Transparency
of Government and war Against Corruption
by Marco Antonio MARQUES DA SILVA, Professor (at the
Faculty of law at PUC-SP. Coordinator of the Center for research on criminal procedural
law (MSC and PhD) at PUC-SP, visiting Professor of the Law Faculty of the
University of Lisbon (Portugal) and Judge of the Court of Justice of the State
of São Paulo (Brazil).
The transparency of government activities is one of the most
effective tools in preventing and combating corruption. Various events in
different parts of the globe, indicate the need for effective measures in order
to control and make transparent the services provided by the
Government. Some places, like Italy, for example, had the best success in
the fight against corruption, using legal measures. In Brazil, due to its
lack of transparency, by means of various clandestine relations between
governmental and private institutions, generated several illicit activities and
a corrupt system that never had seen before. Therefore, it is clear that
the actions of all sectors of the Government must be more transparent and
visible, not only to satisfy the population, but also to prevent malfeasance
and reprehensible conducts.
The Federative Republic of Brazil is
characterized as being a democratic State of law[1],
on the grounds the sovereignty, citizenship, dignity of the human person, the
social values of labour and free enterprise, and political pluralism. All
affect the interpretation and application of our laws, but the dignity of the
human person and political pluralism are key to modify the form of analysis of
the facts in regards to the penal legal system, as we will see later.
The legalistic formalism of the
judicial function, characteristic of the Liberal State, is no longer accepted,
since the democratic State of law, for its critical sense, is not satisfied
with a pure and simple interpretation of a law, as a perennial, universal
truth, distant from the reality where it intervenes.
In a Liberal State, there was only a
formality regarding the one who had a right violated, as he or she could
propose or challenge a suit- in other words a mere individualistic
perspective. It was not a goal of the State, within the liberal ideology,
to worry about the effective possibility of individuals in their attempts to
recognize and defend their rights, sufficing only to assure the existence of
those, even though they had no practical effect.
Therefore, individual rights were
formally guaranteed, but could only be obtained by those citizens who had
material conditions to do so. Those deprived of material resources were
left to their own devices, since, legally, they had the same possibilities of
recourse to justice. Thus, the access to justice and equality were merely
formal and not effective.
In the international and constitutional
arena, the main example of a legal document that ensured these basic rights was
the French Constitution of 1848, giving economic and social rights, containing,
in the preamble, a chapter dedicated to the rights guaranteed by it. After
the consecration of these social rights, the awareness of the need for a legal
participation of the State grew as to ensure all citizens the access to those
rights.
The basic and original concept of
citizenship was defined as a member of the community of a city, confused with
what we now understand as nationality. With the evolution of this opinion,
the citizen won the right to participate in the political life of the community
through the choice of Governments. However, these rights were granted to a
minority, excluding women, children and slaves.
Advancing in history, with the
emergence of capitalism, industrialization and the great wars, a huge chasm was opened between the poor class of
workers, subjected to inhumane working conditions, with miserable wages,
relegated to fend for themselves, and the upper class, small number of families
who concentrated the wealth and other social rights on them. Amid this
situation, citizenship becomes a source of claims. The marginalized
population rebel, demanding better conditions of life and work, as well as the
right to equal and effective participation in the themes that were held dear by
society.
The members of the cities, considered
the individuals born on its soil, initially enjoyed privileges in relation to
foreigners, receiving protection and the status of citizen in
Exchange for military duties and other obligations imposed by the rulers.
We can note that the concept of
citizenship was created, alongside the process of formation and consolidation
of the nation-State, as a democratic entity born from the ideals of respect,
freedom and equality, claimed throughout history. With the English (1688),
American (1776) and French (1789) revolutions, began the process of social
transformation towards equal treatment to all individuals, which, even though
so much time has elapsed, remains a distant reality in many parts of the world.
The notion of citizenship, then
suffered an expansion to recognize every person the condition of holder of
civil (life, liberty, happiness) and social rights (fraternity, education,
work, housing), which were universalized and positivized by declarations of
rights.
Thus, citizenship can be understood, according
to Walter Ceneviva[2],
as the possibility of the exercise of the rights by the components of a people,
connecting the concept to the boundaries of nationality, as “citizenship has a
biological assumption: the fact that someone was born in a territory and, is
subjected to this law, integrates him with his people, as a citizen. There can
also be a legal assumption: the adoption of citizenship, by one of the possible
forms of naturalization ".
