Publish in Trade Talk - Wednesday, March 16, 2022
The legal community in El Salvador has expressed special concern about the use of bitcoin, which have illicit origin of resources and corruption implications, being also the source of funding very difficult to track. (Photo: El Salvador President's Office)
Lack of independent institutions a key shortcoming in region.
BY LATINVEX STAFF
Efforts in Latin America to counter corruption are insufficient and ineffective, according to the Latin America Anti-Corruption Assessment 2021-2022 by the Lawyers Council for Civil and Economic Rights of the Cyrus R. Vance Center for International Justice.
“Efforts to combat corruption in the region are insufficient, particularly because authorities are not independent and do not have the capacity to implement existing legislation; we see significant setbacks in some countries,” Vance Center Latin America Policy Director Jaime Chavez Alor said in a statement. “The legal community must play a more active role in ensuring that the application of the law is more effective.”
The report assesses legal efforts and shortcomings in preventing and redressing corruption in seventeen countries, identifying three main issues:
--There are legal efforts to counter corruption, but these efforts are unproductive if laws aren’t accompanied by actions to implement those laws.
--There are many efforts to punish corruption, but efforts to prevent it are insufficient and ineffective.
--Institutions in charge of countering corruption are not independent and do not have the capacity to investigate and punish corruption.
Corruption has had a significant impact on governments and public spaces in Latin America, thus becoming one of the largest and most complex problems identified by citizens in their environment and society, the new report says. The fight against corruption has therefore been a growing priority on the public agenda of the countries of the region. However, there is still a discrepancy in most countries between the public agenda in speech, and reality.
Insufficient or inadequate legislation to deal with corruption, institutional weakness resulting in a lack of implementation of anti-corruption policies, as well as ineffective investigations to punish acts of corruption, undermine the rule of law, the Lawyers Council argues.
Unlike other efforts that focus on measuring corruption or the perception of corruption, the Lawyers Council's effort is addressed from a legal practice perspective to analyze legislative, regulatory and institutional efforts to prevent, sanction and fight corruption in each country.
The report found that many anti-corruption efforts are focused on penalizing, but not on establishing effective mechanisms to prevent or report corruption:
--Prevention policies in the public sector, if they exist, are weak and ineffective.
--In most countries, there is no regulation to establish anti-corruption mechanisms for private-sector enterprises, and if there are, there are no guidelines for compliance and monitoring.
--In half of the countries, there are insufficient or missing mechanisms for protecting whistleblowers.
Many anti-corruption authorities are not independent and have no capacity, it says:
--The mechanisms for appointing counterparties, prosecutors and judges are often political, and are not based on the merit and capacity of individuals.
--Anti-corruption authorities do not have sufficient financial and human resources, training and technology to prevent and investigate acts of corruption.
--In most countries, coordination mechanisms between authorities do not exist, are not used, or are insufficient.
The 2021-2022 edition detected some setbacks in the independence and capacity of authorities in Guatemala, Mexico and Peru.
The lack of political will to fight corruption has led to non-existent anti-corruption efforts in countries such as Venezuela, or to see regressive policies such as Guatemala, Honduras, or El Salvador.
According to the legal community consulted, the anti-corruption regulatory framework is insufficient. Particular attention is drawn to the need to establish strong sanctions for nepotism and cross nepotism, to establish longer periods for prescription and to provide for the repair of damage in cases of corruption.
Particularly in El Salvador, the problems in the fight against corruption seemed to have little to do with the legal framework.
“From the information provided by the consulted legal community, the main challenges for the applicability of the legal framework are strong control of the executive branch and political use of the fight against corruption, insufficient detection and prevention mechanisms for corruption, and lack of judicial independence and/or judicial procuring bodies,” the report says.
A sign of the lack of political will of the current executive branch is the termination of the 2019 cooperation agreement with the Organization of American States (OAS) to support the International Commission against Impunity in El Salvador (CICIES).
Additionally, the legal community in El Salvador has expressed special concern about the use of digital currencies such as bitcoin, which have illicit origin of resources and corruption implications, being also the source of funding very difficult to track, according to the new report.
Although fighting corruption was one of the key campaign pledges for President Andres Manuel Lopez Obrador in 2019, progress in Mexico has been incomplete, the Lawyers Council report says.
“Despite the strength of the legal framework, the consulted legal community emphasizes that the main challenges for the applicability of the legal framework include insufficient political will for its implementation (despite being one of the priorities of the current president), inadequate economic and human resources for anticorruption agencies, insufficient judicial independence and/or judicial procuring bodies and inadequate training of public officials,” it says. “The consequences of some of these challenges are selective justice and impunity.”
The report also singles out a key change in the Dominican Republic, where president Luis Abinader has made the Attorney general’s office de facto independent. In an unprecedented move, he announced during his August 2020 inauguration that he would make the Attorney General’s office independent. He also named Miriam German, a well-respected former Supreme Court judge, and Yeni Berenice, a well-respected former prosecutor, as attorney general and deputy attorney general.
That led to the attorney general’s office to start aggressively probing and charging corruption in a series of high-profile cases
“The legal community consulted identified the Office of the Attorney General of the Republic as the most effective authority in combating corruption. The consulted legal community mentions that the change with the current holder is evident, unlike previous holders,” the Lawyers Council report says. “However, they recognize that there is no strong institutional design so that if the holder changes, he changes capacity and responds more to the interests of public power.”
Abinader has proposed a constitutional reform to make the Attorney general’s office permanently independent no matter who is president.
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