Sek Barisoth, Director of Media Program, Pact Cambodia
Corruption continues to rage and negatively impact all sectors in Cambodia. The cycle of the powerful exploiting the weak, stealing state resources for the benefit of a few, resulting in officially-budgeted amounts not reaching intended beneficiaries and informal fees being expected for practically any government service, is the norm rather than the exception.
In 2004, the government adopted the “Rectangular Strategy for Growth, Employment, Equity and Efficiency”. The Rectangular Strategy was intended to guide the policies of the government of Cambodia between 2004 and 2008 and it has now been extended to the second phase. At the core of the Rectangular Strategy is “good governance? which is to be achieved by reform in four key areas, including anti-corruption. By adopting the Rectangular Strategy, the government has put anti-corruption measures at the heart of its plan to foster sustainable growth in Cambodia.
The centerpiece of the government’s anti-corruption reforms is supposed to be passage of the Anti-Corruption Law. However, the Anti-Corruption Law has existed in draft form for more than 15 years, and although the government has recently approved the draft, nobody knows when it will go through the National Assembly. Its passage was listed as a key benchmark of progress in the Joint Monitoring Indicators of the Consultative Group’s 2004 Meeting (the annual government-donor meeting when donors decide how much aid they will pledge to Cambodia). Regrettably, the current draft approved by the government is somehow in obscurity, since nobody has had access to it or knows is contents.
On Transparency International’s annual Corruption Perceptions for 2008 Cambodia ranks 166 out of 180 countries. Among the countries in the region of Asia-Pacific, the country ranks 30 out of 32. Only Afghanistan and Myanmar rank lower. In 2007 Cambodia ranked 162 out of 180 and in 2006, 151 out of 160 countries. Encouragingly perhaps, the 2009 Index places Cambodia a bit higher, at 158 out of 180 countries. However, it is still among those near the bottom of the list.
A corruption barometer survey by Transparency International in February 2008 revealed that 72 per cent of Cambodians reported paying a bribe to receive a public service in the last year; 61 per cent did not expect corruption to decrease in the next three years, and 42 per cent expected it to rise.
However, corruption in Cambodia is not just about corrupt politicians and high-ranking officials. “An analysis of everyday forms of corrupt practices in Cambodia?by the Phnom Penh-based Center for Social Development showed in 2005 that the corruption virus has infected almost the entire population, and it is still the case as of today. Bribes have become practically obligatory for any service delivered, including education and healthcare.
USAID-funded research in 2004 disclosed that Cambodia lost USD 300?00 million a year to corruption—about half the national budget. Another study conducted and released in 2006 by an independent research organization, the Economic Institute of Cambodia, commissioned by Pact, revealed that Cambodia lost around USD 330 million in 2005 just to unofficial fees in the private sector. Though there has been no update figure available since then and Cambodia’s ranking on Transparency International’s CPI for 2009 suggests a relative improvement, the Cambodian public still sees corruption as one of the most serious concerns.
Overview of existing anti-corruption mechanisms
Everybody acknowledges that Cambodia has a significant corruption problem. The government recognizes the problem and has made combating corruption a key part of its plan for sustainable growth in Cambodia. Both the donor community and the government have focused on passage of the Anti-Corruption Law as the centerpiece of this effort. However, there are a number of mechanisms that already exist and could be used to fight corruption. In 2005, Pact commissioned a study of the existing anti-corruption mechanisms (“Existing mechanisms for addressing corruption? by legal consultant Stuart Ford, 2006, available online at www.pactcambodia.org). Though the study was 4-5 years ago, the data are largely still valid, since generally there has been almost no change or no progress at all in the government’s anti-corruption reforms, as in the case of the delay from year to year of the passage of the long-awaited Anti-Corruption Law. The following are just parts of the findings from that study which related to legal mechanisms, with a little update information that I would like to share with you.
Even without the Anti-Corruption Law, corruption is already illegal in Cambodia. This is primarily the result of the UNTAC Law. The UNTAC Law criminalizes embezzlement by public officials, corruption, forgery of public documents and bribery. The law forms the basis for most substantive criminal law in Cambodia. It lays out the elements of the crimes and their punishments. It contains four articles that prohibit various aspects of corruption. There is also a special provision within the Law on Taxation that criminalizes corruption by tax officials. There are no special procedures for corruption investigations or trials in the Cambodian courts, and criminal corruption cases are treated like all other criminal cases under the Law on Criminal Procedure.