Jose Afonso da Silva[3] states in regards to the
subject, that nationality and citizenship are no longer confused, as he defines
one as a link to the State territory by birth or naturalization; and the other
as a status linked to political regime. Citizenship qualifies
the participants the State’s life, and is an attribute of the people integrated
in society, a political attribute born from right to participate in Government
and the right to be heard by the political representation.
Access to justice is one of the most important
weapons in pursuit of the implementation of all fundamental rights, and it is
in this sense that the States[4]
have sought to provide their citizens with specific mechanisms for their
claim and exercise.
The search for specific legal
instruments guaranteeing the citizen access to justice only occurred from the
moment there was a reaction of individuals to political structures of
States. The law is always steeped in ideological and political meaning and
content.
This legal process then became the ultimate
bridge between the citizen and the judicial power, even though it is shown as
an apparently neutral technical instrument, suffers changes, like all the rest
of the legal system, in accordance with the political and even economic changes
occurring in society. Initially this process was characterized as an
instrument of political power, no significance for the individual, since he was
completely stripped of any right against the political power. The legal
process at this time were nothing more than a form of discipline, in an attempt
to rationalize an arbitrary Act, in the sense of being free from any control,
may it be from the autocratic, dictatorial, totalitarian political power.
However, with the consecration of
public freedoms and the imposition of limits on the Actions of the State, the
legal process becomes an instrument formally put in the hands of the citizen to
assure them in the defence of their rights when these were threatened or
effectively hit by acts of public authorities, as well as individuals.
The resort to the judicial power became a public right and not a mere
formality, whose function was exactly to ensure the safety of the sphere of
rights guaranteed to citizens. As a result, with the effective
democratization of the legal process, the State is now regarded as an
instrument to protect the citizen with this status of
constitutional guarantee. In a democratic society the legal process is
seen as one of the modes of political action.
In a participatory democracy, seen as
an improvement of the liberal democracy and social democracy models, the legal
process is seen as an instrument of political action, as a way to force the
State, or individuals to act in accordance to the goals politically defined by
the community. The challenge here is to guarantee to the citizen access to
a fair legal system, and not just the possibility of access to the judicial
power as a State institution. Therefore, the democratic nature of the
political power, if it is a reality, should be reflected in legal instruments
that enable the citizen in his search and defense of their rights. What
reality has demonstrated is that the effectiveness of access to justice is
closely linked to the relevance of the judicial protection granted. This
is not only dependent on the formal definition of the appropriate procedure,
but requires necessarily an organization of a politically appropriate judicial
function[6].
In the democratic State of law, access
to justice must be understood as the possibility that the citizen has to obtain
a jurisdictional provision of the State, where there is the need for the
preservation of their rights; which must be conducted impartially, fast,
efficiently and effectively.
So, the impartiality comes from a
politically, economically and morally independent magistrate, and that this
independence is guaranteed constitutionally. The quickness is also
necessary, as otherwise the delay of the decision will constitute a mechanism
of detachment of the citizen in his search to preserve his rights;
the efficiency, comes from the fact that the decision must be adequate to
the current legal system, and the effectiveness, for it is necessary that the
command contained in the decision is effective and applicable, in a reasonable
time. It would not work if a quick and appropriate decision is not be
applicable in reality.
It is discussed worldwide the
effectiveness of the rights, importing in a new way of thinking about how the
State, acting as holder of the judicial power, is distributing justice.
The modern world requires effective
transparency of Governments and rulers, who must show, display and demonstrate
their attitudes and behaviors towards society and its members; no more
illicit and hidden attitudes can be tolerated. We need a new way to avoid
hidden secret activities that lead to corruption and social exclusion affecting
with greater intensity the less fortunate. In a contemporary perspective,
Governments should adopt transparency policies to society, so that everyone can
know and follow acts, contracts and practices of public administration, as well
as relations with individuals.
In Brazil, the brazilian population had
few real conditions to organize and mobilize to get the rights that were
due; only with the democratization of the country, especially after the
Brazilian Constitution, promulgated on the 5th of October 1988, that
a popular participation, albeit non-integral, was incentivized. The
brazilian legislative history records the legal provision ensuring forecast to
economically needy, that should have guaranteed them the right to access to
justice, social rights, of manifestation and others, but without real
instruments of implementation.
