Governance Expert, Nepal
Late King Prithivinarayan Shah (1742-1774) is much quoted for his saying - “givers and takers of bribe are the enemies of the state; taking their lives does not constitute a sinful act”. This quotation sends out three messages than the regime’s determination to fight corruption. First, corruption was prevalent in Nepal even in ancient times. Second, there are two sides in a corrupt deal – bribe payers and bribe recipients. Third, you need a severe punishment system to deal with corruption crimes. However, there is one perplexity when it comes to fighting corruption crime – “who is more culpable – one who pays to sin or sins to pay?” If a corrupt deal involves two parties – a bribe giver and a bribe taker – can we disrupt the deal by deterring, at least, one of the parties?
Last year, Mr. Kaushik Basu, Chief Economic Advisor to the Ministry of Finance in India, was in controversy after he proposed an idea to legalize corruption. His idea was that in order to reduce incidences of corruption, the act of giving bribe should be made legal. This idea has long been debated under the framework of symmetrical-asymmetrical punishment regimes. In a symmetrical punishment regime both parties to a corrupt transaction are expected to have severe punishments. However, in asymmetrical punishment regime, normally, a bribe payer will get less severe or mild punishment. Mr. Basu’s reasoning goes like this: by making an act of giving bribes legal, it encourages a bribe payer to report corruption crime. This makes detection possible and helps to enforce anti-corruption laws. However, Mr Basu’s was suggesting his idea only to the cases of “harassment bribes”. Harassment bribes are the cases of petty corruption where a citizen, who is legally entitled to have public services, is harassed to pay bribes due to public officials’ willy-nilly or dilly dallying.
The idea on corruption punishment system is worth pondering as we also have an absurd punishment if not a perverse punishment system. Our system allows a discount of 20 percent on corruption punishment if a guilty voluntarily gives up to the court verdict within a specified time limit. The system actually rewards rather than punishes the culprits. Over the last six years of our anti-corruption laws, there has been a substantial increase in the severity of punishment. As for example, the maximum prison term has increased from three year in 1952 to ten years under present law and, moreover, serving prison term is mandatory now. Similarly, prior to the enactment of public procurement law, earlier we have a system that only criminalize bribe receivers, not bribe payers, when it comes to bribery in public procurement. The new public procurement law punishes both parties. These changes in the law seem to have no effect on the levels of corruption in Nepal. Corruption has flourished unabated.
In January 2012, Mr. Christoph Engel and his colleagues from Max Planck Institute for Research on Collective Goods based in Bonn, Germany, published a research paper summarizing their findings from an experimental research on symmetrical vs. asymmetrical punishment regimes. Corruption is a secretive transaction, therefore, it is very difficult to collect factual data on corruption. Therefore, researchers are now resorting to “experimental games” to collect hard facts on corruption. The mentioned research involved organizing corruption games with 192 subjects in two different countries, namely, China and Germany under two punishment regimes – symmetrical and asymmetrical regimes. Here is the summary of their findings: (1) Irrespective to punishment regimes, corruption is inevitable. It takes place under both regimes. This reinforces the belief that corruption cannot be eliminated altogether, it can only be reduced. (2) However, there is a significant difference when it comes to questions like whether the bribe is offered, is accepted, favour granted after accepting a bribe and whether self-reporting of the deal in made, in case, of betrayal by bribe recipient. The researchers found that under symmetrical punishment regime, there is less chance of corrupt deals from taking place. The system of severe punishment to both parties helps prevent corruption from taking place in the first place. However, there is no guarantee that the parties will break their secret vows and disrupt the deal. In contrast, asymmetrical regime is good at disrupting and detecting corrupt deals. The provision of less severe punishment to a bribe giver encourages him/her to report corruption crimes. There is a catch here. Normally, a bribe giver will report bribery only when he/she is betrayed. In the asymmetrical punishment system, as the receiver of bribe is punished severely than the giver of bribe, in a perverse manner, the system forces a bribe receiver to grant favour or implement the deal. Therefore, the system is effective only in deterring those deals that are not going to be implemented in the first place. The researchers suggest that if a country is deciding to make a choice between these two punishment systems they should look into their own corruption detection and enforcement system. If a country already has a good system in place for detecting corruption crimes, it should adopt symmetrical punishment system. Otherwise, go for asymmetrical punishment system.
The results from the research bring us to fore an age old problem of having to make trade-off between two factors related to controlling corruption crimes, namely, (1) probability of detection and (2) severity of punishment. Corruption can be controlled by increasing the probability of detection and/or increasing severity of punishment. However, there is a trade-off between these two factors. To check corruption, people often prescribe severe punishment system (say, capital punishment at extreme). But increasing the severity of punishment will only leads to an offsetting effect on the probability of detection. That is, increasing the severity of punishment only makes difficulty to collect evidences and get witnesses to the crimes. This lowers down the probability of detection. Had not this been the case, the concept of plea bargaining will never have been introduced.
Let me close this write up with a note for those who subscribe severe punishment system like introducing death sentence or life long imprisonment. It is said that corrupt people are not scared of serving long term prison sentences, they are not even scared of going to the gallows; if they are scared of anything it is with someone confiscating their wealth amassed illegally. If this is the psychology of corrupt people then the punishment system should focus on taking advantage from this psychological weakness. We need to have such a punishment system that seeks to extract as much resources as possible from the culprits. ( Exclusive for telegraphnepal.com).