myths of political independence, or how not to solve the corruption problem: lessons for vietnam

Original Article

Myths of Political Independence, or How Not to Solve theCorruption Problem: Lessons for Vietnam

Martin Painter*

Abstract

Corruption is widely identified as a criticalproblem for developing economies and is alsoviewed as a priority issue by internationalorganisations and donors. Governments suchas Vietnam place anti-corruption high on theirpolicy agenda. However, external observersregularly criticise them for not meeting theirtargets. The problem with the critique is that itmostly places the blame on implementationfailures when the issue is as much a designfailure. Templates for anti-corruption successin fact misread the practical lessons. Oneelement of the standard template, the need foran ‘independent’ anti-corruption enforcementsystem, misreads the meaning and empiricalreality of ‘independence’. Evidence is pre-sented from Singapore, Hong Kong andIndonesia to show that their anti-corruptionagencies are ‘independent’ more in the sensethat they are powerful, rather than in the sensethat they are apolitical. The lesson for Vietnamis that misleading design principles such as‘political independence’ are a distraction fromthe task of strengthening the anti-corruptionlaw enforcement system.

Key words: corruption, Vietnam, good gover-nance, political independence, anti-corruptionreform

1. Introduction

In 2004, the World Bank proclaimed on itswebsite that corruption was ‘the single greatestobstacle to economic and social development’(quoted in Bukovansky 2006, p. 191). In manyEast and Southeast Asian countries, domesticpoliticians are publicly committed to and sup-portive of anti-corruption (AC) efforts. Publicand media exposés and criticisms of corruptioncreate political anxieties for political leaders,not only in democratic but also in authoritarianregimes in the region. AC activists in many ofthese countries (including Vietnam) work closelywith international organisations, promoting amore or less standard set of diagnoses and rem-edies, within the framework of a wider ‘goodgovernance’ discourse. From this perspective,there is much borrowing and emulation fromthe apparent ‘success stories’ across the world.The remedies within this discourse emphasiseenhancing citizen voice, including press free-doms; judicial reform, especially the creation ofan ‘independent’ judiciary; civil service employ-ment reform; modernisation of public manage-ment systems, including removing unnecessarylayers of regulation and bureaucracy; toughAC laws; and politically independent, special-purpose AC law enforcement agencies.

The subject of this article is the relevanceof overseas experience and contemporaryAC reform templates for Vietnam’s recent ACefforts and prospective reforms. The mainfocus is on two aspects of these AC measures,namely investigation and enforcement. It draws

* Emeritus Professor, Department of Public Policy,City University of Hong Kong, Hong Kong;email: �[email protected]�.

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Asia & the Pacific Policy Studies, vol. 1, no. 2, pp. 273–286doi: 10.1002/app5.22

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primarily on material gathered during aresearch consultancy in 2012 for the Hanoioffice of the United Nations Development Pro-gramme (UNDP), the findings of which arepublished elsewhere (Painter et al. 2012). Theresearch included not only a survey of overseasliterature and published sources on AC experi-ence in other jurisdictions, and an extensivereview of Vietnam government legal docu-ments and internal reports on AC, but also aseries of discussions with public officials inHanoi in September and October 2012.1 Theconclusions drawn in the original reportincluded a set of proposals and recommenda-tions based on an analysis of the historicalorigins and experience of AC investigationand prosecution regimes in Hong Kong, Singa-pore and Indonesia, as well as Vietnam. Thecurrent article extends and expands on theseconclusions.

Gainsborough et al. (2009, pp. 378, 397)argue that ‘corruption in Vietnam is a systemicproblem’ and that since economic reformbegan, ‘both the incidence of corruption and thesums involved have increased’. Corruption in

Vietnam occurs in many forms, includingstreet-level harassment by police officers andother government officials of ordinary citizensgoing about their daily lives; ‘under-the-counter’payments for medical, health and otherservices; demands for bribes from businessentities in the licensing and permissions pro-cesses; ‘purchase of office’in all areas of publicemployment; and theft of public resources(including land) by high officials, sometimeson a grand scale. Vietnam is firmly fixed inplace as one of the lowest ranked countriesin Transparency International’s CorruptionPerception Index (ranked 112 out of 182 in2011 and ranked 123 out of 175 in 2012).

The government has launched a series ofmeasures to deal with the problem. In 2005, itadopted an AC Law (amended in 2012), and in2006 it promulgated an AC strategy with boldand ambitious aims. At this time, it set up anumber of new special agencies and re-assignedroles and responsibilities, including a specialinvestigation unit in the Ministry of PublicSecurity (MPS); a designated AC office in theProcuracy (which handles prosecutions); and acoordinating body under a Steering Committeechaired by the Prime Minister. Vietnam signedup to the United Nations Convention againstCorruption (UNCAC) and made commitmentsunder it to conform to international standardson AC laws and enforcement, and to engagein international cooperation. It has activelysought international advice and assistance onAC reforms and has participated since 2007with donors and non-governmental organi-sations (NGOs) in an annual high-level ‘Anti-Corruption Dialogue’. Recent Party Plenums in2011 and 2012 have announced important newAC measures. In what was presented as a signof increased commitment, the Office of theSteering Committee in 2012 was moved andplaced under the wing of the Communist PartyCentral Committee, and the existing ministerialSteering Committee chaired by the PrimeMinister was disbanded.