The four central corruption-related provisions of the UNTAC Law are as follows:
Corruption (article 38)
Like any crime, the crime of corruption is composed of individual elements. Each of these elements is derived from the language of article 38. The elements of corruption are that:
1. A government official;
2. Acting in the course of his or her duties;
3. Solicits, attempts to solicit, receives or attempts to receive;
4. Any benefit;
5. In exchange for any other benefit.
The key to the crime of corruption is that a government official is receiving or requesting something (which could include money, property, services, favours, or anything that has value or confers a benefit) in return for using his or her official position to confer a benefit on the person giving the benefit. In order for an individual to be convicted of corruption, each of the elements listed above must be present. If an individual is found guilty of corruption, they can receive a prison sentence of between three and seven years. It is also worth noting that the existence of a criminal charge arising out of an act of corruption does not preclude a parallel administrative proceeding arising out of the same act.
Bribery (article 58)
Article 58 of the UNTAC Law states that any person who corrupts or attempts to corrupt any elected official, civil servant, military personnel, or official agent of any of the four Cambodian parties to the Paris Agreement or of any registered political party who, while performing official duties or tasks related to such duties, by promising property, services, money, staff, professional position, documents, authorization or any benefit whatsoever in exchange for one of these same benefits is guilty of bribery and shall be liable to punishment of one to three years in prison. Based on this, bribery has occurred when:
1. Any person;
2. Corrupts or attempts to corrupt any government official;
3. While that government official is acting in the course of his or her duties;
4. By promising some benefit;
5. In return for receiving a benefit.
Embezzlement by public officials (article 37)
The UNTAC Law also makes embezzlement by public officials a crime. Any elected official, civil servant, military personnel or official agent of any of the four Cambodian parties to the Paris Agreement or any political official who, while performing official duties or tasks related to such duties, with a view to owning or using, misappropriates, sells, rents, embezzles for personal profit, or for that of a third party, property, services, money, personnel, any advantage, document, authorization, or any function belonging to any public authority, is guilty of the crime of embezzlement of public property and shall be liable to imprisonment for a term of three to ten years. Embezzlement by a public official occurs when:
1. A government official;
2. Acting in the course of his or her duties;
3. Misappropriates, sells, rents or uses;
4. Any public function;
5. Either for personal profit or to profit a third party.
Forgery of public documents (article 49)
Article 49 of the UNTAC Law states that any elected official, civil servant, military personnel, or official agent of any of the four Cambodian parties to the Paris Agreement of or any registered political party who, while performing official duties or tasks related to such duties, commits a forgery, either by false signature, or by alteration of a deed, writing or signature, or by impersonation, or by false entry into a registry or other public deed after its execution or closing, and any person knowingly makes use of the same, is guilty of forgery of a public document and shall be liable to a term of imprisonment of five to fifteen years. Forgery of public documents occurs when:
1. A government official;
2. Performing official duties;
3. Commits forgery by:
a. Falsely signing a document;
b. Altering a deed, writing or signature; or
c. Falsely entering something into a public registry or public deed after its closing or execution;
4. And any person knowingly makes use of that forgery.
Criminal corruption trials in practice
Unfortunately, even though the UNTAC Law criminalizes corruption, bribery and embezzlement by public officials, in the past there have been relatively few prosecutions for these crimes. Between 1992 (when the UNTAC Law was adopted) and 1999 there was not a single prosecution for corruption-related offenses, despite widespread acknowledgement that corruption was rampant within the government.
It is often difficult to find reliable information on cases in the Cambodian courts, but the situation appears to have improved in recent years. Today, court cases against lower-ranking provincial officials are moderately common. In some cases, higher-ranking officials (like provincial governors and deputy-governors) appear to be able to use their political connections to protect themselves, but there have been cases against provincial governors. In general, the system seems to be much more responsive to charges of corruption against lower-ranking officials than it was six or seven years ago. However, publicly discussing the involvement of senior central government officials in corruption is still very risky. Allegations of corruption against senior central government officials have tended to result in defamation or disinformation charges against those making the allegations. Defamation was a criminal charge, and then was changed to a civil charge; however, it has been restored as a criminal charge under the new Penal Code, which will soon come into effect. Disinformation is a criminal charge.