However, all these structural changes,
when unaccompanied with the necessary actions can become ineffective. The
rulers must have a sensitivity to capture the social and political moment lived
by the population; which in turn have the right to knowledge and
participation in the decisions of the respective powers, which in their part
must be committed with the realization of the common good. There is
nothing more damaging to society than the removal of public administrators
politically, from the social context of the people who are subjected to the
power of their decision.
A Government that is democratic should
respect the right of its citizens to know all the events of the Administration,
in a satisfactory and organized way to be influential in the social
reality. This would lead to the removal of barriers that prevent access to
data and information, whether economic, social, cultural, technical and
procedural or structural.
In addition to providing a service able
to meet and fixate the social interests, it also must be accessible to all,
meaning that there cannot be administrative and/or legal and, especially,
economic obstacles, to prevent the citizen, to effectively exercise their
rights to know of State activities in its entirety.
It's noteworthy that transparency
starts with the idea of education for citizenship. Each person, from an
early age, should be introduced to all of his rights, the manner and mechanisms
to guarantee them. For these administrative mechanisms work, it is
necessary the development of a culture of self – determination of interests, in
such a way that these mechanisms are accepted by those involved without
resistance.
The State cannot adopt airtight,
energetic positions against the claims of the population creating a conflict
therefore between the effectiveness of government transparency and the
realization of the rights of citizenship.
Any administrative methods should
always take into account the fundamental rights and social interests of the
citizens, considering delicate situations, as for example possible cases of
sensitive investigations, whether they are confidential or not, where people
can't defend themselves, and therefore the data is nonpublic information, until
the end of the investigations, when the State will respect the privacy of the
citizen under investigation.
Thus, access to information and public
data should be made available to the citizens, not forgetting the fundamental
rights and individual guarantees.
The concept of Ethics, cannot remain
only in the intentions; It has to be exercised, expressed in actions,
specific behaviors that allow proper co-existence towards society. You
cannot behave according to the occasion, the opportunity or as some say, the
"ethics of convenience".
We live in strange Alegreya, where we see,
disrespect to the human and social values; a real discredit of morals and
of human beings. According to José Renato Nalini: "there are symptoms
that the community would be exceeding the minimum ethical barrier, from where
arises the decay and disintegration of society. Only the unusual is the
subject of applause and disclosure. Good does not attract, nor is
sensible. By the way, people are not moved with the tragedy of the
streets. They pass by the growing misery, impassive without remorse by
closing the windows to beggars, or extend the step not to stumble in the
excluded "[9] .
But how can we define
ethics? Maybe we could define it as the respect of the most varied manifestations,
respect to what is similar or different. The ethical rules, although not
mandatory, guide appropriate attitudes and postures; they would be the
politically correct conduct and good behavior. These are present in
several areas of society, professions and institutions; they regulate
behaviors and the way of acting of individuals in certain situations, guiding
the relations between people. Finally, these have the aim of maintaining a
constant procedure among the members of a social group.
Maybe the desirable ethics position has
alot to do with tolerance. Tolerance means “permission and respect of
ideas and practices that even when not considered as true, are not contrary to
social order and harmony. The reason for this tolerance is not in these
ideas that are judged false, but on the need to respect the person's next to
achieve coexistence and the common good”.
We have witnessed intolerant and
disrespectful postures, of the simplest postulates. People use the Office,
social position, economic power to overwhelm others, crossing boundaries and
not obeying the laws; so what can we say then about the ethical, moral and
rules of behavior. Moral decay has also contributed to increasing social
inequality and create other chasms in the capitalist world. Greed and
attachment to material goods have drawn away the values of human dignity and
solidarity.
Corruption endangers society, democracy
and the economic order, as it reaches the trust in the activities of various
segments, destabilizing the institutions, in particular those of public
life. Although an occurrence as old as societies, this cannot and must not
be accepted as definitive, much less as normal. Numerous studies and
debates have been centered to discuss corruption, how to avoid it, fighting it
and punish it, but often without great results. Unfortunately, corruption
is not a recent evil, on the contrary, this bad conduct has been present in
society for centuries.
