Bethany Pope has always been of great help with fulfilling administrative and other ...... 105 See http://www.cdep.ro/proiecte/2006/300/40/5/pvg345.pdf. 106 Both ...... InformaÅ£ia de interes public -â un drept fundamental Åi o responsabilitate pe.
International Policy Diffusion and Domestic Policy-‐Making: the Case of Two Transparency and Anticorruption Policies in Romania. by Sabina Schnell B.A. in International Economics and Business, August 1999, Academy of Economic Science, Bucharest, Romania M.A. in Development Policy, October 2001, University of Bremen, Germany A Dissertation submitted to The Faculty of The Columbian College of Arts and Sciences of The George Washington University in partial fulfillment of the requirements for the degree of Doctor of Philosophy May 18, 2014 Dissertation directed by Jennifer M. Brinkerhoff Professor of Public Administration and International Affairs
The Columbian College of Arts and Sciences of The George Washington University certifies that Daniela Sabina Schnell has passed the Final Examination for the degree of Doctor of Philosophy or Doctor of Education or Doctor of Science or Doctor of Public Health as of March 4th 2014. This is the final and approved form of the dissertation. International Policy Diffusion and Domestic Policy-‐Making: the Case of Two Transparency and Anticorruption Policies in Romania. Sabina Schnell Dissertation Research Committee: Jennifer M. Brinkerhoff, Professor of Public Administration and International Affairs, Dissertation Director Lori Brainard, Associate Professor of Public Policy and Public Administration, Committee Member Derick Brinkerhoff, Associate Faculty of Public Administration and International Affairs, Committee Member
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© Copyright 2014 by Sabina Schnell All rights reserved
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For Mark
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Acknowledgements I want to thank my dissertation committee – Jennifer Brinkerhoff, Derick Brinkerhoff and Lori Brainard – for their advice, support and patience throughout the dissertation process. Susan Aaronson and Rob Weiner also offered insightful comments and ideas for further research. To Jennifer and Derick Brinkerhoff I owe a mountain of gratitude for their support, guidance and mentoring throughout my studies at GWU – from helping me take my first steps as a research assistant to encouraging me to pursue my research interests to giving me the opportunity to teach. I also want to thank GWU faculty and staff for their support throughout the years, and especially Joe Cordes. Joan Dudik-‐Gayoso has been like a mother to me, and her kind words of wisdom have always encouraged and reassured me. Bethany Pope has always been of great help with fulfilling administrative and other requirements. This dissertation would have been much more difficult to write without the intellectual and emotional support of Katrina Connolly and Lori Metcalf. I cannot write about our friendship as beautifully as they did. I can only hope that not only will this friendship endure, but that we will find opportunities to work together in the future. Eric Boyer has always been an excellent encourager and patient listener. Other GWU friends to whom I am grateful for having made the dissertation experience somewhat less solitary include Jeff Williams, Lisa Lowry, Emily Jones, and Avery Sen. I want to thank my interviewees in Romania for their time and their insights, without which this dissertation would not be complete. I hope to encounter some of them again in future research endeavors. Special thanks go to Andreea Nastase and Codru Vrabie for getting the snowball interview sampling process started.
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I also want to thank my mother for her excellent research assistance. Naturally, I want to thank my parents for everything they ever did for me – from making me the kind of person that embarks on a long, demanding and uncertain process to supporting me emotionally throughout this process. I probably cannot thank them enough for this and everything else.
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Abstract of Dissertation International Policy Diffusion and Domestic Policy-‐making: The Case of Two Transparency and Anticorruption Policies in Romania In the last two decades, more and more countries have adopted transparency and anti-‐ corruption (TAC) policies – including countries with high levels of corruption. This represents an apparent paradox: such policies, if effective, risk exposing government wrong-‐doing, and thus should run counter to the interests of elites in highly corrupt countries. One of the main explanations for the spread of transparency and anti-‐corruption policies has been international policy diffusion. Nevertheless, international processes are not by themselves sufficient for explaining the adoption, let alone implementation and sustainability, of such policies. Rather, much depends on how international diffusion processes interact with domestic interests and institutions. To date, there are comparatively few efforts to integrate explanations based on international diffusion with those based on domestic incentives into a joint framework, and even fewer specifically for the area of transparency and anti-‐corruption. This dissertation addresses this gap. It investigates how domestic and international factors contributed jointly to the adoption and evolution of two key transparency and anti-‐ corruption policies in Romania: freedom of information and public asset and interest disclosure. Integrating literature from political science, development theory, and public administration, and using a mix of qualitative research methods, the dissertation follows the history of these policies over more than ten years, to explain why and how elites in high-‐ corruption countries adopt such policies. Romania represents a critical case for the potentials and limits of externally-‐driven adoption of TAC policies: it is a high-‐corruption country that has enacted a spate of transparency and anti-‐corruption policies in the last
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decades, while being exposed to an unprecedented degree of international influence through the EU accession process. The findings confirm the propositions I outline: International pressure and/or support for transparency and anti-‐corruption policies is indeed crucial in empowering domestic policy entrepreneurs, opening windows of opportunity and generating elite support for such policies. However, ultimately, policy adoption, implementation and sustainability over time depend on the domestic incentives of both decision-‐makers and civil society. Such incentives are shaped by underlying structural and institutional conditions, such as the capacity and scope for civil society activism, the type and degree of political competition and political uncertainty, and the existence of “value actors.” The incentives are also shaped by policy-‐specific features, such as the degree and distribution of costs and benefits of the policies, their global strength, and their normative resonance. International actors and diffusion processes can intervene at crucial moments in the policy process and alter to some degree the cost-‐benefit calculations of domestic actors, but they cannot fundamentally change the structural and institutional conditions which shape the key incentives. Thus, international diffusion is a necessary but insufficient condition for the adoption and implementation of transparency and anti-‐corruption policies across countries, and especially in high-‐corruption countries.
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Table of Contents Dedication .................................................................................................................................................... iv Acknowledgements ................................................................................................................................... v Abstract of Dissertation ........................................................................................................................ vii List of Figures ............................................................................................................................................ xii List of Tables ............................................................................................................................................ xiii Acronyms ..................................................................................................................................................... xv 1 Chapter 1: Introduction ................................................................................................................... 1 1.1 Transparency .............................................................................................................................................. 5 1.2 Corruption ................................................................................................................................................ 10
2 Chapter 2: International Explanations for the Adoption and Evolution of Transparency and Anti-‐Corruption Policies/FOIA and PAD ............................................... 17 2.1 Types of International Diffusion ..................................................................................................... 18 2.2 Factors Affecting Domestic Policy Uptake .................................................................................. 22 2.3 International Diffusion of FOIA ....................................................................................................... 26 2.4 International Diffusion of (P)AD ..................................................................................................... 30
3 Chapter 3: Domestic Explanations for the Adoption and Evolution of TAC Policies/FOIA and PAD ......................................................................................................................... 36 3.1 Structural Factors .................................................................................................................................. 36 3.2 Sources of Domestic Demand ........................................................................................................... 41
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3.3 Incentives for Decision-‐Makers ....................................................................................................... 49 3.4 Policy Evolution ...................................................................................................................................... 69 3.5 International Influences on Domestic Policy Processes ....................................................... 77 3.6 Case Study Propositions ..................................................................................................................... 81
4 Chapter 4: Research Design ........................................................................................................ 90 4.1 Overall Research Design ..................................................................................................................... 90 4.2 Case Selection .......................................................................................................................................... 93 4.3 “Measurement” Strategies ................................................................................................................. 95 4.4 Data Sources .......................................................................................................................................... 100 4.5 Analytical Approach and Addressing Limitations of the Research Design ................. 108
5 Chapter 5: Structural and institutional context and political evolution ............... 111 5.1 Post-‐Communist Political Development: Democratization and Western Integration .......................................................................................................................................................... 111 5.2 Political System and Actors ............................................................................................................. 122 5.3 Conclusion: Structural and Institutional Factors and their Implications .................... 150
6 Chapter 6: Evolution of Transparency and Anti-‐Corruption Policy in Romania ............................................................................................................................................... 157 6.1 General Evolution of Transparency and Anti-‐Corruption Policy in Romania ........... 157 6.2 FOIA ........................................................................................................................................................... 172 6.3 (P)AD ......................................................................................................................................................... 201 6.4 Conclusion: the History of FOIA and PAD in Romania ......................................................... 244
7 Chapter 7: Analysis ....................................................................................................................... 249 7.1 Policy Evolution: Pattern of Outcomes ....................................................................................... 250 7.2 Intervening Variables: Support from Domestic Actors ....................................................... 261
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7.3 External Influences: Channels of Diffusion ............................................................................... 267 7.4 Structural and Institutional Factors ............................................................................................ 273 7.5 Policy Characteristics ......................................................................................................................... 281 7.6 Propositions ........................................................................................................................................... 289 7.7 Conclusion: Domestic and International Drivers of TAC Policy Evolution ................. 301
8 Chapter 8: Conclusions and Implications ........................................................................... 307 8.1 Conclusions: Summary ...................................................................................................................... 307 8.2 Theoretical Contributions ................................................................................................................ 311 8.3 International Policy Implications ................................................................................................. 325
Bibliography ............................................................................................................................................ 336 Annexes ..................................................................................................................................................... 373 Annex 1: Tables of Key Legislation ........................................................................................................... 374 Annex 2: Additional Figures and Tables ................................................................................................ 387
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List of Figures Figure 3-‐1. Theoretical Framework ................................................................................................................................... 84 Figure 4-‐1. Research Design .................................................................................................................................................. 91 Figure 5-‐1. Main parties in parliament and government (1990-‐2011) ........................................................... 124 Figure 5-‐2. Satisfaction with the government’s anti-‐corruption policy (% satisfied minus % dissatisfied) ..................................................................................................................................................................... 145 Figure 5-‐3. Salience of corruption in the Romanian media .................................................................................. 148 Figure 5-‐4. Salience of transparency in the Romanian media ............................................................................. 149 Figure 5-‐5. Freedom House: evolution of key democratization indicators for Romania ......................... 150 Figure 6-‐1. Salience of corruption and transparency in EC country reports ................................................ 162 Figure 6-‐2. Number of FOIA requests over time ........................................................................................................ 185 Figure 6-‐3. News coverage of FOIA (EZ) ....................................................................................................................... 188 Figure 6-‐4. FOIA rejection rate .......................................................................................................................................... 189 Figure 6-‐5. FOIA-‐related bills introduced and adopted in Parliament (2001-‐2011) ................................ 199 Figure 6-‐6. PAD-‐related bills and legislation 2001-‐2011 ...................................................................................... 230 Figure 6-‐7. EZ – number of articles mentioning asset declarations or ANI ................................................... 239 Figure 7-‐1. Theoretical Framework ................................................................................................................................ 250 Figure A-‐1. Government Emergency Ordinances (GEOs) by year ...................................................................... 387 Figure A-‐2. GEOs by government ..................................................................................................................................... 387 Figure A-‐3. Laws adopted in parliament, by legislature ......................................................................................... 387 Figure A-‐4. Confidence in key institutions (a great deal + quite a lot, %) (World Values Survey) ...... 388 Figure A-‐5. % of surveyed Romanians choosing corruption as the main problem ................................... 388 Figure A-‐6. % of articles mentioning corruption in Romanian newswires ................................................... 389 Figure A-‐7. % of articles mentioning transparency in Romanian newswires .............................................. 389 Figure A-‐8. Strength of asset disclosure regime (2008 – selected countries) .............................................. 391 Figure A-‐9. Strength of public disclosure requirement (2008 – selected countries) ................................ 391 Figure A-‐10. Strength of monitoring and enforcement mechanism (2008 – selected countries) ....... 392
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List of Tables Table 2.1. International policy and norm characteristics that can affect domestic policy adoption ..... 26 Table 2.2. Global strength of FOIA and (P)AD ................................................................................................................ 34 Table 3.1. Policy types .............................................................................................................................................................. 42 Table 3.2. Distribution of costs and benefits of FOIA and PAD .............................................................................. 44 Table 3.3. Potential constituencies for FOIA and PAD ............................................................................................... 49 Table 3.4. Incentives of decision-‐makers to support FOIA and PAD ................................................................... 67 Table 3.5. Factors affecting policy evolution over time ............................................................................................. 76 Table 3.6. Impacts of international policy diffusion on domestic policy processes ...................................... 81 Table 3.7. Policy evolution depending on costs and benefits .................................................................................. 89 Table 4.1. Key structural and institutional factors influencing the incentives for FOIA/PAD adoption and evolution, by actor .................................................................................................................. 97 Table 4.2. Interviewees ......................................................................................................................................................... 105 Table 5.1. Key actors, enabling conditions, and incentives to support FOIA and PAD ............................. 151 Table 6.1. Key periods of Romania-‐EU relations – an anti-‐corruption perspective ................................... 165 Table 6.2. Romania’s FOIA in international comparison (RTI) ........................................................................... 180 Table 6.3. FOIA compliance: 2003 vs. 2006 ................................................................................................................. 192 Table 6.4. Evolution of public access to information in practice (GII) ............................................................. 193 Table 6.5. Strength of the public disclosure regime in Romania ........................................................................ 232 Table 6.6. Public access to asset declarations (GII) .................................................................................................. 235 Table 6.7. Verification of asset declarations (GII) ..................................................................................................... 243 Table 7.1. FOIA, PAD and ANI progression from agenda to adoption .............................................................. 252 Table 7.2. Key features of FOIA and (P)AD evolution over time ......................................................................... 258 Table 7.3. Key actors’ support for FOIA and PAD/ANI ........................................................................................... 261 Table 7.4. International influences .................................................................................................................................. 267
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Table 7.5. Structural and institutional factors, original expectations and observed behavior ............. 274 Table 7.6. Costs and benefits for FOIA, PAD and ANI .............................................................................................. 289 Table 8.1. Summary of actors, structural and institutional factors and best entry points for supporting TAC policies. ............................................................................................................................................... 334 Table A.1. Key freedom of information and asset disclosure legislation ........................................................ 374 Table A.2. FOIA-‐related bills introduced in Parliament .......................................................................................... 376 Table A.3. PAD-‐related bills introduced in Parliament ........................................................................................... 378 Table A.4. Salience of transparency, corruption, FOIA, AD and ANI in EC country reports, 1998-‐2011 .................................................................................................................................................................................. 389 Table A.5. FOIA strength – WB-‐PAM, 2010 .................................................................................................................. 390 Table A.6. Strength of asset disclosure regime – WB-‐PAM, 2008 ...................................................................... 390
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Acronyms AIC = Asset Investigation Commission AD = Asset Declaration AMP = Agentia de Monitorizare a Presei (Agency for Monitoring the Press) ANI = Agentia Nationala de Integritate (National Integrity Agency) APADOR-‐CH = Asociatia Pentru Apararea Drepturilor Omului – Comitetul Helsinki (Association for Defending Human Rights – Helsinki Committee) APD = Asociatia Pro-‐Democratia (Association Pro Democracy) ARC = Alianta pentru o Romanie Curata (Alliance for a Clean Romania) ASG = Agentia pentru Strategii Guvernamentale (Agency for Government Strategies) CC = Constitutional Court CD = Chamber of Deputies (Lower house of the Romanian parliament) CDR = Conventia Democrata Romana (Democratic Convention of Romania) CEE = Central and Eastern Europe CJI = Centrul pentru Jurnalism Independent (Center for Independent Journalism) CNI = Consiliul National de Integritate (National Integrity Council) CoI = Conflict of Interest CRJ = Centrul pentru Resurse Juridice (Center for Judicial Resources) CRJI = Centrul Roman pentru Jurnalism de Investigatie (Romanian Center for Investigative Journalism) CSO = Civil Society Organization CVM = Cooperation and Verification Mechanism DNA = Directia Nationala Anti-‐Coruptie (National Anti-‐corruption Directorate) DSG = Directia pentru Strategii Guvernamentale (Directorate for Government Strategies) EC = European Commission EP = European Parliament
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EU = European Union EZ = Evenimentul Zilei (Event of the Day) FDSC = Fundatia pentru Dezvoltarea Societatii Civile (Foundation for Civil Society Development) FDSN = Frontul Democratic al Salvarii Nationale (Democratic Front of National Salvation) FH = Freedom House FOIA = Freedom of Information Act FSN = Frontul Salvarii Nationale (National Salvation Front) IJC = Initiativa pentru o Justitie Curata (Initiative for a Clean Justice) GDP = Gross Domestic Product GEO = Government Emergency Ordinance GII = Global Integrity Index GIR = Global Integrity Report GRECO = Group of States Against Corruption HR = Human Rights IMF – International Monetary Fund IO = International Organization INGO = International Non-‐Governmental Organization IPP = Institutul pentru Politici Publice (Institute for Public Policy) KAS = Konrad Adenauer Stiftung MoJ = Ministry of Justice MoPI = Ministry of Public Information MP = Member of Parliament NAPO = National Anti-‐corruption Prosecution Office NATO = North Atlantic Treaty Organization NGO = Non-‐Governmental Organization
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OECD = Organization for Economic Cooperation and Development OML = Open Meeting Law (“sunshine law”) OSI = Open Society Institute (Soros Foundation) OSJI = Open Society Justice Initiative PAD = Public Asset Disclosure PAL = Programmatic Adjustment Loan PAM = Public Accountability Mechanisms PD = Partidul Democrat (Democratic Party) PDL = Partidul Liberal Democrat (Liberal Democratic Party) PDSR = Partidul Democrat Social Roman (Romanian Social Democratic Party) PHARE = Poland Hungary: Assistance for Restructuring their Economies PM = Prime Minister PNL = Partidul National Liberal (National Liberal Party) PNTCD = Partidul National Taranesc Crestin si Democrat (National Peasant Christian Democratic Party) PRM = Partidul Romania Mare (Greater Romania Party) PSD = Partidul Social Democrat (Social Democratic Party) RL = Romania Libera (Free Romania) SAR = Societatea Academica Romana (Romanian Academic Society) SGG = Secretariatul General al Guvernului (General Secretariat of the Government) TAC = transparency and anti-‐corruption TI = Transparency International TI-‐Ro = Transparency International Romania UDHR = Universal Declaration of Human Rights UDMR = Uniunea Democrata a Maghiarilor din Romania (Democratic Union of Hungarians of Romania) UN = United Nations
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UNCAC = United Nations Convention against Corruption USAID = United States Agency for International Development WB = The World Bank
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1
Chapter 1: Introduction
Transparency and anti-‐corruption have become increasingly visible issues on the global agenda, with more and more developing countries adopting a variety of anti-‐corruption and transparency policies. This represents an apparent paradox: such policies, if effective, risk to expose government wrong-‐doing, and thus should run counter to the interests of elites in highly corrupt countries. One of the main explanations for the global spread of transparency and anti-‐corruption policies has been international policy diffusion. However, domestic policy-‐ and context-‐specific factors also have an influence on which policies get adopted and how they evolve over time. For the area of transparency and anti-‐corruption, there are a number of studies of global norm and policy diffusion, as well as comparative accounts of policy adoption at the national level. However there are comparatively fewer efforts to integrate international policy diffusion and domestic policy adoption into a joint framework that also takes into account the possible dynamics of domestic policy processes. The goal of this dissertation is to understand why and how transparency and anti-‐ corruption policies get adopted and evolve in a high-‐corruption developing country. In particular, it looks at how domestic and international factors interact and what their relative role is in the adoption and evolution of transparency and anti-‐corruption policies. To answer these questions I will compare the story of the adoption and evolution of two specific transparency and anti-‐corruption (TAC) policies – freedom of information (FOI) and public asset disclosure (PAD) -‐ in Romania. Comparing two policies allows me to look at (i) how policy-‐specific factors influence the policy process, including (ii) how different international diffusion mechanisms affect the policy process. Situating the two policies in the context of Romania will also allow me to assess (iii) how structural and institutional factors influence the policy process. Finally, looking at all these factors in conjunction over a
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time-‐frame of over ten years, will allow me to develop an explanation for (iv) how these factors interact to affect policy change over time. Romania has been selected because it is a high-‐corruption country that has enacted a spate of transparency and anti-‐corruption policies in the last decade. Thus, it is particularly suited to illustrate the paradox above. Second, through the process of accession to the European Union (EU), it has been exposed to a perhaps unparalleled degree of international influence, i.e., of norm and policy diffusion. Thus, Romania represents a critical case for the potential and limits of external influences on the adoption and evolution of TAC policies. The two policies (FOI and PAD) are chosen both because of their similarity and because of their differences. Both belong to the broad area of transparency and anti-‐corruption policy. However, FOI is more directly tied to transparency per se, even if it is also advocated as contributing to reducing corruption. Asset disclosure of high-‐level officials belongs more to the standard anti-‐corruption toolkit. However, if the asset declarations are made public, this can also contribute to increasing government and broader political transparency. Thus, public asset disclosure (PAD) can also be seen as a transparency policy. Choosing two different TAC policies helps both to assess the impact of different policy characteristics on the policy process and makes extrapolation of the findings to the broader area of TAC policy easier. The multitude of actors and the complex causal chains “from public opinion to parties and bureaucracies and back again” (John, 2003: 483) make the development of overarching theories of the policy process extremely difficult (also Greenberg, Miller, Mohr & Vladeck, 1977). Both equifinality, i.e., the existence of a variety of causal chains and combinations of variables which can lead to the same outcome (Bennet & Elman, 2006), and contingency
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make the prediction of policy evolution difficult – or even impossible. The best we can aim for is to conceptualize certain key variables and observe how they get recombined in specific policy processes. Thus, this dissertation does not aim to test specific hypotheses about the relationship between clearly defined variables, but rather to give a rich description of policy adoption and change for two transparency policies in a developing country with a relatively recent (20 years) history of democracy and a high level of corruption. In other words, it takes a “causes of effects” rather than an “effects of causes” approach (Bennet & Elman, 2006). As Yin (2003) highlights, case studies are particularly well suited to answer “how” and “why” questions, like this dissertation’s research question. The rich case description will be compared to different explanations from the literature, to see which explanations are most closely reflected in the cases. The dependent variable (the outcome to be explained) is policy evolution -‐ adoption, implementation and change. The independent variables (explanatory factors) include policy characteristics, domestic structural and institutional factors, and international influences, in particular the types of international diffusion mechanisms at work. The potential connections between them will be identified through the literature review and then refined through the case study. I proceed as follows. In chapter 2, I review the literature on international policy diffusion, with a specific focus on freedom of information and asset disclosure. Chapter 3 details domestic factors affecting the adoption and evolution of TAC policies. These include macro-‐ structural factors such as economic development and democracy (chapter 3.1), structural and institutional features of the political system that can generate public or interest-‐group support for transparency and anti-‐corruption policies (the “demand-‐side” -‐ chapter 3.2), as well as support from decision-‐makers (“supply-‐side” – chapter 3.3). I also look at what
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drives policy evolution over time (3.4) and how international influences affect these domestic policy processes (3.5). Based on this, I develop a set of more clearly specified variables and propositions about the connections between the explanatory factors identified through the literature review and the process of adoption and change of TAC policies in general and FOI and PAD in particular (3.6). These propositions will guide the case study. The case study itself has two parts. The first part (Ch. 5) is a description of the Romanian political context and its evolution over time, to identify which structural and institutional determinants of transparency and anti-‐corruption policy-‐making identified in Chapter 3 are present in this case. The second part (Ch. 6) is a historical account of the process of adoption, implementation and revision of FOIA and (P)AD, describing how and when different actors got involved and influenced the policy process. The main focus is on the period from 2000 to 2011. However, relevant policy events that happened before 2000 are also included in the case study and analysis. The case study draws on academic literature, official documents, studies, and analyses from international organizations, public agencies, civil society organizations, news articles, as well as interviews with key informants. I then compare the story of FOI and PAD evolution in Romania to the propositions resulting from the literature review and further refine the explanations for the adoption and evolution of transparency and anti-‐corruption policies in a middle-‐income, high-‐corruption developing country (Ch. 7). I then summarize the main conclusions of the dissertation and draw out policy implications for those wishing to promote the adoption of TAC policies around the world (Ch. 8). The remainder of the introduction discusses the concepts of transparency and corruption, including associated policies and the connection between them.