In 2006, there have been quite a few corruption trials against provincial officials, often arising out of allegations of participation in illegal logging or land-grabbing. In one illustrative case, 14 officials from Ratanakiri province were charged with involvement in a multi-million dollar logging operation that took place in Virachey National Park. Initially, the case stalled because local court officials were unwilling or unable to investigate the allegations. However, the investigation resumed after it was transferred to Phnom Penh Municipal Court. Ultimately, 11 low-ranking officials, including park rangers and border police, were tried for accepting bribes to allow trucks containing illegally logged wood to leave the national park. However, the trials of the three highest-ranking officials—a former provincial governor, the former provincial police chief, and the local military commander—were postponed for some time because of alleged problems with the witnesses and evidence. The trial was then resumed, although the former governor is still at large. The outcome of this case, at least so far, suggests corruption trials against low-ranking officials are becoming more common but that higher-ranking officials may in some cases have the political connections to avoid (or flee from) corruption charges.
In another illustrative case, the World Bank froze funding on several projects in May 2006 after an internal investigation concluded that there was evidence of corruption by government officials. The government initially responded with skepticism and several senior government officials, including Prime Minister Hun Sen, questioned the bank’s findings. However, in July 2006, the former director of one of the suspended projects was arrested and charged with embezzlement under article 37 of the UNTAC Law. He was accused of embezzling more than USD 800,000 from four road-building contracts and was immediately placed in pre-trial detention. However, months later, he was reportedly freed on bail pending further investigation. But there has not been any further action reported on the case since then.
There is considerable corruption in the process of collecting taxes. According to a study by the Economic Institute of Cambodia, the government only collects about 25 per cent of the potential tax revenue, largely because of “unofficial payments being made to government officials in order to avoid paying taxes? Nevertheless, a search of public documents and newspaper reports does not reveal any prosecutions of tax officials for corruption under the UNTAC Laws or under the specific provision in the Law on Taxation. Although the head of a taxation department was publicly named in a speech by the prime minister for involvement in cheating on imported battery taxation, he was merely transferred to another post.
Administrative proceedings
In addition to formal criminal proceedings for corruption, which can lead to imprisonment and the possibility of parallel civil claims for payment of damages, various Cambodian laws also create administrative proceedings to address corruption. These administrative proceedings, which are generally conducted within a ministry or government department, may result in employees being reprimanded, demoted, losing benefits, or being terminated. There is no barrier to a government employee being charged with a corruption-related crime, being sued in a parallel civil action, and also being charged under one of the following administrative proceedings. Different classes of government employees are subject to different administrative proceedings. For example, judges are subject to one procedure, while civil servants are subject to a different one.
The Law on the Common Statute of Civil Servants regulates the work of Cambodian civil servants, excluding judges and civil servants in the legislative branch of government. In the course of their work, they are required to respect the law and are forbidden to “use the prerogatives and authority of their position for personal profits or to threaten or violate the rights of citizens?
Nevertheless, there appears to be no publicly available information on how many disciplinary procedures are carried out under the Law on Civil Servants. In fact, numerous people who work with the government, including a number of Khmer lawyers, when asked were not aware of the civil service disciplinary procedures. This suggests that either the proceedings are accompanied with an unusual level of secrecy, or that they do not occur very often.
Informal mechanisms
While there are numerous legal mechanisms for addressing corruption, many of which have been discussed above, studies on the impact of corruption consistently show that the rural poor (who comprise the majority of all Cambodians) do not use these formal dispute resolution mechanisms. Indeed, most corruption is not reported or addressed in any way. Opposition to corrupt or illegal acts seems to occur most often when the acts affect a large number of people at the same time, and there is the possibility of collective action to address it. However, even when collective action is taken, it does not seem to follow the formal rules for reporting or addressing corruption. When corruption is aimed at individuals or single families, most Cambodians seek to cope with it rather than report it.
Most Cambodians dislike corruption and recognize that it is negatively affecting their standard of living and access to services, but they feel powerless to do anything about it. Instead of trying to address corruption, most people simply cope with it. Coping mechanisms are varied. Some people simply avoid the public sector entirely, foregoing many of the services that the government should be providing because they cannot afford the payments that would be required. For example, people might not have birth certificates for their children and might not be registered with the local authorities. They might barter their foodstuffs with neighbors rather than going to the market and being forced to pay bribes along the way. If they can afford it, people might send their children to private schools and visit private health care clinics rather than government facilities.