Thanks to some of these efforts, Vietnamesereformers have been exposed to the good gov-ernance rhetoric and to the orthodox recipes forreform. While these remedies have dominatedmuch of the donor and local NGO reform

1. The officials concerned comprised Mr Duong VanPhung, Director General, and Mr Le Mai from Department1B on Prosecution and Procuracy for Corruption Cases,the Supreme People’s Procuracy; Mr Nguyen the Binh,Director General of Monitoring Adjudication of SeriousCorruption Cases, and Mr Hoang Cac, Deputy DirectorGeneral of Department III, the Office of the Steering Com-mittee on Anti-corruption; Mr Le Hong Hanh, DirectorGeneral of Legal Sciences Institute from the Ministry ofJustice; Mr Nguyen Dinh Quyen, Vice Chairman of Judi-cial Committee, the National Assembly; Mr Nguyen VanThanh, Deputy General Inspector, Mr Do Gia Thu, Direc-tor General of Legal Department and others from the GI;Mr Dang Van Hai, Deputy Director General and othersfrom the State Audit of Vietnam; Mr Dang Thanh Tung,Deputy Chief Inspector, the Ministry of Home Affairs; MrLe Ba Than, Chief Judge of Criminal Court, Ms Phung ThiLoc, Head of Division of Criminal Court, and Mr Vu TuanDuc, Deputy Head of Division of Criminal Court, theSupreme People’s Court; and Mr Ha Huu Duc, DeputyDirector General of the Research Department (the PartyInspection Commission of the Communist Party ofVietnam). The interviews with these senior experts wereconducted from 17 to 21 September 2012, and from 3 to 5October 2012. While these discussions were helpful incontributing to the information required for the researchstudy, the findings and judgments presented in this articleare the responsibility of the author and should not beattributed to any of those listed earlier.

Asia & the Pacific Policy Studies May 2014274

© 2014 The Author. Asia and the Pacific Policy Studiespublished by Wiley Publishing Asia Pty Ltd and Crawford School of Public Policy at The Australian National University

discourse, including in dialogues with publicofficials, they have not been fully adopted or, ifadopted, they have not always been imple-mented. On the one hand, this is interpreted byoutsiders as a sign of ‘window dressing’ andweak commitment, a view reinforced by thegrowing levels of corruption. But labelling it animplementation failure is a soft option; it is alsoa design failure (Gainsborough et al. 2009).This is not to deny serious implementationproblems, in that prevention measures andAC law enforcement are under-resourced andpoorly coordinated (Painter et al. 2012). Thepoint remains that in Vietnam, many of theremedies of the orthodox AC template arerejected outright because they contradict stan-dard precepts of Communist Party rule orbecause Vietnamese society and historical con-ditions are said to be ‘special’or ‘unique’. Evenif it is the case that the existing political lead-ership are ‘reluctant reformers’, it remains thecase that those who argue for reform need aplausible set of proposals that are at least half-way acceptable. As it is, the Communist PartyGovernment of Vietnam rejects key elements ofthe offered overseas templates. So far, neitherexternal donors and advisors nor local reform-ers have formulated a coherent set of alternativedesign principles.

There are two main dimensions to thedesign failures in this case. The first dimensionis to be wedded to offering remedies, eventhough they keep being rejected, in the beliefthat they are among the necessary conditionsfor success, when in fact this is based on amisreading of the actual reasons for success inother jurisdictions. The second dimension con-cerns reluctance on the part of both externaladvisers and local reform advocates to focuson how effectively to improve the existing ACsystem within the parameters set by the politi-cal regime, as distinct from seeking to trans-form it to conform to external models.

In this article, I first turn to an analysis ofone prominent and widely adopted templateof the ingredients of a successful AC programand, second, identify key areas where thelessons of success (particularly in Asia) that inpart underlay this template have been misreadand taken out of context. I then turn to the

case of Vietnam and describe the basic consti-tutional and institutional frameworks withinwhich AC programs are implemented. Finally,I discuss the possibilities of reform within theexisting system, drawing on both the reassess-ment of overseas lessons and also on currentreform trajectories in Vietnam.

What Works? A Best Practice AC Model

Emulation and learning from success storiesis a standard operating procedure of admi-nistrative reformers worldwide (Dolowitz &Marsh 1996; Common 2001; Dong et al.2008). In the case of borrowing and trans-plantation of AC success stories, several ofthe most commonly recommended templatesoriginate from some of Vietnam’s neigh-bours, in particular Hong Kong and Singa-pore. These cases are frequently taken asobject lessons in how a developing countrysuccessfully combats serious corruption.There is often debate over the details, such asthe role of a separate, independent AC inves-tigative and/or prosecuting agency in relationto the wider law enforcement system (Meagher2005). There are also disagreements over theemphasis on different strategies, such as pre-vention or punishment. But it is clear that afew key features of these jurisdictions’ expe-rience came to be widely diffused. From the1970s on a wave of imitation resulted in thewidespread adoption of special AC legislationand the establishment of AC agencies (ACAs;OECD 2008). The promulgation of AC strat-egies by international organisations such asthe United Nations and the European Unionhas further led to a common menu of ortho-dox solutions, most comprehensively set outin the UNCAC, to which Vietnam is a signa-tory. In brief, this template, as expressed inthe chapters and articles of this Convention(United Nations 2004), covers the followingelements:

• a set of AC laws that criminalise all formsof corruption (Articles 15 and 16), containsevere sanctions (Article 30) and includeeffective means to recover the proceeds ofcorruption (Articles 52 and 53);

Painter: Lessons for Vietnam 275


• a tailor-made AC investigation and pros-ecution system (Article 36) that has thepowers and resources to pursue all caseswithout fear or favour, has the ‘necessaryindependence’ and can resist political inter-ference (Article 6);

• a judicial process that is impartial (Article11), brings about convictions and appliesappropriate sanctions;

• accountability procedures, such as legis-lative oversight, transparency and publicreporting, to limit abuses of power in theprocurement, public finance and other keyadministrative activities (Articles 9 and 10),as well as the AC enforcement processitself;

• a public dissemination and educationprogram, including codes of conduct andethics training for public officials (Article7), that reinforces the prevention activi-ties of the AC law enforcement agenciesthrough building a supportive environment;and

• effective administrative discipline machin-ery within a well-entrenched, merit-basedcivil service system (Article 7).