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1.1
Transparency
Definitions of Transparency According to the Oxford English Dictionary, being transparent means being “easily seen through, recognized, understood, or detected; manifest, evident, obvious, clear.” Finkelstein (2000: 6) defines transparency as “a characteristic of those policies that are easily understood, where information about the policy is available, where accountability is clear, and where citizens know what role they play in policy implementation” (emphasis added). Transparency, like other governance-‐related concepts, has a variety of meanings. Generally, it is seen as a feature of government vis-‐à-‐vis its citizens. However, transparency scholars use the term also to characterize relationships between or even within public institutions. For example, Heald (2006) differentiates between “inward” and “outward” transparency. Hood (2007) differentiates between direct transparency, i.e., “the sort of openness that comes from activities or results that are directly observable by the public at large, or from face-‐to-‐ face encounters between officeholders and those they serve,” and indirect transparency, i.e., “the sort of information or reporting procedure that makes activity or results visible or verifiable, but only to agents or technical experts.” In its simplest understanding, transparency is used to refer to allowing access to government information. More complex conceptions of transparency emphasize making that information easily accessible and comprehensible (Osborne, 2004), i.e., considering not just the quantity, but also the quality -‐ comprehensiveness, relevance, clarity -‐ of the information released (e.g., International Monetary Fund [IMF] 1999, 2007 for fiscal transparency). An even more demanding concept of transparency is that requiring government to explain its reasoning behind its decisions and actions, which can be seen as a form of “reasoned” transparency (Coglianese, 2009). A related concept is that of open
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governance or openness (e.g., Organization for Economic Cooperation and Development [OECD], 2003), which is achieved “through disclosing to the parties any information which is relevant to the process, allowing parties to participate, giving an explanation and justification for the decision, and wherever possible conducting proceedings in public” (Galligan, 1997: 29). By demanding a clear reasoning behind public decision, transparency as comprehensibility puts emphasis on the substantive legitimization of such decisions. However, already enacted laws about how decisions are made (i.e., the whole legal and policy basis of the system of governance) provide an alternative (procedural) basis for the legitimization of public decisions by specifying the process through which decisions are made. This represents what Heald (2006) calls process transparency, and is the most complex interpretation of transparency: as predictable decision-‐making made according to clear and publicly-‐known or -‐knowable rules. For example, Hood (2006: 5, emphasis added) defines transparency as “government according to fixed and published rules, on the basis of information and procedures that are accessible to the public, and (in some usages) within clearly demarcated fields of activity.” Such an understanding of transparency goes beyond availability and quality of information and communication, to focus on the nature of the system of governance itself. It nicely expresses the tension between formal (and thus presumably published) rules and informal (and thus non-‐transparent) norms. Even more importantly, equating transparency with predictability brings issues of fairness more clearly within the scope of assessment (Finkelstein, 2000). Predictability -‐ treating like cases alike -‐ is a fundamental principle of procedural fairness and reflects the prioritization of universalistic over particularistic norms, which are in turn key elements of rational-‐legal systems of governance (Weber,
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1964). While conceptually a more complex interpretation of transparency, this definition is operationally challenging as transparency basically becomes a “doctrine of governance” (Hood, 2006; Drabek & Payne, 2002), synonymous with the mega-‐concept of good (modern) governance. Nevertheless, both international organizations and academic researchers often use transparency in this sense (Kaufmann and Bellver, 2005 on the WTO definition; Bukovanski, 2002 on the IMF; Drabek & Payne, 2002). Thus, the frequent invocation of transparency instead of or in conjunction to concepts such as good governance or anti-‐ corruption by various international organizations is a way to reinforce the core message about the need for democratic, rational-‐legal rule. When looking at specific policy or administration areas, what is held up as good practice of transparency represents a mix of all these understandings, including information that has to be made accessible or actively published, quality and comprehensiveness of information, explanations that have to be given, and clarity and public availability of rules and regulation (see, for example, IMF, 1999, 2007). Tools for Transparency Transparency is achieved through a set of policies, i.e., a combination of laws and regulations and of management processes and practices. A lot of emphasis has been put on enshrining transparency-‐related rights and obligations through laws and regulations. These include classic transparency legislation such as Freedom of Information Acts (FOIAs), asset, income and conflict of interest disclosure for high-‐ranking public servants and elected representatives, administrative procedures acts and open meeting laws (OMLs) and whistle-‐blowing protection laws. Ultimately, their implementation also depends on the development of appropriate management processes that promote compliance with the legislation throughout the administration.
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The number of initiatives and management practices that are supposed to increase state-‐ citizen transparency is large. Beyond improving the publication of broad government statistics, some New Public Management (NPM) reforms falls in this category, particularly the moves towards producing and disseminating performance information, or e-‐ government measures which aim to improve the quality and the availability of information about government structures, processes and performance. General public communication strategies of the public organizations and of elected representative also fall in this category (Liem, 2007). A sub-‐type of transparency measures in this category are those that increase citizen involvement in public decision-‐making or oversight. These include participatory mechanisms and social accountability initiatives such as participatory budgeting, participatory expenditure tracking or social audits. However, implementation of these laws and policies requires individual compliance from public officials. Since the behavior of public officials is not easily controllable and enforceable for each individual case, such compliance is most likely achieved if public officials have internalized the norm or the principle of transparency. In other words, for transparency to become a feature of any political or policy system of institution, it is not enough for it to be codified through laws or regulations. Rather, for transparency policies to be sustainable, they have to become embedded or institutionalized as a set of values and behaviors that drive the behavior of public officials. These would be reflected in the way public officials and politicians interact with citizens – including honesty, rule-‐abidance, etc. These values and behaviors are linked to the second definition transparency found in the Oxford English Dictionary, that of being “frank, open, candid, ingenuous.” Transparency policies cannot be sustainable if the values underlying them are not internalized by civil servants or elected representatives.
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Arguments for Transparency Transparency is promoted on both normative grounds, as a value in itself, and on instrumental grounds, as an important contribution to other goals or values. All the interpretations of transparency detailed above can contribute to the legitimization of democratic governments. Even the simplest understanding of transparency, as access to information, is often linked to the “right to information” as a citizenship right (Ackerman & Sandoval-‐Ballasteros, 2006). This reflects a contractarian theory of the state, where the citizens are seen as “owners” of the state and thus of the information it produces. Transparency is a key contributor to accountability (Fox, 2007), which is generally understood as a relationship where “A is obliged to explain and justify his actions to B, or if A may suffer sanctions if his conduct, or explanation for it, is found wanting by B” (Goetz & Jenkins, 2005:8, Schedler, 1999: 17). The understanding of accountability as transparency + sanctions is primarily linked to the idea of top-‐down or vertical democratic accountability (Brinkerhoff, 2001). As Ackerman & Sandoval-‐Ballasteros (2006: 92) argue “Citizens can only be considered to be fully informed and able to participate as democratic citizens if they are able to access the information held about them and on their behalf by the government.” This is why many advocates of the transparency as the right to information see it as a pre-‐ condition for the fulfillment of other rights (Article 19 & ADC, 2007). Transparency as predictability is also linked to legal or procedural definitions of accountability, i.e., of public officials acting in accordance to fixed and publicly known rules (Hood, 2006). Beyond being instrumental to democratic accountability, transparency is also often advocated on the grounds that it contributes to other desirable outcomes. In the economic arena, greater transparency of government actions, and thus increased predictability, leads to greater security for investors and thus to a better economic climate and better economic
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performace (Ackerman & Sandoval-‐Ballasteros, 2006). More information about government activities also makes it easier to uncover acts of corruption, thus making government both more efficient and more equitable (ibid.). FOIA in particular is not only firmly located within the human rights discourse, but has also been claimed to contribute to socio-‐economic development, better democratic practice, reducing corruption and realizing other human rights (Darch & Underwood, 2010).
1.2
Corruption
Definitions of Corruption Like transparency, corruption is a “fuzzy” and often contested term. In its more abstract definition corruption means “The perversion of anything from an original state of purity” (Oxford English Dictionary Online). The standard definition of corruption in public policy is “the abuse of public office for private gain” (World Bank, 2007: i). However, such a definition does not always help to unambiguously identify acts of corruption. Some authors differentiate between public-‐office/legality centered and public-‐interest/morality centered definitions of corruption (Heidenheimer, 2002). While laws are easily identified “by the books,” it is more difficult to clearly identify the specific values or norms (i.e., definitions of public interest/morality) by which corruption is defined in a given society, especially since these can vary between people. For example, “private gain” and “public office,” like “public interest,” have a different meaning in different societies depending on the overall system of governance and the norms embedded in it. Many authors see the perception of corruption itself as the result of the conflict between different norms (Schweitzer 2005, Yang, 2009, Lee 1981), or as the result of a gradual and not completely articulated change in norms and institutions that is the result of
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modernization. As Scott (2002: 125) points out, “the rise of the modern nation-‐state, with its mass participation, broadly representative bodies, and elaborate civil service codes, signaled the transformation of the view of government office, and even kingship, from a private right into a public responsibility” (p.3). Similarly, one of the most famous of the modernization theorists, Huntington (1968) argues that “Corruption in a modernizing society is thus in part not so much the result of the deviance of behavior from accepted norms as it is the deviance of norms from the established patterns of behavior” (Huntington, 1968: 60). In this interpretation, the corruption prevalent today in most developing countries is only the expression of the “unfinished” modernization of the state and the clash of “traditional,” relation-‐based, modes of governance with “modern” norms and formal, rule-‐based modes of governance. Most developing countries today show a mix between different types of governance, where modern formal institutions collide and/or are undermined by informal norms and patterns of behavior that are characteristic of “earlier” governance types, such as patron-‐client and boss-‐follower types systems. Thus, at low levels of development, corruption, defined as the abuse of public office for private gain, is a reflection of particularistic norms and undifferentiated social structures, where the rational-‐legal state is weak and familistic relations dominate (Mungiu-‐Pippidi, 2006).1 The implications of this are discussed in chapter 3.1. Interventions against Corruption Dixit (2007) argues that as economies become larger and more globalized, relation-‐based governance is less able to sustain the increasing number of economic transactions, leading 1 This is not to say that relational elements or corruption – in the sense of capture of public institutions by private interests – does not exist in the governance of developed, “modern” countries.
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to a slow transition to the rule-‐based governance. However, increasing GDP per capita and related structural change does not necessarily automatically lead to a reduction in corruption, as societies can remain trapped in a “high corruption equilibrium,” due to state capture by corrupt networks and a vicious circle of low trust and particularistic, corruption-‐ reinforcing norms that get transmitted across generations. Even assuming a majority of people would prefer not to be corrupt, choosing to do so at the individual level (or at the group level in the case of clientelism) might carry heavy costs, as whoever avoids it can end up excluded or seriously disadvantaged in the access to public goods and services (Brinkerhoff & Goldsmith, 2004; Rothstein & Tegnhammer 2006). In other words, putting in place a system of rule-‐based governance is a collective action problem itself (Persson, Rothstein & Teorell, 2012). The route taken by international organizations and donors in reducing corruption and promoting good governance is precisely to help solve the collective action problem of introducing a rule-‐based governance system, by providing support and incentives for the introduction of such a system. For example, Transparency International's sourcebook on National Integrity Systems includes in its institutional pillar alone: an Elected Legislature, The Role of the Executive, An Independent Judicial System, The Auditor-‐General, The Ombudsman, Independent Anti-‐Corruption Agencies, Public Service to Serve the Public, Local Government, An Independent and Free Media, Civil Society, The Private Corporate Sector, International Actors and Mechanisms (Pope, 2000). However, few organizations would argue that the wholesale adoption of modern governance systems is feasible. The list represents more an “ideal-‐type” of a governance system where corruption is rare. Instead, the approach advocated by most organizations supporting anti-‐corruption initiatives is to identify the main country-‐level weaknesses, build coalitions for change, and reform those aspects that are most salient to fighting corruption within a given country (Bailey, 2003).
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However, one of the main shortcomings of donor-‐promoted anti-‐corruption policies in practice is that they don’t take into account the politics surrounding them (Husmann, 2007), or – more broadly speaking – the very different contexts into which anti-‐corruption policies are being introduced (Grindle, 2004). Thus, they often neglect to consider how the policies they promote affect the interests of those who are expected to adopt and implement them, and how this can affect policy design, adoption and implementation. Even once the anti-‐ corruption policies are adopted, evidence of their success is mixed. First, once adopted, policies can be subverted at the implementation stage, as evidenced by the large implementation gap between de jure and de facto anti-‐ corruption laws and measures in most countries covered by the Global Integrity Index.2 Second, even when implemented, well-‐targeted institutional reforms might achieve a reduction of corruption in the short run, but in the medium-‐term corruption simply shifts to another venue or takes another form, circumventing the new obstacles created by the institutional reform (Kaufman & Bellver, 2005). These limitations have prompted some authors to argue that the only sustainable way to fight corruption is by taking a “big-‐bang approach” (Rothstein, 2011). However, with the exception of Hong Kong and Singapore in the 1970s-‐1980s or Sweden in the middle of the 19th century named above, few examples of successful large-‐scale anti-‐ corruption reforms exist (Andvig, Fjeldstad, Amundsen, Sissener, Søreide, 2000; Rothstein, 2011). Even in these cases, the reduction in corruption could probably be attributed as much to broader social change (“modernization”) – including a change in norms -‐ on which anti-‐corruption strategies are built and which they perhaps helped accelerate, as it can be attributed to institutional change and committed leadership per se. 2 E.g., http://report.globalintegrity.org/globalIndex/results.cfm
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Linking Transparency and Corruption The link between transparency and corruption thus depends on the specific interpretation of both terms. Indeed, at the broadest semantic level, lack of transparency and corruption are intimately related: “corruption” means “loss of integrity,” of which “lack of honesty/sincerity” is a form, which is a synonym for “lack of transparency.” Even in the standard definition of corruption as “the abuse of public office for private gain” (World Bank, 2007: i), corruption is itself a form of non-‐transparency: the rules are not “fixed” and published, the information and the “procedure” (the corrupt act) is not accessible to the public, and – by definition – it represents an intermingling of the public and the private sphere. A broader interpretation of corruption as the reflection of a system of governance based on personalistic relations and particularistic norms (as in Mungiu-‐Pippidi, 2006) is also linked to more complex interpretations of transparency: absence of corruption results from having a diversity of interests that compete with each other publicly and in an orderly fashion (i.e., according to established and universal rules) in the context of a clear division between the public and the private spheres and roles of public officials. Thus, if we see transparency as a set of values and behaviors that structure citizen-‐state interaction, then “lack of transparency” and “corruption” are almost synonymous. If corruption consists mostly of individual wrongdoing within a modern (rational-‐legal) system of governance, transparency can be linked to corruption via accountability. Thus, democratic or vertical accountability will punish corruption as the deviation from the norms about integrity held by a majority of the population (the moral definition), while legal or horizontal accountability will punish individual acts of corruption that break existing laws and regulations (the legal definition). In this context, increased information available to the public will lead to the uncovering of individual acts of corruption and their
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punishment at the ballot box or in court. However, if corruption is a systemic feature, rather than an individual occurrence, the legal and political institutions that are supposed to punish corruption can become themselves captured by corrupt networks and thus are rendered ineffective. In this context, transparency policies will be ineffective in fighting corruption as they are either themselves subverted or are rendered ineffective by the weakness of sanctioning mechanisms. Summing up, the paradox of transparency and anti-‐corruption strategies and measures is that their adoption and successful implementation is most difficult where they are most needed: in countries with systemic corruption. Here they face three interrelated problems. First, where the state is captured by corrupt networks spanning legislatures, judiciary and the bureaucracy the incentives are stacked against the adoption of such measures to begin with. Second, where informality is pervasive, changing the formal legal framework will have little impact on incentives, which are determined primarily by informal networks and norms. Thus, even if adopted, such policies will be subverted at the implementation stage, simply shifting the locus or changing the forms of corruption. And third, even if they are successful in individual cases, obtaining a systemic effect depends on a broader range of factors and network effects that are yet little conceptualized and understood. Dealing with systemic corruption thus generates questions about the conditions under which anti-‐corruption policies – of which transparency policies can be seen as a sub-‐set – are adopted, implemented and can have an impact in societies where corruption is pervasive. This dissertation focuses primarily on the first part of that question – that of policy adoption -‐ complemented by a more limited look at policy implementation where applicable. Since, once adopted, policies can be reversed or further strengthened, the dissertation also looks at how the policies evolve over time. The next two chapters review
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international and domestic explanations for the adoption of transparency and anti-‐ corruption policies, as well as the more limited literature on TAC policy evolution over time. These are then used to identify a set of explanatory factors (or variables) and develop a set of propositions about transparency and anti-‐corruption policy-‐making that will guide the case-‐study.
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2
Chapter 2: International Explanations for the Adoption and Evolution of Transparency and Anti-‐Corruption Policies/FOIA and PAD
Since the mid-‐1990s, transparency and anti-‐corruption have become increasingly prominent issues on the agenda of powerful global actors. First, intensified economic globalization has increased the pressure on countries to adhere to the discipline of the global economy, including with regard to transparency standards (Relly & Sabharwal, 2009; Fuhr 2001). Second, transnational civil society organizations and networks, whose rise has been spurred by the post-‐cold war spread of democratization and the increased ease of communication due to the ICT revolution, have been increasingly strong advocates of increasing transparency and fighting corruption around the world (e.g., Transparency International, Article 19, the Open Society Institute) (McCoy & Heckel, 2001 for anti-‐ corruption; Wang & Rosenau, 2001 on the role of Transparency International). Third, there has also been a proliferation of international regimes requiring governments to disclose information (Lord, 2006: 5; Roberts, 2006; Florini 2007: 8) or to adopt a variety of anti-‐ corruption measures (e.g., OECD Anti-‐Bribery Convention, United Nations Convention against Corruption -‐ UNCAC). Finally, the issues of good governance and anti-‐corruption have become prominent on the agenda of international organizations such as the World Bank, and bilateral donors, such as the USA (Bukovanksy, 2002; McCoy & Heckel, 2001; Marquette, 2001), adding financial weight to requirements of increasing government transparency and fighting corruption, often included in loan or grant agreements or being made a pre-‐condition for obtaining significant amount of sums. For example, the Millennium Challenge Corporation’s “ruling justly” criteria include indicators on both Freedom of Information and Control of Corruption (MCC, 2012). Together, these actors also contributed to the creation of global policy
17
networks (Fuhr, 2001) or epistemic communities that have accelerated the spread of transparency and anti-‐corruption policies by providing both an underlying communication infrastructure and a set of policy arguments and good practices that enable policy learning across countries. These global trends have spurred the process of diffusion of TAC policies, especially to developing and transition countries, which are more exposed and vulnerable to external influence (Grindle and Thomas, 1991; Conteh & Ohemeng, 2009). Developing countries also often have a less diverse set of interests and intermediary organizations, as well as smaller policy communities that can advocate for transparency policies. This means that they often face high decision-‐making demands but policy-‐making resources are scarce (Randma-‐Liiv & Kruusenberg, 2012). This makes it more likely that international actors – from international organizations, to transnational non-‐governmental organizations (NGOs), to multinational companies and markets – will have a visible and sometimes decisive influence on domestic policy. All these various external influences can be active at the same time, thus making it difficult to identify a single cause – or a single process of diffusion – for the adoption of a given policy even in a single country (Solingen, 2012). The next sub-‐section describes more in detail the different types of international policy diffusion mechanisms (2.1). After that, I briefly discuss how policy characteristics and domestic factors can increase the likelihood of policy uptake in a given country (2.2). Sections 2.3 and 2.4 then give on overview of the global spread (diffusion) of FOI and (P)AD and conclude by comparing the “global strength” of the two policies.
2.1
Types of International Diffusion
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Explanations for why similar policies get adopted across countries abound. While it is possible that countries independently find similar solutions to similar problems, this explanation is seen as increasingly unlikely, given the current degree of global integration and communication. Thus, there is general consensus that some degree of cross-‐national influence is at play, i.e., that policy diffusion is a key explanation for the adoption of similar policies across countries (Gilardi, 2012; Simmons, Dobbins & Garrett, 20063). There is less consensus on the fundamental causal processes at work (Finnemore & Sikkink, 1998, 2001; Gilardi, 2012; Meseguer & Gilardi, 2009; Dobbin, Simmons, Garrett, 2007; Boerzel and Risse, 2009; Shipan & Volden, 2012). However, a few core explanations about the main drivers of policy diffusion can be discerned. One school of thought posits the dominance of economic factors and power relations as drivers of international policy diffusion. In this account, different countries adopt similar policies due to external pressure from international organizations or powerful states, which tie external funding to the fulfillment of conditions like the adoption of certain policies (coercion/conditionality), or due to pressures from international markets (competition) (Simmons & Elkins, 2004). Most of the evidence for this type of diffusion comes from the spread of neo-‐liberal economic policies (Simmons, Dobbins & Garrett, 2006). But competition and conditionality have played a role also when it comes to TAC (Roberts, 2003). For example, Meagher & Voland (2006: 20) argue that Singapore and Hong-‐Kong created strong anti-‐corruption institutions because they “were faced with crises of legitimacy that threatened investor confidence and political stability.” These types of diffusion mechanisms change the incentives high-‐level decision-‐makers face by offering a 3 They offer the following definition: “International policy diffusion occurs when government policy
decisions in a given country are systematically conditioned by prior policy choices made in other countries” (p. 787).
