Reducing Corruption in Public Administration through Evidence-Based Law: Using Data to Design and Implement Ethics-Related Administrative Law
Bryane Michael, Indira Carr & Donald Bowser
ABSTRACT: The prosecution of high profile multi-national corporations (MNCs) over the past decade for bribery of public officials has raised the need for drafting ethics-related administrative law. The negative impact of corruption on the infrastructure has been well discussed over the years resulting in the formulation of a number of anti-corruption conventions. Chief amongst them are the OECD Convention on Bribery of Foreign Public Officials in International Business Transactions, 1997 and the United Nations Convention against Corruption, 2003. The latter, alongside criminalization, promotes a number of preventive measures to combat corruption. Amongst these are codes of conduct for public administration. So, how should countries draft ethics-related administrative law? Should such law be driven purely by normative ethics based on how one ought to act? Or, should we take into account empirical data in drafting ethics-related administrative law? A related question is who should oversee these ethics-related laws? This paper posits that empirical data plays an important role in deciding which provisions to include in ethics-related law and when deciding on the division of competencies between agency directors, ethics officers, human resource directors, internal auditors and others. We also provide suggestions on how to draft subsidiary legislation (mainly executive agency regulations) based on explicit or implied competencies given by national legislation. We then discuss how to conduct the organisational, legal, economic and audit analysis needed to allocate ethics-related rights and obligations across-government and within the Agency. This paper serves as a lone counter-weight to the principles-based approaches flooding the literature in this area. We illustrate our discussion through examples drawn largely from Romania and Hungary.