AC reform is a key component of the ortho-dox prescriptions for ‘good governance’. Ashas been noted by Grindle 2004 (p. 526) in thecontext of these prescriptions, the drawing upof a recipe list is of no help in telling reformers‘what is essential and what’s not, what shouldcome first and what should follow. . .’.However, there are some clues about thesemissing parts of the recipe in the AC case inthe historical experience of success stories.Such experience is far more likely to yieldresults for lesson-takers than an abstractedmodel such as provided by a set of generalprinciples or a list of desired measures distilledas an orthodoxy. Referring again to the widergood governance debate, this list is essentiallya doctrinal distillation of the imagined tra-jectory of western economic and politicaldevelopment, but it is often wrong both inattributing many features of the general tem-plate to specific cases to be emulated (in fact,bad governance is everywhere in varyingdegrees) and also in its reading of developmen-

tal trajectories—those things identified withgood governance often come late in the devel-opment process and are as much a conse-quence as a cause of it (Goldsmith 2012;Painter 2012). Unravelling causation andsequencing in the search for AC remedies isbest tackled through case-by-case historicalanalysis. It is important to understand the par-ticular context and sequence of events in whicha jurisdiction such as Hong Kong or Singaporecame to adopt and implement its AC measuresand to establish its AC institutions. In addition,such a contextualised analysis of the historicalrealities and practical lessons of successful ACreforms demonstrates that in fact, these casesdo not neatly fit the supposed standard tem-plate: the reasons for success are often to befound in departures from some aspects of themodel.

This is so in the case of ‘political indepen-dence’ for a separate AC agency. Following thelead of Singapore and Hong Kong, many juris-dictions have set up special-purpose ACAs.The principle that these agencies should beindependent is seen as axiomatic. Article 6 ofthe UNCAC states that the signatory ‘stateparties’ shall set up a ‘body or bodies’ toprevent corruption and shall grant it (or them)‘the necessary independence, in accordancewith the fundamental principles of its legalsystem, to enable the body or bodies to carryout its or their functions effectively and freefrom any undue influence’ (United Nations2004, p 10). A recent elaboration of this prin-ciple is to be found in the ‘Jakarta Statementon Principles of Anti-Corruption Agencies’,drawn up at an international conference ofcurrent and former heads of ACAs in Novem-ber 2012, in which the mechanisms were setout by which such independence could beassured (Jakarta Statement on Principles forAnti-Corruption Agencies 2012).

Being free from undue influence is gener-ally stated in the form of ‘being free frompolitics’. However, while politics is seen aspart of the problem, it is also well understoodthat politics is part of the solution. As Quah(2003) has pointed out, ‘political will’ (thatis, determined and persistent support bythe political leadership for AC measures) is



a vital ingredient in the success stories ofHong Kong, Singapore and elsewhere. Thereis something of a paradox here: political inter-vention to achieve reform must be accompa-nied by a form of political self-denial. That is,political leaders must exercise their power tolimit their capacity to exercise ‘undue influ-ence’ over the AC law enforcement process.But if we look more closely at cases such asHong Kong and Singapore, we see that thisparadox is resolved in ways that do not exactlyconform to textbook good governance modelsof political independence.

Political Independence andPolitical Capacity

The ideal is that the ACA will be part of an‘apolitical’ law enforcement system, followingexclusively legal norms and procedures andimplementing, with meticulous attention todue process, a clear set of laws to bring aboutthe apprehension, conviction and punishmentof offenders. The instruments that may bedeployed to try to ensure independence areseveral (Jakarta Statement on Principles forAnti-Corruption Agencies 2012; Lewis &Stenning 2012). Some ACAs have a statutoryor constitutional basis for a claim to indepen-dence in the form of a ‘black letter’ statementasserting autonomy and limiting the powersof executive direction. The Jakarta Principlesargue for ‘permanence’ in the form of estab-lishment of ACAs under the Constitution or aspecial law. In limiting executive direction,the power of an oversight minister may berestrained rather than eliminated altogether.For example, the minister may be required toissue a public statement if he or she intervenesin a decision of the agency concerned, orrejects its advice. Other mechanisms relate toappointment, continuity, removal and remu-neration of AC officials. They include an oathof office upon appointment of the head ofthe agency; guarantee of job security (forexample, fixed terms beyond the normal termof the appointing government); checks andbalances in the appointment and dismissalprocess through the involvement of the legis-lature and the judiciary; external determination

of remuneration and other employment con-ditions; high levels of financial and personnelmanagement autonomy; oversight by thelegislature as well as the executive; and therequirement to publish an annual report.

