – laziness”, “tolerated …, fostered …, deluded … by the state (your PASOK-state)”, “electioneering”), to blame the other party whenever considered useful (“You made the country an ‘unfenced vineyard’”, “nothing is forgotten”, “you will find us before you”; “making the country a field for mafia activities”; “moral hypocrisy of the government”, “degradation of democracy’s quality”, “significant issue of moral order”, “The government regards the state as loot”). Even recently, in the middle of the country’s economic crisis, the prime minister himself didn’t hesitate to speak against the previous government on BBC’s The Andrew Marr Show (21 February 2010) and indirectly against (all) the citizens of his own country in order to refute responsibilities. A month before that, in an interview given to representatives of 25 foreign newspapers in Davos, Switzerland (29 January 2010) about the solidity of the country’s austerity program, Mr Papandreou underlined that “corruption is not in Greeks’ DNA” (!). By that he implied that the economic situation of the country is the result of corruption of the Greek citizens (Kerdos 2010). And this, while he was negotiating the support of the EU for the country’s huge public deficit. He called the previous administration, which was replaced by his Panhellenic Socialist 9 Ecologists-Greens, spot on Political suggestions for fighting corruption 10.09.2008; not available online any more, however see their extended text under the same title. 348 Party (PASOK) in October 2009, “reckless and corrupt” (BBC NEWS 2010). Further, in December 2009 again in BBC, the prime minister told that “systemic corruption” and “clientelism” had created a sense of the lack of the rule of law in the country and accentuated issues such as tax evasion. Nevertheless, his government’s plan to quell Greece’s economic crisis will combat both systematic corruption and clientelism as well as “red tape” issues (BBC NEWS 2009). Thus Mr Papandreou equated corruption with tax evasion blackening with generalisations such as “systemic corruption” the country’s image even more, in order to be seen as the archangel of anticorruption, exactly like the previous prime minister, Kostas Karamanlis, and his right wing party (Nea Dimocratia). In their electoral programme of 2004-200810, Nea Dimocratia had used dramatic and exaggerated language to describe the corruption, not far from producing moral panic. The party didn’t hesitate to tarnish en block the public administration, “corruption in public services is out of control”, without any specific data-support, in order to promote its suggested measures. Other phrases used were “campaign against corruption, against the merging of interests and for transparency”, together with a “national strategy against corruption”, presented as the “ultimate solution” to the problem. It is worth noting that “corruption” rhetoric has emerged as an issue of public discussion to become, only after 2004, the issue coinciding with the increasing discussion at international level and the impact on the TI releases on the national discussion. Similarly, the other major party, PASOK and its leader George Papandreou, didn’t dispute the problem but instead insisted on the “need for transparency” rather than “the fight against corruption” (cf. Papadiouhos 2010). The discourse of PASOK 10 No more available online; http://www.nd.gr/index.php?option=com_content&task=blogcategory&id=421&Itemid=631. see instead: 349 and Papandreou too was less emotive, more communicative and “managerial” with several exaggerations, but not spreading frightening rumours and stirring up fears like ND, to change rhetoric when his party came to power (cf. PASOK 2009: 50, 66, 68 and 5, 6, 12, 13, 15-18, 28, 36-37, 47-48, 50, 56, 58, 66, 68-70, 72-73, 76, 90-91). The more important points about the perceived consequences of (political) corruption, derived from the mainstream line of contemporary thought on the phenomenon are (Anticorruption Resource Centre U4 Undated): • Political corruption negatively affects economic development and growth as it reinforces opacity, it increases the indirect tax burden on enterprises and it lowers investments. • Political corruption counteracts poverty eradication policies, the implementation of which requires macroeconomic stability and high levels of economic growth. • Corruption is a form of violation of basic human rights. • Corruption distorts the rules of free competition and market relations and thus affects in a negative way the development of the private sector. • Political corruption produces economic uncertainty, causes market inefficiencies and distorts the composition of public expenditure. • Political corruption causes political disempowerment, enhances political cynicism and institutional disillusionment, impacts negatively on crucial social values related to trust and social cohesion and discourages political participation. The above synoptic presentation shows that the dominant contemporary concept of the phenomenon, as expressed by international organisations such as the World 350 Bank, is strongly affected by a certain model of political, social and economic organisation, notably that of the free market and its neoliberal ideology (see also Rothe 2010). Therefore, the corruption rhetoric is used to enhance further neoliberal socioeconomic restructuring in countries of the developing world or of the semi-periphery and it does not question or bother with the social impact of replacing “corrupt” practices with “clean” ones as long the former serve the process of further marketisation and commodification. With this we do not support the idea that certain practices such as “bribery” or “political patron-client exchange” are a social construct made by dominant interests and rhetoric. Instead we note that the characterisation and labelling of some acts as corrupt – irrespective of their previous longstanding criminalisation – serves a clear political goal: the expansion and domination of market relations, independent of social costs and without examining alternative trajectories empowering the lower strata of societies, or countries which do not exactly fit the format of the advanced developed societies. When this happens, a total contestation of the values system of the countries of the semi-periphery takes place, resulting in disapproval of their behaviour system and eventual castigation, in support of significant political and economic decisions (Kaiser 2005: 23). All in all, as Peter Bratsis comments: “Implicitly in TI’s numbers and explicitly in arguments, the problem of corruption in Greece is seen as one caused by the Greeks themselves” (2003: 6). The politicisation of public administration and legalism As we saw, much criticism was and is still directed toward public administration, not only by politicians, but by the media too (“the misery of public administration”). The low efficiency of public administration was stressed in both research phases; in the first 351 phase it was called maladministration, while in the second it was related to corruption and bureaucratic corruption, as well as the non enforcement of the simplification of procedures. According to analysts, the politicisation of public administration, legalism and reliance of the economy on the state, produce corruption in Greece. However, comparative research has shown that certain characteristics of power relations in Greece, and in particular in public administration, such as state expenses and revenues, degree of politicisation of high ranking executives and the size of bureaucratic structures (Sotiropoulos 2007a: 48-56) are either the same with those in other contemporary administrative systems (that is systems based on the principles of democracy, rule of law and a liberal economy), or have similar characteristics of neighbouring countries with analogous experience in their social and political development. These are also noticed in most western countries in the interface of the economy with the political system where “grand” corruption is generated, for example, undeclared party financing (see more in Kaiser 2005).Consequently, during the last few years, many social and political scientists, journalists and politicians, are more reserved about the overused argument of the public administration’s size. There are forms of “petty” corruption though, which are particularly maintained over time and in certain geographical areas, such as the European South, because of the common characteristics which have influenced the formation of these states during their history. By using the category, European South, the particular conditions and the different characteristics of each state are not ignored. Contemporary social research has found that “clientelism”, rent seeking, overregulation, and inefficiency are components of the public administration in all states of the European South and qualify respectively 352 the relations of power between the state and the citizens (Bruneau et al. 2001; Diamandouros and Gunther 2001). Therefore, in a period where efforts for administrative convergence have been carried out, we have to take this into account. The convergence of various social and state formations on the basis of common value codes demands new analytical tools for their study. In order to analyse the role of the media in the discourse and construction of corruption it would be helpful to take into account their position in the economy and their relation to politics, not only for Greece but for most of the countries as well. Economy The development of the modern Greek economy and the role of the state Studying the Greek economy from the end of the Second World War and onwards, we should refer to the dominant role of the Greek state in economic activities. In the late 1940s and in the beginning of the 1950s, the Greek governments were obliged to vigorously follow an interventionist policy in order to deal with the social and physical disasters as well as the economic chaos caused by the Second World War and the ensuing civil war. At that period in time, the Greek economy experienced strong financial shocks (inflation, depreciations) and relied heavily on foreign aid (e.g. the Marshall Plans and the UNRA), while Greek economic policy was under the tutelage of foreign donor countries11. 11 In 1946, an all-powerful Currency Committee was set up, consisting of Greek ministers competent for the central economic planning, and one American and one British consultant. The committee had extensive authority to determine the volume of bank credit, interest rates, use of foreign aid and public economic policies in general. 353 The turning point for the Greek economy was in 1953, after the establishment of a strong government and the depreciation of the drachma. The expression “Greek Miracle” is used to describe the positive development in the Greek economy from 1950 to 1966, namely the GDP’s annual rise by a rate of 6.8%, the overall GDP growing in real terms by 77% between 1950 and 1961. During this period, some liberalising measures were carried out to open the Greek economy and attract foreign investments. The state undertook the major economic role to create the necessary infrastructure and provide the financial mechanisms to boost the economy and stimulate growth. Irrespective of which party(-ies) was in government and its/their ideological identity, statism was the main trait of all the post-war governments’ economic policies. It is noteworthy that even the conservative governments were criticised for “statist” and “paternalistic” policies. State intervention in the Greek economy was both direct and indirect: either through its entrepreneurial activities or through its regulatory and subsidising role (see also Featherstone 1990; Kazakos 2001). Particularly after 1974 an intensive process of state expansion took place with the nationalisation of significant economic sectors (e.g. Olympic Airways, some commercial banks), and also private firms facing bankruptcy (these were undertaken by the state-owned Enterprises’ Reconstruction Organization (OAE)). The majority of these entrepreneurial activities of the state proved to be unsuccessful in the long run, even though a large amount of state funds were used to help them survive. The nationalisation of problematic firms did not help the restructuring of the business sector in order to raise its competitiveness, but gave rise to a huge public-business-banking merged superstructure (Patronis and Liargovas 2004). 354 The extensive regulatory role of the state over the economy was imprinted in opaque bureaucratic provisions, laws or documents concerning several aspects of economic life, such as the product market, labour market and the banking sector. Additionally, intensive support was given to various business sectors, exports and economic activities by the state budget in forms of subsidies, grants and aids. The state’s support of the economy resulted in many pitfalls, such as uncontrollable public deficits (“The plight of the Greek economy”, Agapitos and Mavraganis 1995), rapidly rising public debt and a bloated public administration with an increasing number of public servants (Christodoulakis 1994). Yet, the most serious drawback of state intervention is that the Greek economy was developed in a protected environment, relying strongly on public subsidies and procurements, without developing international competitiveness and balanced allocation of resources. Consequently, the economy of the country and its enterprises became very sensitive to national political-economic reforms and international economic crises, such as the de-industrialisation from the mid 1980s to the beginning of 1990s, the last energy crisis and the 2010 economic crisis. In general, the powerful role of the state, being the biggest entrepreneur, employer and purchaser, produced an area of exchange between political parties in power and economic elites, each one operating to its own advantage. In fact, none of the favoured economic groups desired political independence – much less the representatives of the business world – simply because they would lose their economic benefits. In our research, when the economy’s representatives urge for “less state” and/or “no state”, they imply a state better controlled by them. Although the Greek state appears extremely large, it is neither powerful nor effective (“A colossus 355 with feet of clay”, Mouzelis 1978; Sotiropoulos 1999). It is trapped by party-politics and collusive practices between party and economic elites. In the beginning of the 1990s, the perception of the state’s role began to change. In order to join the European Monetary Union, Greece had to undergo a number of structural changes involving the liberalisation, fiscal rigidity and reform of the public sector; once again Greece had to implement policies formulated by foreign authorities. Reforms, privatisations and liberalisation of different markets (e.g. the banking sector, telecommunications, the energy market, etc.) began, although sometimes with controversial results. Several interviewees in our study emphasised the role of a diminishing public sector and privatisation. Nevertheless, international research has shown that privatisation and liberalising markets can produce higher levels of corruption as well (Rose-Ackerman 1999). In relation to this, the representative of the labour unions underlines, “corruption gained momentum as privatisation did not prevent the economy from being even more state-nourished; the state enterprises have been privatised but the entrepreneurs have been nationalised”. The privatisation programmes were also criticised for their ineffectiveness in reducing public deficit, their unreliability in estimating the value of public assets and insider trading, favouring particular tenderers in the bidding processes. Furthermore, many recently liberalised markets are considered to be oligopolistic and making excessive profits, i.e. the banking sector. The state acquired one more responsibility; to supervise competition using an independent public authority, the Competition Committee12 (Flessas 2007). How effective and powerful such bodies are, cannot be 12 The Committee has been created for the control of monopolies, oligopolies and the protection of free competition (according to Law 703/1977, as modified by Laws 2296/1995 and 3373/2005). 356 easily answered. Overall, political turbulence and economic disasters have produced insecurity in the population. This led to strong conservatism in national economic planning and deep-rooted protectionism, after the demands of industry and workers (Dragoumis 2004). The private sector and business ethics The private sector in a market economy gives priority to the maximisation of profit over every other business goal. In this context, the use of illegal or non conventional methods along with the exploitation of public resources would be better understood as entrepreneurs pursuing personal wealth and profit. Several examples at the international level illustrate that illegal practices are used by the private sector not only in relation to the public sector, but in the private sphere of the economy itself too. As already mentioned, entrepreneurs had, in the past, always pressed governments for less competition in order to maximise their profits, taking advantage of the protectionism “umbrella” provided by the state (L. Efraimoglou13, as quoted in Sakellaropoulos 2004: 197; see also Tsotsoros 1993). This environment of low competition has led to an oligopolistic structure of the business and industrial sectors. Even today, after the opening of the markets during the 1990s, many sectors of the Greek economy still have an oligopolistic structure, often abusing a dominant position or through collusion, e.g. the cases of the milk industry and supermarkets in 2004, 2006 (HCC 2005, 2007). Regarding the industrial sector, the demand for subsidies and state protection against foreign imports looks like a rent-seeking game: the governments are 13 Ex-president of Industrial Directorate of Athens, Magazine: Oikonomikos Tahidromos 1986. 357 forced to abide, because they fear socio-economic side effects, especially unemployment. Therefore, active14 industrial policy probably favours unconventional and illegal practices (Ades and Di Tella 1997). After the liberalisation of the Greek Stock Market in the 1990s, a new form of economic crime, stock market fraud, developed. There were numerous cases of stock manipulation, illegal use of confidential information, the creation of “pyramids” and speculating broker companies (Courakis 2001), which exploited the expectation of the public for a quick profit. The legal context concerning supervision of the national Stock Exchange Market proved to be inefficient15. The banking sector of Greece is another area of the economy with several problems during the pro-liberalisation era, as well as its privatised era (beginning in 1987). In the pro-liberalisation era, there was the “eclectic relationship” of industries with the state-owned banks. A small group of favoured businessmen – usually the powerful ones – received the bulk of long term credit, circumventing the strict regulations, and preventing smaller firms from having equal chances for financing. During the 1950s and 1960s, the banking sector was reluctant to finance small and medium-sized enterprises, depriving them from having enough capital to develop their competitiveness. In particular, during the 1950s, 12 enterprises alone, out of 315 companies in total, received 57% of the long term financing available. This was due to “silent consent” between big industries with dominant positions and monopolistic 14 An active intervention in industrial development is the policy which implements strong tax, tariff, and trade laws to protect the national economy from “dumping”, the flooding of a market by a competing nation with goods or services below market prices in order to gain an advantage over domestic firms. 15 For the enhancement of stock market supervision, Law 3340/2005 was issued against insider trading and information disclosure, corresponding to EU Directive 2003/6/ΕΚ. 358 power and the banking sector to avoid supporting their opponents (Nikolaou 1965: 203). The same situation continued during the 1970s and 1980s when the businessmen “spent most of their time at the desks of banking managers and politicians to ask for favours and subsidies” (G. Arsenis, as quoted in Sakellaropoulos 2004: 197)16. All the infringements from efficient financing reached their climax in the mid 1980s when the banking sector crisis broke and the “problematic enterprises” came to public attention (Sakellaropoulos 2004). The impetus for the privatisation of the banking sector was given by the European Union and the internal crisis. Under the neoliberal governments, the banking sector proved successful and is one of the first business sectors in net gains. Nonetheless, deceitful and extortive practices, if not corrupt, are not unknown to the banking system in order to manipulate its debtors17. Liberalisation of the market – as in the banking sector – has shown again that it does not necessarily lead to more healthy competition and less corruption. Public procurement and contracting is likewise a field where the private sector follows illegal practices.18 With the state controlling over 60% of the country’s GDP, it is not surprising that interest groups, businesses and individuals invest considerable energy and resources in influencing government decisions related to the economy (cf. Michas 2005). In general, the Greek private sector proliferates in public procurement and public works (Lascum 2003: 10; Papadimitriou and Komninou 2008: 77). Some 16 “Political aspects of the debate about the Greek problematic enterprises” in: Bulletin of Business Administration 219: 33, Athens. 