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material reward or sanction for the adoption, and sometimes implementation, of a certain policy, in addition (or in spite of) the domestic incentives decision-‐makers face. The second school posits that not all policies diffuse because powerful domestic or international interests demand them, but rather because they are “socially valued independently of the functions they perform.” (Meseguer & Gilardi, 2009: 530). This process of emulation is visible especially in areas such as democracy, human rights and environmental policy (ibid.). In other words, some policies diffuse because they are tied to a norm or a value that gains increasing acceptance throughout the globe. Emulation can change the relevant values that get invoked and that influence the policy process. Emulation could be further sub-‐divided in two different types of diffusion. In the first case, policy adoption reflects the internalization of the underlying norm or value by key actors in the adopting country (persuasion) (Boerzel & Risse, 2009; Finnemore & Sikkink, 2001). In some cases, a policy can be adopted to show compliance with a certain norm, but without actual internalization of the underlying value. This can be driven by a desire to belong to a specific in-‐group or peer-‐group that has adopted the respective norm (mimicry) (Boerzel & Risse, 2009). Shipan & Volden (2012: 4) refer to this mechanism of copying policies without real concern for their substantive consequences, as “the policy diffusion equivalent of ‘keeping up with the Joneses.’” Andrews, Woolcock and Pritchett (2012) use the term “isomorphic mimicry” to characterize a situation where, at the behest of or under the influence of international donors, “governments and organizations pretend to reform by changing what policies or organizations look like rather than what they actually do”. Isomorphism – organizations taking forms that are seen as successful or legitimate by their environment or by powerful actors -‐ has also been discussed at length in the sociological institutionalism literature (Meyer & Rowan, 1977; Meyer et al., 1997). When these forms do
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not match the functions of the organization, “decoupling” between organizational forms and actual practices can occur (ibid). Except for conditionality, all the channels named above represent a form of policy learning by domestic elites -‐ whether learning about what policies attract or reassure investors or what policies generate international or “peer-‐group” recognition. However, in its purest form, policy learning occurs when decision-‐makers adopt successful policies from elsewhere to satisfy domestic demands or to address domestically-‐defined problems (policy learning) (Boerzel & Risse, 2009; Dobbin, Simmons & Garrett, 2007; Gilardi, 2012). Thus, policy learning is not explained by direct pressure from powerful international actors, even though these often serve as a source for learning. The mechanism of diffusion through learning also impacts the domestic policy process – or at least the adoption of the policy – less than the other mechanisms or channels of diffusion, i.e., it does not change the values invoked, strengthen some domestic constituencies over others, or affect the incentives decision-‐makers face. In some interpretations, persuasion is also seen as a form of learning – albeit one where actors change their beliefs not just about the best ways to achieve a pre-‐ determined end, but also about the end itself (Simmons, Dobbins & Garrett, 2006).4 Policy learning is one of the main mechanisms through which international development aid works, which funds a wide array of exchanges of experience, technical assistance, trainings, etc., to help domestic stakeholders learn from international experience or best practice. Another way through which policy diffusion happens via development aid is through empowering some domestic actors vis-‐à-‐vis others. Thus, simply the fact the 4 They offer the following definition: “Learning refers to a change in beliefs or change in one's
confidence in existing beliefs, which can result from exposure to new evidence, theories, or behavioral repertoires” (p. 795).
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donors fund some domestic organizations but not others can lead to some policies being advocated or winning over others. This is not necessarily because the money is tied to a specific policy, but because by default money empowers those who receive it, and these actors can use it to advance their own policy preferences. This is most clearly the case where donors fund civil society activists directly, but it also has been argued that – for example -‐ the tendency of International Financial Institutions (IFIs) to work primarily with Ministries of Finance has further empowered these vis-‐à-‐vis sector ministries; or, vice-‐ versa, that funding directly sector ministries, agencies or non-‐state service deliverers empowers these vis-‐à-‐vis the core of government and national decision-‐makers. In reality the different channels or mechanisms are hard to disentangle, often operate at the same time, and can even reinforce or undermine each other5. Nevertheless, differentiating between them provides a heuristic to understand different patterns of policy diffusion.
2.2
Factors Affecting Domestic Policy Uptake
In addition to understanding how policies diffuse across countries, understanding the role of international influences in domestic policy adoption also requires understanding why some policies diffuse faster and to a larger number of countries than others – including why some countries are more prone to adopt a certain policy than others. Finnemore & Sikkink (1998) argue that international norms evolve in a three-‐stage life cycle of emergence, "norm cascades," and internalization. We can see these stages as ones of increasing global norm strength. Domestic political pressure in “powerful” states is the key mechanism through which a norm emerges. Once a crucial number -‐ about one third -‐ of such states have 5 See e.g. Abbot & Snidal, 2002 on the interplay between values and interests in the emergence and
spread of international anti-‐corruption convention.
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adopted the norm and/or it has become institutionalized in international law, multilateral organizations, and bilateral foreign policies, a “tipping point” has been reached, and a “norm cascade” emerges. At this stage, the norm becomes tied to a certain global or regional “state identity,” starts spreading rapidly through international socialization or peer pressure, and states start adopting it even without strong domestic pressure. This dynamic has been observed in particular for human rights norms, which have spread in a spiral model of national adoption: domestic repression and activation of the trans-‐national network, denial, tactical concessions, prescriptive status, and rule consistent behavior (Risse and Sikkink, 1999; Risse & Ropp, 1999). International state identity, i.e., the desire to belong to “the community of liberal states,” and “world time”, i.e., the strength and robustness of both the international human rights regime and the transnational advocacy networks, have been crucial in securing the spread of human rights norms and related legislation and norm-‐ compliance (ibid.). In other words, the “global strength” of a norm, as reflected in the widespread adoption of connected laws and policies by a large number of states (world time) and the power of its main advocates, affects how quickly and broadly it spreads across countries. Once a “critical mass” of countries have adopted it, it is more likely that others will follow suit. Norms with certain intrinsic qualities – such as congruence with other internationally accepted norms or norm systems, such as human rights and democratic values (Schimmelfennig, 2002; Finnemore and Sikkink, 19986) will tend to be adopted more easily by different countries. The clarity or “determinacy” of the norm can also help its domestic uptake (Schimmelfennig, 2002). A strong and clear connection between a globally established norm and a specific 6 This includes congruence with the “five principles that are central to world culture: universalism,
individualism, voluntaristic authority, rational progress and world citizenship” (Finnemore & Sikkink, 1998: 907).
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policy can also make their international diffusion and domestic uptake easier. A policy that is by itself clearly linked to an international norm or standard will be more visible and more likely to be adopted, than one where the connection is weak and where there are other policy alternatives to signal compliance with the norm. In other words, stand-‐alone policies tied directly to a certain norm could diffuse more easily than policies belonging to a broader policy package or menu from which decision-‐makers can choose. But even the strongest global norms and connected policies are unevenly adopted and complied with around the world. The role of country characteristics – domestic factors -‐ in the uptake of certain norms and policies is an area that has so far been insufficiently explored (Finnemore and Sikkink, 2001; Cortell and Davis, 2000). Two key national-‐level factors that make the adoption of certain norms or policies more likely are their domestic salience and their fit with domestic structures (Cortell and Davis, 2000; Schimmelfennig, 2002). Domestic salience refers to how much the norm resonates with the culture of the adopting country and the policy with existing institutions, and thus can be translated into domestic demand for the policies attached to the norm. Domestic salience increases when the norm doesn’t conflict with existing cultural norms, when powerful public figures take it up in discourse – whether genuinely or not, when it converges with powerful domestic interests or with the “national interest” more broadly perceived, and when it is translated into domestic procedures or laws (Cortell & Davis, 2000). Norms and policies are likely to be more salient for domestic stakeholders – in particular elites – if they have been adopted by the peer group to which domestic elites aspire – often “powerful states,” but also cultural or geographic neighbors. This explains why the global strength of certain norms and policies matters for domestic uptake.
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Domestic structure refers to state-‐society relations and the institutional set-‐up of the polity, i.e., who makes the decisions in society (Cortell and Davis, 2000; Schimmelfennig, 2002), as well as political culture (Risse-‐Kappen, 1994). Domestic structure is particularly relevant when norm salience or policy support differs among actors -‐ elites, decision-‐ makers, civil society, etc. -‐ as it determines who has access to decision-‐making and who prevails in case of norm contestation. For example, Checkel (1997, 1999) argues that in liberal societies, norm diffusion happens primarily via societal pressure on elites, whereas in “state-‐above-‐society” configurations, elite learning is the driving factor, with corporatist and statist systems representing in-‐between versions. The importance of all these factors facilitating domestic uptake (adoption) will differ depending on the main channel of diffusion. For example, in the case of policy adoption through conditionality in “state-‐above-‐society” countries, domestic salience is of lesser relevance. The adoption of the policy in powerful or culturally similar countries is of particular relevance in the case of mimicry. The intrinsic value of the policy – or its normative strength will be particularly important in the case of persuasion, while policy effectiveness will be essential for policy learning. Table 2.1 below summarizes the main international policy characteristics that can influence domestic uptake, as well the diffusion channels or mechanisms for which these factors are the most relevant. The following sections describe the international spread of FOIA, (P)AD and the norms associated with them, and discuss (i) which types of diffusion the global spread of FOIA and (P)AD most closely resembles and (ii) which of the factors listed below apply at the global level to FOIA and (P)AD. The role of domestic structures and institutions in facilitating the adoption of FOIA and (P)AD, or TAC policies in general, will be discussed in Chapter 3. The case study will then investigate which of these factors were relevant at the national level in Romania.
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Table 2.1. International policy and norm characteristics that can affect domestic policy adoption Global policy characteristics or “strength”
Main diffusion channel for which relevant
Number of adopting countries -‐ of which “powerful” states -‐ of which neighbors or culturally similar countries
•
Mimicry
•
Persuasion
•
Competition
•
Policy learning
Normative strength or valence of policy -‐ Universality, clarity of norm or value underlying the policy -‐ lack of conflict and/or congruence with other norms -‐ Strength and clarity of norm-‐policy connection (e.g., standalone policies will be more clearly connected to a certain norm than those belonging to a larger policy menu)
•
Persuasion
•
Mimicry
Adoption/prescription in international law or through International Organizations (IOs)
•
Mimicry
•
Persuasion
Global advocacy
•
Persuasion
•
Mimicry
•
Learning
•
Competition
International experience with goal achievement (effectiveness) of policy Source: Author
2.3
International Diffusion of FOIA
FOIA has spread rapidly across the globe in last 20 years. Over 90 countries have adopted FOIAs -‐ about 70 of these since 1990, and a number of other countries are currently considering the adoption of FOIA (Michener, 2011b). Ackermann and Sandoval-‐Ballasteros (2006) identify four categories of adopters: (i) the early adopters in Northern Europe, with Sweden enacting the first FOIA as far back as 1766, Anglo-‐Saxon countries (with the exception of UK), and Colombia (1885); (ii) countries transitioning from autocratic rule to democracy in Eastern Europe and beyond; (iii) late developed adopters, mostly continental
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Europe and Japan, both groups adopting FOIA in 1990s and early 2000s; and (iv) most recently also non-‐democratic developing countries. The dramatic increase in FOIA adoption in the 1990s/2000s is in line with Finnemore and Sikkink’s (1998) three-‐stages model of norm emergence and diffusion, and suggests that a norm cascade has occurred. Arguments for FOIA as an expression of a fundamental democratic norm or citizenship right abound in the literature. For example, Bennett (1997: 227) argues that given the lack of evidence on FOIA effectiveness “there are plausible reasons to think that the diffusion of FOI is more attributable to attempts at legitimation, rather than to genuine learning.” Ackerman and Sandoval-‐Ballasteros (2006: 123) illustrate the normatively charged international discussion surrounding FOIA: As Blanton has argued '[T]he international freedom-‐of-‐information movement stands on the verge of changing the definition of democratic governance. The movement is creating a new norm, a new expectation, and a new threshold requirement for any government to be considered a democracy.' Or, as Roberts commented, 'the burden was once on proponents of access rights to make a case for transparency; today, the burden is on governments to make the case for secrecy.' Such arguments can be traced back to Article 19 of Universal Declaration of Human Rights (UDHR), which states that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds” (emphasis added). While this does not necessarily imply that citizens have a right to government information, it has been interpreted as such. Indeed, many countries recognize freedom of information as a fundamental right in their constitutions,7 thus opening the door to FOI legislation. Thus, for FOI, there is clear connection between a policy and a global
7 http://www.right2info.org/constitutional-‐protections-‐of-‐the-‐right-‐to
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norm, codified in the UDHR, which reflects the universalistic and egalitarian principles that make global diffusion more likely, as discussed in the previous section. A more detailed look at the pattern of diffusion also indicates that the emerging status of FOI as a global norm – both in its valence and in its global strength -‐ has been essential for its spread. Among early adopters, FOIAs tend to work well and be intensely used, even though the laws themselves are not very “innovative or progressive” (Ackerman & Sandoval-‐Ballasteros, 2006). This indicates that they were a response to domestic demand, but did not benefit from the learning effects that later adopters could build upon. The fact that transitioning countries have the strongest FOI laws on paper could reflect the desire to send a strong signal that the autocratic past has been shed and that democratic norms have been embraced (Michener, 2011b; Roberts, 2003). On the other hand, the late adoption of weak laws in some developed countries suggests that while in these cases domestic constituencies opposing FOIA maintained their strength, the establishment of the right to information as a democratic norm at the international level promoted adoption of FOIA even in the face of domestic resistance. Finally, the weakness – and sometimes even counter-‐effect -‐ of FOIA in non-‐democratic countries (such as Zimbabwe) can also be seen as a reflection of global normative pressure, albeit one that translates into mimicry rather than actual persuasion. Berliner (2011b) calls this “expressive benefits” of adopting a FOIA, arguing that many developing countries – and especially high corruption ones – adopt FOIAs to showcase their adherence to liberal norms or send a signal about their desire to fight corruption. Finally, the role of norm diffusion as a driving factor behind the spread of FOIA is also illustrated by the fact that “countries are more likely to pass FOI laws when neighboring countries and countries sharing a similar colonial background have also done so” (Berliner
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2010: 1), as well as by the substantial international mobilization and advocacy around FOIA (Michener, 2010). The list of transnational civil society organizations (CSOs) supporting FOIA is long, including Article 19, named after the article referring to freedom of expression in the UN Declaration on Human Rights, the Carter Center, which has a dedicated freedom of information program, and the Open Society Institute, which has supported FOIA adoption and implementation around the world (Darch & Underwood, 2010, Berliner, 2011).8 Nevertheless, some authors also offer other plausible explanations for the diffusion of FOIA. One alternative explanation is pressure from international markets (McClean, 2010; Relly & Cuillier, 2010). For example, Darch and Underwood (2010: 171) argue that the adoption of access to information legislations in China, first at the provincial and municipal level (Guangzhou and Shanghai), and then at the national level, was “apparently motivated largely, if not exclusively, by utilitarian considerations such as protecting public health and attracting investment” in the context of WTO accession and the avian flu outbreak. However, Berliner (2010) finds no correlation between international trade and dependence on foreign investment and FOIA across countries, which weakens the power of this explanation. More likely, global economic integration has a higher impact on other forms of transparency that are directly relevant to economic actors, such as fiscal transparency. Another set of explanations refers to the role of international organizations. Indeed, the World Bank, and to a perhaps lesser degree OECD and UNDP, have also taken up the issue of access to information as part of their broader transparency, governance and anti-‐corruption agenda (Roberts, 2003), offering substantial research and technical advice for the adoption of the law. 8 For a list of organizations supporting FOIA see also http://www.right2info.org/resources/ngos-‐
information-‐commission-‐ers-‐and-‐other ; http://www.freedominfo.org/resources/
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The strong involvement of international organizations is consistent both with norm diffusion and with other policy diffusion mechanisms, such as coercion/conditionality and policy learning. It is likely that more than one mechanism of policy diffusion played a role in the global spread of FOIA. This not only because different countries can adopt similar policies based on different reasons, but also because different global diffusion processes can reinforce each other. For example, Grigorescu (2009) argues that a combination of three mechanisms can explain the adoption of FOIA in Central and Eastern Europe: domestic pressures by NGOs, which are consistent with a normative account of FOIA diffusion, indirect impact of international organizations, which – by becoming themselves more transparent also release more information about member governments, thus reducing the incentive for them to hide information (also Grigorescu, 2003), and direct pressures by international organizations.
2.4
International Diffusion of (P)AD
On the face of it, asset and interest disclosure/declaration has experienced a somewhat similar pattern of diffusion as FOIA, with the US being among the early adopters (1978), followed by Western European countries in the 1980s, and Eastern European countries in the 1990s (OECD, 2011). However, disclosure is made more often to the legislature or other institutions, such as ombudsmen and auditors, than to the public. If 109 countries had some requirements for politicians to disclose their finances and business activities in the mid-‐ 2000s, only 63 of these countries required public disclosure (Djankov, La Porta, Lopez-‐de-‐ Silanes, & Shleifer, 2010; see also Messick, 2009,9 though their data differs). Even in
9 In a sample of 149 World Bank client countries, disclosure was required in 106, out of which public
disclosure was required in 36 (p. 17)
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countries that included mentions of asset declarations in their constitutions, this did not automatically result in requirements for public disclosure (Mukherjee & Gokcekus, 2006). The United States Agency for International Development (USAID, 2003) finds that public disclosure laws in political finance, which include requirements for public income or asset disclosure of candidates, have been adopted mostly in North America and Europe, i.e., mostly in developed democracies. Burdescu, Reid, Gillman & Trapnell (2009) find that only 20% of low-‐income countries that have income and asset declaration legislation also require public disclosure. This indicates that, unlike for FOIA, a similar norm or policy cascade has not happened for public asset disclosure. Interestingly, in some countries, such as Northern European countries, the public officials make asset and income information public without a legal requirement to do so, while – more in line with expectations – in many of the countries with legal public disclosure requirements, little information is actually disclosed in practice (Djankov et al., 2010). This showcases the difference between the norm of transparency, i.e., normatively appropriate behavior, or actual transparent governance, and the adoption of a transparency policy without actual internalization of the norm. Public asset disclosure is occasionally framed as a tool for transparency (Williams, 2006) and increasing transparency and accountability is named as one of the goals of asset declarations (OECD, 2011). The OECD (2011: 29) even argues, “Where the content of public officials’ declarations is available to the public, this tool essentially extends coverage of the right to know (or freedom of information, as it is often referred to) to private data of government officials,” thus argumentatively linking FOIA and PAD. However, more often (P)AD is discussed as part of a broader toolbox to regulate conflicts of interests, which is
31
itself part of a broader toolbox to combat corruption in the public sector and in politics (Larbi, 2007; OECD, 2011; USAID, 2003). Thus, one key difference between FOIA and PAD is that the latter is less clearly linked to a strong norm. Unlike FOIA, linking PAD to freedom of information as a citizenship right is more difficult, possibly because PAD is not about the right of citizens to access government information, but rather information about private persons acting in a public capacity. Thus, even when PAD is framed as a transparency policy and thus linked to rights and norms associated with this concept, it still enters into conflict with other rights and norms, and in particular with the right to privacy (Burdescu et al., 2009; Van Aaken & Voigt, 2011; OECD, 2011). Messick (2009) argues that cultural differences in the emphasis put on privacy rights explains the low level of adoption of public disclosure requirements around the world. This lower “rights-‐resonance,” i.e., the difficulty of framing PAD as part of human or citizenship rights, can explain the comparatively weaker transnational NGO mobilization and advocacy around PAD. While some anti-‐corruption NGOs, such as Transparency International, mention PAD among the tools to combat corruption, there are no NGOs that have specific programs or advocacy campaigns dedicated solely to PAD. Similarly, international organizations have started since the 1990s to develop standards and issue declarations on AD (OECD, 2011).10 However, these are “soft” recommendations rather than requirements, and are often ambiguous about the desirability of public disclosure (Burdescu et al., 2009; OECD, 2011). 10 This includes the Inter-‐American Convention Against Corruption (1996), the African Union
Convention on Preventing and Combating Corruption (2003), Recommendation Nr. R (2000) 10 of the Committee of Ministers to Member states of the EU on codes of conduct for public officials (2000), the United Nations Convention against Corruption (UNCAC, 2003), and its Technical Guide (2009).
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Explanations for the adoption of (P)AD around the world are less abundant than for FOIA. It is likely that the diffusion from US to Western Europe followed a classic pattern of policy learning, perhaps accompanied by norm diffusion as corruption climbed higher on the international agenda. A spike in the adoption of asset disclosure legislation has occurred in the 1990s, primarily due to adoption of such legislation in a number of Eastern European, as well as a few African countries (Burdescu et al., 2009). In Eastern Europe, the adoption of (P)AD was linked to EU accession. Even though (P)AD is not a legal conditionality per se, i.e., it is not part of the aquis communautaire,11 some candidate countries were required or expected to adopt it as part of efforts to control corruption. Thus, (P)AD became “a de facto standard of the European Union vis-‐à-‐vis candidate members” (OECD, 2011: 24). Nevertheless, their public disclosure was also driven by “demands for greater transparency per se” (ibid.: 29). Thus, the spike in the adoption of legislation on asset disclosure in the 1990s was tied to a general international push towards adoption of broader anti-‐corruption reforms in developing countries. However, while the more general anti-‐corruption norm to which AD is tied is established in the international arena through international conventions and the existence of a variety of international actors advancing it, there are doubts about how deeply institutionalized this norm is at country-‐level (McCoy & Heckel, 2001). In other words, to use Finnemore & Sikkink’s (1998) terms, while a norm cascade seems to have occurred for a general anti-‐corruption norm and some associated policies, it is doubtful whether the norm has been internalized, and thus how sustainable the associated policies will be.
11 The body of EU laws that all member countries have to transpose into national legislation.
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Table 2.2 below summarizes the key differences between the international diffusion of FOIA and (P)AD. As the table shows, FOIA is a stronger global policy than PAD: it has been adopted by more countries, backed by more global advocacy, and tied to a rights discourse that can make its uptake by domestic elites and activists in countries around the world easier. Nevertheless, it is unlikely that the global popularity of FOIA and PAD, as well as of broader TAC policies, can by itself explain why – let alone how – they were adopted in so many countries, including in high-‐corruption developing countries. The next chapter reviews the literature on domestic/national-‐level explanations for the adoption of transparency and anti-‐corruption policies in general, and FOIA and PAD in particular. It concludes by discussing how the global policy diffusion processes described here can interact with domestic policy processes. The case study will investigate whether and how any of these factors were present in the case of Romania, and if they help explain the patterns of FOIA and (P)AD adoption and evolution in this case. Table 2.2. Global strength of FOIA and (P)AD Factor
FOIA
(P)AD
Number of adopting countries -‐ of which “powerful” states -‐ of which neighbors or culturally similar countries
High – ca. 87 in 2011, 83 in 2009 -‐ Most of them -‐ to be determined in case study
High – declaration/general disclosure (109 -‐ 2009) Medium -‐ public disclosure (63 – 2009) -‐ Most of them -‐ to be determined in case study
Normative strength or valence of policy -‐ Universality, clarity of norm or value underlying the policy -‐ Lack of conflict and/or congruence with other norms -‐ Strength and clarity of
High normative valence Universality, clarity, congruence, and strength of norm-‐policy connection are all particularly high when framed as “right-‐to-‐ know” Advocated as standalone policy
Weaker normative valence Universality, clarity, and strength of norm-‐policy connection for public asset disclosure are lower than for FOIA if linked to more general transparency norms. Can potentially conflict with the right to privacy. Part of larger anti-‐corruption
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Factor
FOIA
(P)AD
norm-‐policy connection -‐ Standalone measure or part of a bigger policy package
policy packages, such as those including conflict of interest or transparency in political finance regulations.