As Renato de Mello Jorge Silveira
explains, when writing about the origin of corruption: “few cases
are as iconic as the rise and fall of Rome. Since then, in the middle
ages Machiavelli, exploitation of the
Americas to the French Revolution, the Industrial age to the age of extremes of
the 20th century, there always is a mention of irregular acts of political
leaders. The world, always seems to have been living with
corruption”. And he continues: “in the middle ages, in particular, and
even as a matter of historical proximity with the perception of corruption in Brazil,
noted that the Alegreya of its greatest presence match the greatest institutional
crisis. In the Iberian Peninsula, Portugal and Spain are an example of
this. After the glorious days of Manuel I, the fortunate, a series of
outrages has eroded the former glory. In Spain, they mention the years of
Charles II as its maximum decline. Years before, still under Felipe III,
the Court courtesan policy, already rehearsed
Alegreya of corruption and disapproval. Such situations drop a shadow
in America, and especially in Brazil, a curious blend of that Iberian reality”.
Although there is no fixed way or
formula for the creation of corruption, it manifests itself more strongly with
the Executive and legislative branches, using public funds to benefit the one
who is corrupt or others connected to them. There is a feeling of contempt
and indifference for the public good and to the citizen, the one who pays taxes
and sustains this "diabolical machine".
Depicting a vexatious situation
happened in Brazil, Roberto Romano points out an explicit debauchery of the
laws and of the sovereign people, when parliamentary and executive authority
laughed in clear daylight and boldly stated that “there was nothing immoral” in
talking about private matters with a colleague, in his
personal benefit. This event is to indicate what the vision that those
in power have of the political institutions. Milan Kundera states that
“laughter is the domain of the devil”. Not all laughter, however, as the
novelist attest that there is the laughter of angels, moved by the admiration
of the beautiful order given to the universe by the divine being. The demonic
laughter shows the breaking of that order, the absurd enthroned in worldly
things (the book of Laughter and forgetting).
When talking about corruption, Renato de
Mello Jorge Silveira notes that, in very, simple precepts creating
specific actions against the corruption in the Public
Administration. Beyond that, you're talking about a new criminal policy
orientation, with the lasting legislative reflections on the idea of fighting
corruption, which can even form itself as an international project against
corruption.
It is no longer possible that the
personal interests, corporate or any other order come to prevail over the
public interest of the whole collective. We need effective measures
against corruption, cronyism and the demoralization of ethics and morals.
Every day we see new political and
economic scandals, and nothing seems to shake people. The global
phenomenon characterizes contemporary society due to the social changes that
have occurred in various fields, taken into account by the various areas,
including Law.
The term globalization,
though widespread, is still misunderstood, as generally defined and nebulous,
although it presents a greater political effectiveness. Almost all the
justifications for the current society's problems, with their complexities, are
attributed to the movement of globalisation; However, the lack of
boundaries and parameters for ambition, the ravenous fury by power and money,
has been the greatest cause.
The characteristic of personal
relations of communication indicates the existence of a constant risk and also
causes many debates in philosophy and sociology. The reflections of these
controversies directly affect the citizens, especially the most
vulnerable. The problem is in finding a formula suitable for managing the
risks of corruption, as it was not found, at least for now, an effective
instrument to at least prevent the damaging effects of this altered behavior
which is generating social losses.
The insertion of the criminal law in
this contemporary society of communication changed the communicative
relationship of criminality, while the delictual situations begin to escape the
constant binomial “one and one”, i.e. an offender and a victim, for a
polynomial in which transmitter and receiver are not identified individually,
but refer to an organization, or several people. The causality is
independent of human will, but allied to the technological advancement of unknown
consequences and, in face of these modern concerns, we can talk of a risk
society, demonstrating the anxiety of modern man in dealing with new forms of
corruption. This for some time ceased to have a limited circle,
creating branches in the political, economic and social area, generating losses
and social conflict which are at this point unknown.
Criminal policy is a relevant point to
act in preventing or reacting on the new criminal behavior. Cooperation
between the powers, institutions and society is a necessity in the fight
against corruption and should be found a direct way for this joint
work. Current economic crime is linked to the globalization of the economy
that is organized, inserting itself in a globalized manner, in a national or
international crime.
The State should have a more direct
approach and establish limits to certain behaviors of public agents, especially
in the economic area. There must be an effective disapproval regarding the
conduct of public sector employees who manage contracts, jobs or services,
aiming for the economic crime prevention.
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[1] Article 1 of the Constitution of the Federative Republic of Brazil, promulgated on 5 October 1988.
[2] Cenevia W., Brazilian
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[4] Cappelletti M., Garth B., In access to justice, Sérgio Fabris, Porto Alegre, 1988, page. 11, note 7, as likely to have been the Austrian Code of 1895, the first to recognize explicitly the duty of the State to ensure access to justice (at least while the parties were in Justice), giving the judge an active role to equalize the parties