17 The overuse of extortive practices by bankers against consumers resulted in the issue of Law 3587/2007, whereby banks are not permitted to confiscate residences that are of first use. 18 Cf. Transparency International, http://www.transparency.org/news_room/in_focus/2006/bpi_2006. BPI 2006 (available at: 359 striking examples are the procurements in the public health sector, where goods and services are bought many times above their commercial value (Fintanidou and Aravanos 2006). In general, public works/construction, arms and defence, oil and gas are business fields where practices on the edge of the law or even illegal practices can be followed, because they are reliant more on public contracts (Rose-Ackerman 2007).19 Although labour force unions are regarded as powerful pressure groups and the workers’ participation in them corresponds to that of the other EU countries, no significant labour union movement has ever developed in Greece. This is due to limited industrialisation, small-family entrepreneurial activity and high percentage of selfemployment (Observatory of SMEs 2007; European Commission 2008, 2009). The labour movement was more self-interested rather than ideologically orientated and could be easily manipulated by political parties. Labour unions, especially the powerful ones, usually limit their interests to purely economic demands and once they have acquired them, engage themselves in resisting changes in their fields and preserving the status quo, as for example those of public sector employees (Vlachos-Dengler 2000). We do not imply that trade unions foster corruption, but sometimes their strong reliance – political, economic or ideological – on political parties prevents them from driving for open governance and transparency and decreases citizens’ trust and esteem. Summing up, not only the demand side (the public sector), but also the supply side (private economy) are responsible for illegal practices as well. The private sector is the supplier of bribes to public services and private organisations (Vlachos-Dengler 19 Cf. Transparency International − BPI 2002, by size of bribe http://www.transparency.org/policy_research/surveys_indices/bpi/bpi_2002#size), http://www.transparency.org/news_room/in_focus/2006/bpi_2006). Table BPI 3 2006 (available at: (available at: 360 2000). Greece’s history set among others the context for its economic development, making citizens conservative investors. Their distrust of the state’s abilities discouraged them from engaging in risky or unfamiliar ventures such as large-scale industrial investments, focusing instead on short-term profit returning investments in real estate and commerce. Citizens’ distrust could still justify, up to a point, tax evasion and other economic activities in the shadow of the law, hampering economic development. The country’s governments and political parties with their frequent timeserving practices and short term policies, with few exceptions, have not proved able to decrease distrust in the long run, but fairly the opposite. Greece’s accession into the European Union strengthened its democracy, enhanced the feeling of the county’s external security, and improved the socioeconomic system (financial resources, large market, etc.) (Tsoukalis 1979; Ioakimidis 2000). European policies had, and still have, a positive impact on public policies: they helped to diminish the economic role and size of the state, deregulate and liberalise crucial economic sectors (e.g. the banking system, the telecommunication market) and protect competition along with transparency in economic relations (private and public sector). EU membership rebalanced the relations between state, society and economy, in favour of the last two. EU policies and European Union Law played a positive role in establishing transparent governance. Media Media views about corruption and views about the media’s role in corruption The deregulation of the state broadcasting monopoly in the late 1980s has led to an expanded commercialisation of the whole media sector. The Greek Press faced “the 361 biggest challenge in its history”: increasing competition from electronic media and the need to control the publishing tools offered by new technologies (Papatheodorou and Machin 2003: 41-42). For the Press, the rise to the challenge required the reform of traditional publishing goals and marketing strategies. However, the political affiliation of newspapers remained manifesting itself in periods of high political tension, including pre-election periods. The magazine field witnessed similarly a sharp decline in sales and it reacted by putting the old titles out of print and publishing new (foreign) ones which increased their (young) readership. The broadcasting commercialisation resulted in more channels, advertising, domestic productions and programme imports. Thus, from a broadcasting environment with two public TV channels and four public radio stations in the early 1990s, an overpopulated environment of 160 private TV channels and 1,200 commercial radio stations was created (Papathanassopoulos 2001b: 113). Since the mid 1990s, there have been various efforts by the governments to regulate the sector (in particular: licenses, advertising time, programme quotas, protection of minors, and media ownership) but without much success. Many TV licenses still continue to operate with periodic renewals. As in other countries, the publishers and business magnates who involve themselves in other areas of business, including oil and petroleum products, shipping, banking, real estate, and hotels and leisure, have intruded on the broadcasting landscape only to dominate it after some time. The contemporary audiovisual field is similar to the printed press: there are too many stations for such a small market. All TV stations face financial problems, so one wonders about the real motives of their owners. 362 Several authors believe that the inflated Greek state is used by the private interests more than the market (which has remained restricted) as a field to maintain their business, in particular in the area of public works. In this context the reason why the power of the media has increased to such a degree, contrary to the power of the market can be explained (Papathanassopoulos 1990). The deregulation of broadcasting has extended the relations that existed between the government and the Press to the domains of radio and television. This raises serious doubts about the potential of the market to operate as a “democratising, rationalising power” in society (Papatheodorou and Machin 2003: 49). The financial profits from broadcasting are not the only motivating factors of business people who invested a lot of money in the small Greek market (Papathanassopoulos 2007: 95). The entry of construction companies, shipping companies and various business concerns in the media market provided the opportunity to use politics, through the influence of public opinion, in order to serve their entrepreneurial interests and strategies (Hallin and Papathanassopoulos 2002: 178). Media ownership is the means and, at the same time, the guarantee for profits in other business areas. Furthermore, we must keep in mind the dependency of political communication on the media and in particular on television all over the world (Papatheodorou and Machin 2003: 51). Our interviewees stressed that politicians are captured between the prevalent image which is promoted by the media and the alleged demands of their electoral clientele. The result is lack of political courage to enforce measures of transparency with the repeated justification of the “political cost”. In our research, MPs also noticed that politicians in general, due to the prevailing distrust and discredit of citizens as a result of their opportunistic practices, 363 and economic scandals (i.e. Koskotas case) in the previous decade, are not any more supported financially or in whatever way by their voters, and in any case much less than previously, as in other countries. This along with the big districts and subsequent expensive pre-election campaigns has made politicians dependent on private donors and interests. It has led to the “Americanisation” of political communication (Negrine and Papathanassopoulos 1996: 45-62), making television the main player in communication and helping to win the vote especially during the pre-electoral periods (see more in Papathanassopoulos 2000: 47-60). In this context, mutual “facilitations” can be regarded as characteristic of the game. As Papathanassopoulos notes (2007: 96), “the fact is that Greek broadcasting operates with no rules of the ‘game’. Within sixteen years of TV deregulation, it has become clear that when ‘politics of the day’ became the determining factor in shaping the re-organisation of broadcasting, it was bound to produce less-than-ideal results and many side effects”. Several media analysts adapt to the politico-sociological viewpoint in power in Greece mentioned above, which advocates the clientism argument and the state paternalism approach to support their work. The concept of clientelism is useful in media analysis, because it sheds light on normative issues of media performance in a democratic system. The studies on political clientelism found that universalistic ideologies are hegemonic in public discourse, even where their institutional legitimacy is lacking. In the case of the news media, the ideals of neutral professionalism based on Anglo-American media history are widely accepted by journalists around the world, even where the practice of journalism departs radically from them (McChesney 1989; Mancini 2000). Moreover, the newspapers of southern Europe, for example, “are 364 impressive in their attention to public affairs, the sophistication of their political analysis and their political diversity” (Hallin and Papathanassopoulos 2002: 176). In a study of seven southern countries in three continents (Italy, Spain, Portugal, Greece in Europe and Brazil, Colombia, Mexico in South and North America) the researchers refer to several factors that have undermined clientelist relationships during the last decade in these countries. Among them, the most important is the commercialisation of the media sector, which increased competition, and changed the orientation of media management from politico-ideological to economic. However, clientelism and commercialisation are not always incompatible, because clientelism is a social make-up of market societies. In Greece, the commercialisation of television has not so much eliminated the game of particular political pressures associated with clientelism, but changed its form (Hallin and Papathanassopoulos 2002: 190-191). The erosion of the state monopoly on broadcasting, the expansion of privately-owned media and the introduction of market-oriented “tabloid” forms of reporting, gave media owners new means for an exchange with politics for their own interests (Papathanassopoulos 1999). Nonetheless, the logic of the media markets can, under certain circumstances, weaken clientelistic relationships. Media consolidation and their opportunistic discourse In 1983, Ben Bagdikian published The Media Monopoly which warned that continuing deregulation of the media under Reagan’s Federal Communication Commission (FCC)20 was allowing the media to be bought and controlled by an ever-shrinking 20 The Federal Communications Commission (FCC) is an independent United States government agency. It was established by the Communications Act of 1934 and is charged with regulating interstate and international 365 number of corporate owners. Once called “alarmist”, the book is now considered a classic, because all its predictions have come true. The number of corporations controlling the media has fallen from year to year (only in 1992, in the US, their number fell from 50 to 20) and more media mergers are inevitable. Most US cities have become “one-newspaper towns”. In 2004, Bagdikian’s revised and expanded book, showed that only 5 huge corporations (Time Warner, Disney, Murdoch’s News Corporation, Bertelsmann of Germany, and Viacom (formerly CBS)) now control most of the media industry in the U.S., and General Electric’s NBC is a close sixth (Media Reform Information Center Undated). Thus, one of the major effects of the deregulation in the media sector is the concentration of media ownership (also known as consolidation). The concentration of media ownership is an imminent danger to diversity and plurality in the media and there will be/is also a damaging impact on the range and quality of the work that journalists produce. Even Greece, a small country, has experience in media consolidation, which along with its integrity, is strongly questioned by all interviewees of our research, including the private sector representatives, but especially the columnists (see Law 3021/2002, as amended by Laws 3310/2005 and 3414/2005). The International Federation of Journalists/Europe (2005) maintains moreover that the market itself cannot protect pluralism and diversity. The public’s need to be properly informed means that information services must be regulated beyond the market framework of ratings, profits and commercial objectives (IFJ 2006). communications by radio, television, wire, satellite and cable. The FCC’s jurisdiction covers the 50 states, the District of Columbia, and U.S. possessions (http://www.fcc.gov/). 366 In 2001, a new provision was added to the Greek Constitution (Article 14(9)), according to which the owners of private mass media are not allowed to participate in public procurements. Both big parties, ND and PASOK, agreed to this provision, aiming, according to those who proposed it, at promoting transparency and in 2005, Parliament issued a law implementing this constitutional provision (Law 3310/2005; known as Main Shareholder Act). The law required media companies – television and radio stations, newspapers and magazines – to have registered shares held by individuals (in the words of the legislation, “registered until a natural person is identified as owner”). As far as television and radio are concerned, there was a clause according to which foreign companies from a country, where there is no obligation for shares to be registered until a natural person is identified as owner, may be authorised under certain conditions to hold up to 15% of the capital of a company owning a radio or television station. The European Commission reacted immediately and warned that the law violates EU’s legislation of competition (IP/05/987). The Greek government replied that the law implements the respective constitutional provision, which is superior to EU law. An ardent supporter of this opinion was the then Minister of the Interior and law professor, Prokopis Pavlopoulos. Nevertheless, the government backed down and amended the law according to the European Commission’s instructions (Law 3314/2005), under pressure from the European Commission which would otherwise reduce Community funds destined for Greece. Another serious effect of deregulation is that public broadcasting cannot compete against the massive resources that large or global media groups can draw on to develop programming, acquire rights, for sport, for example, and other programming with its limited finances. In Greece, for example, simply the entry of private channels 367 and not of global media groups into the country was disastrous for the Hellenic Broadcasting Corporation (ERT), a public broadcaster. According to media researchers, few other public broadcasters in Europe have suffered so much from the advent of private TV (Papathanassopoulos 2007: 95; see also Murdock and Golding 1999). The deregulation of the media sector has been associated with the “marketisation” of the public communications sector (Murdock and Golding 1999). Under this view and the rhetoric about the “information society”, consumer demands have been taken for granted, while very little interest has been paid to citizen-audiences, although all argue on their behalf (Papathanassopoulos 2005: 48) and for the improvement in quality. In summary, the present situation in Greece has to do with the general developments in the political and economic fields, as already presented, and the respective trends all over the globe. It is also related to the applied pressures on the governments for media modernisation (deregulation); finally it is the result of the strong economic interests for making profits. It is the period for which the interviewees of our study noticed that the modernisation of the Greek economy, the influx of EU funds, which both gave an impetus to the private economy on the one hand, the state’s decline and the weakness of its control mechanisms on the other, expanded corruption and its impact on collective behaviours. Finally, the state monopoly was replaced by a “dramatic short-sighted” deregulation for broadcasting (Papathanassopoulos 1990: 395), which proliferated corruption and falsified the parties’ voices. In a small market like the Greek one, even though media owners appear to pay for the media product, this takes place because they have benefits in other areas of the economy, much more profitable than in the media (Papathanassopoulos 2001a: 519). 368 Our interviewees view it as an example of a state-sponsored capital which has privileged relations with political power. In this context, the market economy not only produces corruption (mainly grand corruption) but also reproduces it. The analysis of the research material concerning the discourse of the media (e.g. articles of daily newspapers in high circulation, the news transcripts from public (TV channel) and private (radio station) broadcasts 2001-05) confirmed that corruption remained, for the media, a news story valuable for its threshold and personalisation. It is considered a social illness, the curing of which needs the commitment of the citizens. The media’s discourse is opportunistic, controversial, changing from one day to the next. Therefore, the particularities of the problem in the country remain vague, since no calm, serious and in depth discussion has taken place. This is obvious when the Press “comments” on International Organisations’ reports on the rank and scores of the country on corruption. The discourse reverts to miserable condemnation against the whole society, reproducing everyday theories and stereotypes in the worst way (“society in sepsis/decay and corruption”; “Greece belongs to reigning European corruption champions”). In this sense, the approaches of politicians and the media coincide, since both call for society’s “alertness” and place the blame wherever it is convenient without hesitation: the government places the blame on the main opposition party (“New Democracy: the mire has a name”), and either the public administration or society (morals; values’ crisis); while the media on public administration (“a country with thousands of corrupt employees” (civil servants)), society (“corruption lives and reigns”), justice (“Sentences – caress to corruption”) and party-financing. Sometimes they cause a fervent political discourse and ambiguous feelings speculating and 369 exaggerating (“mud-slinging attack”, “the Frankenstein of corruption”). Consequently, media views reflect those of the politicians (and the reverse). In relation to the above, there are some local calculations of corruption, increasing the disappointment and confusion. These overlook the high rates of corruption shown in the sample(s) 77-80% (out of 6,027, 6,105 and 6,122 people) of people who deny experience of “corrupt” practices, emphasising instead the 12-16.5% of those referring to such cases, including tax evasion and similar law violations. From a recent survey, those that complained about a bribe demand are made up of an even smaller percentage 8.5-9.5% (included in the 12-16.5% rate) of the total sample and from them 39-44% “don’t know/won’t answer” in the telephone survey (PI 2010: Fig. 19). The calculations are based, for example, on questions such as “Greece is a country where corruption will always exist”: agree-disagree (1-5 scale); and “Greece can be a country without corruption”: agree-disagree (1-5 scale). Both questions imply that irrespective of your agreement or not, “corruption” does exist and what is more, there is much corruption (PI 2010: Fig. 15, see also 2008, 2009). General conclusions and discussion Thousand of books and hundreds of thousands of journal articles have been published on corruption in more than 50 languages during the last few decades. Approximately 50% refer to developing and transitional countries, 45% study industrialised countries and the remaining 5% are either global or regional. In anti-corruption literature, the absence of historical accounts of anti-corruption policies is remarkable. Less than 1% of the literature deals with historical data of the country analysed. Macro-analysis of corruption is similarly missing from the economic literature in the industrialised countries (Galtung 2001). 370 A number of empirical studies have explored the possible correlation between corruption and democracy. Martin Paldam (1999), in his study found that democracy seems to relate inversely to corruption, but the independent effect of democracy on the level of corruption is uncertain (see also Harris-White and White 1996). In a comprehensive cross-national study on the causes of corruption, Daniel Treisman (2000) found that the degree of democracy in a country has no significant impact on the perceptions of corruption, but the life of democracy in the country (also Goldsmith 1999; cf. Amundsen 1999). The regression results suggest a painfully slow process by which democracy undermines the foundations for corruption. Those countries with at least 40 years of consecutive democracy behind them have lower corruption rates (Treisman 2000: 439). Does this mean that Greece has more hopes to rise in the ranking of the CPI and the BPI after 40 years of democracy which have not yet been completed? Rather doubtful, since the longer the democracy, the lower its position, as already mentioned. Another significant factor was the power allocation between the centre and the periphery. Some scholars maintain that concentrated power is an aggravating variable in corruption. Due to social pressure, local officials may be less prone to corrupt activities against people from their own areas (Treisman 2000). By contrast, other researchers contend that decentralised political systems are more “corrupt”, since the potential offender needs to influence only a part of the government. In addition, in a fragmented system, there are fewer centralised forces and agencies to enforce transparency. Corruption in some countries (e.g. the Philippines and Thailand) has become more decentralised and uncoordinated (Manor 1999: 101). Greece had until recently a centralised administrative system, which started to become decentralised in the late 371 1990s (Law 2539/1997). Voices of criticism for corrupt practices of local administration have multiplied during the last few years; the local administration was described responsible for “eroding morals”. We all know that the prime motivator of international organisations against corruption was the extreme poverty and social inequality in developing countries. However, poverty and social inequality are not the cause of corruption and the reverse is certainly not true (Kaufmann 2005). Poverty, social inequality and corruption are in interaction, while corruption dynamics attempt to diminish inequality (cf. Rothe 2010: 461-464). Otherwise, if poverty is the cause of corruption, how can we explain e.g. illegal party financing in developed countries, corruption of mass media, etc.? (Marcinkowski and Pfetsch 2005). How can we explain the practices used by the big enterprises of the developed countries of the north in order to expand their business activities in the developing countries or the countries of the semi-periphery? Or why don’t we take into account the role of Swiss banks regarding the accounts of the Jews of the Holocaust?21 Why do these practices and “scandals” not influence the reputations of the companies and the TI’s ranking of their home countries? Moreover, how can stock market crimes, such as insider trading be justified in favour of particular tenders in the bid process, the abuse of confidential information and the attempts at market manipulation, e.g. manipulation of stock prices, collusive transactions, favouritism and wash sales? How can cartel making 21 It refers to the conduct of Swiss banks during the Nazi Germany period (1933–1945), especially regarding funds deposited by or stolen from victims of the Holocaust. See more in Claims Resolution Tribunal website (http://www.crt-ii.org/) and the Report of Independent Committee of Eminent Persons 1999. 