The United Nations has declared December 9 “International Anti-Corruption Day” to raise awareness of a problem that threatens all human communities. This day is an opportunity to recall that more than 180 Member States have signed the United Nations Convention against Corruption since its adoption in 2003. Despite all these commitments, corruption remains endemic on a global scale. Many believe it has even worsened with COVID-19. States are spending billions in a hurry and making their rules more flexible to speed up the purchase of equipment and the payment of benefits to individuals and businesses. The coronavirus has created a “perfect storm”, to use the English expression, for corrupt interests.
This United Nations convention calls on its signatories to set up independent agencies to fight corruption. This is why dozens of bodies similar to the Permanent Anti-Corruption Unit (UPAC) have been created by several governments around the world over the past two decades. Recent studies show that UPAC is not alone in facing mistrust and criticism from politicians and the media.
Anti-corruption agencies generate very high expectations. When their investigations are leaked or fail the court test, the disappointments are great. When their work reaches elite networks with ample resources to fight back, the reputation of anti-corruption agencies is strained. While those targeted by investigations can mobilize public opinion and disseminate their stories in the media, anti-corruption agencies must remain silent. It is more difficult for them to frame the story or the narrative in the public space.
To succeed, organizations like UPAC must produce evidence “beyond a reasonable doubt” that a crime of corruption has indeed been committed. But corrupt intentions and the causal relationship between, for example, a public contract awarded to a company and political funding are social facts that are difficult to demonstrate objectively. It is precisely on this question that the Charbonneau commission was divided in its final report. Corruption is primarily a political and economic crime, and the political element invariably gives rise to competing interpretations. The polarization of public opinion and a populist climate associating elites with embezzlement exacerbate perceptions of corruption.
Act in the name of the general interest
The fight against this “cancer of democracy” is not just the business of the state and its institutions. The media ecosystem, non-governmental organizations, civic associations all have an important role to play. In Quebec, investigative journalism has a solid tradition, and its reputation is widely recognized. But compared to other companies, Quebec is less well equipped to fight corruption. In France, rules adopted in 2014 following the Law on the transparency of public life grant recognized organizations, including the local section of Transparency International, the right to initiate legal proceedings by becoming a civil party in causes of corruption.
This procedure allows certain organizations to report potentially criminal acts to the public prosecutor and to revive cases which have been dismissed. This is how Nicolas Sarkozy was forced to appear as a witness at the Elysee polls trial, the President of the National Assembly was indicted for illegal taking of interests and the investigations were resumed concerning the Secretary General of the Élysée Palace and possible conflicts of interest with a European shipowner. These cases all ran the risk of being buried if the approved anti-corruption associations (three in number) had not intervened.
Quebec policy makers like to look at France, because they believe that the cultural and historical connection between the two companies facilitates “import-export” in terms of institutions. The rules which allow French civil society to become a civil party in corruption cases could quite easily be adopted in Quebec. In France, these rules are derived from article 2-23 of the Code of Criminal Procedure. In Quebec, the Code of Criminal Procedure falls under the jurisdiction of the province. Nothing therefore prevents the National Assembly from amending the Code and thus strengthening the fight against corruption by giving citizens a voice in the pursuit of “thieves”.