While a broad understanding of the kindsof institutional arrangements for assuringpolitical independence is widely shared, inpractice, there is significant variation whenwe come to look at particular jurisdictions.This is the case in two of the most cited andemulated models—Singapore and Hong Kong.Singapore’s ACA (the Corruption Preven-tion and Investigation Bureau (CPIB)) is notinstitutionally separated from the politicalexecutive—since 1969, it has been located inthe Prime Minister’s Office. There is no formalstatement of statutory independence for theDirector in the Singapore Prevention of Cor-ruption Act; however, the appointment processdoes indicate that the Director is unlike anormal head of a branch of the civil serviceunder the Prime Minister’s (PM’s) direction.The incumbent is nominated by Cabinet butappointed by the President. Moreover, onesection of the Constitution on the powers ofthe President (Article 22G) provides that thedirector of the CPIB can continue to investi-gate any minister or senior civil servant evenif the PM does not consent, providing thedirector secures the President’s approval. Thisis the main de jure ‘guarantee’ of indepen-dence (and of high symbolic importance).

But to what extent are these stipulatedpowers of the President a guarantee of defacto independence? Both cabinet membersand presidents have always been of the samepartisan persuasion in the lifetime of Singa-pore’s ACA. Singapore’s fight against cor-ruption owes its origin to its status as a keypolitical program of the ruling party. It washighly significant that it was moved in 1969into the PM’s department and hence under thedirect oversight of Prime Minster Lee KwanYew, the self-proclaimed champion in thebattle against corruption in Singapore. Singa-pore’s ACA retained the capacity to act vigor-ously against corruption to the extent thatsuccessive PMs and presidents persistentlyand unequivocally supported and defended



its mission—a political commitment ratherthan a legal guarantee. But it helped also that itwas given impressive legal and bureaucraticpowers to investigate corruption from its seatin the PM’s Office; that the laws are toughand punishment severe;2 that successive com-missioners deployed these powers vigorously;that prosecution success rates were high—Singapore has a prosecution success rate incorruption cases in excess of 90 per cent(between 2007 and 2011, the success rate was97 per cent) (The Straits Times 2013); and thatthe judiciary generally imposes the toughestavailable sanctions. In Singapore, there havebeen successful prosecutions of senior figuresassociated with the ruling party—exercisingpolitical will here means ‘letting the law takeits course’. On this point, the existence of arespected and reliable judiciary has also been akey feature. Bearing in mind the prosecutionrates and the heavy sentences, this is as mucha statement about the efficiency and unity ofpurpose of those engaged in the fight againstcorruption as a statement about judicial inde-pendence. In sum, Singapore’s reputation as‘corruption free’ owes as much to the politicalcharacter of the Singapore regime as to insti-tutions that guarantee freedom from politicalinterference for its law enforcement agencies.Its ACA owes it success to being at the heart ofpolitical power, not to distancing itself from it.

The independent status of Hong Kong’sIndependent Commission Against Corruption(ICAC) chief is also ambiguous. The ICACCommissioner is directly appointed by theChief Executive and can be dismissed by theChief Executive at any time. Section 5.2 ofthe ordinance set outs that the Commissionerof the ICAC is not to be ‘subject to direction orcontrol of any person other than the ChiefExecutive’. In Hong Kong, where the ‘rule oflaw’ is an article of faith among the politicalelite as well as among members of society

more broadly, interference in operationalmatters by the Chief Executive would bepolitical suicide, if it ever became public, inthe face of a vigorous political opposition anda news media free of censorship. Ultimately,it is these factors against a background thatICAC is one of Hong Kong’s most widelyrespected public institutions that guaranteesits independence. The initial establishmentof the ICAC in 1974 was a response to publicdemand to clean up the Colony’s corruptpolice force. The arrest and prosecution ofsenior British police officers and other officialswon instant public support from a Chinesepopulation that had recently rioted againstBritish rule. The legitimacy of the colonialpower was at stake.

The priority for the Hong Kong governmentwas the need to set up a body independent ofthe existing policing and prosecution system,as it was there that the problem lay. Once thenew investigation unit got to work, the judi-ciary sided firmly with the central administra-tion and imposed tough sentences. The extentto which the ‘might of the law’ was deployedis illustrated by the fact that, as in Singapore,possession of ‘illicit assets’ was made anoffence, with the onus of proof on the accused.The highest penalty for this offence is a10-year prison sentence plus a fine (up toHKD500,000).3 In the first 5 years after theICAC was set up, prosecutions under this pro-vision were laid in 37 cases. Most notoriouswas the ‘$600 million detective’ (with totalassets in equivalent to 10,000 years of hisofficial annual income) (Tong 2007). As inSingapore, prosecution success rates havebeen very high (in excess of 80 per cent)(Hong Kong Government 2013). Extraordi-nary levels of resourcing were provided for theICAC (in 2011, the staffing establishmentof Hong Kong’s ICAC stood at 1,380, andits total budget was approximately US$90million). Upon the handover to China in1997, the existence of a ‘Commission againstCorruption’ was written into the Basic Law.

‘Political independence’ continues to havea high symbolic importance. Hong Kong’s

2. A key feature of the Singapore Prevention of Corrup-tion Act is that Section 24 empowers the CPIB to investi-gate any person who possesses pecuniary resources orproperty disproportionate to his or her known sources ofincome, and for which he or she cannot account. Posses-sion of such ‘illicit assets’ can be taken as evidence ofcorruption. The courts can also confiscate such assets. 3. HKD500,000 is approximately USD65,000.



political leaders take great pains to demon-strate their political self-denial in corruptioncases and to reassure the public that legalnorms and ‘the rule of law’ operate. Forexample, in 2003, the Financial Secretarywas investigated for allegedly using ‘insiderknowledge’ when purchasing a car to evadean increase in vehicle registration tax, to beintroduced at the upcoming budget. ICACpresented its findings to the Director of PublicProsecutions in August 2003. Two indepen-dent opinions were sought from local andBritish legal authorities, respectively, both ofwhom found that there was not a reasonableprospect of securing a conviction. The Secre-tary for Justice (equivalent to the minister),who under the Basic Law is responsible fortaking decisions on whether or not to mountprosecutions, delegated this decision to theDirector of Public Prosecutions, who advisedthe Secretary not to prosecute. She acceptedthe advice. The details of the case and thereasons for the decision were published in a12-page report on 15 December 2003. In sum,meticulous public attention to the norms ofpolitical independence in this case was consid-ered to be of paramount symbolic significance,for clear political reasons.