372 be justified and in general, the establishment of monopolistically competitive market conditions? In any case, they have nothing to do with poverty. Independent research (Ηöffling 2002; Bannenberg 2003) on corruption did not come up with significant changes in crime rates22 but a shift in public opinion on corruption, reflected in the press, in penal justice and legislation. It means that corruption has not necessarily increased, but its scandalisation and disapproval rates have risen greatly in the discourse at the national (e.g. Koutsoukis 1998; Koutsoukis and Sklias 2005; see also Kaiser 2005: 23-24), as well as at the international level. The local politicians were not the first to react against the illegal practices in their own country, but multinational organisations and NGOs (Bakouris 2010). Anticorruption rhetoric becomes more and more popular and operates like a new “religion” in the context of global politics and the market economy (Moroff 2005; Neumann 2006). The market economy is based on efficiency; efficiency in competition, not on solidarity. Competition presupposes individualism; the market goes ahead when individualism increases. Individualism is the moral stance, political philosophy, ideology, or social outlook that stresses “the moral worth of the individual”. Individualists promote fighting to reach one’s goals and desires and thus independence and self-reliance, while opposing most external interferences upon one’s own interests, whether by society, or any other group or institution. The market demands individualism and instrumental cooperation, not communicative relationships. An individualist enters society to further his or her own interests, or at least demands the right to serve his or her own interests, without taking 22 This was also found by the author from statistical data for the period 1980-2004. Further study of court decisions and prosecutorial findings is needed. 373 the interests of society into consideration (an individualist need not be an egoist). Ethical and not psychological egoism is the normative ethical position that moral agents ought to have what is in their own self-interest. The doctrine of economic individualism holds that each individual should be allowed autonomy in making his or her own economic decisions as opposed to those decisions being made by the state, or the community, for him or her. The efforts of the person to work for his/her own benefit are what the market economy requires to be successful. The apex of individualism is corruption. The state now ends up moralising, having previously rolled out the red carpet for the market economy and its “ethics” (Henning 2005: 192). The state, adopting the market rhetoric of the international financial institutions (Rothe 2010) and constructing a moral rhetoric, demands from public servants to show different behaviours from that which is expected in a free market. And while success is regarded by the market economy as a private virtue, for the public sector it is considered to be a vice. This means that the individualism of the public servants is assessed differently from that of employees in the private sector (Henning 2005: 193-197). Furthermore, the importance of education, which is often stressed as a way to transmit desired ethical values to juveniles and further to society, thus discouraging corruption, remains ambiguous, mainly for two reasons. The first reason concerns the definition of corruption and the relevant activities by the state and the educational system, along with the ethical system which is adopted. The second reason is related to the strong links between broader social developments and conditions with the educational system and the content of education. As far as competitive neoliberal arrangements in modern societies influence the form and content of education, it is 374 questionable whether corruption (as officially defined and constructed) can be mitigated through the transmission of “proper” values via education, without extended and broader socio-political changes (Kavran and Wyman 2002). Discussions on corruption with the publicity given by the media are also a very effective means in political conflict and the establishment of new elites (Clark 1993; Κarstedt 2004: 389-391). The party financing case which we examined in our research has shown that corruption charges against members of the elite, mostly by the elite members, follow when power is transferred from one to the other. This makes the otherwise hidden conflicts between different groups within the elites visible. The charges attempt to demonstrate the change of power and supremacy, although rarely results in actual prosecution and sentencing. Such charges are supposed to cover the gap of trust and control the decision process of various organised groups of power (state and private). The irony is that on the one hand, they try to cover up the gap of trust, while on the other, the moralised discourse on corruption destabilises trust and liability of the political system (Lambropoulou et al. 2007: 8-13). What, when and how corruption will be defined and be an issue of legislation, depends to a great extent on the power allocation in organisations, institutions and political games as well (Kouvelis 2010; cf. Zervas 2010). A relevant study (Karstedt 2004) examined the relationship among inequality, poverty and corruption together with the elite integrity. It found among others. that high social mobility, change of elites in power relations, control and accountability of upper social strata and of public administration, in relation with generalised trust in institutions and strong feelings of safety about the quality of democracy, operate against corruption. Contrarily, low social mobility, unchanging elites, limited social control of 375 the upper levels of society, collective non-differentiated orientations of the population, as by the subordination to the authority of e.g. religious leaders, low citizens’ trust and high feelings of insecurity are in favour of “corrupt” relations, reproducing a “culture of inequality” (Karstedt 2004: 398-399, 407-409). These relations attempt to cover the shortcomings of trust and place limits on the decision making power of public authorities (and not only). Transferring the previous remarks to the Greek social structure, we could initially claim that despite high social mobility and differentiated orientations of the population, there are still solid networks of political and financial elites. Consequently, we should examine the social integrity of these elites which seems questionable/doubtful, and their submission to social control that is also regarded limited, taken into consideration the low citizens’ trust in politics and their strong unsafe feelings as previously analysed (section 2; see also ΕΚΚΕ 2003: 7-9, 16-17; ESS 2004: Media & Social trust, politics, human values). The referred elements might be useful for a realistic and uncommon approach to the issue in Greece. Corruption is likewise associated with low economic growth. A macro-analysis of anti-corruption experiences in Italy in the 1990s has shown that in spite of economic success and growth, “systematic corruption” exists in the south as well as in the north of the country, both at the higher political offices and in different levels of public administration (Putnam et al. 1993). From a similar standpoint, analysts explained, in terms of institutional and political processes comparing patron-client networks, why corruption in some countries (Malaysia, Thailand, South Korea, China) is compatible with rapid economic growth, while in other cases (African countries, e.g. Côte d’Ivoire, Mali) corruption is very 376 damaging to the economy (White 1996; Moran 1998; Amundsen 1999; cf. Yao 2002; Gong and Ma 2008). Political will is also considered a significant factor for successful reforms. The majority of our interviewees referred to the limited or lack of political desire to eliminate corruption. Bureaucratic corruption is thought to be controlled and restricted when there is political will and political ability to implement the necessary regulations. Research has shown a number of successful controls on corruption in liberal democratic countries, where bureaucratic corruption has declined through auditing, legislation and institutional reforms by strengthening and vitalising the existing political, judicial and administrative institutions of checks and balances (Moody-Stuart 1997; Doig 2000). However in some other countries, despite the strong support of political leadership (e.g. in the tax administrations of Tanzania, and Uganda) and the initial optimistic experiences of institutional reforms (Fjeldstad 2001), after a few years, the reforms had been eroded and corruption levels have again risen. According to some researchers, although “similarities do exist and that experience and lessons are often transferable” among countries (Langseth et al. 1999: 22), data must be collected regularly to establish a base line for transparent monitoring and future assessment of corruption in a particular country. Even if CPI proved very useful for raising the awareness of national and international audiences, including the private sector, it is mainly a “poll of polls”, reflecting the perceptions of business people and risk analysts who have been surveyed in a variety of ways (Lambsdorff 1999a: 1213, 1999b; cf. Bratsis 2003: 43-44). It is noteworthy too that in answering a written question from two Greek members of the European People’s Party about a report of the Council of Europe concerning corruption in the Greek public service, the Commission 377 underlined that “it is not the Commission’s role to establish lists or indices showing the degree of corruption in certain Member States, mindful that such lists can only be subjective impressions depending on the parameters and indicators used for these purposes“ (emphasis by EL).23 The perceptions of international and national business people most likely differ from the perceptions of ordinary people in the country in question, but also from other professional groups as our study noticed, in terms of levels, types of corruption, and its extent. The benefit of collecting data on the level of corruption is to increase the accountability of the state by establishing measurable performance indicators that are transparent, independent and monitored over time. In this perspective, a comprehensive country assessment aims at examining the levels, locations, costs, causes and remedies for corruption. It is necessary that well-planned public opinion surveys and surveys that gather the attitudes and views of several professional groups, the public sector employees included, be carried out. Since perceptions and attitudes are not considered reliable measures (not “hard data”) for decision making in legislation and law enforcement, despite what is happening in anti-corruption policy, the use of several social science methods would help to disclose the patterns and extent of corruption. “The methodology of corruption studies will have to reflect the frame of understanding, the scope of the study (narrative, explorative, explanatory, hypothesising), and the specific variety of 23 Written Question E-2321/02 by Stavros Xarchakos (PPE-DE) and Ioannis Marínos (PPE-DE) to the Commission (26 July 2002). 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American Journal of Economics and Sociology, 61(1), 279-299. Zervas, Ch. 2010. Interview with Justice Minister, Haris Kastanidis. Kyriakatiki Eleftherotypia [Online, 9 May]. Available at: http://www.ministryofjustice.gr/modules.php?op=modloadandname=Newsandfile =articleandsid=1592 [accessed: 1 July 2010] [el]. 397 Chapter 11 Corruption: Contested Perceptions, Shared Disappointment Daniel Smilov / Rashko Dorosiev Introduction The issue of corruption was defined as a grave social problem in Bulgaria towards the end of the 1990s. Similarly to Western democracies, the issue of corruption in Bulgaria was first studied and brought to the social agenda by non-governmental actors. Broad corruption awareness campaigns, studies on corruption, and many other initiatives got underway at that time, with the support of the international donor community. Gradually, the anti-corruption agenda pervaded the programs of political parties and governments, while some of its main principles were converted into legislation. In spite of all these achievements, corruption and organised crime were identified by the European Commission as two of the most serious problems in Bulgaria throughout its monitoring activities during the accession process: the emphasis on corruption became even stronger in the last pre-accession reports of the Commission. System reforms, as well as practical results in the fight against corruption and organised crime, were specifically mentioned as conditions for the integration of Bulgaria into the European Union. There was a constant threat during the course of 2006 that the safeguard clauses regarding the country’s membership in the EU could be triggered because of the government’s failure to effectively counteract corruption and organised crime. However, and somewhat anti-climatically, the European Commission finally accepted 398 that the government had made sufficient efforts in this respect. Respectively, Bulgaria joined the Union on schedule on January 1, 2007. The EU concern about corruption in Bulgaria persisted, however, and, correspondingly, the monitoring by the EU Commission continued, as the fight against corruption remained one of the key areas in the reports in the framework of the so called Mechanism for Cooperation and Verification of Progress. It was only in 2010 when the Commission acknowledged the existence of a “strong reform momentum” and “strong political will” in the fight against corruption; as to the concrete results, the EC Commission still had a number of critical observations. Corruption in Bulgaria has been of interest for academics and policy researchers alike. Since the end of the 1990s the country has been included in a number of international surveys measuring corruption. According to the most well known of them, the Transparency International Corruption Perceptions Index, after a period of marked improvement between 1998 and 2002, corruption perceptions seem to be stabilising around a relatively moderate level over the last five years (4.1 for 2007). In 2007, Bulgaria ranked 64th out of 180 states included in the survey, scoring similarly as countries like Poland, Greece, and Romania. In 2009 the country slipped to 71th position (3.8 score), again in mostly the same company. The huge interest in the topic of corruption has resulted in numerous surveys, not only of experts’ opinions but also of public perceptions. According to Anticorruptions Reforms in Bulgaria: Key Results and Risks, a 2007 report by Centre for the Study of Democracy (CSD 2007), the Bulgarian public perceives corruption as one of the most serious problems in the country. Since 1998, corruption has been ranking among the top three gravest problems in Bulgaria, along with unemployment and the 399 low incomes, but until 2007 it had never been ranked first by Bulgarian citizens. However, as a result of the stable macroeconomic situation in the country and the improved income of the population, over the last several years concerns such as unemployment and poverty have diminished in urgency, although the global financial crisis, which hit the country in 2009-2010, might change the ordering of social priorities. Thus, corruption has emerged as a top important problem in Bulgaria according to public opinion polls. At the same time, the mentioned report indicates a stable decline of the number of Bulgarians, who report to have participated in corruption transactions. The discrepancy between actual and perceived corruption is very indicative for the ambiguous nature of the phenomenon. Methodology Our paper is based upon a study about perceptions of corruption in Bulgaria and therefore focuses more on the empirical results of this study than on abstract theoretical reflections. The process of collecting data took place in 2007-2008: we carried out indepth interviews with representatives of six target groups: politics, judiciary, media, police and prosecutors, civil society, and business. For the purposes of our investigation, we transcribed into texts the interviews we had made with the representatives of the six target groups. As a second step, we applied the research method of qualitative content analysis by the means of the Atlas-ti software. Initial hypotheses On the basis of preliminary research, we have developed ideal-typical “model discourses” on corruption which will serve as basic hypotheses in the analysis to follow. The “model discourses” on corruption are as follows: 400 The politicians No unified definition of corruption exists amongst politicians despite the manifest consensus that corruption is a negative phenomenon that has to be combated. Normally opposition politicians stick to broad, public interest-based, inclusive and inflated conceptions of corruption, which go well beyond the strict legalistic meaning of the concept.1 Such conceptions often allege various forms of favouritism in privatisation, clandestine state control or tacit state approval of smuggling channels; turning the party into a corrupt hierarchical structure, etc. Few of these allegations could be translated directly into penal code crimes; yet, all of these suggest abuse of public trust and some damage done to the public good because of the defence of private interests. Governing politicians, in contrast, usually resort to two strategies in their discourse on corruption. First, they stick to legalistic notions of corruption and require proofs beyond reasonable doubt for the substantiation of corruption allegations. Secondly, and much less often, governing politicians try to “normalize” certain practices, which the opposition calls corrupt.2 Further, corruption discourse is engaged in the battles for more power between governments and the opposition in the following way. The opposition has an interest in the adoption of anticorruption measures which limit the discretion of the government in 1 For a discussion of public-interest based definitions of corruption see Heidenheimer/Johnston/LeVine 1989: 10; see also Philp 1997. 2 An extremely interesting case of this kind happened in Bulgaria in 2006, when the leader Ahmed Dogan of one of the mainstream parties – the Movement for Rights and Freedoms - attempted to sell to the public the so-called model of “circles of firms”, according to which political parties have the right to build circles of friendly firms, which in turn help for the funding of the patron party. Curiously, this model was advocated by Dogan as a cure against “oligarchic government”. 401 policy-making (transparency requirements, deregulation, limiting licensing regimes, etc.) On the contrary, governments do have an incentive to preserve a broader range of discretionary powers.3 Finally, governments and the opposition differ in what they see as a proper response to the problem of corruption. The former tend to look for answers in long-term institutional and legislative amendments. The latter are looking mostly for a political change of government, which will bring them to power; this could happen if a scandal leads to a governmental crisis, mass protests, etc. Personnel changes of the government, indictment of key politicians, etc are also appealing anticorruption measures for the political opposition. The judiciary Not surprisingly, the judiciary normally resorts to legalistic conceptions of corruption, and sticks to concepts and definitions in the law books. The paradoxical result of this usage is the virtual disappearance of corruption from the discourse of magistrates. In this discourse the issue of corruption is often renamed and translated into other problems. Thus, in two of the best known corruption scandals in Bulgaria in the period 2001-2004 the involvement of the courts was marginal: in one of the cases, an 3 According to the Bulgarian case studies, it appears that in the framework of privatisation, corruption could be understood in different ways depending on the current positions of the politicians and their political parties. Largely, when in power, politicians tend to praise political privatisation where the decisions are made on the basis of political arguments, by elected bodies having extensive powers to decide not only on the economic and formal parameters of the privatisation offers but also on a number of other issues, such as possible consequences for the society as whole. On the other hand, politicians while in opposition claim that political privatisation is corrupt and favour the practice of technical/expert privatization, based on purely technical and formal considerations, where appointed bodies (of independent experts) take the most important decisions following a strict legal procedure. 402 allegation of party finance violation was transformed into a libel suit at the judicial level; in the other, an allegation of corrupt privatisation was transformed into a problem of pure procedural violation of the privatisation law. In both cases, what was standing out was the inconclusive character of the judicial proceedings as regarding the major questions at stake in the two scandals. In the party funding case, for instance, judicial proceedings could not prove or disprove the two competing interpretations of the events: the acceptance of illegal donation v. an attempt by a controversial businessman to set up one of the major parties in the country. The unfortunate lack of conclusive judicial findings and decisions creates a fertile atmosphere for the production of myths. For our purposes, however, the important conclusion is that at the judicial level the discourse of corruption is by far not the dominant one: when cases reach the courts, corruption curiously shrinks. The police and prosecutors In contrast to the judges, prosecutors and the police are characterized by a very widespread use (including in official documents) of “inflated” public interest-based conceptions of corruption, such as “circles of friends”, favouritism, party machines, “political umbrella against investigation”, massive theft through privatization, etc. Naming people as part of mafia-like structures – including ministers, calculations of the negative financial impact of corrupt privatisation, etc. feature regularly in the parlance and the documents produced by this target group. Regrettably, as it became clear from the previous section, formal indictments quite rarely reach the courts and even less often are upheld by them, which creates a significant gap between the discourse and the output (sentences) of the police and the prosecutors. The main conclusion is that this is a sign of the “politicisation” of the police and prosecutors in terms of anticorruption 403 discourse; this politicisation happens regardless of their institutional place in the constitutional structure of a given country. In terms of conception and perception of corruption this group is closer to the opposition politicians than to the judges. The media For the media corruption is generally an all-embracing metaphor for criminal and bad government. Here, public interest-based conceptions of corruption are encountered in their most inflated versions. The main theme is that greedy and incompetent elites are stealing from the people on a massive scale. Concrete cases are usually blown out of proportion in order to paint pictures of epic theft. As a result, the borderline between investigative journalism, analysis and story-telling is often blurred and sometimes nonexistent. The solutions that the media see to the problem of corruption are, as a rule, repressive in their character: more convictions. Curiously, however, sometimes the media elaborate rather daring responses to corruption, by, for instance, advancing what could be called “participatory ideals of corruption”. According to these ideals, people should share in the spoils of corruption. Such curious ideas, which find their place in the public sphere, suggest that the real role of the media is not exclusively the “fight” against corruption, but also in informing the public of latest developments in the story of grand theft. A cynic might even say that the role of the media is in “involving” the people in these clandestine processes, making them privy to their intricacies, hooking them in the affair as a whole, albeit by means of vicarious participation. From this point of