High Adoption/prescription in international law or through Link to UN Human Rights IOs Declaration through interpretation of Article 19 on freedom of expression to include freedom of information as access to government information. FOI included in numerous global and regional conventions.12
Medium/low for the public disclosure requirement Soft recommendations for declaring assets, but not for public disclosure in global and regional anti-‐corruption conventions (OECD, 2011).13
Global advocacy
High
Low(er)
International experience with goal achievement (effectiveness) of policy
FOIA effectiveness in securing actual access to information is not fully established (Open Society Justice Initiative [OSJI], 2006), but is secondary if FOIA is seen as an expression of a right.
PAD effectiveness in increasing transparency is not well documented. There is some evidence of correlation between PAD and lower corruption (Djankov et al., 2010).
Source: Author
12 For a complete list see: http://www.right2info.org/international-‐standards 13 OECD (2011: 23-‐24): Inter-‐American Convention Against Corruption (adopted in 1996), EU
Recommendation Nr. R (2000) 10 of the Committee of Ministers to Member states on codes of conduct for public officials (adopted on 11 May 2000, Article 14), African Union Convention on Preventing and Combating Corruption (adopted in 2003), United Nations Convention against Corruption (adopted in 2003 -‐ Article 8 (Paragraph 5) contains a soft standard).
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3
Chapter 3: Domestic Explanations for the Adoption and Evolution of TAC Policies/FOIA and PAD
This chapter lays out potential domestic explanations for the adoption of TAC policies in general, and FOIA/(P)AD in particular. In doing so, it follows roughly the political economy analysis approach suggested by Fritz, Kaiser and Levy (2009) for the analysis of governance reforms, by looking at the three main clusters of drivers they identify: structure, institutions and actors. It starts with (macro-‐)structural factors, such as the level of economic development and democratization, and continues by disentangling the (meso-‐)structural and institutional factors that shape the incentives of domestic actors, both on the “demand” and on the “supply” side of governance. The chapter also discusses how these incentives can differ depending on different policy characteristics (Wilson, 1980, 1989), how they can evolve and influence the policy process beyond the adoption stage (drawing, among others, on Kingdon, 2003; and Baumgartner & Jones, 2009), and how external influences will influence both the incentives and the evolution of the policies. Based on this review, a series of propositions to guide the case study are identified.
3.1
Structural Factors
Looking at corruption as an expression of “traditional” as opposed to “modern” modes of governance means that reductions in corruption are the result of the long-‐term evolution of structural factors or socio-‐economic development, which bring with them a change both in the opportunity structure for corruption and the general set of norms that govern public and private life. Thus, factors such as urbanization, education, commercialization of agriculture, industrialization, the emergence of a middle class, increase the demand for a more civic-‐based form of governance (Fox, 1994) and foster a shift towards a rational-‐legal
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system of governance (according to most modernization theorists; see overview in So, 1990). However, there is no consensus on the direction of causality between economic development and reduction in corruption. We can identify four different “structuralist” arguments about economic development and corruption: (i) economic development leads to a reduction in corruption (Treisman, 2007); (ii) economic development (“modernization”) leads to an increase in corruption (Huntington, 1968); (iii) in some cases, corruption facilitates economic development by cutting red tape and encouraging entrepreneurship, or by facilitating access to resources for groups that would otherwise be excluded (Nye, 1967; Brinkerhoff & Goldsmith, 2004, 2005); and (iv) high corruption leads to lower economic growth (Mauro, 1995). The ambiguous relationship between economic development and corruption is in part explained by political development and democracy as intervening variables. However, even in this case the relationship is not straightforward. At the cross-‐country level, Treisman (2000) finds that it is not the level of democracy which is associated most closely with the perception of corruption, but the length of the time that a country has been democratic, where the anti-‐corruption effect is visible in countries with 40 years or more of uninterrupted democracy. Similarly, Rock (2009) shows that the relation between democracy and corruption is U-‐shaped, with the turning point coming about 10-‐12 years after democratization. This can be because democratization weakens the internal control and sanctioning mechanisms of autocratic regimes and increases the number of players, thus increasing opportunities for corruption and decentralizing it14. On the other hand, the features of democratic systems that facilitate control of corruption via vertical and 14 See Andvig et al. (2000) citing Harris-‐White and White (1996) on how corruption increased after
democratization in Thailand and the Philippines.
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horizontal accountability take time to establish themselves and become effective. Indeed, while corruption and authoritarianism are correlated to some degree, there are examples of successful anti-‐corruption drives in autocratic regimes, such as Singapore, which have an easier time adopting and implementing anti-‐corruption measures, including punitive ones, in a top-‐down fashion. This illustrates that there is no inherent connection between corruption and democracy. The question is thus how and at which point into this process of the emergence and consolidation of rational-‐legal governance the domestic incentives become strong enough for the adoption and implementation of anti-‐corruption policies. As only a few countries have successfully transitioned from a high-‐corruption to a low-‐corruption status as a result of deliberate policy interventions, there is only limited evidence of how this alignment of incentives occurs. For example, Glaeser and Goodin (2004) illustrate this for the case of the US. The key story is that as the economy grew rapidly in the “Gilded Age” (1800-‐1870), so did the opportunities for and the degree of corruption. However, this generated a reaction, led by the Progressive Movement, which pushed for institutional reforms to control corruption, which in turn increased the legal costs associated with corruption. At the same time, this push was only possible because of increasing literacy and “sophistication” of the public, and resulting media independence, which also increased the demand for anti-‐ corruption, thus increasing also the political costs associated with corruption. The Progressive Movement itself was an expression and a driver of deeper social and cultural change. As Anechiarico and Jacobs (1994: 466) argue, the movement to end the spoils system “was the second phase of a powerful moral movement that began with the abolition of slavery.” Similarly, Rothstein (2011) and Teorell and Rothstein (2012) argue that the break-‐through against corruption in Sweden, which happened in the mid 19th century, was achieved through a wholesale move from a “feudalistic” to a “Weberian” public sector and
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linked to the rise of liberalism as an ideology and a broader change towards more open social organizations and values that happened around the same time. This indicates that economic development and structure is also linked to cultural values that influence how the political system works, generate demand for anti-‐corruption policies, and shape the debate surrounding them. Indeed, culture has also often being named as a structural factor influencing acceptance of corruption and thus demand for anti-‐corruption policies. As discussed in the introduction, some interpretations of corruption see it by definition as a situation where different types of norms and ingrained patterns of behavior collide, i.e., as an inherent tension between emerging universalistic, rational-‐legal norms and established particularistic norms and types of behavior. The most radical views see corruption as “socially embedded in 'logics' of negotiation, gift-‐giving, solidarity, predatory authority and redistributive accumulation” (De Sardan, 1999: 25 for Africa). Others see a correlation between “survival values,” which are particularly salient in poorer countries and countries affected by communism, and corruption (Sandholtz & Taagepera, 2005). However, other authors argue that integrity (or non-‐corruption) is a universal value and reject cultural explanations of corruption (Miller, 2006). Indeed, the fact that it is rare to find a politician to defend corruption as legitimate behavior in public office indicates that even if the norm of integrity doesn’t determine his or her behavior, there is quasi-‐universal acceptance that it should do so. In this account, corruption is primarily a “collective action problem”; i.e., people would prefer not to be corrupt, but they do not have a choice, because they stand to lose out if they do not engage in corrupt practices (Persson, Rothstein, Teorell, 2012; Brinkerhoff & Goldsmith, 2004). Similar questions about their link to economic and political development are also valid for transparency policies. Relly & Cuillier (2010) identify an extensive list of political, cultural,
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and economic factors that are correlated with access to information, including: the political climate – i.e., the limited media freedom, civil liberties, political rights, and rule of law; some economic factors – low levels of literacy, telecommunications infrastructure, and e-‐ government; and some cultural factors, such as perceptions of corruption and women’s rights. Other studies use transparency indicators as independent variables, but reach similar conclusions – that transparency is correlated with a number of socio-‐economic development and good governance indicators (Islam, 2006; Kaufmann & Bellver, 2005). Unlike corruption, as argued in the previous chapter, transparency as a value is more clearly linked to democracy. For example, Jung, Eom, Kim, and Bae (2011) argue that the adoption of transparency policies in Korea was a result of democratization, which led to a change in values resulting in an increasing number of citizens (and experts) demanding that their “right to know” be fulfilled. Thus, we can expect democratization to play a larger role in the adoption of transparency policies. However, even in this case, the link is not automatic. Many authors argue that it is political agency and not structure that generates demand for transparency policies. For example, Ackerman and Sandoval-‐Ballasteros (2006: 115-‐116) state that “FOI laws do not grow organically and functionally out of economic development,” rather, they represent a reaction to domestic demands and mobilization. Similarly, Bennett (1997: 213), looking at the adoption of FOIA, ombudsmen and data-‐protection laws across countries, concludes that “while the growth of government and liberal democratic values are necessary conditions for the adoption of all three policy instruments, they are not sufficient conditions” (emphasis added). In conclusion, both economic development and democratization can increase the demand for anti-‐corruption and transparency policies, by bringing new groups, with new values and new interests, into the policy process (Berman, 2001: 235). However, whether this demand
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translates into actual adoption of transparency and anti-‐corruption policies depends on a larger number of factors, such as institutional configurations, the incentives decision-‐ makers face, and the specific dynamics of the policy process. In other words, structural factors increase the likelihood of adoption by affecting the interests and values at stake, as well as their recombination through the policy process. But understanding how these get recombined requires a more disaggregated look at the dynamics of the policy process. The next sections address these questions.
3.2
Sources of Domestic Demand
The key to understanding where the impetus for the adoption of a specific policy comes from is to understand which groups stand to benefit or lose from it and what their capacity for mobilization and policy influence is. In other words, to understand the politics of TAC policies, it is important to understand their policy characteristics first.15 Transparency and anti-‐corruption are different from other policy areas, as they are system-‐wide issues that don’t target a selected industry or actors outside the state, but rather the state itself. Thus, anti-‐corruption and transparency policies are a particularly salient example of policies with potentially concentrated costs on policy-‐makers and public administrators themselves, and widely distributed – and uncertain – benefits (Fung, Graham, Weil & Fagotto, 2004). Mancur Olson’s (1998) classic account of collective action illustrated why large groups will have difficulties organizing themselves. Similarly, in James Q. Wilson’s (1989) typology of political mobilization, diffuse policy effects will make interest group mobilization difficult (see also Stone, 2002: 222-‐223), especially in the absence of a dedicated policy
15 The argument that “policy determines politics” was famously made first by Lowi (1972) and re-‐
iterated by Wilson (1980).
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entrepreneur. Thus, we should expect low social and political mobilization surrounding anti-‐corruption and transparency policies, and few incentives for government to pursue them. This is even more the case in developing countries, where, as Grindle and Thomas (1991) argue, policy elites consist primarily of people in government, and societal interests are weakly organized. Wilson (1989)16 differentiates between four types of politics surrounding different types of policy issues, depending on whether the perceived costs and benefits are diffuse or concentrated (see Table 3.1 below): Table 3.1. Policy types
Concentrated (high per-‐capita value)
Diffuse (low per-‐capita value)
Concentrated (high per-‐ capita value)
Interest group
Entrepreneurial
Diffuse (low per-‐capita value)
Client
Majoritarian
Costs
Benefits
Source: Author, based on Wilson (1980)
16 Lowi (1972) differentiates between distributive, re-‐distributive, regulative and constituent policy
based on the likelihood of coercion (immediate or remote) and the applicability of coercion (on individual conduct or on the environment of conduct). Based on that typology, FOIA could be classified as a constituent policy: it affects the environment of conduct for bureaucrats/public officials and the likelihood of coercion is remote, as it depends on whether and how much FOIA is used to request government information. PAD is a regulative policy, as it entails immediate coercion that affects individual conduct (public officials are required to publish their declarations predictably at regular intervals). Lowi uses the policy typology to explain how politics plays out in the US political and institutional system depending on policy characteristics -‐ for example in terms of the role of congressional committees, floor debates, presidential and lobby group involvement. Critics of Lowi’s typology pointed out that it does not offer a clear-‐cut way to classify policies and does not result in empirically testable hypotheses (Greenberg et al, 1977). Additionally, the arguments/hypotheses Lowi (1972) develops about possible policy-‐making patterns are very specific to the US political system, and thus difficult to extrapolate to other political systems. Therefore, I use Wilson’s cost-‐benefit typology for developing the theoretical framework, as it is clearer and more easily applicable to other countries.
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For our two examples, one key difference is that the cost of FOIA is more indirect and diffuse and falls mostly on the bureaucracy and the public administration in general, and less on the decision-‐makers themselves (except for provisions to disclose parliamentary debates and votes), whereas PAD imposes an immediate cost on decision-‐makers themselves. If both policies indeed have diffuse benefits, this would make FOIA (and transparency policies more broadly) a policy with majoritarian politics, and PAD (and some anti-‐corruption policies more broadly) an entrepreneurial one. Wilson (1980) argues that for majoritarian politics, the challenges are to get the issue on the public and political agenda, obtain agreement that it is a legitimate issue for government to tackle, and overcome ideological objections. Given the high normative valence of transparency and integrity (see Chapters 1 and 2), ideological objections are less likely to be the case for FOIA. How transparency and corruption can become issues on the public and political agenda is discussed more in detail in the next section (Ch. 3.2). For entrepreneurial politics, a policy entrepreneur is needed who can mobilize public sentiment, put opponents on the defensive, associate the policy with widely shared values, and thus “serve[s] as the vicarious representative of groups not directly part of the policy process” (Wilson, 1980: 370). Thus, the question for both FOI and PAD – as for all policies with diffuse benefits – is what groups could mobilize to be their advocates. Wilson (1980) argues that public interest organizations are one such source of advocates for the diffuse interests of citizens in general. Indeed, for FOIA, evidence so far shows that proposals often come from coalitions between journalists, CSOs, including human rights activists (e.g. Bulgaria) or social movements (e.g., India), and/or academics, all of whom often have ties to and build on FOIA models from other countries (Michener, 2011a). There is less literature on where proposals for PAD come from, but given the public interest nature of the policy, we can assume that roughly similar groups are likely to be the main advocates for PAD.
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This illustrates that there are some specific constituencies who might benefit more directly from FOI, i.e., for whom the benefits are not diffuse, but potentially concentrated. If one of these groups mobilizes and exerts pressure for FOIA adoption, its type could change from majoritarian to client politics. Similarly, even though there are fewer potential constituencies, if a group mobilizes nevertheless in support of PAD, the issue turns into one of interest group politics, with the significant difference that one of the interest groups opposing the policy consists of decision-‐makers themselves. Whether FOI and PAD actually transition to the second type of policy deepens, however, on both how salient and concentrated the benefits are for the groups supporting them, and on how much influence these groups have on the policy process. Table 3.2 below summarizes the potential distribution of costs and benefits for FOIA and PAD. The rest of this section discusses more in detail under which structural and institutional conditions some of these groups are expected to push for the adoption of FOIA and PAD. Table 3.2. Distribution of costs and benefits of FOIA and PAD
FOIA: majoritarian issue (with potential for client politics)
PAD: entrepreneurial issue (with potential for interest group politics)
Costs
Diffuse (on bureaucrats/the public administration)
Concentrated (on policy makers/public officials)
Benefits
Diffuse, with some possible exceptions (media, private companies, CSOs)
Diffuse, with fewer if any exceptions (mostly CSOs)
Source: Author
One constituency that is expected to benefit directly from FOIA is the media, as journalists can make use of it for investigative purposes. Media support for FOIA might also be spurred by the fact that freedom of information is often associated with freedom of expression – which is a media rights issue par excellence. However, if the main media holders are closely aligned with political elites in power and if they have preferential access to government information (i.e., they have “good inside sources”), they will have fewer incentives to push
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for a FOIA. On the contrary, since FOIA “democratizes” access to information, media outlets with close ties to political power can lose their information monopoly to smaller and more independent outlets. For example, Bellver, Mendiburu and Poli (2008) argue that in Honduras "mainstream media rallied against its approval in an attempt to preserve its monopoly over public information.” Thus, whether the media will be one constituency pushing for the adoption of FOIA depends on its degree of government independence. Governments have a broad variety of ways to influence or outright control the media, from the more “innocuous” strategy of directing large advertising budgets towards newspapers with positive coverage (Michener, 2011b), to informal clientelistic relations, to direct ownership of media outlets and outright suppression of critical media and restriction on freedom of expression. Even mild cases of government influence on the media can temper the latter’s support for FOIA. For example, Bertoni (2012) describes the case of Argentina, where individual journalists were supporting FOIA, but media companies started opposing it when it was suggested that FOIA would also be applicable to them as recipients of state subsidies via government advertising. Thus, the structure of media ownership, including its degree of concentration, and its links to the broader economic and political structure matter in determining whether it will support FOIA or not (Michener, 2011b). The potential benefits of PAD for the media are less clear. On the one hand, the advantage of FOIA is that it enshrines the right to access to a variety of information, which can be used to cover a larger number of government-‐related topics. On the other had, FOIA is relatively difficult to use in practice, as it requires lodging requests, waiting for answers, and even appealing official decisions if the request is denied. Even when obtained, the quality and usefulness of the information is uncertain, and the information probably requires significant
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processing and analysis to be useful for reporting. The information conveyed by PAD about the assets and interests of decision-‐makers is more narrow in focus, but more easily analyzed and speaks directly to a topic that is easily mediatized and scandal-‐prone. Since in many cases, the “top users of FOI laws are often corporations in search of information that can be of private commercial interest to them” (Ackermann & Sandoval-‐ Ballasteros, 2006:127), the private sector can also be a key constituency for transparency FOI. However, whether there is demand for FOI from the private sector also depends on structural and institutional factors, such as the system of representation and the relationship between the state and the private sector. For example, McClean (2010), using Germany and the US as illustrative cases, argues that the private sector will be less supportive of FOIA in organized, “neo-‐corporatist” than in disorganized, “pluralist” capitalist economies. This because industry interest groups in neo-‐corporatist systems already have substantial access to government information, and liberalizing access to information means losing some of their power. Pluralist systems of representation will have greater variability in the adoption of FOIA. Here, private sector organizations will exercise pressure for FOI if they succeed in getting sufficiently organized to influence policy-‐making. Extrapolating this argument to high-‐corruption countries, we can expect the most powerful firms or industries to have preferential access to decision-‐making and government information (including state-‐capture in the worst cases – Hellman, Jones and Kaufmann, 2000), and thus have an interest in opposing rather than supporting transparency and anti-‐ corruption policies. It is unclear whether there is private sector demand also for PAD. While companies can use government information for various commercial purposes, PAD information is of less
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immediate use to them. Therefore, if there is private sector support for PAD, this is more likely to be part of a broader private sector drive for anti-‐corruption measures. The third constituency that can advocate for transparency and anti-‐corruption policies is civil society or non-‐governmental organizations (CSOs/NGOs) (Bertoni, 2012; Puddephat, 2009; Michener, 2011a). These are in some cases the expression of marginalized interests, who can advocate for FOIA or for broader transparency and anti-‐ corruption reforms when they feel excluded from access to government information or from broader political and economic opportunities (Relly & Cuillier, 2010). However, again, much still depends on how these groups organize and gain access to decision-‐making. Furthermore, how and why “public interest organizations” that advocate for transparency and anti-‐corruption policies emerge is not well covered in the literature. The assumption seems to be, that, given that transparency and integrity are such “good” values in themselves (valence issues), public interest organizations have a “natural” reason to advocate for them. Social or civil society mobilization is more likely if the underlying problem that the policy is trying to address is of high salience for the public or a specific sub-‐group of the public. As argued before, corruption can become high-‐salience issue in transitioning or rapidly modernizing societies, i.e., those where “traditional” modes of behavior clash with emerging universalistic norms. In combination with the existence of “value-‐actors” (Abott and Snidal, 2002) this can make mobilization more likely even in the presence of dispersed benefits. Furthermore, the value-‐based dimension of transparency and anti-‐corruption advocacy also helps with mobilization, as shared belief systems can help lower transaction costs for participating in advocacy coalitions, and increase the perceived benefits of participating (Sabatier & Weible, 2007). This is especially the case when “participants experience the
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devil shift in high conflict situations” (Ibid.: 197), which can easily happen when dealing with corruption. Again, civil society mobilization also depends on the existence of certain structural conditions, such as the existence of political space and resources for social organization. Nevertheless, even for civil society the incentives to demand or support FOI are somewhat different than for PAD. First, as in the case of the media, the kind of information that CSOs can obtain through FOI is more diverse than that obtained through PAD, and thus has a broader range of potential uses in holding government to account. Second, as argued before (ch. 2.3), FOI is framed not just as a simple transparency policy, but as a fundamental citizenship right which is tied to other human rights, such as the freedom of expression, and is – in some interpretation – even a precondition for the realization of other rights (Article 19 & ADC, 2007). PAD does not enjoy a similarly strong normative valence as a citizenship right, and, as again argued before, can even be seen as in conflict to other rights, such as the right to privacy (Burdescu et al., 2009). This stronger normative resonance – or valence -‐ of FOIA means that it is easier to form broad advocacy coalitions in its support – including human-‐rights NGOs, as well as any another type of civil society organization involved in monitoring and advocacy on a specific issue area. Indeed, in some cases, such as Bulgaria, environmental NGOs were among the main advocates for freedom of information (Puddephatt, 2009). In contrast, PAD has a more limited potential base of support among more narrowly specialized good-‐governance and anti-‐corruption NGOs. In conclusion, the fact that transparency and anti-‐corruption policies can, under certain conditions, garner support from different constituencies, opens up spaces for policy entrepreneurs and advocacy coalitions to emerge around FOIA and PAD, or other TAC policies more broadly. Table 3.3 below lists the potential constituencies who could demand
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the adoption of FOIA and PAD, alongside the conditions under which this mobilization is likely to occur. Table 3.3. Potential constituencies for FOIA and PAD Actors
Structural and institutional Incentives to factors conducive to FOIA & PAD support FOIA advocacy/support
Incentives to support PAD
Media
Freedom of the press, no preferential access to government information, competitive media sector (no market capture), weak connections to power-‐holders (no government capture)
Yes – FOIA can be used for investigation and reporting; link to freedom of expression.
Yes, though perhaps less, -‐ fewer kinds of information become available, but the information is higher impact and easier to access & use.
The private sector
No preferential access to government information, pluralist rather than corporatist interest group organization, competition, weak connections to power-‐ holders (no state capture)
Yes – access to commercially relevant government information
No, except as part of broader anti-‐ corruption reforms
Yes, allows monitoring and advocacy of government activity; link to human rights or citizenship rights.
Yes, though less strong or widespread – it is not a citizenship right, and can’t be used to defend other rights (lower rights-‐ resonance).