To sum up, norms of political independ-ence and political self-denial are legitimatingdevices for the exercise of investigative andjudicial powers, although perhaps no lessimportant for that. But in the matter of inves-tigation, it is the raw operational power of theACA that seems to matter, as much if not morethan its purported political independence.Cooperation from the judiciary is also impor-tant. This concerted power requires strong top-down political leadership and commitment,and it also requires other capacities, such asskilled investigators and the ability to collabo-rate with other investigative and prosecutingbodies. The other side of the independencecoin for an ACA is the possession of sufficientpowers and resources to make its operationseffective. Independence (like all forms offreedom) not only has a negative connation(freedom from interference) but also has apositive one (the capacity to act). The JakartaPrinciples include not only statements about

autonomy but also statements about capacity,such as ‘adequate and reliable resources’.Political support, high levels of resourcing andadequate investigative powers under the laware all crucial in building and maintaining thiscapacity.

In addition to legal and material capacities,the capacity to win battles within the bureau-cracy (and, possibly, also the judiciary in caseswhere it may be hostile) is critical. Again,‘independence’ is a misnomer for this aspect ofthe ACA’s capacity to act effectively, andagain, this is a matter of politics (in this case,bureaucratic politics). Indonesia’s ACA (theCorruption Eradication Commission (KomisiPemberantasan Korupsi or KPK)) provides agood example. KPK is an extreme case of anACA designed not only to be politically inde-pendent but also to be all-powerful. Followingthe fall of the Suharto government in 1998,there has been strong public support for avigorous AC drive. ‘Grand corruption’ by theSuharto family during his years in office was astrong driver of the downfall of that regime.Since then, frequent cases of high-level politi-cal corruption, including in the senior ranks ofthe law enforcement agencies, have remainedin the public eye, both at central and locallevels. Public anger and effective campaigningby NGOs have kept the issue prominent inelectoral politics. President Susilo BambangYudhoyono, elected in 2009 for a second5-year term, took a strong public stand againstcorruption.

In 2002, new legislation was adopted, anda range of new AC institutions was set up.Article 3 of Law 30/2002 provides that ‘(t)heKPK is to be a State agency that will performits duties and authority independently, freefrom any and all influence.’ The KPK com-prises five commissioners, nominated by thePresident with the assistance of a selectioncommittee and then selected by Parliament.Thus, they are appointed through a highlycharged political process. Once appointed, theKPK Commissioners swear an oath of officeand can claim a high level of legitimacy to actindependently. Many of the KPK cases arehigh profile. KPK has not shied away fromgoing after some rich and powerful figures,



including leading members of the president’sown ruling party, very senior governmentofficials, including members of the policeforce, prominent tycoons and parliamentarians(Bolongaita 2010, p. 17). At the same time,critics point to many other high-profile casesthat do not proceed to court (the suggestion isthat pragmatic considerations are relevant inwhich cases to prioritise).

KPK was granted extensive and extra-ordinary power and authority within thelaw enforcement system. KPK ‘coordinates’and ‘supervises’ other agencies involved incombating corruption. Many corruption casescontinue to be dealt with by the police and thepublic prosecutor, but KPK’s oversight extendsto the power to take over investigations that itconsiders to be taking too long or not produc-ing the desired results, in particular where itbelieves that corruption may be hindering theprocess. It has special investigative powers thatrule out the need to cooperate with other agen-cies. It conducts its own prosecutions. It alsohas a special mandate to conduct investigationsand mount cases against other law enforcementagencies. In practice, there are continual ‘turfwars’ and legal disputes over the conduct ofinvestigations, with the occasional public con-frontation when KPK forcibly enters policepremises to seize files. Recently, KPK andthe police have been in open warfare overKPK investigations into police corruption(Pramudatama & Aritonang 2012). In 2009,two KPK Commissioners were charged withcorruption by the public prosecutors, and itschairman was charged with murder (and laterfound guilty). The verdict on the murder casecaused sensation, but not political contro-versy. However, the corruption charges were adifferent matter and were later dismissed bythe Constitutional Court. It was revealed thatpolice and Attorney General’s Office officialsfabricated evidence. KPK mounted a counter-investigation, and secret wiretaps provided theevidence of a conspiracy.

KPK’s special powers of investigation arefar-reaching. It has the power of arrest anddetention (up to 120 days). It can use wiretap-ping, impose travel bans, investigate financialassets, block bank accounts and gain access to

information on tax records and assets. Unlikethe police, it can inspect private bank accountswithout obtaining the prior approval of theGovernor of the Bank Indonesia. KPK is alsowell resourced. It has a budget in excess ofUS$50 million and a staff of over 700. Inves-tigators and prosecutors are chosen through arigorous selection process. Strict integritytests are applied. Staff are hired on fixed-termcontracts, and if these are not renewed, theindividuals return to their original jobs(mostly in other law enforcement agencies). Aposition in KPK is highly prized: KPK’srecruiting exercise in 2008 received over28,000 applicants for 85 positions (Bolongaita2010, p. 9).