view, it is not surprising that the media, as a rule, show a disproportionate interest in the outbreak and unfolding of scandals, as compared with their resolution. Civil society/NGOs 404 This is by far the most sophisticated discourse about corruption, dictating the fashion in general. The main elements of this discourse are the following: corruption is measurable; it is increasing or at least is very high; it is bad for the economy. Civil society groups stress the importance of institutional change and changes in the incentive structure of important actors in the fight against corruption. Yet, and somewhat paradoxically, although they frame the solutions in terms of substantial structural reforms, often results are expected relatively fast. This feature of civil society discourse raises dramatically public expectations. Some of the results of these raised expectations seem to be dissatisfaction with politicians, delegitimisation of governments, and the creation of a fertile ground for the appearance of new populist political actors. The business The business generally speaks about corruption through the discourse of silence. It prefers to shift the problem from corruption per se to the conditions for the emergence of corruption. These are usually found in the domain of public legislation and administration. Extremely popular is the so-called problem of “red tape” – administrative hurdles for entrepreneurial activities, which are to be overcome by corrupt transactions. Generally, business discourses on corruption are depersonalised: they refer to structural conditions, not to agents and perpetrators. Business is also as a rule portrayed as the victim of corruption, while the public servants (as an anonymous category) are the potential wrong-doers. Although the conception of corruption as “grease” for the economy has become unpopular among scientists and policy makers in the 1990ies, there seems to be little evidence that the business community has ceased to believe in this conception. On the contrary, the underlying structure of its discourse on the problem seems to reinforce the “grease” theory: corruption is not by any means 405 excluded as a possible way to overcome unjustified and inefficient government-imposed burdens on the business. Perceptions of Corruption In this section we test the initial hypotheses on the basis of the interviews. Target Group Politics Definitions At present, politicians in Bulgaria – both from the government and the opposition – “recognise” the “widespread character” of corruption and are generally ready to discuss the phenomenon in public. It has to be noted that this has not always been so. In the period 1998-2001 when the issue of corruption emerged for the first time as a public priority, there was a clear cut division between the discourse of the opposition on corruption and the discourse of the ruling parties. As described above, the latter stuck much more to the “legalistic” definitions of corruption, while the former resorted to inflated, “public interest-based” definitions. This initial division could be explained by the fear of the governing parties to “recognise” or “admit” the existence of corruption “unless proven in judicial proceedings”; such admittance would amount to recognising certain complicity in corrupt activities. Today this fear is gone, and the question is why? What has changed since the end of the 1990ies is that governing politicians now seem to believe that they could also “score points” in a debate over corruption. That is why the corruption discourse has become not an exclusive theme for the propaganda of the opposition, but also a mobilisational, electoral tool of the governing parties as well. When somebody opens a debate about corruption, they could take part in this debate on 406 an equal footing by pointing out “measures taken” against the phenomenon, “strategies”, “action plans”, “anticorruption commissions and bodies”, etc. Thus, we conclude that governing politicians no longer stick exclusively to a “legalistic” definition of corruption (as defined in the law books), but also engage in debates using inflated, public interest-based ones. In any event, in contrast to the opposition, they insist on a certain “depoliticising” of the phenomenon. They accept that corruption is “abuse of power”, but “power” in their view is diffused in many centres at different levels, and is not concentrated in the government. Thus, corruption could be encountered in the judiciary, the local self-government bodies, the lower levels of the public administration, the opposition parties, and in the private sector (including the NGOs). The “diffusion” of power is related to a concept of “diffused responsibility” for corruption as well: it is not the government which is essentially responsible, but a plurality of actors. The opposition politicians, in contrast, try to concentrate the responsibility for corruption in government. So, they both use inflated and all-inclusive concepts of corruption: the specificity is that the government is playing a role in one way or another in all these forms of corruption, either as a direct perpetrator or as a conduit. At the very least, the government is responsible for a given form of corruption indirectly, by providing conditions which favour its emergence. A particularly interesting conceptual debate about corruption took place in Bulgaria in the autumn of 2007 in relation to the numerous allegations of vote-buying in the recent local elections. The allegedly widespread vote-buying scandalised the public. In response, the leader Ahmed Dogan of the politicians from the ruling coalition party Movement for Rights and Freedoms stated in public that “The buying of votes is a European phenomenon. If the business feels 407 uncomfortable and wants to get in the power, it will use this technology. Democracy will survive the vote-buying”. Many were additionally scandalised by these words, and read them (properly in our view) as an attempt to “normalise” corrupt forms of electioneering. The surprising fact was, however, that there was no concerted reaction on behalf of the rest of the political establishment against this attempt. In the autumn of 2007, our interviews and informal conversations with members of the political elite encountered a higher level of tolerance to vote-buying. One of the reasons for this tolerance could be the cross-party usage of this dubious electoral tool. Another, more surprising reason, which emerged, was the fact that vote buying introduces “market” relationships in politics. In current Bulgarian political language and thinking, the “market forces” generally produce good and efficient results. Ergo, marketisation of politics might not be that reproachable phenomenon after all. Finally, something which is worth noting at the conceptual level, the process of “depoliticisation” of corruption (which is best seen in the parlance of governing parties) goes on along with a process of “ethnicisation” of the phenomenon. The recent local elections, as well as the European Parliament elections earlier in the year, demonstrated that increasingly the party of the ethnic Turks in the country is seen as a the hot-bed of corrupt practices. This party is seen as “clientelistic”, “patronage-prone”, “feudal” in its attempts to control its electorate economically. In elections, it is seen as one of the primary perpetrators of corrupt practices – from vote rigging and buying, to the “bussing” of people (emigrants) from abroad to take part in the elections. Although part of these allegations might be founded in facts, the excessive emphasis on the irregular practices in a specific party cannot be explained otherwise than through its “ethnic”, “Turkish” character. 408 Causes and origins The “depoliticisation” of the concept of corruption is best seen in the perceptions of the causes and origins of the phenomenon. The governing parties and politicians seem to have won this debate, since the causes of corruption are not looked for in the character and individual morality of specific politicians, but in institutional, structural factors which shape the incentives in specific ways, so that individual cannot but act in corrupt ways. Simply put, the roots of corruption are deep, the phenomenon is here to stay, and all we could do is to engage in serious, long-term oriented reforms, which should go in the following direction: downsizing of the state, lowering taxes, taking out the state from the economy, deregulating the economy, diminishing the licensing procedure, etc. This programme seems to be a cross party consensus. On top of this programme the opposition parties and politicians are of course more insistent on personnel reforms, as far as they see these as a possible tool leading to pre-term elections. A decreasing minority of politicians seems to be ready to blame the “communist past“ for corruption. Seventeen years after the start of the transition “anticommunism” has largely lost its mobilisational and explanatory force. A telling fact for this trend is the relatively low interest which the opening of the secret services files of the former communist regime sparked in Bulgaria in 2007. A small group of right-of-the-centre parties and politicians attempted to draw public attention to the fact that important present-day politicians – including President Georgi Parvanov – were active secret service collaborators. The interpretation of these right-of-the-centre parties was related to corruption: they were essentially arguing that the network of former secret police agents has managed to “infiltrate” the state as a whole, which raised not only moral problems, but also issues of lack of transparency, possible manipulation, hidden 409 influences, etc. Their conclusion was that because of such reasons, people who had for seventeen years not disclosed their “true identity” had no right to continue occupying public office. This argument, which would strike many as reasonable, remained largely unpopular, however: it drew support from very small quarters. Effects Politicians no longer diminish the importance of corruption as a problem. At present, they – both governing and opposition parties – admit that corruption is a serious public concern and that it has negative effects on the economy, democracy, and the general prosperity of society. Apart from the above-mentioned attempts to “normalise” corruption, no one has ventured to come out in public to defend the functionality of corruption. Our interviews confirm this statement – ideas that actually corruption could be good for the economy in one way or another are not popular. Size and Scope As to the size and scope of corruption, the opposition and the governing parties seem to differ. Representatives of both of these express the view of the wide-spread character of the phenomenon, but they tend to look for it at different places. Respondents from governing parties tend to stick to the “diffusion” theory of corruption: corruption takes place at many levels and in different centres of power in society: the government is not the primary site of corrupt activities. The opposition representatives tend to stick more to the “concentrated” model of corruption, which in one way or another is centred round the government. As to the measurement of corruption, politicians rarely believe that these measures reflect objective realities. Still, such measurements are to be taken seriously. Opposition parties are interested in “independent” assessments and measures, 410 “monitoring” by external actors, etc. Governments are increasingly interested in the production of their own data. Anticorruption measures This is the point where the opposition and the government differ mostly. The former see the most important measures in terms of political changes: personnel changes, and eventually government changes. They stress the “lack of political will” argument a lot. Governing parties, not surprisingly, stress more long-term institutional reforms, the setting up of commissions and other anti-corruption bodies. Other anticorruption measures, as awareness raising, public education, etc., are also popular among governing elites. Finally, co-operation with civil society on the issue of corruption becomes of crucial importance both for the governing and the opposition. This paradoxically brings these two together, because both of them look for cooperation with one and the same actors. Paradoxically, cooperation with the same actors from civil society leads to a certain “depoliticisation” of anticorruption, despite the attempts of the opposition to “politicise” the issue. Target Group Judiciary Definitions The representatives of the judiciary tend to define corruption as abuse of power. It may involve not only public servants and politicians, but also the private sector. In this sense, corruption refers to all forms of distorted application of formally accepted rules in a given society or organisation. Therefore, we found confirmation of the hypothesis about the legalistic emphasis in the discourse on corruption of the judiciary. Yet, the forms of corruption are described as going far beyond the ordinary graft to include nepotism, 411 trade with influence etc. This means that in some cases the law may be imperfect and fail to include all forms of corruption. Therefore, one of the main concerns of the judiciary is the corruption in the legislative process: it is seen as one of the most dangerous form of the phenomenon since the laws passed by the parliament in favour of private interests create opportunities for repeated occurrence of corruption deals. Also, this type of corruption is dangerous since it affects negatively the interests of big groups of people. The legalistic emphasis in the judicial discourse on corruption is revealed in their professionally determined concern about the quality of the law. One of the main problems with corruption, in their view, becomes its legal definition and regulation: the assumption is that if there is a non-corrupt and efficient legislative process, which manages to produce a correct and inclusive definition of the phenomenon, the fight against it is going to be much easier. Causes and origin There are several reasons for the existence of corruption, according to the representatives of the judiciary. The first one is related to the constant changes in the legislation that have been taking place in the last 15 years thus creating a situation of legal instability and insecurity. The unpredictability of the legal acts is the reason why often social actors opt for solutions that involve corruption. The second set of reasons involves peoples’ values. Many Bulgarians tend to solve their problems in a way that circumvents the laws and the established rules. There is a popular perception that one cannot succeed in life if one follows the formally established rules and procedures. There is no clear idea where these popular attitudes might come from but several 412 possibilities have been mentioned, including history (the Ottoman rule in Bulgaria) and the transition period. Effects It is perceived that the negative impact of corruption on the value system is even more dangerous than that on the economy. Corruption destroys the social values and distorts the behaviour of social actors. This effect is reinforced by the fact youngsters are socialised into an environment where corruption, although not explicitly, is commonly recognised as an important precondition for economic and social success. In this way, corruption behaviour is perpetuated. Size and Scope The representatives of the judiciary believe that corruption is present in all social segments. The phenomenon is considered to be “highly contagious” and since all elements of society are interrelated, it is not possible for the infection to not spread throughout the system. To a great extent this process is assisted by the media that through the permanent use of the corruption rhetoric creates popular perceptions that corruption is everywhere and it is somehow inevitable. Despite all this, respondents admit that it is very difficult to measure corruption objectively. In most of the cases only perceptions of corruption are measured. A slightly more reliable instrument to measure it would be to interview victims, but we should not forget that in most of the cases corruption is a deal involving both parties and this would negatively affect the readiness of the respondents to reveal the case. It is admitted, however, that there are certain fields of social life where corruption pressure is higher and corruption practices are broadly spread. These are the sectors of business and politics, where factors like 413 competition and the high level of discretion of politicians and public officials play a major role. Anti-corruption measures Somewhat paradoxically in view of the hypothesis of the “legalistic” emphasis in the discourse of the judiciary, the respondents thought that too much attention is paid to laws and formal rules and procedures at the expense of informal institutions and education. Legislative and administrative measures could help to counteract corruption but only to a certain extent. They can help optimise and regulate of the pubic sphere so to limit the opportunities for corruption. They are important instruments indeed but they are not the first ones in importance. As regard the capacity of the regulation, the focus is placed on the concept that the state should simplify the existing administrative procedures, introduce rules that are as clear as possible, and limit its interference in the market and social processes only to the extent it is indispensable. There are examples showing that system reform is capable of limiting dramatically the opportunities for corruption. These are usually reforms that include withdrawal of state regulation and control and introduction of clear market rules, as in the case of the reorganisation of the notary services in Bulgaria, which are now provided on a pure market basis. The second and more important set of measures involves moral education and the prevention of corruption. Practically this means identification of the cultural roots of the problem. A good example of the cultural conditioning of corruption can be seen in the educational system: it is believed that there is nothing wrong with giving presents to the teachers, and at the same time teachers have the discretion of giving grades that may be crucial to the future prospects of the students. Another similar example would be the common practice of providing false witnesses to friends, who need it to facilitate their 414 divorce cases in the court. Giving that situation, there are crucial roles to be played by civil society structures like the churches for example. There is a strong correlation between the role of the church and the crime rate in a given society. However, the Bulgarian Orthodox Church, which is traditionally the most influential church in the country, nowadays has very little influence on the public. There are not many other genuine civil society organisations and NGOs that might bring a real change in this respect either. The media also have a major role to play in educating society and raising its moral standards of the society but the problem is that the Bulgarian media are largely commercial and the corruption discourse is often used in a tabloid manner, which has led to a growing trivialisation of the topic. Target Group Police and Prosecutors Definitions The representatives of the bodies that investigate corruption-related crimes define the phenomenon broadly as an act in which the political process is distorted in favour of certain private interests at the expense of the common, public interest. This generally confirms our hypothesis, that the prosecutors and the police as a group have a different perception from the judiciary, perception which brings them closer to groups like the media and the politicians. Our respondents referred to a definition used by some international organisations such as the International Criminal Court, according to which the really dangerous forms of corruption are in the legislative process and in high-level governance. These forms are considered to be more dangerous in comparison to everyday corruption, since they have, above all, hidden accumulative effects. This means that the negative effects of current corruption deals might not be immediate, but 415 might appear years later, for example in cases where environmental standards are not respected as a result of corruption. Origin and causes The lack of certain values in Bulgaria is considered to be one of the major reasons for the existence of corruption. The church and religion in general, which normally have positive effects on crime prevention, have a limited influence in the country. Another set of causes combines factors determined by the Communist past and the transition period, such as the weak state and weak judicial system in particular. If we compare the views of this group on the issue of the origins of corruption with the views of the judiciary, an important difference emerges: the prosecutors, apart from the issue of social values, stress also the political origins of corruption, and do not shy from making political in their essence judgements, relating the phenomenon to the “Communist past” and the “transition”. It needs to be said that references to such “key words” have a specific political meaning in Bulgarian public discourse; usually sympathisers of the right of the centre political forces will speak negatively about the communist past; people dissatisfied with the mainstream parties and sympathising for new populist parties will normally depict the “transition process” in negative terms, stressing its corruption and injustice. Size and scope Similarly to respondents from the other target groups the representatives of this target group believe that corruption is an almost immeasurable phenomenon. The quantitative studies that try to detect the numbers of the corruption transactions, cannot measure the social cost of separate transactions, which is the most important aspect in this respect. 