Another coping mechanism is to try and create personal networks that can cushion the impact of corruption. Studies show that individuals who have a personal or familial relationship with an official at the service provider can avoid or minimize the corruption payment. In addition, someone who has a high-ranking patron can often avoid making payments because the official who might otherwise expect a payment is afraid of antagonizing the patron. Social networks are very important for minimizing the impact of corruption at the village and commune level. Unfortunately, the poor tend to have the smallest social networks and are thus most susceptible to corruption. People may also negotiate over the amount of the payment. This is often combined with lying about how much money the family has. In many cases, however, it seems that the payment amount for certain services is established by custom and there is little room for negotiation.
Even civil servants have reported being unable to complain about corruption, despite theoretically being better placed to do so. Civil servants tend to have a better understanding of the government’s structure and rules, and better social networks, yet it is precisely these social networks that prevent them from complaining. Civil servants depend on patronage relationships with their superiors for job security, promotions, and access to jobs that allow for collection of unofficial payments to supplement their income. They report being afraid to complain about corruption to superiors because it would destroy the patronage relationships on which they and their families rely.
Conflict of interest is either ignored or overlooked when it is seen as playing a substantial part in corrupt practices. It becomes almost a norm that the head of an agency not only employs his or her family members or relatives in the same institution but also appoints them to the positions of finance director, chief of cabinet, etc., and there are many cases when a bidder that won a contact, say a construction contract, was a relative of the head of the procurement committee.
Conclusions
The most obvious conclusion is that there is a great deal of corruption in Cambodia and that most of it is not reported, investigated or punished. There are numerous reasons for this. Many Cambodians do not report corruption because they do not believe the government will do anything about it and because they are afraid that they will be retaliated against for reporting it. In addition, the patronage system within the civil service makes it very difficult for government officials to report corruption without risking their careers. In fact, many civil servants?salaries are still too low to support a family, which results in a system where many government employees supplement their income through low-level corruption. Another problem is that the government’s position appears to be rhetorical rather than realistic. Corruption may be investigated if it is brought to the attention of the government and if the government sees it is attached to a political gain. Finally, perhaps the biggest problem is that too many people profit from corruption and too few are punished—the ratio of risk to reward is weighted too heavily in favour of the people who profit from corruption.
While a study of anti-corruption mechanisms should look into aspects such as the institutional mechanisms, a rough overview of the legal mechanisms and real actions taken, as above, may be enough to suggest that the problem is more one of a lack of seriousness and real political will rather than the mechanisms themselves.
Even without the Anti-Corruption Law, the existing legislation plus other sector-based legislation such as the Tax Law, Land Law, Education Law, Forestry Law, Fishery Law, and Labour Law, all of which criminalize acts of corruption, can be used to address corruption at least to some extent. But the absence of real prosecution and punishment amid rampant corruption in the country makes the government’s political will highly questionable and hence it will never go further without being pressured by serious and sustained demand.
Out of this conclusion Pact has been working hard over the years with its local partners on public awareness-raising on the costs of corruption and their impact on people’s daily lives, generating more and more public demand for the passage of the long-awaited Anti-Corruption Law, as in the case of the so-called Million Signature Campaign in 2008, just before the general election taking place. The draft Anti-Corruption Law is likely to be passed by the National Assembly by the end of the first half of this year. However, as nobody has had access to the draft so far, nobody knows what the law will be. Anyway, having the law enacted will at least strengthen the message that corruption must be addressed and it should not be tolerated anymore. It is likely that the legislation may be used at the beginning to catch just small fish. But the scope of its enforcement could be expanded over time, since fighting corruption is definitely a long-term endeavour. In the meantime, for the law to be considerably useful, the issue of conflict of interest must also be seriously and widely addressed.
Civil society, political parties, the private sector and donors could help with long-term campaigning. The government’s current reactive approach to corruption appears to be driven by several factors, including: 1) lack of proven political will but strong political rhetoric; 2) lack of staff; 3) lack of training; and, 4) lack of funding. While the donor and civil society community probably cannot help with the lack of political will, it could help alleviate the other limiting factors. Assistance might include: 1) training to prosecutors and investigating judges on the prosecution of existing corruption-related crimes; 2) training to police on investigating corruption-related crimes; 3) financial support for corruption investigations, like paying for transportation expenses, office equipment, etc.; 4) providing sub-grants and technical assistance to local organizations that work on corruption at the national and local levels; 5) establishing a coalition that has a strong voice to demand more action be taken by government to address corruption; 6) supporting political parties to make anti-corruption a major political issue; 7) providing education with the private sector on corporate social responsibility; 8) demanding further progress on administrative reform; and last but not least, 9) establishing a freedom of information law. Of course, to be successful, support will have to be accompanied by evidence of commitment to address corruption.