In addition to these measures, Article 54 ofLaw 20/2002 established the Court of Corrup-tion (Pengalidan Tindak Pidana Korupsior Tipikor) (Butt 2012). The Court was basedin the Jakarta District Court and formedby recruiting, through a rigorous selectionprocess, a team comprising both experiencedcareer judges and also ‘ad hoc’ judges (forexample, academics and senior legal practitio-ners) who would only hear corruption cases. In2006, the Constitutional Court ruled that thisso-called ‘parallel’ court system was unconsti-tutional, as it set up two classes of accused—one tried before the normal courts and anotherbefore the Tipikor under different rules—andhence denied the basic principle of ‘equalitybefore the law’. The Parliament was instructedto remedy the situation. The result was legis-lation in 2009 to give the Tipikor exclusivejurisdiction over corruption cases and, at thesame time, to set up a national system ofregional Tipikor to handle the increased work-load. These decentralised Tipikor were subor-dinated to district courts. The requirement fora majority of external ‘ad hoc’ judges wasremoved, and ordinary prosecutors as wellas KPK prosecutors could bring cases. Thisextension of the system resulted in an influxof prosecutors and judges who were nothand-picked for AC work. Some high-profileKPK investigations and prosecutions of localTipikor judges followed (Kristanti 2012).

KPK’s success rate in cases brought beforethe Jakarta Tipikor has been 100 per cent,



compared with approximately a 50 per centsuccess rate for corruption cases in other courts(Butt 2012). The reasons for this outcome areseveral. First, KPK is highly selective in thecases it brings to court. In 2007, for example,the public prosecutor dealt with 712 corruptioncases against the KPK’s 27 cases (ASEANAffairs 2008). The Commission closely re-views all proposed prosecutions to ensure that awatertight case exists. A second reason for itssuccess is that KPK is well resourced and hasvery strong investigative powers.A third reasonis that the Jakarta Tipikor operates transparentlyand predictably. For some, its predictability is areason for complaint. The Tipikor is oftenaccused of having ‘ignored the presumption ofinnocence in favour of a high conviction rate’(Butt 2012).

In sum, to the extent that Indonesia’s ACAhas been successful, it has been because KPKhas been strongly supported in the politicalarena, granted extraordinary powers andresources, and located at the hub of a ring-fenced AC law enforcement system, whichis designed with successful prosecutions inmind. The establishment of special courts wasa move to counter the perceived corruption ofthe Indonesian judiciary, but at the same time,this system afforded KPK with enhancedcontrol. KPK is a high-profile public actor inthe political realm in its own right, and it hasprompted a political backlash accordingly. Inaddition to the battles with other law enforce-ment agencies, the legislation decentralisingthe Tipikor may also have been a kind of‘payback’, aimed at watering down KPK’seffectiveness (Butt 2012). In another measurethat seemed aim at trimming its powers,Parliament has considered amendments toLaw 30/2002 to restrict KPK’s wiretappingpowers, after a ruling by the Supreme Court in2011 that laws covering wiretapping must bereviewed. The Ministry of Communicationshas sought to exert its powers in any newregulatory regime (Transparency InternationalIndonesia 2012). Other revisions to the KPKlaw under review in Parliament during 2011–2012 would have restricted KPK’s powersof indictment and prosecution and set up aSupervisory Council.

To conclude, the experience of Hong Kong,Singapore and Indonesia suggests that ‘politi-cal independence’ is an important symbolicstatement, but that more important is thepower placed behind the AC law enforcementprocess. This power derives from the presenceof a concerted political program imposed fromthe top down, in which an AC law enforcementsystem with teeth is established, and supportedin whatever appropriate way by the politicalleaders of the day. In practice, political supportand protection are needed just as much asindependence, to provide the necessaryresources and the required autonomy toconduct effective investigations and prosecu-tions. What is also crucial is establishing theautonomy of the ACA within the bureaucraticand policing system more broadly. Legalnorms will be important in the conduct ofenforcement activities, but these are no morethan part of the mechanics and may vary fromjurisdiction to jurisdiction. The principle ofpolitical independence as reified in the ortho-dox good governance model is less importantthan the need to possess the political andadministrative capacity to act effectively.

Political Independence in Vietnam

In Vietnam’s system of government, theconcept of an ‘independent’ actor within thestate outside the remit of the Communist Partyof Vietnam’s (CPV) leadership and supervi-sion is a contradiction. Under the Constitution,the CPV is ‘the force assuming leadership ofthe State and society’ (Article 4), and to thisend, it exercises oversight and is directlyinvolved, in one form or another, in all stateagencies. Party membership is essential to riseto senior official positions, while internalParty Committees exist in every state organ,including judicial organs, and exercise directsupervision. In promulgating its commitmentto judicial reform, the Central Committee ofthe Communist Party made clear that it willtake place ‘under the leadership of the Partyand (will) aim to maintain political stabilityand firmly preserve the nature of our State as asocialist rule-of-law State of the people, by the



people, and for the people, as well as to ensurethe unified power of the State, along with thedistributions and collaboration between statebodies in the exercise of legislative, executiveand judicial powers’ (Communist Party ofVietnam 2005).