Civil society Has political space, has financial and human resources, not captured or too strongly aligned with elites in power, has some resonance with broader popular values and enjoys some public support and legitimacy. Source: Author
However, even where CSO and other actors can organize and mobilize to advocate for TAC reform, they have little chances of success if they don’t find support among decision-‐makers – public officials and elected representatives. Thus, for understanding how transparency and anti-‐corruption policies not only come onto the decision-‐making agenda, but also get adopted, we need to understand not only where policy entrepreneurs come from, but also the incentives of decision-‐makers. The next sub-‐section deals with these.
3.3
Incentives for Decision-‐Makers 49
The starting puzzle for this dissertation is why decision-‐makers would adopt policies that put constraints on their own opportunities for rent seeking. An idealistic explanation is that non-‐economic interests or values and norms can change cost-‐benefit calculations of decision-‐makers, leading them to become “value actors” pursuing such policies on principle, i.e., out of intrinsic motivation. For example, Glaeser and Goodin (2004) argue that anti-‐ corruption reforms can be driven by genuinely public good oriented officials who recognize corruption as a social problem. However, while value actors can play the role of policy entrepreneurs gathering support for transparency and anti-‐corruption policies, for most decision-‐makers there have to be other benefits from adopting TAC policies. The incentives for the adoption of such policies depend on a number of contextual factors, including institutional structures and the specific dynamics of the policy-‐making process. This chapter discusses in greater detail possible reasons why and conditions under which decision-‐makers will support such policies. Increasing Accountability Agency theory offers one set of potential explanations, where TAC policies targeted at the bureaucracy are adopted as an attempt to reduce information asymmetries between principals (elected representatives) and agents (bureaucrats/the public administration). In a classic argument McCubbins, Noll and Weingast (1987) argue that, in the US, administrative procedures, which include transparency provisions, were introduced in order to compensate for information asymmetries between legislators and implementing agencies or bureaucrats, by giving constituents better means for bottom-‐up “fire-‐alarm monitoring,” as opposed to top-‐down “police-‐patrol” monitoring. Similarly, Ackerman and Sandoval-‐Ballasteros (2006) attribute the US adoption of transparency provisions and policies, such as those included in the Administrative Procedure Act and FOIA, to the desire
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of the legislative branch to reassert control over the expanding bureaucracy and counteract the increasing autonomy of the executive. The incentives for legislators to adopt transparency requirements aimed at the bureaucracy are particularly strong in cases of “divided government,” i.e., when different parties control the legislative and the executive. The history of the US FOIA illustrates this well -‐ it was proposed by Democratic congressmen during a Republican administration, gained Republican support when a Democratic administration came to power, and its successive strengthening occurred under divided government (Ackerman & Sandoval-‐Ballasteros, 2006; Michener, 2011b). However, “fire-‐alarm monitoring/divided government” explanations for the adoption of transparency and anti-‐corruption policies have been developed based on the US political system of government. They are based on certain implicit assumptions about the underlying political system, such as strong separation of power between the legislative and the executive, responsiveness of legislators to their constituencies, and a tradition of legislative oversight or exercise of political accountability over the executive and the bureaucracy. In parliamentary systems the separation of powers between the legislature and the executive is weaker and the control of the legislative over the executive is more direct. This reduces the information asymmetry between the legislature and the executive, and thus potentially also legislative support for transparency policies as an accountability mechanism (McClean, 2011). However, in cases of minority governments in parliamentarian systems, the party that controls the government does not also have control the legislature, resulting in a similar constellation of incentives for legislators to support FOIA as divided government in presidential systems. Another structural and institutional factor that can influence legislative support for FOIA – and transparence policies in general – is the dominant type of ministerial and bureaucratic
51
accountability – whether through political control by the legislature (as in the UK and in Westminster-‐type systems), or primarily through a detailed body of law (as in the German “Rechtsstaat” and in the French administrative tradition) (McClean, 2011). The latter can also reduce information asymmetries and principal-‐agent problems between the legislature, the executive and the bureaucracy, reducing legislative demand or support for FOIA as a channel through which accountability of the bureaucracy (and the executive) directly to the citizen is strengthened. This could imply that the legal origin or administrative tradition that influences the primary mechanism of accountability also plays a role – with countries with a more legalistic administrative tradition, such as German and French, being less likely to adopt FOIA as a way of increasing accountability of the bureaucracy to the citizens and to the legislature – than countries with English, American or Scandinavian administrative traditions, that place more emphasis on political accountability of the bureaucracy. In other words, domestic incentives for legislatures to adopt transparency policies targeted at the bureaucracy will be weaker in countries where alternative accountability mechanisms exist – such as weaker separation of powers and thus (more) direct control of the legislature over the executive (as in parliamentary democracies), or strong systems of legal accountability, based on detailed bodies of administrative law and specialized judicial institutions. In this balance between political/democratic and legal accountability, stronger legal accountability could lead to less demand for more direct political accountability. Extending this logic to high-‐corruption countries, clientelism and patronage can also be seen as alternative mechanisms through which executive and bureaucratic accountability is ensured. Therefore, clientelism and patronage can reduce legislators’ incentives to support FOIA – and transparency policies more general – not simply because of the potential costs of the information FOIA reveals, but also because FOIA offers fewer benefits to them in terms of increased ability to hold other branches of the state to account.
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Another implicit assumption of the “bureaucratic accountability” explanation is that the bureaucracy has sufficient capacity to implement FOIA (or other TAC policies) and is professional enough to implement policies that go against its own interests (Darch & Underwoord, 2010). If this is not the case, it is hard to see why legislators would assume that there would be enough compliance with FOIA or another transparency policy for it to lead to their desired outcomes (i.e., increased executive/bureaucratic accountability to the public and the legislature). However, in many high-‐corruption developing countries it is precisely the lack of professionalism and low performance of the bureaucracy that leads to perceptions of corruption. Nevertheless, FOIAs and other transparency policies have also been adopted in many countries that do not fit this institutional template – including in some authoritarian countries17 and some “qualified” or “hybrid” democracies, characterized by strong executives, weak legislatures, weak separation of powers and extensive reliance on clientelism and patronage. Additionally, fire alarm monitoring and divided government are not useful in explaining legislators’ support for policies aimed at increasing their own transparency, such as PAD requirements applied to legislators. For TAC policies targeting the legislature, there is an inherent conflict of interest that makes legislators less likely to adopt them (Snider, 2009). This means that principal-‐agent theories centered on information asymmetry are insufficient for explaining the adoption of TAC policies that 17 Part of the explanation is that even in such regimes complex principal-‐agent chains create problems of information asymmetry – such as between higher-‐, central-‐level officials and lower-‐level, local administrators -‐ that can benefit from increased transparency and “fire-‐alarm monitoring.” Thus, it is still possible that higher levels of the executive introduce some form of transparency requirements as a way to control lower-‐levels of bureaucracy. However, the theories discussed in the previous section would require some significant modification to be able to explain domestic incentives for the adoption of transparency policies in autocratic countries. This represents an interesting area for further research, but it goes beyond the scope of the present dissertation.
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target the legislative itself. They are also insufficient for explaining the adoption of TAC policies targeting the executive and the bureaucracy in cases where the separation of powers is weak, alternative bureaucratic and executive accountability routes exist, there is low electoral responsiveness (if any), and low bureaucratic capacity. Alternative explanations are necessary for such cases. Political Competition and Political Uncertainty Another possible explanation for the adoption of transparency and anti-‐corruption policies is the existence of political competition and the resulting political uncertainty, i.e., the prospect that the ruling coalition will lose power in the future. For example, Huber and Shipan (2000) argue that where enacting coalitions fear that at some point in time they will lose political power or control, they will design agencies in such a way as to insulate them from political control and policies so as to reduce discretion. Similarly, one of the reasons for setting up independent anti-‐corruption agencies is to lessen the impact of electoral volatility, “tying the hands” of future politicians and decision-‐makers (Batory, 2012). Extrapolating, we can expect that in democratic polities with a regular turnover of power instituting robust anti-‐corruption and transparency policies and institutions can be seen as an insurance against future loss of power, i.e., as a way to control or limit rent-‐ seeking opportunities of future governments from an opposing party (Berliner, 2011b). Michener (2011b) names Canada as an example of this dynamic – the outgoing Liberal majority approved FOIA in 1984, a year before Conservatives swept to power. Such an explanation is more easily extrapolated also to PAD or other policies that also affect the legislature, not just the executive. Political uncertainty can however take very different forms – and have much more grave consequences – in developing countries with a weak institutional environment. In
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particular, extreme uncertainty in the form of political instability can actually increase corruption by shortening the time-‐frames of political actors and encouraging “predatory regimes,” which know that the consequences of losing power might be disastrous, and seek to extract as many rents as possible from the state before loosing power (Olson, 1993). While Olson’s explanation applies primarily to autocratic states, it can also be extrapolated to “intermediate” forms of democracy such as “dominant party politics” and “feckless pluralism” (Carothers, 2002). For example, Grindle and Thomas (1991: 13) argue that because of the higher level of uncertainty and vulnerability in developing countries, concerns of policy-‐makers “go far beyond the substance of any particular policy problem to embrace issues of power and control.” To the degree that transparency and anti-‐corruption policies require government to give up power, it is less likely that they will be adopted in circumstances where regime survival is at stake. In countries with high – systemic – corruption, it can be difficult to insulate agencies and thus policy implementation from political control. This is especially the case when alternative or horizontal accountability institutions, like the judiciary, are weak and/or politically captured, thus missing an essential check on power – which is often the case in so-‐called “hybrid” democracies. Thus, if a ruling coalition expects to lose power in the future, it will have fewer incentives to set up strong anti-‐corruption policies and institutions, since these will either remain ineffective, or they can be used against them by their successors (Batory, 2012; Meagher & Voland, 2006). Under such circumstances, setting up TAC policies and institutions increases the stakes by increasing the potential negative consequences of losing power. This generates a “winner-‐take-‐all” scenario, similar to the case of predatory regimes discussed above, and thus also acts as a disincentive for the adoption of anti-‐corruption policies.
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Thus, much depends on the kind and degree of uncertainty political elites face. In established democracies where institutional structures, and especially horizontal accountability mechanisms, are well rooted and political independence is assured, and where the stakes are “moderately high,” decision-‐makers might be more interested in setting constraints on themselves as an insurance for the future loss of power. However, in societies where such institutions are weak or easily captured, where the uncertainty refers to the political system itself, and/or where the consequences of loosing power can be very severe, the explanations above are less likely to apply. In other words, we can expect that only the more “predictable” type of uncertainty generated not just by electoral competition and regular turnover of power, but also by the existence of accountability institutions that prevent government from abusing its power will increase the incentives for decision-‐makers to put constraints on themselves. Public Pressure -‐ Need for (Re-‐)Legitimization Another type of explanation refers to public pressure for transparency and anti-‐corruption measures. This is likely to arise as a result of scandals or a general erosion of public trust in institutions. This can be also framed as the government – or other public institutions -‐ facing a need for (re-‐)legitimization. This triggers a search for policies that can signal honesty to the public. TAC policies are one way of doing this. For example, one argument found in the literature is that growth in government leads to demand for more transparency, and thus – more or less indirectly -‐ for FOIA (Bennett, 1997; De Francesco, 2010).18 Frost (2003) argues that both the US FOIA and the more recent (2001) EU 18 De Francesco (2010), using event history analysis on a sample of 37 OECD and EU countries finds
that countries with higher government expenditure as a percentage of GDP are more likely to adopt FOIAs. Bennet (1997) argues that democracy and an increase in the size of government are necessary
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regulation on access to information were adopted “as a means of bolstering public confidence in governance.” While there is no similar explanation for PAD in the literature, the same logic could be extrapolated to its adoption. However, decision-‐makers can be more inclined to use FOIA rather than PAD as a “(re)legitimization strategy” because of its lower and more uncertain costs. The costs of FOIA on decision-‐makers are lower and more uncertain because it is (partially) more difficult to implement and use for obtaining potentially compromising information than PAD. Thus, FOIA requires significant record keeping and record management capacities – more so than (P)AD. Even if adequately implemented and enforced, for FOIA to negatively affect decision-‐makers, FOIA users have to get hold of compromising information that proves corrupt activities, which is difficult to obtain through FOIA. On the other hand, the public disclosure requirement in PAD is more straightforward, requires less bureaucratic implementation capacity, and, if complied with, automatically gives access to potentially sensitive or embarrassing information about decision-‐makers – making the costs PAD imposes on them both more direct and more likely. The second reason is that decision-‐makers might be more inclined to use FOIA rather than PAD for re-‐legitimization is that FOIA has a stronger symbolic value as it is tied to fundamental democratic rights, especially when framed as the expression of “the right to know” and grounded in a corresponding constitutional provision about “the right to information” (Ackermann-‐Ballasteros, 2006). This can make it easier to mobilize public support for FOIA and makes FOI a more powerful symbol of commitment to democratic
but not sufficient conditions for the adoption of FOIA and other measures for increasing bureaucratic accountability.
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rights and transparency. PAD on the other hand is more controversial, as it is less linked to a fundamental citizenship right and conflicts easier with other rights, such as the right to privacy (Burdescu et al., 2009; Van Aaken & Voigt, 2011; OECD, 2011; Messick, 2009). Nevertheless, it is possible that if big scandals or other factors lead to severe legitimacy crises for political elites – including legislators and high-‐level officials – the adoption of stronger anti-‐corruption policies might be necessary to send a signal that can be strong enough to persuade domestic (or international) audiences. The fact that strengthening the asset disclosure regime became an item on the US’s government agenda in the wake of the Watergate scandal illustrates such a scenario (Burdescu et al., 2009: 28). The Importance of Policy Entrepreneurs, Problem Framing and the Public Agenda Even if there are domestic incentives for decision-‐makers to support TAC policies, their adoption is not automatic. As Wilson (1980) argues for policies with diffuse benefits, they have to make it high enough on the government and decision agenda, i.e., on “the list of subjects or problems to which governmental officials, and people outside of government closely associated with those officials, are paying some serious attention at a given time” (Kingdon, 2003: 3). If transparency and lack of corruption are perceived as a problem among others, more important ones, they might receive less attention and rank low on the agenda. Understanding agenda-‐setting is important for explaining how corruption and lack of transparency get to be defined as problems so urgent that specific policies have to be enacted to address them. Indeed, because it is hard for decision-‐makers to overtly oppose increasing government transparency and integrity, we can expect significant effort to go into preventing these issues from getting onto the agenda to begin with. A key of agenda setting is defining something as a problem that requires immediate action by decision-‐makers. While various actors monitor or observe “conditions” based
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on routine indicators, feedback or focusing events, the problems themselves do not emerge automatically based on objective criteria. Rather, a “condition” becomes a “problem” only when it is seen as violating certain values (Kingdon, 2003), and in particular “higher-‐order” values19 (Zahariadis, 2007). As argued in the introduction, corruption and transparency are linked to higher-‐order values, such as fairness or democratic rights. Additionally, they are both “motherhood issues” in Stone’s (2002) terms, i.e., values on which everybody agrees that they are “good” in an abstract sense, or valence issues in Baumgartner and Jones’s (2009) terms, i.e., issues for which only one side of the debate is morally acceptable or legitimate. However, even valence issues do not arise naturally, but have themselves to be strategically defined (Baumgartner and Jones, 2009). Challenges arise when such valence issues have to be specified or operationalized and balanced against other motherhood issues (Stone, 2002). Indeed, invoking different values in connection to corruption can help reduce its moral valence. For example, patronage and clientelism can be framed as violating the norm of equity or fairness (“equality for all”), or as a way of rewarding loyalty for one’s supporters (“protect your own”). Bribing can be framed as obtaining illicit benefits or undeserved favors, or as “greasing the wheels” of an inefficient bureaucracy (“cutting red tape”). Transparency has to be balanced against the right to privacy and the demands of national security. Or, higher-‐order values can be invoked instead of competing but roughly equal values. For example, some authors argue that some forms of corruption should be tolerated as long as it creates benefits for the larger society in the form of economic growth or poverty reduction (Brinkerhoff & Goldsmith, 2005). 19 That is, those that “apply to the entire community, have more potency of affect, more uniformity of
meaning across individuals, and greater durability of attention” (Zahariadis, 2007: 76).
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Problem framing is also important not only because it helps put an issue on the agenda, but because it focuses attention on certain aspects – or causes – of the problem which in turn determine what kind of solutions can be chosen. As Stone (2002: 189) argues, “In politics we look for causes not only to understand how the world works but to assign responsibility for problems.” For complex problems, such as corruption and lack of transparency, causal chains are very long and one can choose at which point in the chain to assign primary responsibility and to whom. For example, corruption can be a feature of an overall inequitable economic and political system, in which case the choice is between a wholesale redesign of the political and administrative system (“big-‐bang approach” -‐ Rothstein, 2011), or defeatism (“the system made me do it” – Karklins, 2005). Or it can be an individualized occurrence that can be addressed through traditional legal or electoral “crime-‐and-‐ punishment” mechanisms targeting the presumed culprits (“throw the bums out”). The ease with which corruption is turned into an attack directed at political opponents illustrates that the problem of corruption is often as much or more about assigning blame than finding solutions. Political competition generates incentives for parties and individuals who have been out of power to capitalize on the perception of corruption and incompetence of incumbent regimes (Glaeser and Goldin, 2004) and make corruption a political and electoral agenda item. However, if the challenger has his own clientele to satisfy (as is argued for Bulgaria by Barnes, 2007), he will be less inclined to dismantle or limit the opportunities for corruption – i.e., to actually adopt such TAC policies. Thus, transparency and anti-‐corruption are a good illustration of what Baumgartner and Jones (2009: 151) call “the final paradox” of valence issues: “They are tempting issues for a politician to raise, but they are not easy problems to solve.” In other words, it is easier to explain why corruption and transparency can become problems on the public agenda than to explain how they get linked to specific policies. This also explains why perceiving corruption as a problem
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doesn’t necessarily result in a demand for specific policies, and why skilled policy entrepreneurs also need to make sure that their problem formulation is the one that carries the day. “Triggering” events and/or political changes, such as a new administration, can help policy entrepreneurs to bringing an issue onto the government agenda through opening a “policy window” (Kingdon, 2003). Triggering events can help by focusing public attention and increasing the salience of the problem, prompting governments to advance transparency and anti-‐corruption policies as a way to re-‐establish their legitimacy. Big scandals, such as Watergate in the US, are one such type of events (Berliner, 2010; OECD, 2011). Democratic transitions can be seen as a “mega” policy windows of triggering events for FOIA adoption (Ackerman & Sandoval-‐Ballasteros, 2006), as they both entail a radical change in administration and propel the problem of excessive government secrecy onto the public agenda. FOIA is a way for new governments to distance themselves from previous, often overly secretive, regimes and demonstrate their democratic credentials (Roberts, 2003; Michener 2011b; Berliner, 2010). Additionally, such fundamental changes in government can empower previously marginalized actors who are supportive of FOIA and lead to the temporary disorganization or weakness of constituencies -‐ such as state bureaucracies -‐ who typically oppose stronger transparency rules (Roberts, 2003: 6). For example, Bertoni (2012), argues that (among other factors) FOIA was adopted in Mexico as part of the change in government and the transition to a more democratic system, whereas the lack of electoral change when FOIA was being debated in Argentina helped stall it and thus basically prevented the adoption of the law. While there is no similar evidence for PAD adoption as a result of democratic transition, the explanation is also theoretically possible for PAD, for example if a change in government brings into power oppositional forces that have
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promised significant anti-‐corruption policies (Meagher & Voland, 2006 for anti-‐corruption agencies). Media coverage can be key in shaping the agenda and the problem formulation. Baumgartner and Jones (2009) present evidence of cases where media attention preceded government attention. However, they argue that once an issue has acceded to the government agenda, the press tends to be more reactive than leading. The relationship between public opinion, decision-‐makers and the media as a “transmission belt,” “amplifier” or “shaper” of the public mood is thus not unidirectional and generically predictable (Baumgartner and Jones, 2009). Either way, media can be a major influence on agenda setting – and thus policy adoption – for two reasons. First, as both Kingdon (2003) and Baumgartner and Jones (2009) argue, the media amplifies movements generated elsewhere, sometimes resulting in a “feeding frenzy” or “bandwagon effect,” where small changes in objective circumstances or in perceptions generate a chain reaction resulting in massive mobilization. Second, being one of the key arenas where a problem is articulated and framing takes place, media coverage can focus attention on one aspect of the problem rather than the other (Baumgartner and Jones, 2009). In doing this, it reflects and shapes the frames that the public and political actors employ. Thus, how corruption and transparency are covered in the media matters. Individual corruption scandals are a media-‐prone topic. However, a tendency of the media to treat corruption cases and other abuses of power as individual excesses rather than expressions of systemic flows (Coronel, 2009 on Estrada and Thaksin), limits reactions to “individualistic” policy effects – such as criminal prosecution and removal from office of the individuals, but does not necessarily have “deliberative” ones, which succeed in putting more complex issues on the political agenda, or even “substantive” ones, which result in an
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actual change in policies (ibid.). In a high-‐corruption country, such “focusing events” can be frequent, keeping the issue on the media agenda and creating a “politics of permanent scandal” (ibid.: 19). Like framing corruption as systemic problem, such coverage can also lead to public cynicism and disinterest. In Baumgartner and Jones’s (2009) terms, if a problem persists without a solution being found, the public’s attention will shift away. By contrast, lack of transparency is a less scandal-‐prone topic by itself. Nevertheless, it does often gain public agenda status, especially when discussed in the context of bigger issues, such as democratic rights, or as a synonym for corruption and general dissatisfaction with government. The fact that various presidents have included increasing government transparency on their electoral platforms (see, for example, Michener 2011b for the presidents Fox in Mexico, and Fernando in Argentina) indicates that presenting transparency as a solution to government ineffectiveness or corruption can raise its public agenda status. The same can be said of framing transparency as a citizenship right (the right to information), as happened in some countries where FOIA legislation was adopted (Michener 2011a). Furthermore, since the media is often one of the key constituencies that potentially benefits from transparency reforms, it also has its own incentives to bring issues of transparency on the agenda (Bertoni, 2012). Once again, the role that the media plays in setting the agenda when it comes to transparency and anti-‐corruption differs depending both on the policy at stake, and on deeper structural factors that determine media interests. However, even defining something as a problem doesn’t guarantee that it will be acted upon, as long as there is no available policy solution that is not only technically feasible and normatively acceptable, but also matches the “winning” formulation of the problem, addresses the causal mechanisms assumed behind it (the “blame”) and aligns well enough with existing interests to advance
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onto the decision agenda and get adopted. This also requires the existence of skilled policy entrepreneurs, to connect their “preferred” policy solutions to the problem that occupies the public’s and the government’s agenda. Even if this connection is made, as in the case of problem definition, policy specification can be a battlefield for supporters and opponents of transparency and anti-‐ corruption legislation. Even when opponents of TAC policies lose the agenda battle, they nevertheless can still have an influence in the alternative selection stage, by weakening the specification of the law so much as to make it toothless. Nevertheless, success in framing the agenda can be a powerful element in creating a climate where not only something has to be done, and that “something” is the proposed policy, but also where opponents of the legislation are severely constrained in the arguments they can level against it. As Bertoni (2012: 11) illustrates for Mexico, where “the right to access to information became a ‘politically correct’ issue about which all public-‐political actors concurred,” if policy entrepreneurs succeed in transforming specific policy proposals into valence issues, the chances of adoption of a strong policy are substantially increased. In conclusion, even if incentives for decision-‐makers to adopt TAC policies exist, they are not sufficient by themselves for the adoption of FOIA and/or PAD. Indeed, none of the incentives determines the specific TAC policy chosen or its quality. Rather, these incentives are more likely to become activated IF policy entrepreneurs mobilize and succeed in tying the problems of corruption and/or lack of transparency to FOIA and/or PAD. Conclusion: Domestic Incentives for FOIA and PAD Adoption In conclusion, the more directly a policy targets corruption, the more resistance to it can be expected. Furthermore, the strongest resistance will come from those groups most
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directly targeted by the policy (i.e., those on whom the costs are concentrated). As mentioned above, the paradox of anti-‐corruption and transparency policies is that those targeted by – and (apparently) standing to lose from -‐ the policy are those that have to adopt or implement it (see for example Collier, 2002 on elite resistance to anti-‐corruption initiatives; and Snider, 2009, on the conflict of interest in legislative transparency). Nevertheless, under certain circumstances, decision-‐makers also have incentives to adopt such policies despite their potential negative consequences. In such cases, decision-‐ makers can face conflicting incentives that they have to navigate. For example, if public pressure for the adoption of transparency and anti-‐corruption policies is high, but these policies conflict with their interests, decision-‐makers might opt for weak laws, with watered down provisions and weak implementation mechanisms. That way they can send a signal to the public without having to fear a strong de facto impact on themselves or their allies and supporters. Or they can support policies that are more easily subverted at the implementation stage or whose impact is less certain. Beyond intrinsic motivation of a few individuals (value actors), three reasons for decision-‐ makers to support TAC policies have been proposed: the legislature’s desire to increase executive and bureaucratic accountability, the desire to limit opportunities for rent-‐seeking for future governments (“moderate” political uncertainty), and the need to (re-‐)legitimize government or to respond to public pressure. These explanations are cumulative rather than competing. They illustrate the different types of benefits from FOIA/PAD that can accrue to decision-‐makers under specific conditions, thus changing their cost-‐benefit calculation, i.e., their incentives to oppose or support FOIA/PAD/TAC policies. The more benefits and the fewer costs the policies generate for decision-‐makers, the more likely it is that they will be adopted, the easier their adoption and the stronger the laws
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adopted will be. For example, if increasing present or future bureaucratic and executive accountability are among the reasons for adoption, it is more likely that the resulting laws are stronger and are accompanied by strong and independent implementation and oversight agencies, given that the primary incentive is tied to the interests of the legislators and decision-‐makers themselves. On the other hand, if FOIA or PAD are adopted only as means of re-‐legitimization, we would expect weak laws and weak implementation and oversight agencies, since the goal is not substantive but symbolic (i.e., the incentive is to send a “cheap” signal). In this case, strong laws will be adopted only if the need for re-‐ legitimization is particularly high, necessitating a stronger signal, and/or demand-‐side actors or policy entrepreneurs mobilize to demand strong laws and agencies. For example, the strengthening of FOIA and introduction of requirements of public financial disclosure of high-‐level public officials in the US in the wake of the Watergate scandal (Berliner, 2010; OECD, 2011) can be seen as an example of the impact of all three of the explanations outlined above: both divided government and public pressure in response to a big scandal were present, and the regular turnover of power in the US makes it likely that support for government “self-‐control” policies can be garnered, especially given that strong checks and balances, including an independent judiciary, can prevent the abuse of such policies and institutions to target political opponents. Another reason why identifying “the” reason for the adoption of FOIA and PAD, or TAC policies generally, is difficult is that the incentives will vary depending on the (type of) decision-‐makers. Given that FOIA can strengthen public and legislative oversight over the executive, we can expect presidents and prime ministers to oppose strong FOIA laws. For example, in the US, congress had to override president Ford’s veto in order to pass an act strengthening FOIA in 1974 (Michener, 2011b). In Latin America, legislative success of FOIA depended not just on strong public pressure, but also on the degree of presidential support
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and influence (Michener, 2011b). Presidents have strong agenda setting powers not just through their constitutional powers, which vary from country to country, but also due to their high public visibility. As Baumgartner and Jones (2009: 241) argue: “No other single actor can focus attention as clearly, or change the motivations of such a great number of actors as the president.” However, as Michener (2010) demonstrates, sometimes presidents do back strong FOIAs. This is most likely when they are weak, i.e., when they don’t have strong constitutional powers and/or they lack a majority in the legislature, and when strong public mobilization around FOIA makes it likely to be adopted by the legislature anyway. In this case, supporting a strong FOIA is a way for presidents to claim credit for a popular measure that would otherwise either be enacted by the rival party or that rival parties would have difficulties in openly opposing. On the other hand, strong presidents, even when well-‐ intentioned and facing strong public pressure, tend to delay the adoption of FOIA and support weaker provisions in order to protect executive privileges and satisfy bureaucratic constituencies opposed to strong FOIAs (Michener, 2011b). Table 3.4 below summarizes the possible incentives for decision-‐makers to support FOIA and PAD, as well structural, institutional and other contextual factors that strengthen these incentives. Table 3.4. Incentives of decision-‐makers to support FOIA and PAD Structural and institutional factors conducive to support for FOIA & PAD
Incentives to support FOIA
Incentives to support PAD
1. Type of bureaucratic accountability/legislative control over the executive (only for FOIA): separation of powers, tradition of parliamentary accountability of the executive and bureaucracy, responsiveness of members of parliament (MPs) to their constituencies,
Legislators: Yes, especially under divided government, i.e., when different parties control the legislature and the
Legislators: ONLY if the legislation would not apply to them (same incentives as FOIA in that case)
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Structural and institutional factors conducive to support for FOIA & PAD
Incentives to support FOIA
Incentives to support PAD
a capable and professional bureaucracy.
