Public Administration Reform and Anti-Corruption: A Series of Policy Discussion Papers04 Dec 2013
Criminalising Corruption: A Study of International Practices and Application for Viet Nam
The overall policy rationale for reform is explicit. First, levels and types of corruption are increasing. Not only will they adversely impact on Viet Nam’s chosen path of economic development but the potential for them to become pervasive and entrenched will emphasise the increasingly visible disparities between the state, public officials and the citizens. Second, there are weaknesses in terms of the coherence of the Articles in the Penal Code and the need to review and amend the language of existing Articles to bring it in line with other countries. Third, in terms of an overview of the current legislation and in comparison to international good practice, the legislation does not address new areas of corruption, including bribe-giving, private sector corruption and the offence of bribing a foreign public official (PFO). Fourthly, the reform of Vietnam legislation, which should be grounded in the risks and threats of corruption faced by Viet Nam, is an essential platform on which to provide a more integrated legal framework with the Anti-Corruption Law (ACL). In turn this framework is necessary to address and revise the current institutional and procedural arrangements so that they are fit-for-purpose in achieving a more effective implementation of the revised legislation. There are three policy options facing Viet Nam in terms of addressing corruption. First, there is the option of doing nothing. The second policy option is limited reform, primarily focused on compliance with the United Nations Convention on Anti-corruption (UNCAC). The third option is a substantive revision of the Penal Code and its use as a platform for reform to the institutional and procedural arrangements for effective implementation.
The policy point is that Vietnam can opt for a minimalist approach of simply amending the Penal Code to comply with the formal-legal requirements of UNCAC with little or no reference to either the emergence of new types of corruption, new ways of sanctioning offences, and the institutional-implementation issues. It can also opt for the opportunity for, given the implications for progression along the Middle-income Country (MIC) trajectory, for state legitimacy and for external compliance with future Financial Action Task Force requirements, a comprehensive and timely reform process that addresses holistically the causes and consequences of corruption, the legislative framework and the necessary institutional and procedural arrangements to implement the law effectively. In view of the external and internal issues raised, the third policy option is essential. In light of international experiences and the various internal and external reports on the law, this policy report makes specific recommendations within which to begin the reform process by a substantive revision to the Penal Code.