Since 1992, the judiciary is under thecontrol and supervision of the NationalAssembly (the judiciary was formerly undermanagement by the Ministry of Justice, but itwas moved because of failures of supervisionand widespread judicial incompetence) (To2006). Article 130 of the Constitution states,‘. . .when adjudicating, judges and honoraryjudges are independent and conform only tothe law’. The crucial part of this formulationis the phrase ‘when adjudicating’—otherwise,the judiciary is not intended to be ‘indepen-dent’ but is an arm of the unified party statewith a specific function, namely to enforce thelaw (To 2006, pp. 400–01). Neither does thejudiciary have the kind of authority or statusthat is claimed for it under western concep-tions of the ‘rule of law’. Under these concep-tions, an independent judiciary exercises arealm of authority that, in principle, can chal-lenge or counterbalance executive power. Thejudiciary exercises its own powers of inter-pretation and adjudication in law enforcement.In Vietnam’s ‘socialist rule of law’ state, thejudiciary ‘applies laws’, but the power to inter-pret the law is in principle exercised by theNational Assembly. In practice, interpretationof the law is undertaken by executive organs ofthe state, which issue legal documents for thispurpose as needed (Lien 2011). Legality, orlegal formalism, in the conduct of governmentbusiness is a strong norm within the machineryof government in Vietnam, although lip serviceto this norm frequently masks irregularitiesthat arise from the de facto discretion availableto executive actors.

However, if separation of powers and con-cepts of political independence are alien, theidea that state powers should be functionallydistributed and separated in the conduct ofstate management is embodied in the Consti-tution. This dispersal of roles and functionsacross executive, legislative, supervisory,inspectorial and judicial organs is, at the same

time, moderated by shared and overlappingfunctions. With the Party exercising its role aswell, this creates in Vietnam a notoriously con-fusing and complex system of multiple claimsto wield state powers, with the effect thatdifferent organs of the state frequently contra-dict each other. This confusion of overlappingrealms of state management is reflected inthe arrangements for combating corruption.The system is complex and comprises multipleagencies. Criminal investigation of corruptionis given over to a branch in the MPS knownas C48, staffed by police officers and civilservants, rather than to a stand-alone ACA. Atthe same time, other aspects of ‘economiccrimes’ normally viewed elsewhere as corrup-tion may be handled by other branches of theMinistry. Responsibilities for some aspectsof AC investigation (but not criminal investi-gations) are shared with the GovernmentInspectorate (GI), which has general responsi-bilities for corruption prevention because of itsoverall remit of inspecting the legality of thework of state agencies and officials and makingrecommendations to remedy malpractice.4 GIis required to pass on to MPS information thatcould lead to a criminal prosecution. Which‘case’ belongs to whom is also left up in the airon occasion because the Penal Code excludesfrom the realm of criminality petty corruptionbelow a certain monetary value (measured interms of ‘loss to the state’), leaving these casesto the disciplinary mechanisms set up under thelaws on public employment. These laws aresupervised by another ministry altogether. Inaddition, corruption cases involving seniorparty members are reviewed and investi-gated by the Party Inspectorate as disciplinarymatters before they go any further as criminal ordisciplinary proceedings. Prosecution of crimi-nal cases (as distinct from party disciplinematters) is handled by the Supreme People’sProcuracy, a transplanted Soviet-style institu-tion, which has overall powers of supervisionover all criminal investigations and over thecourts, with a special division to deal withcorruption cases. The Procuracy is supervised

4. The GI is the Government of Vietnam counterpart forAC work by donors and international agencies.



by the National Assembly, and to that extentis somewhat outside the normal executivechain of command. A central AC SteeringCommittee was set up in 2006 with the PrimeMinister as Chair to oversee and coordinateAC efforts, along with a new Office of over100 officials, which devoted most of itsefforts to clearing logjams in this complexadministrative landscape.

Within the organisation of the government,there is no clear set of conventions or rulesabout the distinct, ‘arm’s-length’ roles of poli-ticians and AC law enforcement agencies,including the police. The MPS is a governmentministry, and the security forces are an integralarm of state power under the direct control ofpolitical leaders. Investigation of corruption byC48 is not afforded any special privilege inbeing free from such political control andpotential political intervention. GI is also astandard government agency under a minister,who has a relatively low standing in the min-isterial pecking order. The complex politicalsubordination mechanisms to which AC agen-cies are subject is similar to that experiencedby all other government agencies.

In this context, calls for an independent ACAhave so far fallen on deaf ears. The kind ofpolitical independence envisaged in templatessuch as the Jakarta Principles is rejected outof hand, while none of the agencies referredto earlier will agree to surrender executiveor supervisory power to a new body. At themoment, the AC enforcement system is weak,fragmented, uncoordinated and subject tolocal capture and uncoordinated political inter-ference. Weaknesses in the Criminal Code havealso been identified (Transparency International2011; Painter et al. 2012). These weaknesses,coupled with chronic enforcement deficits andcoordination gaps, constitute the principle itemson the AC reform agenda in Vietnam.

A Way Forward

Most observers (as well as the Vietnamesegovernment and the Communist Party)acknowledge that the AC law enforcementsystem is not working. Popular opposition andfrustration among many grass-roots Party

members over the extent of corruption hasstimulated soul searching within the leader-ship. The longer term legitimacy of the regimemay be in question if corruption continues toworsen. The latest in a series of responses bythe CPV was the 2012 revision to the Anti-Corruption Law, which abolished the SteeringCommittee chaired by the Prime Minister andmoved the function of overall coordination ofthe AC effort to the Central Committee of theParty. A strengthening of the Central Com-mittee’s administrative structures followed. Arising star of the Party, Da Nang Party Secre-tary Nguyen Ba Thanh, was appointed as headof the Central Internal Affairs Commissionand given the jobs of advising the Politburoand Central Steering Committee on Anti-Corruption and of leading the investigationand disciplining of senior party members.