executive. Members of the executive: No
Members of the executive: No
2. Moderate political uncertainty: moderate stakes and long time-‐horizons, existence of checks-‐and-‐balances through independent and effective institutions of horizontal accountability, no political capture of state, absence of extreme political instability or “winner-‐take-‐all” scenarios.
Only if they expect to lose power in the future
Only if they expect to lose power in the future
3. Public pressure and need for re-‐ legitimization: low trust in or satisfaction with government, and public concern with lack of government transparency and with corruption.
Yes, especially if high dissatisfaction or low trust is tied to lack of transparency
Yes, especially if high dissatisfaction or low trust is tied to corruption
4. Existence of policy entrepreneurs and advocates from among interest groups/demand-‐side actors, or from value actors among public officials. These policy entrepreneurs need to be able to make TAC an agenda item and tie public discontent to specific FOIA or PAD proposals, i.e., to do the coupling between the problem and the solution. The emergence of policy entrepreneurs is more likely if at least some of the conditions listed in Table 3.3. Potential constituencies for FOIA and PAD are in place.
Yes, if policy entrepreneurs have leverage and access to decision-‐making
Yes, if policy entrepreneurs have leverage and access to decision-‐making
Potentially stronger incentives for all decision-‐makers to support FOIA due to lower and/or less 5. Summary of incentives: balance of direct costs, and higher benefits for legislators potential costs and benefits in cases of divided government. (FOIA as a case of majoritarian or client politics) Source: Author
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Weaker incentives to support PAD compared to FOIA given higher and more direct costs on decision-‐makers themselves, including legislators. (PAD as a case of entrepreneurial or interest group politics)
In conclusion, there are more incentives both for interest groups (the demand-‐side) and for decision-‐makers to support FOIA than PAD, and fewer incentives against it. FOIA has a stronger symbolic value, as it is tied to fundamental democratic rights (the right to know), thus potentially resonating more with value actors and eliciting easier public and demand-‐ side support or mobilization. FOIA is also more difficult to implement and has more uncertain outcomes than PAD, making it less threatening to decision-‐makers even if they have some stake in keeping government information from the public eye. Thus, one key expectation is that FOIA will be adopted more easily than PAD, i.e., earlier and faster. However, to understand how FOIA and PAD survive and evolve over time, it is also necessary to look at what shapes the incentives of decision-‐makers and implementation or enforcement agencies over time. The next section deals with this question.
3.4
Policy Evolution
Policy adoption is not an end-‐point of the policy process or a definitive solution to the underlying problem. Rather, policies evolve over time, either through small, incremental changes as a result of policy learning and/or small re-‐adjustments between competing interests (Lindblom, 1959) or through radical, fundamental changes when they erupt again on the high-‐level political and decision agenda in the face high mobilization and public attention (punctuated equilibrium -‐ Baumgartner and Jones, 2009). Policy adoption, implementation and change are thus intimately related to each other. First, whether the law will be effective depends on its strength, quality and consistency, including its implementation, monitoring, oversight, enforcement, and/or compliance mechanisms (OECD, 2011). There is substantial variation in the strength of both FOIA (Banisar, 2006; Mendel, 2008) and PAD (OECD, 2011) across countries. Second, once adopted, policies can be changed, whether through actual implementation practices or through amendments to
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the original law. Indeed, both FOIA and PAD have experienced multiple revisions over time in many countries (OECD, 2011), and have either suffered from lack of implementation (OSJI, 2006; Larbi, 2007; Lidberg, 2006) or have been strengthened through public and interest group use and compliance pressure (Michener, 2010). Implementation The first step affecting policy evolution and sustainability is the implementation of the policy. First, for a law to be appropriately implemented or complied with, it has to be sufficiently strong and include appropriate implementation, monitoring and enforcement provisions. Second, agencies in charge of ensuring compliance or implementation have to have adequate capacity and resources (Brinkerhoff & Crosby, 2002). More complex policies require higher implementation capacity, and thus are more likely to fail during implementation (Pressman & Wildawski, 1974). Challenges are particularly pronounced for policies whose implementation depends on compliance from multiple agencies or actors (Brinkerhoff & Crosby, 2002), for which FOIA and PAD are particularly good examples. As argued, FOIA implementation requires substantial record-‐keeping and information management capacity across the public administration (Darch & Underwood, 2010). While (P)AD also requires some organizational capacity to assemble and maintain registers with asset declarations, the information to be managed is more standardized, uniform and predictable. Thus, it can be argued that PAD implementation is easier than FOIA implementation, at least from the record management perspectives. Even if the necessary legal provisions, administrative capacity and resources are in place, effective implementation does not result automatically. As argued by various authors, the losers of a policy will try to hinder or undermine implementation (Brinkerhoff & Crosby, 2002; Thomas & Grindle, 1990). Again, both FOIA and PAD require compliance from
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organizations and individuals whose prima facie interest is to not comply with the requirements of these laws. In other words, those who bear the costs of the policies are also those who have to implement them. This requires strong accountability and rule of law traditions and institutions, able to induce compliance from bureaucrats and decision-‐ makers even against their own individual interests. Yet, as argued in previous chapters, it is precisely these institutions and traditions that are missing in high-‐corruption countries. But even in countries with professionalized, established bureaucracies and accountability institutions, public agencies or public employees still can find ways to shirk even while respecting the legal provisions of FOIA (see, for example, Pasquier & Villeneuve, 2007 on strategies of agencies to resist compliance with transparency legislation). Hood (2007) argues that whenever transparency is seen as a threat, public agencies will engage in “blame avoidance strategies,” such as shifting the venue to one with lower transparency requirements, less extensive and systematic record-‐keeping, “snowing” (providing so much unstructured and incomprehensible information that it can only be seen as “noise” rather than meaningful communication), or even denial of services. Darch and Underwood (2010: 119) identify six levels of (non-‐)compliance, ranging from pro-‐active and administrative compliance to administrative non-‐compliance, adversarialism, malicious non-‐compliance and pre-‐emptive destruction of records. Additionally, FOIA implementation – and implementation of transparency policies in general -‐ requires active involvement of users, who have to formulate requests in line with legal requirements and follow up on these if they are denied or ignored by public authorities. This is particularly difficult for poor and marginalized groups or citizens with a low level of self-‐efficacy. Thus the existence of organizations able to support citizens under such circumstances, placing demands in their names or in their own interest is likely to
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increase FOIA compliance and implementation (Darch and Underwood, 2010). Ideally, the constituencies that pushed for their adoption also take an active role in monitoring implementation. Michener (2011a) argues that this happened for FOIA in Bulgaria, where strong demand for the benefits of the law even counteracted the weakness of the initial policy design. However, if these constituencies are missing or weak, and such laws were adopted in the wake of a scandal that prompts intense, but quickly fading public mobilization, we can expect the opposite dynamic, where public pressure for the maintenance or adequate implementation of the policies fades over time, making the policy more easily reversible or ineffective (Fung et al., 2004). As noted in section 3.2, there are fewer demand-‐side constituencies who are likely to use PADs -‐ mostly media and CSOs, less individual citizens. However, use by demand-‐side actors is less essential to the survival of PAD regimes, as monitoring of asset declarations is most often done by a specialized agency (Burdescu et al., 2009; Aitbaeva et al., 2013). In conclusion, for effective FOIA and PAD implementation, not only do demand-‐side actors have to exert pressure for implementation, but public organizations have to be professional enough to be both capable and willing to carry out the kind of record-‐keeping and disclosure required to make both laws work (Darch & Underwood, 2010). As Kreimer (2008: 1072) puts it for FOIA: “the existence of an infrastructure of career civil servants processing FOIA requests is the sine qua non of an effectively functioning FOIA system.” These conditions often do not apply in high-‐corruption developing countries, which are often characterized by weak capacity, high clientelism and patronage and weak rule of law. This would lead us to expect that policies that cut against the interests of public officials and the public administration– like TAC policies in general, and FOIA/PAD in particular -‐ will simply not be implemented. This is indeed what happened in a number of countries both
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with FOIA and (P)AD (OSJI, 2006; Larbi, 2007), and with broader anti-‐corruption reforms (Persson et al., 2012). Policy Change Policy sustainability depends largely on the maintenance of the constellation of interests and power that supported its adoption. As in the case of policy adoption and implementation, policy change will depend on the distribution and nature of costs and benefits. However, once adopted, the policy can also modify the structure of interests in such a way as to effect its survival, change or eventual demise. As Beland (2010) argues, current policy affects future political behavior by (i) generating an expansion of state capacities and creating constituencies, both bureaucratic and public, for their maintenance (see also Baumgartner and Jones, 2009) and (ii) reinforcing or institutionalizing ideas and norms that get to be accepted as given, thus creating transition costs for enacting a new policy. As Abbott and Snidal (2002: S176) argue, “Values further impart a ‘stickiness’ to legal arrangements that hinders back sliding even when powerful interests are involved” (illustrated by the FCPA and the OECD anti-‐bribery convention). For valence issues this results in a “self-‐reinforcing pattern where each increase in attention leads to incentives for even greater attention levels in the future” (Baumgartner & Jones, 2009: 170). The cost-‐benefit calculation for either disclosers or beneficiaries of transparency policies can change during implementation (Fung et al., 2004). For example, new actors or a subset of users can benefit disproportionately from the policy. Some disclosers might realize that they can gain reputational benefits and competitive advantages from making information available or accessible, or that transparency policies are a more favorable approach to regulation than other policy alternatives. New scandals or triggering events can reignite public attention and thus pressure for policy implementation. Or the broader
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political issue (the problem) to which the policy is linked can maintain salience over time, which can generate political “capital” for policy entrepreneurs and intermediary organizations that monitor and exert pressure for the implementation, maintenance and even strengthening of the law in question (Ibid.). Alternatively, the balance of power between supporters and opponents of the policy can change, opening the door for policy reversal. Even if the balance doesn’t change, “competition between winners and losers in the original policy dispute gives incentives for the losers to enlarge the scope of conflict” (Baumgartner and Jones, 2009: 11). They do so by redefining a problem or a policy in such a way as to draw new interests and different values into the debate and by looking to advance their arguments in different institutional venues, i.e., “locations where authoritative decisions are made concerning a given issue” (Ibid.: 32). Some venues might be more receptive to particular issue framings than others, leading to “venue shopping by strategically minded actors” (Ibid.: 36). PAD is a good example for the potential of such issue expansion cum venue change, given its rival potential framings as a contribution to government transparency versus an infringement of the right to privacy. In a number of cases PAD provisions have been challenged in court on these grounds, including in the US in the 1970s (OECD, 2011), as well as in Germany, Chile and Romania (Messick, 2009). Even though the courts have so far ruled in favor of public disclosure (ibid.), the potential for judicial challenge opens up a powerful new venue for contestation and for policy change, and introduces a new actor – with its own values and interests – into the policy-‐making process. Furthermore, “secular trends” – or changes in the structural and institutional environment -‐ which emerge from reasons unrelated to the policy area at hand, can also affect policy evolution and stability over time (Baumgartner and Jones, 2009). Such trends include
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evolutions in public values, interest group structure and organization, and the structure and organization of broader political institutions (Ibid.; see also Wilson, 1989). For example, economic interests groups were completely dominant until the 1960s in the US, after which citizens’ groups (i.e., groups centered on non-‐economic interests) started multiplying rapidly (Baumgartner and Jones, 2009). Secular trends can affect the benefits or costs of the policies, the ability of supporters or opponents to organize and/or their influence on decision-‐making and implementation. If, as argued in section 3.1, there is a link between democratization and transparency and anti-‐corruption -‐ both in terms of increasing value salience over time and in terms of the rise of public interest groups or NGOs working on these issues – then secular trends can help strengthen constituencies that demand the enforcement and strengthening of these laws. Similarly, increasing independence and professionalization of the bureaucracy or of oversight agencies can strengthen the implementation and compliance of the laws. In conclusion, the evolution of the policies over time will depend on: (i) the main initial reason for adoption (i.e., the nature, degree and distribution of costs and benefits); (ii) the strength of the original law; (iii) implementation and enforcement capacity and incentives; (iv) the actual (as opposed to expected) costs and benefits that the policy produces; and (v) whether or not those benefiting from the policy can maintain their influence on decision-‐ making and prevent those bearing the costs from mobilizing additional support. Basically, the policies will be implemented and maintained if the incentives for their adoption persist or become stronger and if the underlying structural and institutional conditions are conducive to implementation. Implementation itself or broad secular trends can change these incentives and the political dynamics surrounding the policies. For example if newly influential constituencies discover their benefits, FOIA could change from majoritarian to client politics or PAD from entrepreneurial to interest group politics (using Wilson’s 1980
75
terms). Or, new triggering events, windows of opportunities, or political changes can strengthen (or weaken) the policy entrepreneurs advancing the policies. Table 3.5 below summarizes the structural and institutional factors that can facilitate FOIA/PAD implementation and sustainability over time, differentiated by actors. The same reasons that lead us to expect that FOIA will be adopted more easily than PAD (less costly for decision-‐makers, more benefits for a broader range of constituencies) thus also lead us to expect that FOIA will be more easily maintained over time and will face fewer attempts at policy reversal. Table 3.5. Factors affecting policy evolution over time Actors
Potential impact Structural and institutional factors conducive to FOIA/PAD support over time
Difference FOIA-‐PAD
The bureaucracy
Bureaucratic capacity and incentives for compliance, including professionalism and resources
Effective implementation and compliance
More relevant for FOIA than PAD
Agency or unit for monitoring, oversight and enforcement
Agency independence, professionalism and resources
Advocate for the policies and ensures implementation.
None
Other accountability institutions (e.g., the judiciary)
Independence, professionalism and resources
Ensure effective implementation and compliance
None, but depends on mechanism for enforcement.
Constituencies supporting FOIA/PAD (e.g., CSOs)
Policy is being implemented and produces expected benefits Maintenance (or expansion) of resources and influence on decision-‐making compared to initial adoption
Effective implementation and compliance (use of the laws), maintain support for the policies
More potential constituencies for FOIA than PAD (see section 3.2)
Constituencies Inability to reframe problem, opposing identify alternative venues for FOIA/PAD contestation or mobilize other actors to weaken the law or its implementation
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Inability to reverse More potential the law or weaken its constituencies implementation negatively affected by and thus
Actors
Potential impact Structural and institutional factors conducive to FOIA/PAD support over time
Difference FOIA-‐PAD opposing PAD than FOIA (see section 3.3)
Decision-‐ makers/high-‐ level officials
“Image” or other benefits from FOIA or PAD implementation, compliance and maintenance (Voluntary) compliance of high-‐ level officials (for PAD) Use of FOIA to hold other branches of government to account (for FOIA)
Inability to reverse More potential the law or weaken its benefits and implementation less threats from FOIA than from PAD
Source: Author
3.5
International Influences on Domestic Policy Processes
International actors can influence or facilitate domestic policy adoption in various ways, depending on the diffusion channel: they can influence problem formulations (persuasion), suggest policy alternatives (policy learning), open policy windows through international negotiations (conditionality) or strengthen norm and policy entrepreneurs directly through financial and technical support. All international diffusion mechanisms where international actors play an active role (i.e., all of those detailed above, except policy learning) in essence can strengthen local policy entrepreneurs who advance their preferred problem-‐policy package and influence the incentives of decision-‐makers to act on a problem or a policy through external rewards and sanctions. For example, in Honduras: Recognition from the international ATI movement and support from the international community were also instrumental in providing personal incentives for champions seeking to leave a legacy behind. The positive incentives offered by different donor instruments helped increase the rewards for reform vis-‐a-‐vis the political risk of confronting powerful vested interests. (Bellver, Mendiburu and Poli, 2008: 4). Thus, understanding the impact of international policy diffusion on domestic policy adoption and evolution requires looking at how external influences influence domestic
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incentives. Pure policy learning is the only mechanism that does not change directly the incentives of decision-‐makers, being itself a reaction to domestic demands and incentives. Genuine persuasion changes the incentives of decision-‐makers by increasing intrinsic motivation to support policies, i.e., by increasing the number of value actors among decision-‐makers. Conditionality, competition and mimicry incentivize decision-‐makers to adopt policies as a signal of compliance with certain norms or policy requirements – whether to attract foreign investors (competition), to obtain the rewards tied directly and explicitly to the adoption of the policy (conditionality), or to accede to the “club” of desired peers (“mimicry”). In other words, conditionality, competition and mimicry generate similar incentives for policy adoption as public pressure does, except that the public to satisfy -‐ the target of (re-‐)legitimization -‐ is international rather than domestic. The equivalence of the “public pressure/legitimization” and the “external influence” explanations for policy adoption also explains why, regardless of the channel of diffusion, the influence of international actors on specific policy features, as well as on subsequent implementation is relatively limited. For example, Michener (2011b: 12) argues that for FOIA: While external pressures help place issues on the legislative agenda, they are much less decisive in determining the content of policies (see, for example, Weyland, 2004). The substance of policies is decided at the enactment and customization phases (Karch, 2007) in which external actors typically have little say. This is also why policy adoption as a result of conditionality has been widely criticized for being superficial and unsustainable, and/or result in little adherence to prescription. As in the case of adopting policies for (re-‐)legitimization purposes, even if political elites or decision-‐makers rhetorically enact policies due to outside pressure, they can nevertheless weaken the policy’s impact by watering down the policy or subverting it at the
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implementation stage (see section 3.3). Schimmelfennig, (2000) argues that this happened in Eastern Europe, where states or elites tried to showcase adherence to liberal, “Western” European norms through rhetorical devices, but did not actually internalize these norms. Grigorescu (2002) makes a similar argument about the norm of transparency. In its most extreme form, the impact of such conditionality or mimicry is the decoupling of organizational or policy forms from organizational or policy functions (Andrews, 2013; Meyer et al., 1997). This problem can be particularly pronounced in states with weak capacity and limited resources (Brinkerhoff, 2014). At best such policy adoption due to mimicry or conditionality results in the lack of policy implementation, and at worst, it risks overloading the limited capabilities of developing countries and ultimately leading to project failure (Andrews et al., 2012). Even if external actors apply pressure not just for the adoption of a law, but also for specific provisions and for adequate implementation mechanisms, they face high information asymmetries, complete control is not possible, there are always ways to shirk, and external pressure can rarely be maintained for very long time. This means that for policies to be institutionalized – and particularly those that run counter to the interests of powerful elites -‐ there needs to be a domestic constituency able to demand their enforcement and institutionalization. Yet, much depends also on the impact of the initial policy decision and on the follow-‐up of the organization setting the conditionality. If a strong implementation or enforcement institution is set up as the result of external pressure, a new constituency is created that has an interest in maintaining the policy and even expanding its reach. Furthermore, different policy diffusion processes can reinforce – or undermine – each other over time. As mentioned in section 3.4, policy sustainability is more likely if policy adoption is driven by
79
and/or generates a normative change or a constellation of interests that maintains the demand of key domestic actors for that policy. This means that norm diffusion or persuasion can reinforce policies originally adopted for other reasons – such as conditionality, and that, in turn, policies adopted through conditionality can contribute to norm-‐diffusion by empowering domestic constituencies that support the connected norm. This could result in what Baumgartner and Jones (2009) call a secular trend, where, for example, the norm of transparency in government would spread to an ever-‐larger number of citizens and elites. Given that both policies are related to similar norms, such a trend would affect the evolution of both policies over time. For example, if FOIA adoption is the result of norm diffusion and represents incipient norm internalization, this, in conjunction with the deepening of democracy, can set in motion a dynamic of broader domestic normative change, where the value of government transparency is invoked more and more over time, and is also extended to debates surrounding other policies, such as PAD. “Value stickiness” (Abbot & Snidal, 2002) would then make both policies, not just FOIA, more difficult to overturn. Summing up, international factors affect domestic policy adoption and evolution in two ways: (i) indirectly, through their impact on structural and institutional factors listed in tables 3.3, 3.4 and 3.5 -‐ for example by strengthening domestic CSOs which can act as policy entrepreneurs; and (ii) directly, through changing the incentives and power of domestic actors. Different international diffusion processes will have different impacts on policy adoption and evolution. Persuasion and learning will have the most lasting impact, because they build on or create domestic demand for the policies, whereas conditionality and mimicry will have a less lasting influence, if such domestic demand does not emerge. Table
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3.6 below summarizes the five types of diffusion discussed in Chapter 2, their link to domestic demands and incentives, and their impacts on domestic policy processes.