416 At the same time, respondents perceive corruption as present in all segments of society, justifying this conclusion on the basis of personal observations and experience. The state of total corruption is explained with the fact that the systems of politics and governance, which are of key importance for the functioning of the society, are corrupt themselves. Since corruption is considered to be “an infection,” it easily affects the whole social organism. Anti-corruption measures Similarly to the journalists the representatives of the Police and the Prosecutor’s Office believe that it is unrealistic to expect that the political system can do something to limit or prevent corruption, since the way in which it functions is determined by the corruption exchanges. The state has established formal anti-corruption bodies and structures, but they have no real powers and function on a very general level. One way to tackle corruption would be to establish Ethical Commissions at all public institutions that have the power to investigate every single complaint of corruption filed by the citizens and companies. Another way would be to establish special investigative institutions to deal exclusively with corruption cases. In order to be effective, these institutions need to be independent and capable to investigate separate cases of corruption. This would seriously threaten the politicians’ interests and therefore it is less likely that they would allow for such institutions to exist. The respondents from this target groups are sceptical about the possible anticorruption roles of political parties, the media, the NGOs, and the business circles. The political parties are seen as the major engine of corruption in society and therefore it cannot be expected that they would be the ones to initiate anti-corruption reforms. The media are seen largely dependent on various political and business interests and 417 therefore incapable of investigating and revealing cases of corruption to the public in a way that might bring real change. NGOs are perceived as similarly inefficient, as in most cases they are related to certain political parties and do not truly represent the civil society in the country. Target Group Media Definitions Journalists define corruption in a rather inflated way as an improper and illegal (concepts used interchangeably) advancement as a result of the abuse of the power resources. This only concerns matters, which involve exercising public power. Similar relations in private life are not included in this definition. In terms of possible negative effects on society there should not be a difference between the so called “grand” and “petty” corruption. Petty corruption undermines the rules and the social discipline, which eventually leads to negative consequences for society as whole. Grand corruption has not only a monetary effect for the state, but also a broader social effect, since in most cases the public services provided as a result of unfair procurement procedures are of poor quality. The legislation focuses to a greater degree on the phenomena related to petty corruption, such as bribes, where the crime can be easily proved with the help forensic instruments. Legislative provisions, however, are much less powerful when it comes to grand corruption. In many such cases, the legal procedures are strictly followed and observed but at the end many of the deals concluded by the public authorities are immoral. Causes and origin 418 Media representatives perceive the presence of the state in the economy as the major reason for the existence of corruption. Registration and licensing regimes are numerous and many key companies are in the hands of the state. One specific feature of the Bulgarian case is the great role of the state in the process of redistribution of the huge public resources inherited from the communist past. It is perceived that this process inevitably brings up corruption in any country and that Bulgaria is no exception to the rule. The transition process, with all its components, is recognised to play a role for the development of corruption. Yet transition itself may not be regarded as a cultural phenomenon; it is very likely that similar situations in different societies produce very similar problems and outcomes. Size and scope Journalists think that measuring corruption is an enterprise bound to fail. What can be measured are the perceptions of the people about corruption. At the same time they believe that the phenomenon is omnipresent in the whole society. This judgement is made on the basis of personal experience and knowledge shared with colleagues, friends and relatives. Due to the specific interconnections within society, corruption has spread everywhere from the field of politics to the field of art. The financial and economic spheres are most susceptible to corruption since the monetary flows are in bigger size there. This sphere includes also all public bodies having discretion in dealing with financial resources. The most dangerous corruption, however, is present in the judicial system because it is itself the major structure meant to investigate and punish acts of corruption. Anti-corruption measures 419 According to media representatives anti-corruption measures cannot succeed in their current form for one main reason: the major actor that is expected to fight corruption, the political class, is deeply corrupt itself. It is hardly a secret that being a politician is indeed a business enterprise. This is the way in which politics functions and the political system recruits politicians. There is a superficial consensus that corruption should be counteracted, which has been pushed by the EU accession process and post-accession monitoring. However, reforms, to the extent they exist in practice, concern only general normative measures that are implemented so as to allow preserving the status quo almost untouched. These superficial policies have produced no satisfactory results so far and the authorities desperately need to show the EU that people involved in corruption are indeed being punished in Bulgaria. The efforts of the Public Prosecutor’s Office to do something in this respect resulted in several so called “demonstrative” corruption court cases involving high ranking officials and representatives of organised crime. However, for now there is no indication they might end successfully. Another piece of evidence demonstrating the lack of political will to counteract corruption is the fact that some simple and very well functioning anti-corruption practices were suspended. The example that was given in this respect is the suspended practice of police officers under cover testing their colleagues, traffic policemen, whether they would accept the bribes that they are offered in return for not fulfilling their obligations. One possible anti-corruption strategy, according to journalists, would be a dramatic reduction of the state presence in the economy. This, of course, cannot lead to a complete eradication of corruption, but the opportunities for its occurrence would be significantly limited. Another idea for optimising the anti-corruption activities at the level of the state is a reorganization of the system of powers in Bulgaria and in 420 particular transferring the Prosecutor’s Office from the judicial to executive branch of power. The roles of the different institutions in counteracting corruption as seen by media representatives are the following: The media are the only arena left where a corruption scandal can be revealed and made available to the public. Unfortunately, the quality of journalism in Bulgaria is very low and corruption investigation is not always done in the best possible way. Another problem is that continuous corruption rhetoric has made the people tolerant to corruption. They are convinced that the country is lost in corruption and the media maintain these perceptions stimulating passive instead of proactive citizens’ behaviour. The lack of a clear institutional response to corruption scandals in combination with the situation in the media described above leads to a social normalisation of the phenomenon of corruption. Political parties use the corruption/anti-corruption discourse only in its capacity to mobilize the public when trying to deal with their political rivals. When in power, politicians make use of information and investigative powers they control to accuse their predecessors of corruption. If however, these parties remain in the government as coalition partners then all information about possible corruption activities is concealed in the name of the political stability of the coalition. The role of NGOs in preventing and counteracting corruption is ambiguous. It has many positive effects: it creates expert knowledge about the problem and promotes some anti-corruption measures in the legislation. On the other hand, it has some negative effects as well: its excessive focus on raising public awareness about corruption is one of the major reasons for normalisation of the topic and social tolerance toward the problem. In the time when there were such awareness campaigns the public 421 perceptions about corruption (measured by the same NGOs that organised these campaigns) went very high. After the funding for similar sort of activities decreased the public perceptions did, too. In order to get governmental support for their activities and general programmes, NGOs have worked in close cooperation with government representatives, including persons allegedly involved in corruption. In this way, the NGOs took part in building an image of anti-corruption fighters for some corrupt politicians. Target Group Civil Society Definitions NGOs have had a major role in promoting anti-corruption discourse in the country and therefore it is not surprising that they conceptualize the phenomenon of corruption in the most complicated and comprehensive manner. NGOs define corruption broadly as an abuse of power for personal gain. This is the definition largely used by international anti-corruption organisations such as Transparency International. This definition refers mainly to political corruption, and not to corruption in the private sector. Corruption is considered to be a normal practice and in this sense it is not as anything unusual, a oneoff event, but is quite widespread not only in Bulgaria but also in the rest of the world. Corruption can be present in every area of social life but in some areas it might be more harmful then in other. These are cases where not only the system (institutions) but also citizens are affected. Corruption in education is very unpleasant but corruption in healthcare is a real life-threatening problem, and this should be the main criterion for classifying different forms of corruption. Another very dangerous form of corruption is perceived to be the trading in influence. It is dangerous because it is very difficult to 422 detect and prove. This is probably the most common type of corruption crime but it is very difficult to prove because it takes place within the relationships of persons, who do not have interest in disclosing the activity and giving evidence. Origin and causes The representatives of the civil society target group believe that generally corruption is not a cultural phenomenon. Petty corruption could be culturally dependent on and connected with cultural heritage, with the culture of society at large, and with understandings about forms of gratuity gifts, etc., but this does not hold for the case of grand, political corruption. The vision of the universal nature of corruption corresponds to the understanding that in general it is not connected with the legacy of socialism. Some influence is possible, but it is not decisive. Corruption also exists in developed capitalist countries and the core cause of the phenomenon is the lack of efficient control and enforcement both for grand political corruption and for petty corruption, which could be culturally-dependent to some extent. Another possible cause of corruption is poverty. For example, this is the case in Africa. This coincides with the approach of Transparency International, which sees poverty and corruption are two interconnected phenomena, which feed on each other and generate each other. The second set of causes of corruption as seen by representatives of this target group includes factors related to institutional performance, such as the lack of effective control and enforcement in some areas (public procurement mostly, but not exclusively), and the poor capacity of investigatory bodies to investigate corruption crimes efficiently. The lack of information and the lack of a culture of identification of corruption by the people are seen as an additional reason for the spread of corruption. Very few citizens know that active and passive bribery are both crimes and very often it 423 is believed that only taking bribes constitutes a crime. Last but not least, the lack of political will amongst Bulgarian political class is also an important factor. Size and scope Contrary to respondents from almost all other target groups included in this study, the NGO representatives tend to believe that corruption can be measured. The measurement is based on a study of perceptions similar to the method applied by Transparency International for its CPI index. One of the components that are measured is the impact of corruption on the life of ordinary citizens. According to these studies, tree years ago more than 80% of the citizens declared that corruption exercises strong influence on their personal life. Now the situation has changed and slightly more than 50% declare so. Another dimension of corruption that NGOs attempt to measure is the size of the bribes paid in different public spheres. According NGOs studies the highest bribes are paid in the judicial system. Effects There are two major groups of negative social effects of corruption as seen by NGO representatives. The first one encompasses the negative effect on democratic institutions, as corruption undermines the public trust in them. The second one includes economic aspects such as the impoverishment of the population due to the nonregulated ways of distribution of public resources. Privatization procedures are a good example of this process. Anti-corruption measures 424 One set of anti-corruption ideas concerns the possible improvement of existing anticorruption measures in terms of better coordination and implementation. The reason for the poor effectiveness of anti-corruption strategies is not that much in the balance of powers, but rather in the lack of effective interaction and cooperation between the agencies engaged in counteracting corruption. The fight against corruption crimes requires the joint efforts of many institutions. This is the job not only of prosecutors, but also of the court, anti-corruption commissions, the government, etc. Another problem of a similar nature is the lack of transparency in the work of anti-corruption bodies themselves, which leads to more public distrust in the capacity of the system to counteract corruption. The major conclusion is that in terms of legislation and institution building a lot has been done already. The problem is that the institutions do not use the powers they have to full extent ant this is where the efforts should focus. If however, a new institution is to be established, this could be only a special anti-corruption agency. In order to be efficient it should be within the prosecutor’s office and should have large investigative powers. There is no need for other anti-corruption bodies, such as the Commission for the fight against corruption at the Council of Ministers, because all they can do is in to educate, produce brochures, and monitor the implementation of action plans. Efficient anti-corruption activities, however, require investigative powers in order to punish persons involved in corruption and in this way play a prevention role in society at large. As regards the question about the focus of a successful anti-corruption strategy, the respondents believe that it should be placed on both grand and petty corruption. This requires that bout approaches the top-down and the bottom-up are applied in parallel. 425 On the level of grand corruption, the focus should be on transparency and control of party financing, which is the main engine of corruption in politics. On the level of petty corruption, the first step is to narrow the popular perception about corruption. Corruption is cited as an explanation for too many different problems, which are not related to corruption. This lack of understanding of the essence of the phenomenon reflects on the citizens’ perceptions and leads to exaggerated levels in the perception of the phenomenon. The NGOs representatives consider the lack of good investigative journalism in Bulgaria to be serious shortcoming of the anti-corruption efforts in the country. According to them, the major role of media is to work on particular cases of corruption. The lack of investigative capacity amongst journalists is considered to be the main reason for the poor media coverage on the topic of corruption. The role of NGOs in anti-corruption activities is perceived to be supportive and cooperative to the government’s efforts for counteracting corruption. However, another equally important function of NGOs is to correct government activities. Target Group Economy Definitions The representatives of the business define corruption as a state in which economic actors are forced to pay money in order to get services that are provided by the public authorities for free. In some of the cases this could be the so called “greasing the wheels” corruption were money are paid to get things done in a easier and quicker manner. In the other cases, the access to some services could be blocked by the public officials unless the certain sum of money is paid. Another manifestation of corruption is 426 when both business and public authorities in a consensual way circumvent rules and legal procedures. This type of corruption distorts the competition and lowers the quality of the services provided to the public. The most dangerous form of corruption is perceived to be that which affects negatively the interests of big groups of people. In this respect the petty corruption that affects many members of the society could be much more dangerous than grand corruption because it is destructive for values and further incidence of corruption. The respondents from this target group believe that corruption exist not only in the public sector but also in the private one. This includes cases where private officials abuse their power for personal enrichment at the expense of the company’s interest. Origin and causes The representatives of business perceive corruption as universal phenomenon that exists to a certain degree in all societies. The characteristics of corruption in Bulgaria are determined first by the Communist heritage, and second by the lack of experience with democracy and market economy. This includes underdeveloped civil society, lack of independent media, and weak judicial system. Size and scope According to our respondents, corruption can only be measured on the basis of a personal experience admitting that this approach cannot be applied for policy purposes. The phenomenon is present at low administrative levels with which many citizens interact in their everyday practice. As regards grand corruption, there are less people involved and the public is informed about it by the media. In this situation, it is very 427 difficult to measure objectively corruption but perception that it is actually everywhere is very strong in the society. Anti-corruption measures Since corruption has different manifestations, there should not be a single anticorruption strategy. However, one general strategy can be used to limit corruption at lower levels. This reorganization of the public sphere involves reduction of the state influence and introduction of clear rules and procedures. In many fields in which public resources are spent (healthcare for example) corruption is not the cause of the problem but it is rather a negative outcome as a result of the system mismanagement. In such cases, a simple reorganization of the system towards better management would limit corruption. Establishment of new state institutions meant to fight corruption would not help much since public trust in the state institutions is very low. The general public’s perception is that institutions are often established not to improve the quality of the governance but rather to create new power opportunities for the ruling parties. Introduction of transparency in all process of public decisions making could help to limit corruption significantly. It is important, however, that this transparency is achieved in an impartial way through the use of new technologies and media like the internet, rather than traditional media, which has lost much of its public confidence. Persistence in teaching social values to the young generations is an important factor that might play certain role in reducing corruption in the country. However, respondents admit that changing social values would require a lot of time and effort. It is unrealistic to expect that political parties would initiate reforms that might bring positive change to the process of counteracting corruption due to the fact that they are the major vehicle of corruption. The lack of interest in politics has led to parties’ 428 commercialisation and clientélisation. Corruption to a great extent explains and rationalises their existence. It is also unrealistic to expect that business organisations might contribute significantly to the anti-corruption efforts since they are private organizations that are primarily led by their private interests. This does not concern the low level administrative corruption, in which removal all businesses have questionable common interest. In general, the media are of great significance for every anti-corruption strategy. In particular there are not many media in Bulgaria that enjoy considerable level independence. Most of them follow certain private interests. There is a presumption in theory, which assumes that existence of many media representing different interest and views might lead to relative balance in information. However, in practice, it seems that media have concluded unwritten agreement to exclude certain topics from the public debate. Analysis In this section we attempt to show how the different models of perception of corruption interact in the discourse of the different groups. We set this interaction in a political context, and try to explore to what extent different groups can use the anticorruption discourse to promote their interests. Our main focus is on the politicians and governing politicians in particular. The questions we are trying to answer are the following: 1. Why governing politicians admit the wide-spread character of corruption? 