In this move, in one interpretation, the basicpractical logic underlying the doctrine of inde-pendence seems to have been acknowledged:the Party will do a better job to combat officialcorruption from a position outside the execu-tive because there will not be a direct ‘conflictof interest’.5 However, this flatly denies thereality that the Party and state are fused, andfor this reason, this is not how the Party wouldwish to portray it. A simpler form of justifica-tion is the argument that the Party is simplyexercising its ‘leadership role’ in the face ofabject failure of the existing system. Whateverthe rationale, the move has significant politicalimplications. The most important is that theParty has symbolically accepted overt respon-sibility for practical results. It is just possiblethat the leadership will not only take firmcharge of the AC machinery but also give the‘green light’ for investigators and prosecutorsto act professionally and impartially, whilebacking them up.6 Significant reforms to thelegal and institutional framework within the

5. This rationalisation was offered by several respondentsduring interviews with government and party officials inOctober 2012.6. A more sanguine view (expressed by someinterviewees) was that the result would be simply to addone more bureaucratic layer of delay and added frictionin an already overcrowded field of AC investigation andprosecution.



government would be needed, reforms that sofar have proved beyond the will or capacity ofthe government itself to implement, but whichmight in future receive a greater impetus.

In considering reforms aimed at improvinglaw enforcement capacity, some of the lessonsof Singapore, Hong Kong and Indonesia arerelevant. AC successes in these jurisdictionscan be attributed in part to the concentrationof legal might (including a tough AC law)and political legitimacy under a well-resourcedACA.7 In Vietnam, a key priority is to revise thePenal Code to strengthen the AC laws, whichcurrently contain gaps and, in some areas suchas the definition of crimes of corruption,impose unnecessary obstacles in meeting therequirements for proof.8 The current arrange-ments requiring coordination among multipleagencies create debilitating obstacles to effec-tive investigation and enforcement, and thesemight be overcome by unifying critical ACfunctions into one overarching investigativeagency. Such an overarching agency wouldpossibly need special investigative powers,none of which currently are enjoyed by theAC unit of MPS. To reinforce norms of dueprocess and impartiality and to place it abovethe influence of warring bureaucracies, oneoption would be to locate it in the SupremeProcuracy, under oversight the NationalAssembly.

It is far too soon to say that the recent asser-tion of the power and responsibility of the

Party for supervising AC work is in some waya ‘tipping point’ in Vietnam’s AC efforts. Butif the earlier analysis of the conditions underwhich AC reform began to work in other juris-dictions is correct, this apparent assertion of‘political will’ (if such it is) might be a firstcritical step. An alternative interpretation,however, is that this is just one more round ina continuing set of factional squabbles withinthe Party.9 As argued earlier, if serious stepsare to be taken to prevent and punish officialcorruption, the next step would be to increasethe enforcement capacity of the AC investi-gative and prosecuting machinery, includingmeasures to place the main law enforce-ment administrative units beyond the directinterventional control and influence of linedepartments. Substantial legal reforms are alsoneeded, which may be addressed as part of thereview of the Penal Code when it comes due.These directions should be anticipated andsupported, rather than hoping for unrealisablechanges such as a politically independent lawenforcement system.

January 2014.

This article draws on two research consultanciesundertaken in Hanoi. The first, conducted in 2011,was commissioned by DFID Hanoi: APolicy ImpactStudy on Anti-Corruption Dialogue 2007–2011; thesecond, conducted in 2012, was commissioned byDepartment for International Development (DFID)/UNDP on International Comparative Analysis ofAnti-Corruption Legislation: Lessons on Sanction-ing and Enforcing Mechanisms. This article drawsprincipally on the findings documented in the secondof these research studies (Painter et al. 2012).Research for both projects involved accessing docu-ments held by donor agencies and non-governmentalorganisation and conducting interviews with gov-ernment and party officials in Hanoi. I wish toacknowledge the assistance of staff in both DFIDand UNDP, with particular thanks to RenwickIrvine and Jairo Acuna-Alfaro. Most of all, I wish to

7. No single factor can determine success or failure in ACwork, but the cases surveyed in this article show thatautonomy and investigative capacity were critical factorsin bringing about successful AC outcomes (to the extentthat success was achieved) in each of the three jurisdic-tions. Going further, the reasons for different levels andtypes of corruption in different jurisdictions at differenttimes are complex and multiple, ranging across a widespectrum of economic, social, institutional and politicalvariables. The argument here does not give primacy to anyone set of factors. In concentrating on the enforcementregime, it highlights those features in that realm thatmatter the most.8. For example, before a case will be accepted by theprosecutor as fit to be taken to court, the investigator mustcategorise the crime in terms of ‘loss to the state’. Thisrequires often very technical analysis by valuers that mayend up being inconclusive. Many cases simply sit on thefiles as a result of this ‘lack of evidence’.

9. Nguyen Ba Thanh’s failure to be elected to the Polit-buro in May 2013 has been interpreted as a counter-moveby those who feel threatened by his new role, in order toweaken his authority (Nguyen 2013).



acknowledge the contributions made to the researchby my local collaborators: Mr Nguyen Quang Ngoc(who contributed to both projects), Mr Hoang ManhChien, and Ms Dao Le Thu (Hanoi Law University).Professor Bob Gregory (Victoria University of Wel-lington) also collaborated on the research for thesecond project. The views presented in this articleare those of the author and should not be attributedto any other individuals or organisations namedearlier.

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myths of political independence, or how not to solve the corruption problem: lessons for vietnam

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