Table 3.6. Impacts of international policy diffusion on domestic policy processes Impact on domestic demand/support for the policies
Expected strength, implementation and sustainability of the law Strength of the laws adopted and degree of implementation depends on specific demands of organizations setting the conditionality
Mimicry
Similar to “re-‐legitimization” explanation for adoption of TAC policies, with the target of the signal being international rather than domestic No impact on domestic demand for the policies themselves Impact on support for the policies due to perceived external rewards (material rewards for competition and conditionality, symbolic rewards for mimicry)
Persuasion /policy learning
Builds on (learning) or increases (persuasion) domestic demand for policies themselves
Strength of the laws adopted and degree of implementation depends on domestic incentives and their evolution over time
Conditional ity/competi tion
Weak laws, weak implementation
Source: Author
The conclusion of the literature review is that policy adoption and evolution depend primarily on domestic incentives, and that global policy diffusion matters to the degree to which it affects these incentives and domestic dynamics. Thus, explanations for the adoption and evolution of transparency and anticorruption policies in general, and FOIA and PAD in particular have to start from domestic incentives and factor in international policy diffusion and other external influences as part of the explanation. The next section summarizes the conclusions of the literature review and details the propositions that will be investigated through the case study.
3.6
Case Study Propositions
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The literature review identified a series of factors, which can be considered “independent variables”, that are conducive to FOIA and PAD adoption, implementation and sustainability. The factors identified as conducive to FOIA/PAD adoption and sustainability over time are cumulative rather than competing, i.e., the more of them are present, the likelier is it that the policies will be adopted and implemented, the easier the adoption will be, and the stronger the laws and institutions are expected to be. They include:
•
Macro structural factors such as economic development and democracy. These can increase the likelihood that there will be demand for transparency and anti-‐corruption policies, but do not automatically lead to their adoption. They create favorable circumstances, but they are not sufficient for the adoption of transparency and anti-‐ corruption policies. They affect the adoption and evolution these policies in two ways: (i) by shaping the incentives of actors involved, both in terms of economic interests and in terms of norms and values (culture), and (iii) by shaping the way in which policy is made. These factors will be used for case selection, but not investigated further through the case study.
•
More specific meso-‐structural and institutional factors affecting the incentives for transparency (and anti-‐corruption) policies. These include mainly the prevailing systems of accountability, including the importance of government transparency vis-‐ à-‐vis citizens as a means for holding government to account, and the effectiveness of these systems in preventing abuse of power or extreme political uncertainty. They also include factors affecting the strength and incentives of interest groups that are able to demand TAC policies, and the capacity and incentives of public agencies to implement and comply with FOIA/PAD. The impacts of meso-‐structural and institutional factors on support for FOIA/PAD are detailed in Table 3.3. Potential constituencies for FOIA and
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PAD, Table 3.4. Incentives of decision-‐makers to support FOIA and PAD, and Table 3.5. Factors affecting policy evolution over time. •
Policy-‐specific factors, which include the distribution of costs and benefits, the rights-‐ resonance or valence of the two policies, and the global strength of each policy, as detailed in Table 2.2. and Table 3.2. Distribution of costs and benefits of FOIA and PAD.
•
International factors, in particular the different channels of diffusion or external influence through which the policies can reach and influence domestic actors, as detailed in Table 3.6 Impacts of international policy diffusion on domestic policy processes.
These structural and institutional factors are important because they affect the incentives of various actors to support or oppose transparency and anti-‐corruption policies, as well as their ability and opportunities to influence policy-‐making and implementation. In other words, at the core of the logic model are domestic actors, and their support or opposition to the adoption, implementation and maintenance of the policies, which can be seen as “intervening variables.” Structural and institutional factors, like the dominant type of bureaucratic accountability or the type and degree of political uncertainty, will affect both the incentives of these actors and their ability to influence the policy process. Naturally, different policies will activate different interests and values. International actors can, through the different diffusion mechanisms outlined above, affect the actors’ policy-‐related interests and values both directly and indirectly, through affecting the broader structural and institutional environment. In conclusion, structural and institutional factors, international influences and policy characteristics represent the “independent variables” that affect the incentives of key actors (decision-‐makers, interest groups, implementing and oversight agencies). In turn, these
83
incentives influence the level and pattern of support and opposition to the policies, which can be considered the “intervening variables.” Different combinations of incentives in turn result in different patterns of policy adoption, implementation and change, which can be considered the “dependent variables.” Figure 3-‐1. Theoretical Framework below summarizes these factors. Figure 3-‐1. Theoretical Framework
Source: Author
There are many possible relationships between these factors, and representing all of them graphically is not helpful. However, the literature review suggests certain combinations of variables (i.e., explanatory factors and outcomes) that are possible or likely to appear. These combinations of variables result in a set of propositions or possible explanations of how and why TAC policies/FOIA and PAD get adopted and evolve.
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Proposition I. Incentives For FOIA/PAD/TAC policies in general to be adopted, there have to be domestic incentives for decision-‐makers to support them. There are various possible reasons for decision-‐makers to support FOIA/PAD: 1. Legislators can support FOIA and PAD/TAC policies in general as a way to increase the accountability of the executive/bureaucracy to the legislature and to their constituencies. 2. Decision-‐makers (in the legislature and in government) can support FOIA/PAD/TAC policies in general as a way to mitigate political uncertainty by “tying the hands of future governments.” This can be seen as a form of increasing future accountability. 3. Decision-‐makers can support FOIA/PAD/TAC policies as a way for (re)building trust in government or representative institutions– i.e., out of the need for (re-‐ )legitimization in the eyes of domestic or international constituencies. 4. Decision-‐makers can support FOIA/PAD/TAC policies out of intrinsic motivation (belief in the values of transparency and integrity) (value actors). If this intrinsic motivation arose from interaction with international organizations or other external actors, we have a case of norm diffusion or persuasion. 5. Decision-‐makers can support FOIA/PAD/TACP because there are external rewards or punishments tied to their adoption, which can stem from: a. a [direct] request by an international organization that the government adopt a policy to obtain funding or gain access to the organization (conditionality), b. expected international recognition or acceptance by a peer group (mimicry – “keeping up with the Joneses”), c.
expected rewards in terms of foreign investment and trade (competition). 85
Proposition II. Structural and Institutional Conditions The incentives for FOIA/PAD adoption depend on the underlying structural and institutional conditions. The relevant structural factors have been detailed in Table 3.3. Potential constituencies for FOIA and PAD and Table 3.4. Incentives of decision-‐makers to support FOIA and PAD. The sub-‐propositions are the narrative explanations of how the structural and institutional environment is expected to affect the incentives for policy adoption. 1. FOIA/PAD will be adopted in order to increase the accountability of the executive/bureaucracy IF there is some separation of powers between legislative and executive and a tradition of political accountability of the executive to the legislature; and if public agencies are sufficiently professional and capable to comply with policies that go against their own interests. Under these circumstances, support for FOIA from legislators will be higher in cases of divided government. 2. FOIA/PAD will be adopted out of a desire to “tie the hands of future governments” (increase future accountability) IF political competition introduces uncertainty about who will hold power in the future; decision-‐makers have sufficiently long time horizons; and losing power does not have “fatal” consequences, i.e., if there are also some other mechanisms in place, like horizontal accountability institutions, which prevent government from abusing its power. 3. FOIA/PAD will be adopted as measures for (re)building trust in government – i.e., out of the need for (re-‐)legitimization in the eyes of domestic constituencies IF there is public dissatisfaction with the government and other political institutions due to perceptions of high corruption and/or lack of transparency AND if policy entrepreneurs succeed in tying FOIA/PAD to this dissatisfaction.
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4. Policy entrepreneurs for FOIA/PAD can come from among demand-‐side organizations or from among decision-‐makers themselves. They will mobilize and affect policy if certain conditions are in place. Policy entrepreneurs from among decision-‐makers are more likely to arise if there are some value-‐actors among them. Policy entrepreneurs from demand-‐side/interest groups will mobilize for FOIA/PAD if they stand to benefit materially or symbolically/intrinsically from these policies. The factors conducive to interest group mobilization are listed in Table 3.3. Potential constituencies for FOIA and PAD. As a summary, they include: •
A free and independent press;
•
A diverse private sector that is not captured by or has captured the state, with pluralist (as opposed to corporatist) system of interest representation; and
•
A free and active NGO sector, with at least some good governance/anti-‐corruption organizations that have some influence to decision-‐making.
5. International policy diffusion will influence FOIA/PAD adoption if the structural and institutional factors conducive to domestic uptake of global policies are in place – i.e., if the policies enjoy substantial international support (global strength) and if the actors promoting them have a positive image or other sources of leverage at the national level. External actors can also influence the adoption of FOIA/PAD indirectly, through affecting the structural and institutional environment relevant for TAC policies. Proposition III. Policy Adoption The differences between the two policies (policy-‐specific characteristics) will lead to different patterns and outcomes of policy adoption. The key differences between FOIA and PAD are:
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•
PAD has higher direct costs on the legislators themselves, and fewer potential benefits available for specific constituencies than FOIA;
•
PAD has a weaker rights-‐resonance than FOIA, i.e., it is less directly linked to the norm of transparency and/or the right to information, and it can be seen as conflicting with the right to privacy; and
•
FOIA is a stronger global policy than PAD due to higher global advocacy, institutionalization in conventions, and adoption in countries around the world.
These characteristics mean that FOIA will enjoy more support and encounter less resistance than PAD. Therefore, FOIA will emerge earlier on the public and government agenda, be adopted more easily, and be a stronger policy than PAD. Proposition IV. Implementation The implementation of the laws will depend on (i) the strength of the initial law; (ii) the capacity and willingness (or strength) of the implementation and enforcement agency or agencies; and (iii) pressure for implementation from key constituencies. The laws will be implemented if:
•
They are of adequate quality, i.e., strong enough to be able to produce some effects;
•
There is a professional and capable bureaucracy (especially relevant for FOIA – voluntary compliance);
•
High-‐level officials abide by the rule of law (especially relevant for PAD – voluntary compliance);
•
There is a strong and independent enforcement agency and/or and other accountability institutions able and willing to implement and/or enforce the laws (enforced compliance); and
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•
There are domestic or external constituencies benefiting from the laws or using them, who advocate for their implementation.
Proposition V. Policy Change Policy evolution over time will depend on the strength of the initial law and the evolution of incentives for its original adoption (costs and benefits). If the initial policy is weak or weakly implemented, it will not produce many costs or benefits for constituencies. Thus, there will be few reasons to reverse the law, and the law will reach a “low-‐level equilibrium.” Measures to strengthen the law can be taken as experience with implementation accumulates and generates policy learning, if there is no significant opposition (i.e., the policy is not expected to inflict high costs on key constituencies). In this case, policy change will resemble a form of “incrementalism.” If the original law is strong and strongly implemented, its evolution will depend on the actual costs and benefits. This leads to four possible scenarios: Table 3.7. Policy evolution depending on costs and benefits
High/concentrated costs
Low/diffuse costs
High/concentrated benefits
I. Sustained battles over the law: no equilibrium or “punctuated equilibrium.” Law will be reversed or weakened if opponents manage to gain power or mobilize new constituencies.
II. Sustainability – law will be maintained over time.
Low/diffuse benefits
III. Policy reversal. Law will be reversed or weakened.
IV. Policy decay. No change to the law, but weakening implementation over time.
Source: Author
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4 4.1
Chapter 4: Research Design
Overall Research Design
The key research question is: why and how do transparency and anti-‐corruption policies get adopted and evolve in a high-‐corruption developing country? While the question is largely open-‐ended, sub-‐questions include:
•
How do domestic structural factors influence the policy process?
•
How do domestic policy-‐specific factors influence the policy process?
•
How do different international diffusion mechanisms (or international policy-‐specific factors) affect the policy process?
•
How do these factors interact in the process of policy change over time?
Yin (2003) argues that case studies are the best methodology for questions that are about how and why a phenomenon occurs. The choice of doing a case study is also motivated by an epistemology that rests on two fundamental assumptions: (i)
The social world – and especially the phenomenon of interest here, i.e., transparency and anti-‐corruption policy – is “complex, characterized by path dependence, tipping points, interaction effects, strategic interaction, two-‐ directional causality or feedback loops, and equifinality (many different paths to the same outcome) or multifinality (many different outcomes from the same value of an independent variable, depending on context)” (Bennet & Elman, 2006: 457).
(ii)
“Causation can be thought of as a process involving the mechanisms and capacities that lead from a cause to an effect” (ibid.).
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In other words, the research design takes a “causes of effects” rather than an “effects of causes” approach, trying to identify the variety of factors and interactions that can lead to the desired outcome (TAC policies), rather than “the net effect of a cause over a large number of cases” (Bennet & Elman, 2006: 458; Mahoney & Goertz, 2006). Therefore, to answer the research questions, I look at the story of the adoption of two transparency policies (Freedom of Information Act/FOIA and Public Asset Disclosure/PAD) in a high-‐corruption developing country (Romania). The timeframe is roughly 1999 to 2011. However, pre-‐1999 events are taken into account if they are necessary to explain subsequent events. The approach is equivalent to what Yin (2003) calls an embedded case study research design, where the case is transparency and anti-‐corruption policy-‐making in Romania and the embedded units of analysis are the two policies of interest (FOIA and PAD). The embedded case-‐study design has the advantage of allowing both within-‐case and cross-‐case analysis. Figure 4.1 below illustrates the research design. Figure 4-‐1. Research Design
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The overall approach of the case study is closer to a “heuristic case study” or “plausibility probe,” than to a “disciplined configurative” or “theory testing” case study (George & Bennet, 2005). It is not a theory testing case study because there is no single, clearly established, theory on why high-‐corruption countries adopt and maintain TAC policies that can be tested. It does rely on theory, however, to derive some preliminary “hypotheses” or propositions (plausibility probe), compare them with the findings of the case and “inductively identify new variables, hypotheses, causal mechanisms, and causal paths” (heuristic case study) (George & Bennet, 2005: 75). The propositions or potential explanations are tentative rather than exhaustive, i.e., they do not cover all possible scenarios and do not claim to include all potentially relevant factors or variables. Rather they represent a starting point for explanation building, which Yin (2003) describes as stipulating a set of causal links between variables and elaborating them based on an iterative process in which propositions from the literature are compared against the findings of a case, revised if necessary, and compared again to the case from a new perspective. Having two embedded units of analysis or cases allows for an additional iteration to the explanation building process, as well as for theoretical replication of the study’s proposition. The case-‐study investigates which combinations of variables from Figure 3-‐1. Theoretical Framework were present in Romania for FOIA/PAD, and compares these to the explanations or propositions derived from the literature. The overview of the structural and institutional context in Romania (Chapter 5) assesses which structural and institutional factors that make the adoption, implementation and sustainability of transparency and anti-‐corruption policies more likely, were present in the case of Romania. Based on this, the propositions are further refined to adapt them to the case. The historical
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account of the evolution of two policies (Chapter 6) identifies the actual patterns of policy-‐ making over time. Chapter 7 then assesses how the findings of the case study relate to the original propositions, i.e., links the actually observed explanatory factors and the policy outcomes (“dependent” and “independent variables”). The next sections of this chapter explain the criteria for case selection, the sources of data, the analytical techniques employed, as well as the limitations of the approach and steps taken to strengthen the internal and external validity of the research.
4.2
Case Selection
As argued in the literature review, even if democracy is not a sufficient or even a necessary condition for the adoption of anti-‐corruption and transparency policies, it is nevertheless a condition that increases their likelihood of adoption. Thus a reasonable level of democratization was one criterion for choosing the case. A similar argument applies to economic development – while neither sufficient nor necessary, it is another structural factor that makes the adoption of such policies more likely. Furthermore, the explanations for the adoption of TAC policies discussed in the literature review are also premised on structural and institutional factors, such as some degree of separation of powers, press freedom, etc., that require some degree of democracy, pluralism and political competition, as well as a sufficiently diversified economic structure to allow a minimum diversity of actors and political institutions. These conditions are more likely to be found in middle-‐ income countries. These also tend to be countries that Carother’s (2002) characterizes as “qualified” democracies, which he also considers to be the most interesting types of countries for further research on democratization. Romania fulfills all these conditions,
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being a middle income country, with a GDP per capita of between ca. 7,000 and 10,000 USD20 during the period studied here, a democratic country, rated “Free” in the Freedom House’s “Freedom in the World” indices on both civil and political liberties, since 1991, and a transition country “teetering of the edge of feckless pluralism,” according to Carothers (2002). Beyond these broad structural characteristics, Romania was chosen for two fundamental reasons. First, in order to be able to investigate the central puzzle of this dissertation, Romania was chosen because of its high level of corruption, as reflected by Transparency International’s Corruption Perception Index. Romania had a score of 2.9 in 2000, 3.7 in 2010, where 10 is the score for no corruption, ranking 68th out of 90 countries in 2000, and 69th out of 178 in 2010. Second, Romania was also chosen because of the high level of external influence on domestic policy through the EU accession processes. In other words, Romania is a critical case for the ability of international actors to influence the adoption and evolution of TAC policies. Additionally, the fact that the critical variables of interest are particularly salient in the case of Romania makes it an extreme or unique case (Yin, 2003) for building explanations about how these variables interact. As George and Bennet (2005:75) also argue, cases where key variables are at “at extremely high or low values may help uncover causal mechanisms” in heuristic case studies. FOIA and PAD were chosen both for their similarities and for their differences. Both represent relatively recent “policy innovations” that are linked to transparency and anti-‐ corruption (see global spread in the 1990s). Thus, to the degree to which they affect similar interests and are related to similar values or norms, we can expect their policy evolution to 20 GDP per capita, PPP (constant 2005 international $), according to the World Bank’s World
Development Indicators.
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show some degree of similarity, which will help in drawing broader inferences about transparency and anti-‐corruption policy reform more generally. However, there are also significant differences between the two, which highlights that not all transparency and anti-‐ corruption policies are alike. Having two different policies will help shed more light on how different policy characteristics affect the policy process. Thus, we expect to see different patterns of interaction between domestic and international factors, based on policy differences in terms of the distribution of costs and benefits, normative resonance and international influence. This allows for what Yin (2003: 47) calls theoretical replication, where the theoretical framework “predicts contrasting results but for predictable reasons.” Furthermore, by following two different policies over time, the case study combines a cross-‐ sectional and a longitudinal approach to analysis. As Baumgartner and Jones (2009) argue, such a combination has the advantage of looking at both how (i) the content of the policies (i.e., their type, or policy-‐specific factors) “generate different levels of conflict and controversy in the political system” by mobilizing different interests and values, thus resulting in different policy-‐making patterns, and (ii) how these conflicts – i.e., the interests, values, processes and institutions involved -‐ change over time, both due to issue-‐area dynamics and due to longer-‐term, broader secular or structural trends.
4.3
“Measurement” Strategies
Data sources for the case study consist primarily of published documents, including existing academic literature, “grey” literature from NGOs, think tanks and international organizations, news articles and media reports, as well as official records. Cross-‐national data is used as appropriate, mostly to situate Romania and the selected policies into the international context. Domestic data is also used where available and appropriate, such as public opinion polls reflecting the salience of corruption and/or lack of transparency as
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problems facing the nation, support for specific transparency/anti-‐corruption policies, etc. My approach is similar to that of Baumgartner and Jones (2009: 40), as I try to “take advantage of everything [I] can find in the published literature, in official records, and in media accounts of public policy controversies in order to gather comparable data” over the time-‐frame of the study for the two policies. I triangulate the findings from the secondary literature review by complementing them with a more in-‐depth interpretive document analysis and key informant interviews. These last two components are described in more detail in section 4.4. The next section shortly lists the sources and procedures for the assessment of the explanatory factors and the main outcomes investigated (independent, intervening and dependent variables), presented in Figure 3-‐1. Theoretical Framework. Assessment of Explanatory Factors and Outcomes The assessment of the explanatory factors and outcomes is based on a variety of sources, which allows for triangulation and crosschecking of data. Sources will differ by variable, depending both on availability of information and on the nature of the concept or variable being assessed. The paragraphs below present the sources of data/information and/or the approach to “measurement” for the main variables identified in the theoretical framework. Explanatory factors (Independent variables) Policy-‐specific factors 1. Costs and benefits of the policies/laws: inferred from historical analysis, based on the behavior and statements of key actors, triangulated by (interpretive) document analysis and interviews. 2. Rights-‐resonance (valence): assessed through (interpretive) document analysis and interviews, based on the arguments invoked for and against the policies.
