In its 2012 survey covering 178 countries, Transparency International ranked China at 3.5 in what is called the Corruption Perception Index, the 80th country, together with Serbia and Trinidad and Tobago. To see things from another point of view, China was the fourth-lowest ranking of G20 nations with only Argentina, India, Indonesia and Russia scoring lower.
At such levels, corruption poses a threat to China’s political stability and sustainable development, especially at a time when China’s ‘Gini’ coefficient, a statistical measure of income inequality, is at 0.47 close to that 0.5 threshold where inequality is severe and calls for immediate action. Many experts believe that this widening wealth gap is partly the result of large amounts of “illegal income” resulting from corruption.
The government leaders have openly expressed great concern about this situation in more than one occasion and have started a series of anti-corruption initiatives both at national and international level. The main action undertaken at international level is China’s engagement in the United Nations Convention against Corruption (UNCAC). Indeed, anti-corruption efforts, and, particularly, the recovery of illicit gains, need international cooperation in criminal matters to bring results at the national level.
China fully became aware of this and supported UNCAC since its inception by sending intergovernmental delegations to the United Nations Headquarters in Vienna to work in the special committee in charge of drafting the Convention. Thus, China can claim to have been an active participant in a process that has seen several countries and the United Nations being able to deliver to the world – in a record time span of 18 months – the first and so far only global anti-corruption instrument. Moreover, China was among the first countries to ratify the Convention (in October 2005), even before several developed countries, and while ratification should always be considered a starting point, rather than the end of an endeavor, this early ratification reflects positively on the country.
China accords great importance to this instrument in virtue of its four main elements: (1) Prevention; (2) Criminalization and law enforcement; (3) International cooperation; and (4) Asset Recovery. Likely enough, however, China pays particular attention to this last section as it is especially innovative in offering practical tools for the recovery of assets even with regard to the United Nations Convention against Transnational Organized Crime (UNTOC). In fact, not only one of the four main chapters of the UNCAC is devoted entirely to asset recovery, but also throughout the entire text of the Convention one finds additional references to asset recovery and to the return of the proceeds of crime. For example, Article 1 (b) which includes among the purposes of the Convention the promotion, facilitation and support of international cooperation and technical assistance in the prevention of and fight against corruption, including asset recovery. The list continues with Article 46 (3-k) on mutual legal assistance, Articles 60 (1-h) and 60 (5) dealing with technical assistance and information exchange, and Article 63 (4-b) on the work of the Conference of the State Parties. Such provisions could greatly help China in recovering the ill-gotten money taken overseas by corrupt officials.
Chinese judicial experts agree that the ratification of the UNCAC is indeed a milestone in China’s fight against graft, but at the same time call for amendments to criminal law with a view to revise those articles which are inconsistent with this Convention and include legal provisions not yet present. Here we will just recall a few areas where revisions are needed. Current provisions require that bribery crimes include ‘material enrichment’, while for Chapter III of the Convention, the presence of an ‘undue advantage’ is sufficient, thus including all unlawful profits, and not necessarily material properties, nor real acquirements but maybe merely promises, all should be considered as ‘briberies’. Penalties are another issue requiring attention. Currently the Chinese law stipulates heavier punishments than laws overseas by foreseeing that a person found guilty of taking a bribe of 100,000 Yuan (approximately US$ 16,400) can be jailed for 10 years or more, compared to a maximum of seven to eight years in other countries. And, when the crime reaches a certain level of severity, it can lead to death penalty. These differences make it difficult for China to seek international cooperation in countering economic and financial crimes.
The latest development with respect to China’s engagement with the UNCAC is the government’s decision to accept that other State Parties to the Convention assess China’s compliance with the treaty during the 2010-2015 review cycle under the authority of the Conference of State Parties, a body established pursuant to article 63 of UNCAC to improve the capacity of, and cooperation between, state parties to achieve UNCAC objectives and to promote and review its implementation. While the results of this review will not be made public, it is likely that they will highlight the need for more work to bring Chinese legislation in line with the Convention. Such legal reform process will take time to complete and this is for several reasons going beyond a Chinese entrenched preference for taking step-by-step approaches. On one side, the fight against corruption has different degrees of efficiency depending on the political system in force, whether multi-party or single party, and whether based on the separation of powers or not. On the other side, in today’s global economy, corruption and money laundering, recovery and return of its proceeds, require more than ever international cooperation and this cooperation is often hampered not only by lack of resources and specific expertise, but also by obstacles of political and ideological nature.
Beyond the work of scholars and practitioners in crafting these needed legal reforms, the commitment of the Chinese leadership will be key to China’s success in its anti-corruption campaign, and from what we can see lately the commitment of the leaders is there. If to this commitment of its leaders, China will add a continued strengthening of those mechanisms that allow the participation of the public, a more active involvement of the media, a more independent judiciary and an increase in transparency in the management and accountability of public finances, solid foundations will have been laid for achieving the Country’s goal of a ‘well-off society’ by 2021, the 100th anniversary of the founding of the Chinese Communist Party. Will the government succeed in its campaign against corruption? It is a daunting challenge for anyone and particularly for a government that not only wants to ensure that budgetary expenditures will be corruption-free, but also needs to reconcile the necessity of boosting economic growth with the country’s long-term pursuit of an energy-efficient, environment-friendly and sustainable development.
China, its people and its leaders have surprised the world with their achievements in poverty reduction, an unmatched world record with the lifting of 450 million people out of poverty since the beginning of the opening-up policy 35 years ago. Defeating corruption is a battle that can be won if the same degree of will, vision and leadership is put into it, and if all countries will work harder in the implementation of the UN Conventions and in increasing their cooperation in criminal justice matters in a spirit of reciprocity.
an Attorney at Law, is a Technical Advisor at the Vienna International Justice Institute based in Austria. Previously he served with the United Nations Office on Drugs and Crime (UNODC) in different capacities and lately as its head of the office in the People’s Republic of China.