2. Why are they interested at all in anticorruption measures, as the setting of anticorruption bodies, for instance? Governmental parties risk losing the public debate if they rely only on the legalistic discourse towards the phenomenon of corruption. Practice seems to prove 429 such a hypothesis. In 2000-2001 the government of the Bulgarian Prime Minister Ivan Kostov was in the business of vehement denial of the existence of corruption unless proven in court. This government was swept aside by King Simeon II’s movement, which came in office on an anticorruption ticket using a much more inflated concept of corruption. Thus, governments, sticking only to the narrow, legalistic conception of corruption, could rely only on a very limited discursive support – coming mainly from the judiciary, which is hardly a vocal player in political life. Against such a “legalistic discourse coalition”, the government will see virtually everybody – the media, the NGOs, the businesses, eventually the prosecutors and the police, if they enjoy a degree of autonomy. Governments, therefore, need to reexamine their discourse coalitions very carefully, if they do not want to be left in isolation. Further, it is rational for governing parties to attempt to broaden their discourse coalitions – to relate to the discourse not only of the judiciary, but to other important groups as well, the media and civil society mainly. In order to break up their discourse isolation, however, governments must take at least some of the following steps: I. publicly “admit” and “recognize” the problem of corruption. In this way they build a discourse bridge to potential partners in other groups, who are not directly interested in political changes (like the opposition); II. start cultivating the partnerships with these other groups by using their discursive support for the adoption of specific anticorruption measures; III. with regard to civil society, in exchange for the public “recognition” of corruption, governments could require cooperation with NGOs in a number of spheres, such as measuring corruption, legislative drafting of programmes, action plans, and other normative acts, consultation with experts, etc. The 430 governments will be successful in breaking up their discourse isolation, if most of the influential NGOs in the country adopt a “non-confrontational” stance towards them. This would mean that corruption is depoliticized and that change of government is no longer seen as the key measure to be taken; IV. in the case with the media, the situation is more complex. In contrast to NGOs, the media are not that interested in long-term institutional and legislative measures. They frame public discourse mostly through scandal and personalisation of politics: therefore, personnel changes are indispensable in order to bridge the gap between media and governmental discourse on corruption. For this purpose, governments must involve as potential partners elements of the prosecutors and the police, with the goal of starting investigations of public persons, possibly including members of the governing parties as well (but in exceptional cases, of course). It is important to stress that for the purposes of collaboration with the media, governments need to focus only on the start of investigations, since media interest is highest at this point, and goes down dramatically at the more complex judicial stages, whose intricate procedures are often impenetrable for the public in general; V. even the opposition could be co-opted in terms of anticorruption discourse by a skilful government. The key element here is the depoliticisation of the issue through the elaboration of a comprehensive anticorruption plan, which requires long-term profound institutional changes in all areas of governance. Ultimately, governing parties will be successful if they obtain the consent of the opposition for these programmes and plans, which is normally not impossible, since these contain predominantly common-sense measures 431 aiming at the general improvement of governance. In certain cases, members of the opposition could become also members of watchdog bodies, supervising the implementation of legislative and institutional reforms; the government must read very carefully the silent discourse of the business sector on the issue of corruption. The best strategy to ensure that this silence means support is to lead a policy of downsizing of the state and lowering the taxes. These are the key anticorruption measures which the business community looks for; normally, political change in terms especially of a political crisis and instability are not in the interest of the economic players. There are several residual problems with these strategies of breaking up the discourse isolation by a government. First, the adoption of legislative and institutional measures – which is the core of what a government can offer to the public and other influential players in terms of anticorruption – is potentially threatening to limit governmental discretion in important areas. This alienates traditional clientelistic partners (the role of patronage decreases) but also, this leads to a certain convergence of the acceptable party platforms in the longer run. Thus, in order to become suitable for government, a party must plan for: institutional reforms, downsizing of the state, lower taxes. Cooperation with civil society – understood as a monolithic, non-partisan entity – also leads to a certain “depoliticisation of politics”, which dilutes the dividing lines between the major parties. Thus, by creating successful discourse coalitions with other influential players, governments resolve their short-term political problems of electoral mobilisation: they break up their discourse isolation, and their messages start to find support in what the other actors are saying as well. However, the long-term cost of this strategy seems to be 432 a particular level of depoliticisation and of further undermining of the tools for political mobilization of the established political parties as a whole. It is no surprise, from this perspective, that despite the commitment of governments in South East Europe to the fight against corruption for more than seven years now, there is no revival of the public trust in the established political parties. In most of the countries, trust in governments and the representative structures of society as a whole is very low: parties and parliaments are usually most at risk.4 In Bulgaria, the mainstream parties have generally avoided an all-out anticorruption war against each other, with one significant exception in the first part of 2007, when a vice-PM of the Socialist Party was forced to resign, together with the Chief Investigator (who was seen as an appointee of another coalition partner – the Movement for Rights and Freedoms). These two started accusing each other of corrupt behaviour, accusations which remained unproven in court, but had a dramatic public effect. This was just an exception to the general rule of avoidance of anticorruption warfare among the major parties, however. The result of this avoidance is the public perception of all of the major parties as corrupt, which opens the political stage for ever new anticorruption populist actors. Accordingly, all new elections bring a new popular anticorruption hero in Bulgarian politics. In 2001 this was Simeon II and his movement, in 2005 the nationalist Ataka, and in 2009 – the charismatic Boyko Borissov – the former bodyguard of the ex-tsar, who made a career in the Ministry of Interior in the period 2001-2005. Somewhat paradoxically, whether avoiding an all-out confrontation on the issue of corruption or not, major parties suffer from a long-term tendency of loss of public 4 [Insert Table 11.1 here] 433 support in South East Europe, which leaves the door for new populist players wide open. Rational and cultural explanations in a political context Anticorruption programmes started more than ten years ago in Bulgaria. Our case study shows that over this period of time they have managed to change to a degree the perception of corruption of different target groups. The most dramatic change in our view concerns the groups of governing politicians. They have undergone significant metamorphosis in terms of discourse in the following direction: • They have “admitted” the “existence” and “wide-spread character” of corruption; • They have abandoned the “legalistic” and embraced the “inflated” public interest-based definition of the concept of corruption; • They have adopted the view that modernisation and structural reforms in neo-liberal direction (downsizing of the state, deregulation) are the key anticorruption measures; • They have agreed to form coalitions with civil society (understood as a monolithic whole) in the fight against corruption, thus “depoliticising” corruption as an issue; • They have generally abandoned “the cultural” model of explaining corruption, and have adopted the “rationalistic” discourse of changing “the structure of incentives”, institutional reform, etc. The paradox which the Bulgarian case study exhibits is that none of these elements of a quite substantial metamorphosis did lead to an increased public trust in the Bulgarian governing parties. On the contrary, despite this “rational” approach to the 434 issue of corruption which they have adopted, governing parties in Bulgaria continue to lose elections and the confidence of the people. Curiously, the Bulgarian case study demonstrates that the more one “rationalise” anticorruption discourse, the more one “disenchants” the anticorruption world, the more anticorruption magicians and superheroes emerge. Conclusion The last decade has been marked by continuous anti-corruption efforts and various attempts to study corruption. In the beginning this process was driven and the phenomena exclusively conceptualised by external factors but over time a domestic has developed. This discourse is internally pluralistic and ranges from narrow, legalistic approaches to the phenomenon of corruption to rather inflated approaches under which corruption becomes a metaphor for a variety of societal problems. The dominance of the inflated approaches to the conceptualisation of the phenomenon has been illustrated by our case study. Thus, there are two interconnected sets of problems related to corruption in the country. First, there are, of course, problems of actual corruption and its negative effects measured largely in terms of economic losses and undermining of the rule of law. Second, there are problems related to public perceptions of corruption that affect negatively social trust and values. When the corruption discourse becomes the major political discourse in a specific society, this might in itself be connected to considerable costs. First of all, the order of social priorities might be changed, so that corruption related problems receive disproportional attention in comparison to other problems such as poverty, unemployment, deficient healthcare and education services, etc. Second, not all problems could be conceptualised and treated as corruption problems. For instance, 435 the fight against corruption focuses public attention on the operation of the police and the judicial system. More public resources go to these services and governmental bodies, which is usually at the expense of others. And indeed, the EU pre-accession process during which corruption and organised crime became top societal concerns let to some redirection of public resources in Bulgaria due to which the judiciary and the police benefited at the expense of areas such as education and the healthcare. With the benefit of hindsight one could hardly argue that the predominant focus on corruption and organised crime, and the relative neglect of other areas, has been very helpful for the development of Bulgaria in the medium and the long run. Further, the widespread and dominant character of the inflated corruption discourse in Bulgarian politics did some permanent damage to the political parties and the political process in the country. The emergence of populist, light on ideology and organisational structure parties changed profoundly the Bulgarian political landscape. Whether this will be damaging or beneficial for the country is probably too early to tell, although one argues to what extent a liberal democracy can function without relatively stable, programmatic parties, who are defined by their economic policies and competencies, rather than by the personal integrity and charisma of their leaders. Therefore, corruption discourses and ways of conceptualising of this phenomenon should be treated in addition of corruption realities (for which scientific evidence remains scarce anyhow). Discourses may create problems of their own, and these problems should be treated with no less care than the reality of corruption itself. References 436 CSD. 2007. Anti-Corruption Reforms in Bulgaria: Key Results and Risks. [Online]. Available at: http://www.csd.bg/fileSrc.php?id=2152 [accessed: 5 October 2010]. Heidenheimer, A., Johnston, M. and LeVine, V. (eds.). 1989. Political Corruption. New Brunswick, NJ: Transaction Publishers. Philp, M. 1997. Defining Political Corruption. Political Studies, XLV(3), Special Issue, 436-462. 437 Chapter 12 Corruption in Turkey: A systemic problem1 Zeynep Sarlak Turkey’s political system is a seedbed for corruption; in fact it is the expected outcome of this system. The operational mechanism of this political system leads to the continuous reproduction of corruption where the politician stands in the centre of this mechanism and is looked upon as the decision maker. But he does not stand alone. An arena of actors ranging from the media, the business world to the man on the street has benefited from the loopholes of this system, thus opening up corruption onto different scales. Up until the beginning of 2000, the absence of the fight against corruption in the agendas of the political actors in power was a natural outcome of this situation. However within these ten short years, a new discourse of fight against corruption has risen and interestingly enough, this strong desire for change has not been shaped mainly by the demands of the internal actors of the system. On an international platform, it was imperative of Turkey to take vital steps towards the fight against corruption and it is here, the IMF and EU became two historical key events that injected the global “anticorruption agenda” into the Turkish political scene. The first was the acceptance of Turkey as a candidate for membership in the Helsinki Summit in 1999. The second was 1 I would like to thank Dr. B. Bülent Bali for his valuable contributions to this article. 438 the implementation of the Program for Transition to a Powerful Economy by the support of IMF after the two consecutive financial crises of 2000 and 2001. In the EU context, Turkey has made efforts to adopt the anti-corruption political set that was developed by the EU itself and had been implemented on the individual level by each member country. In general these policies are legal, administrative and security measures. Since these measures are the products of the political and administrative bodies of the EU, by nature they operate within a “top-down” anticorruption definition and they embody a vision of a political system based on certain assumptions. For that very reason, at least for the case of Turkey, these measures fall short in seeing the particular dynamics that reproduce corruption that may not pertain to the roots of corruption itself. The functionality of IMF remedies that are brought forward within the discourse of anti-corruption, are open to discussion not only in the individual case of Turkey but also within the general context of the fight against corruption. In the 2000s the goals of reconstruction in the economic domain in Turkey that has claimed to decrease corruption, are the repetitions of the policies based on a global anti-corruption paradigm developed by the technocrats of the international economic and financial institutions. There are many critical studies that research how this paradigm implements the corruption discourse, specifically throughout the economic crises in various countries, to legitimize the second generation neo-liberal reforms.2 To elaborate further, the author of this article also shares the opinion that today, institutions that hold power to shape the national economies on a global level use corruption to legitimize the promotion of their economic model, namely the privatization of the public services. 2 See for example Krastev 2004, Bedirhanoğlu 2007. 439 Hence, this global anti-corruption paradigm mainly defines corruption as the “use of public office for private gain”. It promotes “liberalization on the basis of its favourable distributional consequences by lowering rents of all sorts emanating from a large, protective, interventionist state” (Boratav/Turel/Yeldan 1996: 377). By doing so, it asymmetrically focuses on only the public sector in the fight against corruption and ignores the private one. Parallel to the neo-liberal conception of state, in this paradigm, it is the violation of this public/private distinction by individuals that fundamentally defines corrupt behaviour (Haller and Shore 2005: 5). As Haller and Shore (2005) state “anthropologists have long recognized that this public-private dichotomy is often an arbitrary and inherently cultural category”, the paradigm however neglects to see that this very dichotomy, i.e. the differentiation between the political and the economic sphere is related to the project of modernity, therefore a cultural movement unique to the West (Lennerfors 2008: 57-85). As a resemblance to the modernity project itself, both EU and IMF anticorruption measures impose themselves as universal and a-cultural. As Tekeli (2007: 2) suggests, the precautionary measures offered by them are to eliminate the notion of corruption without feeling any need to know its very reasons in different cultures, and yet at the same time it declares that the notion should normatively stay out of society. Similarly, the majority of the studies produced by the local NGOs in the realm of anti-corruption restrict their focus on irregularities and abuses within the public domain. 3 3 For examples of some typical studies that this statement was based on see: the studies of Anti-Corruption Foundation (www.yolsuzluklamucadele.org); the reports of Ankara Chamber of Commerce on the issue (www.atonet.org.tr/yeni/index.php?p=924&l=1); the related studies of the Association of State Auditing Personnel 440 Such studies framed by the paradigm set forth in the international campaign against corruption overlook the sociology of corruption or the political economy of corruption. Rather, they consist in the repetition of formulae of this paradigm on waging war against corruption and offer recommendations in this vein to the political authority. Unquestionably, the fight against corruption is primarily the responsibility of the politician. As a matter of fact, in Turkey many legal and institutional regulations have been carried according to the demands of IMF and the EU. A significant number of corruption cases have been taken to the court by the law enforcement agencies. Still, there is a strong public perception in Turkey that not much is achieved in the fight against corruption, be it petty or grand corruption. The main objective of this article is to question the functionality of the anticorruption remedies put into practice at the beginning of the 2000s through the fundamental characteristics of Turkish politics. In this article, it is expected to gain fundamental insights into the political context as well as into the nature of the relations established between politics and societal groups within which deviant and corrupt behaviour occur. In this regard, it is important to bring an alternative reading to the approaches that centre around the remedies in question and hold the public sector and mainly the politician into account. It is striking to note that despite the acceptance of the anti-corruption policies of the EU and the international economic institutions by the politicians, public bureaucrats, NGOs, business representatives and mainstream media on the rhetorical level, the question is: why haven’t these implementations produced any noteworthy results? (www.denetde.org.tr); some reports of Economic Policy Research (www.tepav.org.tr/tur/index.php?type=event&title=Y&cid=351). Foundation of Turkey (TEPAV) 441 It is believed that without defining the objectives of the principal actors in politics and understanding how the political system operates on a broad scale in the country itself, along with the relationship codes that shape and are shaped by this same system, the anti-corruption policies will not produce efficient results. Corruption can above all be defined as a type of social relation. In this sense, the qualities that create the basis for corruption within the legal and institutional infrastructures – which do not seem to be directly related to corruption but determine the dynamics of the political life and therefore also draw the framework the relationship between politician and different societal groups – will be called into question. A reading of this kind may provide valuable insights into the issue as to why some of the activities regarded as corruption are still in action in the political scene in Turkey. This can open the door to further questions of the functionality of the anticorruption remedies, at least in the Turkish example. In this regard, this essay is an attempt to open up a debate beyond the conventional readings of the case in Turkey. The main body of this article is derived from the findings of a 3 year research project realized in the context of the EU sixth framework programme of the European Commission.4 The plan of the article is as follows. The first part is a brief summary of the anticorruption process and the assessment of the current situation. In the second part, the characteristics of state-politics and state-civil society relationships which provide an open door to corruption are questioned. In the third and the fourth parts the nature of the politician-voter and politician-businessman relationships are examined respectively. The final part is about media-politics relations. Due to the responsibility of the media in 4 For the project’s website see: http://www.uni-konstanz.de/crimeandculture/project.htm. 442 exposing corruption in the name of the public interest, the last part is relatively lengthy. Another reason for this is that the dynamics of media-politics relation reveal important clues about the corruptive nature about media-big business relation in Turkey. What is Turkey’s position in its fight against corruption? As stated earlier in this article, the fight against corruption was spearheaded by the aftermath of the 2000 and 2001 economic crises. The breakdown of these two consecutive economic crises by the international economic institutions was firstly, the corruption of public bureaucracy and political actors and secondly, the fusion of politics with the economics. The political actors of the time accepted this analysis with no further questioning (Cizre/Yeldan 2005: 390-391). In this respect, it is self-explanatory that Kemal Derviş who had strong relations with all the key players of the international financial system and global economic institutions, was invited to the country with the hope of ending the recurring economic crisis in Turkey. 5 From March 2001 to August 2002, Derviş acting as Minister for Economic Affairs and the Treasury, without party affiliation in DSP-MHP-ANAP coalition government, a situation which had never been the case in Turkish political tradition, with the exception of the military government periods Through his “Programme for Transition to a Powerful Economy” Derviş himself exclusively adhered to the global anti-corruption paradigm’s remedy package. He emphasised that struggling against corruption was the most important pillar of this programme and argued that “politics 5 Derviş, prior to coming to Turkey had been employed as Vice-President for Poverty Reduction and Economic Management in World Bank where he had been responsible for global programmes and policies to fight poverty as well as operational coordination with other institutions, including the United Nations system, the IMF and the WTO on international institutional and policy issues. 443 should not lead to accidents in economics through illegal gains. Politics and economics should be separated from each other” (Bedirhanoğlu 2007: 1248). His particular neoliberal agenda has largely proceeded in line with Turkey’s intensifying relations with the EU. Both the Accession Partnership Document prepared by the European Commission in March 2001 and the Turkish government’s Letter of Intent presented to the IMF on July 31, 2001 comprised provisions on corruption prevention.6 From then on, fighting corruption became the structural benchmark in all the standby agreements with IMF. Throughout the same process the concepts of “good governance”, “transparency” and “accountability” found their place in the discourses of a broad range of actors from public bureaucracy to political parties, from mainstream media to business representatives. The “anti-corruption discourse” was easily accepted by the public when the grand corruption became very visible, especially at a time when siphoning of banks caused severe effects on a substantial number of people. For the man on the street these consecutive crises marked a drastic loss of legitimacy on the part of the politicians and the political parties in general. They paved the way for the election victory of the Justice and Development Party (AKP). The AKP, as a newly emerged political party easily managed to channel these reactions against the 6 Full texts of these documents are available at: www.dpt.gov.tr/DocObjects/Download/2995/aptr2001.pdf, and at: http://www.imf.org/External/NP/LOI/2001/tur/04/index.htm. 444 corruption affairs and the unjust distribution of income that had become even more severe in the wake of the November 2002 elections (Insel 2003: 303). 