The Corruption of
the Liberal Government
Judged
by the Standards Set by the UN Convention
Against
Corruption
- Diane Johnston -
Prime Minister Trudeau himself and members of his
government, as well as public servants, such as Clerk of the
Privy Council Michael Wernick, go to great lengths to assure us
that absolutely nothing illegal has been done in government
dealings with SNC-Lavalin. Even the former Attorney General, Jody
Wilson-Raybould, says that what was done is not illegal but
improper. And not a few of the commentators and pundits have
pointed out that this is where the real scandal lies -- that all
these self-serving things are done legally. And there's the rub!
Definitions are being provided of what constitutes
corruption, what is legal and what is proper, and all of it is
conflated
with what is legitimate. In fact, the crux of the matter lies in who
does the defining of what's what.
The standards set by the UN make a distinction between
"grand" (political) corruption and "petty" (bureaucratic)
corruption. This SNC-Lavalin case no doubt illustrates both. But,
above all else, it shows that Canada is corrupt because in Canada
corruption is defined by those who seek to legitimate their
actions by claiming higher motives such as the "national
interest," "job creation," "humanitarian aid," "freedom" and
"democracy."
The government's approach, which is to distance itself
from
corruption
by conflating what is legal with what is "legitimate," ignores a
crucial element of the international law regime enshrined in the
UN Convention Against Corruption, signed by Canada on May 21, 2005
and ratified on October 2, 2007.
Article 13 of the UN Convention Against Corruption,
under the
heading Participation of Society, states:
1. Each State party shall
take appropriate measures,
within
its means and in accordance with fundamental principles of its
domestic law, to promote the active participation of individuals
and groups outside the public sector, such as civil society,
non-governmental organizations and community-based organizations,
in the prevention of and the fight against corruption and to
raise public awareness regarding the existence, causes and
gravity of and the threat posed by corruption. This participation
should be strengthened by such measures as:
(a) Enhancing the
transparency of and promoting the
contribution of the public to decision-making processes; ...
In a paper titled "Corruption Definitions and
Concepts," Inge
Amundsen identifies the main forms of corruption as bribery,
embezzlement, fraud and extortion.[1]
He writes:
"The decisive role of the state is reflected in most
definitions of corruption. Corruption is conventionally
understood, and referred to, as the private wealth-seeking
behaviour of someone who represents the state and the public
authority. It is the misuse of public goods by public officials,
for private gains. The working definition of the World Bank is
that corruption is the abuse of public power for private benefit.
Another widely used description is that corruption is a
transaction between private and public sector actors through
which collective goods are illegitimately converted into
private-regarding payoffs. (Heidenheimer et al. 1993:6)"
Amundsen cites Mushtaq Kahn who defines corruption as
"behaviour that deviates from the formal rules of conduct
governing the actions of someone in a position of public
authority because of private-regarding motives such as wealth,
power or status. (Kahn 1996:12)"
Amundsen distinguishes between political corruption and
bureaucratic corruption ("grand" v "petty"). Political corruption
is the use by political decision-makers of the political power they
are armed with to sustain their power, status and wealth. It is the
tailoring of policy formulation and legislation to benefit
politicians and legislators.
Amundsen writes that “Political corruption implies the
manipulation of political institutions and the rules of procedure, and
it consequently distorts the institutions of government. Political
corruption is a deviation from the rational-legal values and principles
of the modern state and leads to institutional decay. The basic problem
of political corruption is the lack of political will to encounter the
problem: the power-holders do not wish to change a system of which they
are the main profiteers." This is exactly what is taking place in this
instance.[2]
On
December
17,
1997,
Canada
also
signed
the
Convention
on
Combating
Bribery in International Business Transactions of the Organisation for
Economic Co-operation and Development (OECD Convention). In 1998,
Parliament passed the Corruption of
Foreign Public Officials Act (CFPOA) to implement Canada's
obligations under the OECD Convention into Canadian law.
The
aim
of
the
OECD
Convention
is
said
to
be
to stop the flow of bribes and
to remove bribery as a non-tariff barrier to trade, producing a level
playing field in international business.
In
June
2013,
Parliament
amended
the
CFPOA
to
increase
the
maximum penalty
for convicted individuals, to create a new books and records offence
and to expand jurisdiction based on nationality. In addition, the 2013
amendment stated that at a later date the government would eliminate
the exception for facilitation payments. Facilitation payments are
those made to foreign public officials to secure or expedite the
performance of acts of a routine nature that are within the scope of
the official's duties. The repeal came into force on October 31, 2017
and such payments are now included under the foreign bribery offences
listed in the CFPOA.
A Government of Canada overview of this Convention
reads:
"No country is entirely free of corruption. But if
corruption
is deep enough it can hinder economic growth and good governance,
and decay the fabric of society. Corruption is an obstacle to
sustainable development, with the potential to enlarge economic
gaps and breed organized crime. Unchecked corruption leaves
little room for democracy to flourish; little room for freedom to
expand; little room for justice to prevail.
"We have made significant gains in the global fight
against
corruption. Better understandings of its economic, political and
social costs have spurred recent international efforts to fight
corruption, encourage transparency and increase accountability.
Canada strongly supports international efforts to combat
corruption, regarding it as a good governance issue, a crime
problem, and a drag on economic, social and political
development."
The example of the Government of Canada's handling of
the
SNC-Lavalin case definitely does not corroborate these claims.
Besides anything else, this case has brought to light that the
Trudeau government slipped a remediation agreement into the
budget mega bill which permits the Chief Prosecutor of Canada to
stay criminal charges that a company faces. This has been done under
the pretext of high ideals and because it is done by the UK
and some other countries as well.
Canada has placed itself on myriad
international
bodies as a grand defender against corruption. However, the
actions of the Trudeau government, not just on SNC-Lavalin but on
all the files on which it promised to deliver justice, have
irreparably tarnished Canada's claim to uphold the rule of law.
Damage control will now try to present a case that not only it
was legal but not inappropriate because it is a legitimate use of
prerogative powers.
What is legitimate, who is legitimate and who
decides have become the crucial matters of concern for the polity
in this sordid affair.
Notes
1. Inge Amundsen is a political
scientist whose focus is democratic institutionalization, political
economy, parliaments, political parties, political corruption, and
natural resources. He identifies the main forms of corruption as
bribery, embezzlement, fraud and extortion.
2. Igne Amundsen, "Corruption:
Definitions and
Concepts,
Draft" (January 17, 2000), Chr Michelsen Institute Development
Studies and Human Rights.
This article was published in
Volume 49 Number 7 - March 2, 2019
Article Link:
The Corruption of
the Liberal Government
Judged
by the Standards Set by the UN Convention
Against
Corruption - Diane Johnston
Website: www.cpcml.ca
Email: editor@cpcml.ca
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