7 At such a conjuncture, “fighting corruption” constituted a significant part of the overall agenda of the 1st AKP government. AKP, entirely embracing the Derviş’s program and the EU integration process, declared combating against all types of corruption as “a high priority task of the party” and dedicated a special section solely to the “Combat against corruption” in its first party programme (2001). It was comprised of ambitious policy targets in line with the international demands.8 Likewise, the same emphasis on corruption prevention measures was placed in 58th, 59th and 60th government programmes. Indeed, AKP, the entire time that it was in power had adopted a number of conventions by international organizations largely in the context of EU integration process (Ergun 2007: 909-913).9 A set of new legal-institutional regulations were made 7 It seems that the main reason why AKP abbreviates its name as AK-Party (White Party/Clean Party) is because corruption was pronounced as the biggest problem of the time and the voters regarded all the existing parties more or less corrupt. 8 9 For these policy targets see http://eng.akparti.org.tr/english/partyprogramme.html. Turkey supports the anti-corruption initiatives through various international conventions including the United Nations and the Council of Europe. Turkey ratified the United Nations Convention Against Corruption on 11 August 2006. Turkey is also a party to the three Council of Europe Conventions on corruption, namely the Council of Europe’s Criminal Law Convention (signed on 27 September 2001 and ratified on 14 January 2004), the Council of Europe’s Civil Law Convention on Corruption (approved on 17 April 2003) and the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (signed on 27 September 2001 and approved on 16 June 2004). Turkey also became a member of the Group of States Against Corruption (GRECO) in 2004. 445 to meet the demands of EU and IMF in the context of fight against corruption. 10 During this period, there was an increase in the percentage of the “corruption operations” against high ranking bureaucrats and organized crime groups. 11 On the other hand, serious allegations were made against AKP on the basis of abusing the grey areas that emerged as part of the second generation neo-liberal reforms. New evaluations were made on the reproduction of resource transfer to the politically connected business groups through new channels in the form of cleanups and rent seeking activities that increased after the 80s or favouritism which existed since the founding of the Turkish Republic (BSB 2008). Many researchers, political opposition groups and media organizations asserting business groups close to AKP have accumulated interest on a plane extending from the privatization of the public properties and services to the illegal distribution of land licenses (Şarlak/Bali 2008; Altun 2004: 295-301). In short, all corruption allegations that were made against ANAP administration during the period of transition to liberal economy or against the parties in the coalitions throughout the 1990s were repeated against the existing government party. When it comes to the public perception of corruption, it can easily be said that the reforms made in the name of anti-corruption measures have not achieved any satisfactory results (Transparency International 2005, 2006, 2007, 2008, 2009; 10 To learn about these steps see: “The Strategy of Increasing Transparency and Enhancing the Fight Against Corruption 2010-2014” (Saydamlığın Artırılması ve Yolsuzlukla Mücadelenin Güçlendirilmesi Stratejisi (2010-2014)) Official Gazette, Volume 2, Number 27501, February 22, 2010. 11 For the official data related to anti-corruption operations, see the yearly reports of the Department of Anti- Smuggling and Organized Crime (KOM) available at: http://www.kom.gov.tr/; see also the official website of Istanbul Police Department, Combating Against Financial Crimes Division: http://mali.iem.gov.tr/. 446 Kurtzman/Yago 2008: 3).12 Turkey today is perceived as part of a select group of countries marred as most corrupt in Europe. According to the findings of corruption related studies done by local NGOs and research firms, they assert that the general perception of domestic households to governing elites view corruption as predominately widespread in Turkey (KONDA 2006; Ağırdır 2007; TUSIAD 2008; Çelen 2007). Likewise in the last GRECO and EU Progress reports, it was underlined that Turkey achieved limited progress in the fight against corruption. The cause of this limited progress was shown as the insufficiency of the government in implementing a series of institutional reforms and the necessary steps to fight against corruption (CEC 2009: 12-13; GRECO 2008). The last progress of the anti-corruption campaign in the political sphere took place at the end of 2009 with the notice AKP government released taking criticisms of EU into account. Following that notice the government also issued a Cabinet decision. 13 With an objective of devising an “Anti-Corruption Strategy” that had been emphasized by the EU organs, the decision engrossed the constituents of a National Anticorruption Strategy Plan to be implemented between 2010 and 2014. The contents of this plan were designed to meet the demands of the EU word for word. But 12 TI ranked Turkey at 65th place in 2005 (among 159 countries), 60th place in 2006 (among 163 countries), 64th place in 2007 (among 180 countries), 58th place in 2008 (among 180 countries) and finally 61st place in 2009 (among 180 countries). According to World Bank’s Worldwide Governance Indicators (WGI), significant deficiencies continue in the attempts to control corruption in Turkey. Its findings demonstrate that no noteworthy progress has been made in Turkey between 1996 and 2006. These findings support the World Bank’s and the EBRD’s evaluation in 2005 regarding the high level of organized crime and corruption in the business sector in Turkey. It is also possible to draw the same conclusions by following Turkey’s “Opacity Index” values for corruption which are 51 in 2001, 67 in 2004 and 52 in 2007-2008 respectively. 13 The notice was published in the official gazette number 27423, on December 5, 2009. The Cabinet decision was published in the official gazette number 27501, on February 22, 2010. 447 up until that time, this article was written with no noteworthy progress made on this plan. Leaving the functionality of it aside, it is still a question mark if this strategy was devised to really establish a long-lasting anti-corruption measure, or as a document to prove the commitment of the government which had been criticized to move away from the EU membership process. However, the main concern of this article is not the AKP government itself. The objective here is to analyze the dynamics that are seemingly unrelated to corruption which lie hidden within the mechanisms of the political system of which AKP is part. For that very reason, the relationship of politics to a “superior body” which set the boundaries of the political domain and shapes the way it is conducted, namely the state, will be firstly investigated. State-Politics-Corruption The Boundaries of Politics Ever since the founding of the republic in 1923, the sphere left open to politicians in Turkey has been under the control of the state bureaucracy and it has been successively reduced in the wake of every military takeover. Particularly since the takeover in 1980, the economic sphere has comprised the sole instrument remaining to the politician for the conduct of politics. The civil society and government relations have traced a parallel path during this period in Turkey. Throughout the history of the country, the reflexes displayed by the state vis-àvis the civil society has been shaped by a lack of trust of the latter: an ongoing state of conflict exist between the state and civil society whereby the latter winds up as the 448 inevitable loser. Unlike the West, playing by the rules will hinder and penalize civil society at every turn, the government in Turkey represents a true aristocracy that imposes its own values on society and prevents the emergence of a bourgeoisie on the Western model in the political development of Turkey (Heper 1993: 369). The chain of these rules is fashioned by a society envisioned in the mind of the bureaucracy, which has periodically urged the adoption of its own version of a civil society by a Jacobin and/or oppressive stance. Inasmuch as the members of the civil society have not participated in their making and are unable to comprehend their rationale, they have failed to assimilate these rules and incorporate them into their own value systems. The natural outcome is that they, along with those who represent them politically, show no hesitation in breaking the said rules in the belief that they will not be caught, and in tandem, tirelessly seek to ascertain ways of benefiting from the loopholes in these rules. The fact that social conflicts in Turkey have not yet been resolved and that individuals feel a lack of trust towards those outside their own group (BBVA 2006; Esmer 2007)14 is a consequence of the authoritarian character of the state. Because of the paternalistic and patriarchal nature of the culture, this lack of trust has pervaded deeper into society that has not internalized the reality of individual freedom and has led to the search for a group/community by the individual to obtain a sense of trust. This circumstance is an important factor in effecting the internalization of the forms of 14 The results of the BBVA Foundation survey conducted in 2006, "Social Capital: Trust, Networks, and Involvement in Associations in 13 Countries", showed that “those who least trusted others were Turks with a rating of 4.4 out of a possible 10.” Similarly, according to the 2007 World Values Survey, Turkey, conducted by Yılmaz Esmer, Turkish people posses the lowest “level of trust towards people” among all the countries surveyed. 449 relations that can be described as patronage, clientelism and favouritism. It forms one of the most critical obstacles to political parties making the transition from “politics,” wherein they take care of their own, to “policy,” whereby the public interest is promoted. The field for manoeuvring reserved for politics and the politician has been gradually eroded as an outcome of the military takeovers that occurred at intervals of roughly one per decade (1960, 1971, and 1980). Authoritarianism ultimately reached a peak during the military regime of 12 September 1980, which by means of its legislative activities, its impact permeated almost every area, and the reins of the power of the state over the political and social dynamics, were held by the military bureaucracy. The upshot of this period and afterwards, during which liberal economic policies came into force, is that the direction of the economy became the only sphere remaining open to the free exercise of power by the politicians. The legal system constructed along with the shift to a liberal economy during the 12 September military regime was constructed for penalizing ideological crimes rather than protection of economic, social, and individual rights. This has become an additional factor motivating the politician’s opportunistic exploitation of the economic sphere for himself and his cronies. Today the activities that have been defined as corrupt by many Western international institutions are adopted – or had to be adopted as a way to do politics in Turkey. In this context, the principal difference that emerged with economic liberalism is the size of the resources controlled by the politician and the broadening of the opportunities for distribution, along with the increase in the number of players who 450 wish to take advantage of these resources. In other words, provided that the rules of the game remain the same, the “amount of the money on the table” and the number of players have increased. Hence the distribution of public resources ever since the era of the single-party regime at the time of the republic differs from that of the welfare state (Alpar 1932, 1933, 1934), which implements policies of distribution in a more systematic fashion and which is carried out by focusing on certain groups. In this process, characterized by the desire to create his own wealth, the politician provides for the poor who comprises the majority of the voters with what Herbert Kitschelt (2000: 873), in his definition of clientelism, calls “hush money” and this form of distribution is pursued in the context of patronage relations rather than of public service. As a result of the gradual removal of legal political bodies that have gained a strong base on the left and the transition to a “lawless” liberalism, these segments have been left to depoliticization which completely eliminated the possibility of a democratic intervention to the resource distribution mechanism. As a matter of fact, major rent-seeking and rent-creation tools that have come up with the top-down implementation of the new accumulation model during the 1980s were instrumentalized as new devices accelerating the capital accumulation process.15 In this climate, for some people corruption was seen as a way to quickly get richer, as a 15 It is easier to grasp the mentality of “getting richer no matter how” or “receiving foreign currency no matter from where” when we keep in mind Turgut Ozal’s approach to the issue. In the 80s as the architect of the transition to the liberal economy he always supported this pragmatism that focused on the results rather than the processes. Even though he himself denied saying them or claimed to have been misunderstood, he was known to have told: “I love rich people, my officers know what they do or the penalty of an economic crime is economic itself too.” 451 facilitator for the slow-moving bureaucracy and for others as a not so pleasant but acceptable solution to increase the income in a rapidly urbanizing chaotic environment. The Institutional Framework of the Political Parties: The Door that Opens to Corruption The legal and institutional framework, which to all appearances has no direct relation with corruption, marks off the framework of the internal dynamics of political life and correspondingly of relations between the politician and society. Unfortunately this framework weakens Turkish political life in terms of representation, participation, and democracy and prepares the ground for corruption by facilitating patronage and clientelistic relations, both at the centre and on the periphery. This infrastructure boasts two major underpinnings – the Law on Political Parties and the bylaws of the Turkish Grand National Assembly. The Law on Political Parties, which was drawn up under the 12 September military regime and which has preserved its essential outlines despite a few emendations, was intended to bind the political parties to the authority of the leader. It was injected wholecloth into the fabric of the political parties, which on the macro level, revealed a democracy deficiency and on the micro level, a full-blown authoritarian mentality, which found expression in the organization of the political parties in an hierarchical and oligarchical manner. The law, whose aim was to formulate the basic principles pertaining to political parties had unfortunately resulted in parties whose internal organization today, is a far cry from democracy in action. This law, which imposes no restrictions on the duration of the term of general secretary of the party, in practice permits the general secretary such privileges as arbitrarily dissolving party memberships, removing from office the administrative heads of provinces and districts 452 and provincial and district administrators, and determining the deputy candidates of their ranking (Batum 2001: 15-39). This phenomenon known as the “leader oligarchy” is preserved by all political parties. Furthermore, according to the party bylaws which are drawn up in the spirit of the Law on Political Parties, the initiative of the party members, in particular that of the deputies is eliminated so that as has been observed by Çaha (2002: 233), political parties have been reshaped into “modern-day religious communities.” In terms of the centre, the function of the deputy in this composition remains limited to raising his finger whenever the party leader calls for a vote and registering an “aye” or “nay” as desired by the party leader. The reflection of the will of the voters for those whom the party head had elected or appointed should naturally not be anticipated. The deputies, acutely aware of the pressure of the head of the party and the party group, generally participate in the voting without knowing precisely what they are voting for. In any case, a “group decision” is usually taken. Moreover, the bylaws of the Turkish Grand National Assembly were changed to support this situation.16 The bylaws have reduced the time allotted for consideration of the bills and proposal in the interest of accelerating the parliamentary procedures and limited the number of speakers and time periods for the recommendations of the deputies. Under these circumstances, the bylaws lead to an inadequate airing of any proposal or bill by the deputies, who are compelled to conform to party discipline. Nonetheless, the swearing by the deputy of an unconditional oath of allegiance to the leader may not suffice to guarantee his re-election. This is revealed by a review of 16 The proposal for changing the by-laws to accelerate the process for bills and proposals was accepted in the Turkish Grand National Assembly Plenary Session in February, 2001. 453 the turnover in the parliament over the past terms, coming to a very high value of nearly 62% (Erdem 2002). Another critical aspect is the tangible assets required by deputies for their election. It is a rational expectation that any deputy who fears that the leader may hesitate in placing his name on the list of candidates for re-election will wish to recover his expenses in the shortest time possible and maximize his earnings. Therefore, on condition that the deputy does not to make himself a public spectacle, serve as fodder for the opposition, serve as the focus of excessive criticism by the press and thus not result in a loss of votes for the party, his full allegiance usually causes the leader to develop a greater tolerance towards his arrangements for securing benefits for himself. Another significant drawback of the Law on Political Parties which directly opens the door to corruption pertains to “the transparency and oversight of the party accounts and election spending for both the party and the candidate.” Financial support, which is wholly entrusted to the honesty of the leader, is a customary element of Turkish political life. To sum up, in this scene where politics is confined to the economic sphere and the political parties are hemmed in by the authority of the leader, and the individual takes refuge in the “community,” the political expectations of the politician as well as the political expectations of the society are resigned to the maximization of the economic interests of the individual/group regardless of their form. Politician-Voter-Corruption Though a significant proportion of the voters in Turkey express the view that they are generally disturbed by the corruption, they do not refrain from taking advantage of any 454 such opportunities when offered to them. As a number of academic studies have shown, the primary expectation of politics by the average voters in Turkey is an increase in economic prosperity (Adaman/Çarkoğlu/Şenatalar 2004; Ağırdır 2007; Kalaycıoğlu 2008). The voters seem to be aware of the restrictions placed on the politician by the State. That is why they possess a realistic attitude in regard to what and how much the politician can do. Despite the negative impact of corruption on economic prosperity in the medium and long term, the voters directed toward increasing their own prosperity in the short term find no difficulty in discovering justifiable reasons on their own and in entering into the relational networks that nurture corruption. The way of conducting politics in Turkey does not require the politician to establish close ties with the voters for whom he wishes in appearance to represent. Particularly, the type of relation that exists between those involved in the making of politics at the centre and the voters that prevail in democratic countries are not valid for Turkey. In Turkey, the voters seek a resolution to the problems faced in their own daily life rather than the success of the person elected in solving the structural issues of the locale or the country. Voters who display distinctive properties such as being a fellow countryman, kinsman, acquaintance, or occupying a place in a political party organization, may be said to possess a much higher possibility of reaching those who conduct politics at the centre or at the local level and of being included in the relational network noted above. They make use of such possibilities in order to facilitate practical aspects of their lives, such as getting an appointment, obtaining employment, and locating a place to admit a patient in a public hospital (Dündar 2008). In the eyes of the voter, this is an affirmation 455 in itself of a politics of favouritism. Hence, for an ordinary Turkish citizen, the first step in establishing one’s relations with the state is to “find one’s man.” On the other hand, it is an undeniable reality that certain activities that could be described as corruption today has kept the poor, in particular, from going under for a long period of time. Due to the consistent mismanagement of limited resources, insufficient employment opportunities, high levels of migration from rural areas to the cities in addition to the increase in population, the informal sector has attained incredible proportions; particularly since 1980. The broad masses of the poor, in an atmosphere that best affords a sphere for action by comparison with the earlier social actors, have sought means of bettering their own standards of living by utilizing the opportunities of this sector (Işık/Pınarcıoğlu 2003: 51). The newcomers, by joining the existing webs of solidarity fostered by cultural or ethnic origins, and most notably, by the essential factor of hailing from the same hometown, have solved the problems of finding a job and a place to stay -the basic conditions for being able to keep a foothold in the town. Over time, thanks to these networks, the poor segments have even been able to grasp the possibility, however small, of becoming wealthy. However, the maintenance of this foothold in these cities if possible, can become prosperous for such a huge population in the informal sector depends on two conditions: squatting on the expansive public lands in the urban outskirts and offering them to their close ones and the willingness of politicians to overlook this fait accompli (Işık/Pınarcıoğlu 2003: 52). A glance over even only the past few years furnishes numerous examples illustrating complete agreement with regard to the creation of economic rent among the political parties, particularly at the level of the local administrators in the metropolitan 456 areas, with such actions as distributing deeds to buildings constructed without permits or on public land, to the poor segment in exchange for votes. Politics-Businessman-Corruption Wealth in Turkey differs from that in the West in that it has been developed through dependence on public resources; in other words, it is created rather than acquired. This is one of the reasons why the politician’s disposal of power makes itself constantly felt in the business world, whether it is for fair or unfair reasons. These circumstances have encouraged the business world to constantly cultivate close ties with the government in power. At present, this form of relationship whose viability strongly persists, is shaped by an explicit oath of allegiance by the business world to the politician or is indirectly shaped by the climate of lack of trust and/or opportunism. The chief issues that can serve to “breakdown trust” between politicians and the political-business world may be identified as follows: a) arbitrary practices with regard to the nationalized (sector), most especially in connection with compensation paid for buildings and land; b) arbitrary use of authority in granting permits and oversight of construction projects by local administrators (such as introducing bureaucratic obstacles or facilitations in the course of granting permits or the illegal granting of construction permits); c) the authority of the prime minister to intervene directly in economic life without the approval of the parliament or in the coverage of a law by means of a governmental decision; d) the power to make certain decisions retrospective to which bear extreme critical import on the private sector (Buğra 1995: 233-239); e) the authority to have regulatory bodies (for example, the Energy Market Regulatory Commission, the Ministry of Finance, the Prime Ministry Customs Permanent Undersecretariat, and the Radio and Television Broadcasting Board) act in accordance 457 with the preferences of the government in power; f) the possibilities to personally produce a rival to businessmen whom they believe has not provided sufficient support of the political government. One of the above mentioned “trumps” that the politician holds against the businessman is related to the taxation system of Turkey. In a country where tax evasion is a common practice, it is not surprising to see that the political parties in power abuse their power and act selectively towards the punishment of businessmen who evade taxes. On the other hand, those with political power can open the doors of opportunity for the business world by making their presence felt in a) revising public works plans, so as to create urban economic rent by means of the local administrations; b) determining the recipients of credit extended by the national banks; c) distributing incentives to the private sector by the relative criteria of political distance rather than economic rationality distance, and tailoring the requirements for bidders in the letting of public contracts on the basis of simple preference; and finally d) tax amnesties. Then again, in order to gain insight into the mechanism of corruption, notice must be taken of the other side of the relation between the businessman and politician. Hence, it is apparent that every government that has managed to stay in power for an extended period of time has tended to embark on the path of creating a rich class of its own during its term in power, and ultimately those efforts are made to form an alternative source to provide benefits strictly for itself. It has been a given that in an environment where the resources of political parties are insufficiently regulated, the businessman is expected to finance the political party directly and/or mobilize his personal assets for the political propaganda. 458 However, at this point, a distinction needs to be made between the financing of politics and the financing of a politician in relation to the businessman and politics. The first situation is the offering by the businessman of the resources for which the political party as an institution feels the need in exchange for becoming wealthy. What needs to be understood concerning the latter situation, however is the relation between the businessman and the deputy who is financed by the former. At times, some businessmen who wish to expand their business and gain more wealth prefer to enter politics directly without the benefit of an intermediary. In fact, apart from those persons who form a showcase for the party, the existing political system tends to permit those who furnish financial support for the political party to enter politics. A glance over the parliaments of the past twenty years reveals the important fact that the small number of “worker” deputies constitutes a failure to reflect the masses representative relationship in the political arena. Politics–Media-Corruption In theory, commitment to editorial independence and the integrity of the public realm is held up as one of the safeguards of liberal democracies. Accordingly, the responsibility of the media may be defined as mending breakdowns in the working of democracy and in this context reporting on the existence of corruption. According to the liberal theory again, it is the competition among the various print and broadcast media that serves as a bulwark against the abuses of any individual press organ (Finkel 2000: 146). At bottom, the commercial success of the media as a business and/or economic activity depends on its credibility in the eyes of the public. Underlying this premise is the belief that media enterprises should restrict their activities to the media and that they are obligated to clearly demarcate the line between 459 the respective spheres of the government and themselves, so as to protect the interests of the public. But, in the real world and in keeping with the prevailing neo-liberal ideology, the financial and administrative scaffolding of the media enterprises has been pitched in a diversity of sectors. As a natural outcome, the media as the “fourth power”, rather than preserving its identity as a “watchdog” and awarding priority to the public as a means to access news and to become informed, has instead opted to constrict the flow of news and information, so as to accord with its mutual interests with the governments. One may observe a development along the same lines in Turkey. But the established framework of the relationship between the politician and the businessman on the current political scene in Turkey boasts some nuances peculiar to this country. In the wake of the military takeover of 12 September 1980 in Turkey, the transition to a liberal economy led to a radical transformation of the proprietorship structure of the Turkish media. The pre-1980s era of newspaper bosses whose primary focus was journalism, came to an end. The majority of the media enterprises exchanged hands and were subsumed by holding companies pursuing business activities, directly or indirectly, in such areas as banking, energy, and construction. With the influx of capital, the relationship between the media and politics now adopted the characteristic pattern of media-politics-commerce. The business interests of the media served as a combat zone while news reporting became an offshoot of business competition. Rather than confining themselves to the field of mass communication, the large groups pervaded every aspect of business activity and entered the political sphere for direct or indirect commercial gain. Thus, the media sector rose to the position of a powerful agent that was utilized as a “lever” in order to achieve both commercial and politically consonant ends. The businessman-politician relationship noted above within the context 460 of corruption swelled to an even greater magnitude as a reflection of the power now exercised by the media and the sought need for this power by politics. The oligopolistic structure of the media fortified the relationship of mutual interest between the media and the political power. As part of this process, the governments as well as the opposition parties fashioned media groups loyal only to themselves and devoted efforts to draw the existing groups to their side as well as to mete out penalties to those that resisted. To this end, they exploited the advantages of the public power they held. With the transition to liberalism, the new generation of media tycoons quickly grew prosperous by virtue of their identity as businessmen and, directly or indirectly, underwrote elections and party spending (Şarlak/Bali 2008: 14).17 In exchange, they were accorded special treatment by the governments they supported by means of their power with regard to such things as investment incentives, the advertising budgets of political parties prioritized shares of government contracts and privatization, bank licensing, and low interest credit by state banks. Thus, certain large business groups have remained in the sector despite the losses suffered by their media enterprises on account of these positive externalities and chosen to finance their media investments with income obtained from other sectors; most particularly by the banks they own (Sönmez 2004). 17 A former minister identifies the relation between media and politics with regard to party financing as follows: “The law on party financing markedly limits the size of donations. This leads to corruption in the financing of political parties, particularly in the context of the relationship between the media and political parties. A political party may wish to place an advertisement in a media organ. Bargaining takes place, as a result of which the party obtains a sizable discount for the advertisement. The amount of the discount is not in vain. It is the discount of corruption.” 461 By the beginning of 2001, the unlawful position of the media owners was corrected with amendments to the existing media bill. The new law enabled the media conglomerates not only to enter bidding on government contracts but also conduct business on stock exchange. From then on insider trading among the media groups became a settled practice on both the individual and institutional levels (Şarlak/Bali 2007: 19). Historically, the transformation of the media-politics relationship to that of a media-politics-business liaison got its start during the Turgut Özal governments. In the face of criticism by media organs of certain of Özal’s policies during his term of office (1983-1989) and who also brought to the fore claims of corruption by family members, he turned to a close associate, the businessman Asil Nadir. Nadir, who up to that point in his career had made no investments in the sphere of the press, forged a press group favourable to Özal by purchasing a stream of contemporary leading newspapers and magazine groups. The first private television channel in Turkey (Star-1) was founded in 1990 despite the lack of any legitimate basis, but with the open support of Özal, who then occupied the office of the president of the republic. In the first phase, the owner of this channel, which was broadcast from outside the national frontiers, was the Uzan group, which was later to be put on trial for grand corruption. It was shortly revealed that the channel’s partner was Ahmet Özal, one of the president’s sons. Thus, as Şahin and Aksoy (1993) state “while the liberalization of the broadcasting system was carried out 462 through deregulation in much of the Western world, Turkey took a short cut through what might be called delegalization”18 Once the necessary legislative infrastructure for lifting of the state monopoly over television broadcasting had come into force in 1994, the interest by businessmen in the media sector gained momentum. The legal provisions intended to check the cartelization of the media and the use of media power for commercial benefit remained a dead letter, however (Darendeli 2007). Resorting to fraudulence, the new media bosses not only entered bidding on government contracts, they overstepped the legal boundaries applicable to owners of media organs (Önderoğlu 2008). Especially, the developments in the second half of the 90s fully revealed the corrupt nature of relationships amongst politics, media and business. Two rival media groups of the time, the Sabah Group and The Doğan Group, instigated a strong fight during the general elections of 1995, over the support they gave to the two centre-right parties Motherland Party and True Path Party which did not have many differences in their political visions. However, surprisingly enough, the winner of the elections was the Pro-Islamic Welfare Party which underlined their “Just Order” project against the unequal income distribution and corruption throughout the election campaign. Welfare Party had existed in the political scene of Turkey since 1970s and it was the continuation of an Islamic movement that was representing the Anatolian capital, middle and small scale entrepreneurs. Despite its anti-system discourse, WP’s manner 18 Özal’s response to charges that this was unconstitutional – “Just one violation won’t break the constitution” – has assumed a place in the forefront of memorable quips that expose the mental horizons of Turkish political leaders. It recalls the former prime minister and the former President Suleyman Demirel’s famous response “If I did so, so what” (“Verdimse ben verdim”) when confronted with the accusation that his government had indulged in an act of political favouritism. 463 of conducting politics and consequently its relations with the media exhibited no significant difference from those of the central parties whose voting base was rapidly diminishing. By virtue of the opportunities afforded by the liberal milieu, by 1990s its base, the conservative “Anatolian capital,” had already transformed into a “Islamist bourgeoisie”19 Certain members of this class, similar to their counterparts made investments in media regardless of the profitability. Their unconditional support of WP via media channels was granted their reward in the commercial arena. The power derived through ownership of media vehicles promoted favouritism within their own groups. The axis of conflict in the struggle between the pro-secular and Islamist media in the second half of the ‘90s displayed greater stratification. In conjunction with their concerted attack on the WP government on the ideological plane, under the sway of the military authorities, Istanbul capital which was part and parcel of the media cartels, which clearly viewed the impetus effected by the Islamic capital as objectionable. The conflict in interest between these two capital investor groups – one old, one new – was directly reflected in their one-sided selection of news on corruption and the manner in which it was reported. (Şarlak/Bali 2007: 23-25). Overall, the rival media groups remained largely deaf to the charges directed at themselves and the politicians for whom they were partisans. In the period leading up to the 2002 general elections, politicians finessed a series of trade-offs in exchange for support of the weak coalition governments that were 19 This new business class were organized under the name MÜSİAD (Independent Businessmen’s Association) and İŞHAD (Business Life Solidarity Association) in the first half of the 1990s. 464 formed one after another. In a recent interview, Dinç Bilgin20, the former owner of the Sabah Group, summed up the “gains” of the media groups as follows (Düzel 2010): “After 1995, what you might call a division of the spoils began to take place […]. Let’s say a government contract was to be let for energy distribution licences. The one was going to İhlas (a media group close to WP), the other was going to Erol Aksoy’s Show TV (a businessman close to Turgut Özal), while another was going to another media enterprise. The situation in Turkey had taken on an anomalous form. […] During the years 1995–1997, the shape of the economy underwent a transformation, and every media enterprise owned a bank […]. The story of the newspaper Sabah (Bilgin’s former newspaper) entering into a monetary relationship with the government began during this period. When one is a bank proprietor, when a monetary relationship occurs between you and the government, like it or not, your freedom vanishes. That is how journalism came to an end in this country.” Through the fiscal operations following the 2000-2001 economic crises, most of the banks that were owned by the media groups were transferred to the Savings Deposit Insurance Fund (SDIF) because of their debts to the state. As a result of the transfers of the media firms along with the banks, SDIF became the largest “media patron” of the country. The Doğan Media Group was the only group in this sector that suffered no setback as a result of this collapse. AKP came into power with its 34.28% share of the votes in the 2002 General Elections and gained the control over the media. Since AKP criticized the “uncontrolled growth of media” harshly when it was in opposition, it started the 58th government 20 Dinç Bilgin was arrested in April 2001for siphoning off millions of dollars from his bank (Etibank) and setting up a criminal gang to carry on illegal activities. 465 program with delivering a promise to normalize the media-politics and media-business relationships according to liberal democratic norms. 21 Contrary to the promises made to break the monopoly and ensure a pluralist media structure, AKP repeated what past governments did and constructed its own media block. The media organs in the body of the SDIF were introduced into the patronage of the AKP partisan groups. The ruling party’s evident aspiration to extend its influence over the media can be illustrated by the sale of Turkey’s second largest media group (Sabah-ATV) to Çalık Holding, where prime minister’s son-in-law is a general manager. That deal was made possible by generous loans acquired through favourable terms offered by a state-owned bank. As a result of intense financial and political pressure, Kanaltürk, which was an anti-government TV channel, was sold to a business group close to the government. As of 2008, Turkish media has been under the influence of two poles; Doğan Media Group and the media block close to the government. In the beginning of September 2008 both sides started attacking each other over corruption allegations (Holland/Kayakiran 2009). During this time, the politics once again lost its credibility over the fight against corruption without concession. Meanwhile the biggest media group in Turkey contradicted its own publishing principles against the “degeneration in press” that it had announced in the beginning of 2002, as part of its share in the anti- 21 The issue was addressed in the program of the 58. Government as follows: “Our government advocates for the development of the media, which is responsible for delivering the correct information and being in control in a competitive and pluralist manner as a matter of a pluralist democracy and competitive market. The relationship of media and politics who make up the different parties of a public service, will be based on democratic values and the rule of law.” 466 corruption trend. It resorted to concepts like freedom of speech and democratic rights to defend itself against government’s counterattacks. The comment of a former editor in Doğan media group on the corrupt nature of media-politics relations is worth quoting at length (Şarlak/Bali 2007: 19): In early 1990s the term “clean society” was operationalized by some media organs for the first time. They were making daily news of corruption related to every institution, from army to opposition and the government in charge. Their target was not to create a clean society but to be able to give such news by introducing the term itself. However, recently one cannot read such news in the press. Now, the term lost its meaning. TUSIAD (Association of Turkish Industrialists and Businessmen) for example, has quite strict ethical codes. The same codes exist in the publishing commission of Doğan Group. They claim easily that they are clean because they have such codes. The existence of these codes of ethics look as if there is significant improvement in this sphere compared to practices of the past. However, the situation is worse at present. Because, they declare something that does not exist in reality. One should ask the question whether the relation between the news about “Turkey will become Malaysia” (a threatening remark related to conservative nature of the AKP government in Doğan Group’s newspapers) and the wish of Doğan Group to purchase the land of Hilton (from a privatization sale) have nothing in common. These two things are absolutely connected. But, the Doğan Group has certain ethical principles of publishing. The daughter of the owner of Doğan Group is (was) the president of TUSIAD. When all these evaluated, what is going on is as follows: In the past, it was the events, people and institutions that were dirty. It was necessary to put forward concepts such as “clean society”. But now these concepts also became dirty. The windfall of pro AKP media in the public procurements once again proved that what changed was not the system but only the actors. As for the mainstream media, its idea of corruption stays open to contextual interpretations. In such a picture, it is not 467 surprising to see the Turkish media at the bottom of the credibility rankings in public opinion polls. Conclusion Corruption is systemic problem in Turkey. However, to perceive the politician as the chief culprit of this problem means to ignore his cohorts in the corruption relationship, so that this presents an obstacle in the consideration of this issue and in developing proposals for its resolution. Today, to be able to struggle against the corruption in Turkey in a realistic manner and to be able to achieve successful results, first of all, a political will directed at changing the conditions that have been noted and behind that political will, a broad voter support are necessary. One must see the necessity of a extensive package of countermeasures for the battle strategy against corruption in Turkey that place higher importance on the creation of an understanding of participatory democracy and its institutional instruments. Similarly, participatory democracy produces free will and free will is accompanied by control. The problems that have arisen due to the eternal conflict between state and society and the state and the politician, has always formed an obstacle to the formation of a public agreement on the rules of the game and therefore a sound public conscience. In this picture, the structure of the relationship between the political representative and the society in general is far removed from achieving activity en masse. On the other hand, so long as the boundaries that the state itself has established remain intact, one cannot expect the politician to abandon his economic tools that grant him the authority to award or, in certain instances, to penalize both the businessman and the voting masses, i.e. the sources of his subsistence in the political arena. To state it 468 differently, so long as being in the political arena is limited to the distribution of economic resources, it is quite unrealistic to imagine the relinquishing of a system that veils the “corrupt” aspects of this relationship chain. As far as the bigger picture is concerned, it is clear that what is defined as global anti-corruption paradigm in this article falls short in changing this system. On the contrary, because of its inherent anti-democratic nature, this train of thought reinforces the corruptive patterns in the system. Today in Turkey it is widely accepted that corruption has increased after the 1980s via the transition to a liberal economy. This paradigm, by detaching corruption from its ethical dimension and sociocultural conditions, reduces corruption to the market scale. In other words, it implicitly defines corruption as an economic problem that threatens foreign capital and disturbs the market competition. 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