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3. Global strength: secondary literature, along the factors listed in Table 2.2. to reflect global strength at the moment of policy adoption in Romania. External influences: assessed through secondary literature, including policy documents and reports from key international organizations, media reports, interpretive document analysis, and interviews, including based on how and how often key Romanian policy actors reference or invoke international sources to advance their arguments, such as international norms, standards, experience, requirements, etc. Structural and institutional factors: secondary literature, complemented by the use of indicators or other data as appropriate. Table 4.1 below summarizes again the structural and institutional factors that are expect to shape the incentives of key actors, as presented in previous tables. They will be investigated more in detail in Chapter 5. Table 4.1. Key structural and institutional factors influencing the incentives for FOIA/PAD adoption and evolution, by actor Actors
Structural and institutional factors conducive to FOIA & PAD adoption and sustainability over time
Interest groups/demand side of the policies
Ø
(for more details see
Table 3.3. Potential constituencies for FOIA and PAD)
Ø
Ø
Ø
Decision-‐makers/supply side of the policies (e.g., Legislators, presidents, prime-‐ministers, Ø
Freedom of the press, no preferential access to government information for certain media outlets, competition in the media sector, weak connections to power-‐holders, no government capture. No preferential access to government information for sections of the private sector, pluralist rather than corporatist interest group organization, competition, weak connections to power-‐holders. Civil society has political space, has resources (domestic and international), not captured or too strongly aligned with elites in power, has some resonance with broader popular values and enjoys some public support and legitimacy.
Type of bureaucratic accountability/legislative control over the executive (only for FOIA): separation of powers and a tradition of political/democratic accountability of the executive and bureaucracy. Under these conditions, likelihood of support for TAC policies is higher when the executive is controlled by different party than the legislature. Moderate political uncertainty: moderate stakes and long time-‐
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Actors
Structural and institutional factors conducive to FOIA & PAD adoption and sustainability over time
secretaries of state, etc.) (for more details see
Table 3.4. Incentives of decision-‐makers to support FOIA and PAD)
Ø
External actors
Ø
(some factors named in
Ø
Ø
Table 2.1. International policy and norm characteristics that can affect domestic policy adoption, Table 2.2. Global strength of FOIA
horizons, existence of established institutions of governance and accountability, no state capture, absence of extreme political instability or winner-‐take-‐all politics. Public need for re-‐legitimization (low trust in or satisfaction with government), and at least some public or international concern with government transparency and corruption. Existence of policy entrepreneurs, from among the interest groups above or from value-‐oriented public actors, who are able to link problems to policies and have access to decision-‐making.
Type of international policy diffusion mechanism or external influence Degree of domestic receptivity to external influences, status and leverage of key actors or sources of potential policy diffusion
and (P)AD, Table 3.6 Impacts of international policy diffusion on domestic policy processes)
Implementation and oversight agencies (e.g., bureaucracy, judiciary, specialized agencies)
Ø
Institutional capacity and incentives for compliance and enforcement, including independence, professionalism and resources.
(for more details see
Table 3.5. Factors affecting policy evolution over time) Source: Author
Intervening variables The crucial link between structural, institutional and policy features and policy evolution are the incentives key political actors face, their resulting support or opposition for the policies, and their relative influence on the policy process. However, the motivation (or incentives) of these actors are not directly observable. They can only be inferred from the discourse and behavior of key actors during the policy process. Therefore, the level of
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support or opposition to the proposals will be assessed based on the case-‐study narrative, i.e., based on the actual statements and behavior of key actors involved. One challenge is that rhetoric can be misleading and any given behavior can be explained by a variety of different motives (i.e., we do not know how sincere people are). However, taking a broader look at the discourse and behavior of actors over time, including at the consistency of their statements and behaviors across venues and time can help discern with greater confidence which behavioral explanation (motivation) is more likely. Furthermore, even though the discourse itself, as reflected in media reports and official statements, does not necessarily reflect the true preferences of actors, it can give some indication of whether the norms or underlying values of transparency and anti-‐corruption are at least emerging in public discourse. As Finnemore and Sikkink (1998) argue, norms are indirectly observable through following actors’ (public) discourse, since “norms prompt justifications for action and leave an extensive trail of communication among actors that we can study” (892). Expected outcomes (Dependent variables) The expected outcomes will be assessed based on the case-‐study narrative, which is based on secondary literature, media reports and interviews. More precisely: (i)
Timing of emergence on the public agenda and on the government agenda will be assessed based on the first mentions of the policies in media reports and government documents.
(ii)
Ease of adoption will be assessed based on: o
The degree of controversy surrounding the policy: interpretive document analysis;
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o
The time elapsed from emergence of issue on the public agenda and/or the government agenda, to the introduction of the bill in parliament and to the final adoption: parliamentary records, secondary literature.
(iii)
Strength, quality, consistency of the laws: analysis of legislation, assessments from specialized NGOs, think-‐tanks or experts, cross-‐national indicators of policy strength. An additional indicator is the strength and independence of the implementation, monitoring, enforcement and/or oversight agency (assessed based on the same sources).
(iv)
Implementation and use of the laws: secondary literature, official records from the relevant agencies, NGO reports, reports from international organizations, media analysis.
(v)
Attempts at policy reversal, weakening or strengthening: assessed based on the number of bills introduced in parliament trying to weaken the provisions of the original law, obtained through review of parliamentary records. Triangulated by broader assessment of alternative proposals and/or attempts at strengthening or weakening the law that didn’t reach parliament, based on secondary literature and interviews.
4.4
Data Sources
Document Analysis A key component of the data collection and analysis for the case study is an (interpretive) document analysis of key statements and documents about the two policies and the problems of transparency and anti-‐corruption in general. Data sources include original documents rather than secondary literature, i.e.:
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(i)
Media reports and news articles from leading Romanian national newspapers, including those reflecting statements of high-‐level officials. For this I used the online archive of the daily newspaper Evenimentul Zilei (EZ) at www.evz.ro. EZ is one of the oldest main Romanian daily newspapers covering political news, and the only one whose online archive is searchable by year, going back to before 1999. Its print edition oscillated between being the second and the fourth most widely read non-‐ tabloid daily newspaper between 1999-‐2011, according to data from http://www.brat.ro. EZ has been described as “a favorite of middle-‐class, urban, and well-‐educated Romanians outraged by government corruption and abuses” (IREX, 2004: 94). Other sources of media coverage used for this dissertation (mainly the online archives of Adevarul, Romania Libera, as well as the online newspaper Hotnews.ro) also generally reflect the same type of readership.21
(ii)
Statements and reports from CSOs and think tanks engaged in anti-‐corruption and transparency policy making in Romania. The key NGOs and think tanks were identified first based on online research and review of secondary literature, and then triangulated through the snowball technique employed for identifying interviewees (see next section).
(iii)
Documents and reports from relevant international organizations pertaining to Romania. As above, the key organizations and documents were identified via the review of secondary literature and interviews. In particular, European Commission (EC) country reports and other EU-‐related or commissioned analytical reports were
21 The most widely followed Romanian media are TV and tabloids. However, it is not possible to
retroactively search for/assess TV coverage at the moment of the adoption of the laws or at other key moments in the policy process. Tabloids do not cover policy or political discussions. Thus, EZ can be considered representative for the type of readership most likely to have the interest and understanding necessary to follow political and policy issues.
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an important source of information. These were complemented by reports of other international organizations, aid agencies and NGOs, such as the World Bank, USAID, Freedom House, etc. The reports informed the analysis of the country context, policy evolution and external influences. (iv)
Government documents and statements, including strategies, monitoring reports etc., obtained from the relevant websites. The main strategies consulted were the Anti-‐Corruption Strategies and Plans prepared the Ministry of Justice in 2001, 2005, 2008 and 2012. There were no separate transparency strategies, but transparency was covered in all of the anti-‐corruption strategies, and touched upon in other strategies, such as the 2008 Strategy for a Better Regulation.
(v)
Parliamentary records, including transcripts of parliamentary debates, “Explanation of Motives,”22 “Point of View of the Government,”23 decisions of parliamentary commissions, etc., accessed via the online archive of the Chamber of Deputies (lower house) of the Romanian Parliament (www.cdep.ro).
The document analysis contributed to assessing and/or triangulating information from other sources about key explanatory factors and the relationships between them. The statements of CSO representatives and high-‐level officials reflected in the media and in transcripts of parliamentary debates were also used to assess how domestic stakeholders perceived and re-‐interpreted or constructed external demands and influences.
22 The “Explanation [or Exposition] of Motives” is a formal document attached to each bill in Romania where the rationale for the proposed legislation is detailed. 23 For bills that are introduced by MPs rather than the government, the government has to communicate to Parliament whether it supports or opposes the bill or parts thereof, and on what grounds. The government’s position is presented in a document called “The Point of View of the Government”.
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Interviews The document analysis was complemented by interviews with key actors from government and civil society involved in the process of adoption and revision of the policies. They were selected through purposive sampling, targeting interview subjects expected to have (ideally) direct knowledge of the process of policy adoption and implementation for FOIA and PAD/TAC policies in general. The first interview partners were identified based on a first reading of the available literature, and additional ones were identified through a snowball technique, where the first interview partners recommended other key people to interview. The interviews were loosely semi-‐structured with open-‐ended questions, allowing the respondents to offer richer answers and helping uncover also unexpected or new information (Leech, 2002). This approach is particularly useful for elite interviews and for obtaining an insider perspective (Ibid.). Most of the interviews were conducted in Romanian, and while they had the same basic structure, specific questioned differed by interviewee, based on his or her specific area of expertise and the dynamics of the interview. Overall, the interviews started with and roughly followed the questions: 1. Which are the main laws and policies for advancing government transparency and integrity in Romania? 2. What was the history of the adoption of key laws, including the actors who supported or opposed them, and their (perceived) motivation and arguments? 3. What was your motivation or the motivation of your organization in supporting these policies and the sources of inspiration, including your interpretation of government transparency and integrity and the importance you assign to them?
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4. What is the current status of the implementation of these policies and the challenges they confront? 5. Are there any other key resource persons that you recommend for further interviews? During the interviews, additional follow-‐up questions were asked, depending on the area of expertise and the issues raised by the interviewee. The interviews were particularly valuable in capturing the perceptions of domestic stakeholders of the reform process, including how they perceived the external influence and explained policy adoption, implementation and sustainability over time. In other words, as Yin (2003: 90) argued, the open-‐ended nature of interviews allowed eliciting from respondents information about both “the facts of a matter as well as their opinions about events.” The interviews were also very valuable for identifying additional local sources of information and grey literature that were not found through the initial research and were not easily identifiable through standard library and internet searches. In this sense, especially in the early phases of the field research, many interviewees could be considered “key informants” for the study, in Yin’s (2003) terms. A total of nineteen interviews were carried out, out of which twelve were with civil society representatives, five with current or former government employees,24 one with a member of parliament (MP), and one with a foreign official. Most interviewees agreed to be referenced by name. However, the starting point of the interview analysis is that the primary element shaping the interviewee’s perception of the policies is not his or her individual identity, but his/her identification with one sector over the other (government/public institution vs. civil society). Therefore, in the remainder of the 24 Six government-‐related people were interviewed in total, but in one case two people were
interviewed jointly, which was counted only as one interview.
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dissertation interviewees are identified by sector rather than by name: CSO 1 through 12 for CSO/NGO representatives, and Gvt 1 through 6 for government representatives. The sector was not assigned based on current employment, but based on the perspective from which the interviewee was relating to the policies and the events (i.e., whether their main involvement and experience stemmed from the government or the CSO side). Therefore, both former members of government who were active in academia or private sector at the time of the interview, and the MP were coded as government.25 In one case, the interviewee had worked both in Government and in CSOs – this case was coded as CSO given that the interviewee had spent more of her time as an independent consultant and activist, and was conveying her experience and assessment of the policies primarily from this perspective. All interviews were conducted in person, most of them in Bucharest, Romania, between November 2011 and February 2012. Where the interviewee agreed, the interview was recorded. Recorded interviews were transcribed, and for those not recorded, hand-‐written notes were used as the basis for the analysis. Table 4.2 below lists the persons interviewed, along further relevant details. Table 4.2. Interviewees Name
Sector
Organization and Title
Website of organization
Date
Avadani, Ioana
CSO
Center for Independent Journalism (CJI, Media-‐Themed NGO), Executive Director
http://www.cji.ro/
January 18, 2012
Gvt
Former public policy expert at General Secretariat of the Government (SGG) – Public Policy Unit (UPP), Currently independent consultant
Na26
February 1, 2012
Bondar, Florin
25 Before being an MP he had worked (exclusively) in the public sector. 26 SGG-‐UPP site changed since period in question (2003-‐2008). Current site: http://www.sgg.ro/
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Name
Sector
Organization and Title
Website of organization
Date
Bratu, Cristian
CSO
Pro-‐Democracy Association (APD) Timisoara (Democracy-‐themed NGO), Program Coordinator
http://timisoara.prod emocratia.org/
December 27 and 29, 2011
Chioveanu, Paul
CSO
Agency for the Monitoring of the Press (AMP)/ActiveWatch (Media-‐ themed NGO), Program Manager “Good Governance”
http://www.activewa tch.ro/en/home/
December 07, 2011
Cospanaru, Iulia
CSO
Transparency International Romania (TI-‐Ro, anti-‐corruption NGO), Deputy Director
http://www.transpar ency.org.ro/index_en. html
November 10, 2011
Gant, Ovidiu
Gvt/ MP
Member of Parliament, German Democratic Forum of Romania
http://www.cdep.ro/ pls/parlam/structura. mp?idm=138&leg=20 12&cam=2
November 22, 2013
Georgescu, Horia
Gvt
Agency for National Integrity (ANI), General Secretary27
http://www.integrita te.eu/
January 30, 2012
Gvt.
General Secretariat of the Government (SGG) – Directorate for Government Strategies (DSG), FOIA expert
Na28
December 07, 2011
Hatneanu, Diana
CSO
Association for the Defense of Human Rights – Helsinki Committee (APADOR-‐CH, human-‐ rights themed NGO), Executive Director
http://www.apador.o rg/
January 20, 2012
Iuliana, Iliescu
CSO
Pro-‐Democracy Association (APD, Democracy themed NGO), Program Coordinator
http://www.apd.ro/
November 17, 2011
Jurcan, Dan Gvt
Former State Secretary in the Ministry of Public Information (MoPI)/Director of Agency for Governmental Strategies (ASG)29
Na
November 15, 2011
Moldovan, Ramona
Gvt
Ministry of Administration and of the Interior (MAI) -‐ Public Policy Unit (UPP), Director
http://www.mai.gov. ro/index07_2.htm
February 7, 2012
Moraru, Adrian
CSO
Public Policy Institute (IPP -‐Policy Think-‐Tank/Advocacy), Deputy
http://www.ipp.ro/
November 10, 2011
Guguianu, Valeriu
27 Now president of ANI. 28 The former site of the department (http://publicinfo.gov.ro/) is not active anymore. It was taken offline after a hacker attack (Barbu, 2012), and has not been restored since. 29 The MoPI was downgraded to an agency (the ASG) in 2003, and then to a department within the
SGG (the DSG) in 2009.
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Name
Sector
Organization and Title
Website of organization
Date
http://www.crj.ro/
November 16 2011
Director CSO
Judicial Resources Centre (CRJ, Rule of Law themed NGO), Program Coordinator "Public Integrity"
Oanta, Lelia
Gvt
General Secretariat of the Government (SGG) -‐ Department of Na Government Strategies (DSG), Director
December 07, 2011
Popescu, Simona
CSO
Alliance for a Clean Romania (ARC -‐ Coalition of Anti-‐Corruption NGOs), Coordinator
http://www.romania curata.ro/
February 8, 2011
Preda, Oana
CSO
Resource Center for Public Participation (Ce-‐Re, Participation themed NGO), Executive Director
http://www.ce-‐re.ro/
January 24, 2012
Stefan, Laura
CSO
Expert Forum (Public Policy themed Think Tank), Anti-‐ Corruption Expert (Former Director in the Ministry of Justice)
http://expertforum.r o/
February 8, 2011
Vrabie, Codru
CSO
Independent consultant/civil society activist/transparency and anti-‐corruption expert
http://codruvrabie.bl ogspot.com/
November 8 2011
US official
Anonymous
Nicolae, Radu
The dominance of CSOs/NGOs among the interviewees was due to the fact that they were both more easily identifiable via internet and document research, and (somewhat) more responsive to requests for interviews. All (former and current) government employees30 were identified and contacted through CSO recommendations. Some NGO interviewees suggested it was difficult to find government or political figures to interview, because they had no interest in transparency issues anymore (CSO 3). One NGO interviewee went as far as to suggest, “of course you have more perspectives from civil society, because it is the only one who still cares about this [transparency]” (CSO 7). However, when asked about
30 Except for the MP.
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government contacts, some CSOs interviewees themselves emphasized the need for including perspectives “from the other side of the barricade” (CSO 3, 9). Overall there were few systematic differences between the two types of respondents – the main one was the different emphasis on government weaknesses versus civil society weaknesses in explaining low government transparency in decision-‐making. To control for potential biases in interview answers, statements of facts were triangulated and verified against other sources of information, in particular press articles, other interviewees, and official reports, where available. The interviews and documents were analyzed iteratively and the interviewees’ own analysis and interpretation were used as an additional source for developing the case-‐study explanations and analysis.
4.5
Analytical Approach and Addressing Limitations of the Research Design
The limitations of the research design are the typical ones for qualitative research. Internal validity is a challenge, since ruling out alternative explanations for each of the causal relationships posited is difficult, given the large number of such relationships and the small number of cases used to test them. This also limits external validity – i.e., generalizability to other context. However, as already mentioned, the purpose of this dissertation is to identify “causes of effects” rather than “effects of causes” – i.e., to identify the complex feed-‐back loops of international diffusion and domestic policy making which contribute to the evolution of TAC policies, rather than the average impact of individual variables on policy adoption, implementation and evolution across a large number of cases. The use of a theoretical framework developed from existing literature, the analysis of alternative explanations and the iterative building of explanation all contribute to strengthening both internal and external validity of the case study. Potential bias in the assessment is also controlled for or reduced through triangulation of data and information,
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by relying on both domestic and international sources, both governmental and non-‐ governmental. In other words, to strengthen internal validity I use the approach suggested by Yin (2003). In terms of analytic strategies, I rely on theoretical propositions and use of alternative plausible -‐ though not necessarily rival -‐ explanations. I also employ a descriptive framework to structure the case study. The analytic techniques employed are:
•
Pattern matching, using non-‐equivalent dependent variables as patterns;
•
Explanation building, which is a special type of pattern matching, where the theoretically expected patterns are revised iteratively at certain steps in the analysis;
•
Time series analysis, i.e., stipulating a series of chronological events and expected trends over time for combinations of variables; and
•
Doing a cross-‐case synthesis and synthesizing the findings across two cases (FOIA and PAD).
The overall case study – the propositions taken together – represents a logic model of events that are “staged in a repeated cause-‐effect-‐cause-‐effect patterns, whereby a dependent variable (event) at an earlier stage becomes the independent variable (causal event) for the next stage” (Yin, 2003: 127). This overarching model will be revised and further developed based on the findings of the case. Looking at the propositions together also works as an additional check on the validity of the findings. As mentioned before, the primary reason for adoption – i.e., the motivation of decision-‐makers – cannot be directly observed, and has to be induced based on (i) whether the conditions (the structural and institutional factors) stipulated as conducive for that particular motivation are present in the case of Romania, AND (ii) whether the strength of the laws and the patterns of policy
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making associated with those incentives/motivations are actually observed in reality. These linkages between the propositions lead to a set of overarching explanations that can be seen as alternative but not mutually exclusive (i.e., non-‐rival) explanations of FOIA/PAD adoption and evolution over time. In terms of external validity, the study does not aim for statistical but for analytical generalizability, which is achieved through the development and refinement of the theoretical framework. Using theoretical replication (Yin, 2003) to analyze the two policies (the sub-‐cases or embedded units of analysis) also increases external validity, especially if both cases confirm the expectations derived from the literature, despite – or because of – their differences. Thus, the use and refinement of a theoretical framework also strengthens the external validity of the findings. Furthermore, the case selection criteria used and the analysis of the structural and institutional context both help identify what Romania is a case of. Linking incentives to structural and institutional factors helps identify which explanations are more likely to apply in which context. This clarifies the applicability of the conclusions to other countries with similar (or dissimilar) characteristics.
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5
Chapter 5: Structural and institutional context and political evolution
As argued in section 4.2, Romania, as a democratic high-‐middle income country, fulfills at least some key macro-‐structural factors potentially conducive to the emergence of transparency and anti-‐corruption policies. However, some observers argue that Romania is a case of “mixed development” (Keil, 2006) that hasn’t fully achieved the economic and social structure necessary to anchor a rational-‐legal, democratic political system. This means that constituencies and incentives for transparency and anti-‐corruption policies should be relatively weak. This chapter explores whether this is the case and what it can imply for the adoption of TAC policies. It starts with a general overview of Romania’s post-‐ communist political evolution up to 2011. Given the centrality of Euro-‐Atlantic integration to Romania’s post-‐communist development, external influences are also covered as part of this description and their impact is summarized at the end of section 5.1. Section 5.2 gives an overview of the main actors potentially relevant for TAC policies in Romania, as well as their role in the policy process. Section 5.3 summarizes the implications of Romania’s structural and institutional context and its evolution, including external influences, for the theoretical framework (explanatory factors and propositions) that guide the case study.
5.1
Post-‐Communist Political Development: Democratization and Western Integration
Like other Eastern European countries, Romania was part of the communist block up to 1989. The regime led by Nicolae Ceausescu was one of the most autocratic and autarchic, even among communist countries. Ceausescu’s regime was based on a cult of personality around him and his wife, and relied on the infamous secret service (the Securitate) to suppress any form of dissent (Keil, 2006, Tismaneanu & Klingman, 2001). Thus, unlike in
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other Central and Eastern European (CEE) countries, prior to 1989 there was neither a significant dissident movement (as in Poland or the Czech Republic), nor efforts to reform the system from within (as in Hungary or the Soviet Union). 1990-‐1996 Given the lack of a dissident movement, after the fall of Ceausescu second-‐tier ex-‐ communist officials came to power (Carothers, 1996), organized into the Front of National Salvation (FSN) led by Ion Iliescu (Tismaneanu & Klingman, 2001, Keil, 2006). The first years (1990-‐1991) were marked by political instability, including violent clashes between the opposition, consisting of resuscitated inter-‐war parties (National Liberal Party -‐ PNL and National Christian Democratic Peasants Party -‐ PNTCD), students and a variety of loosely organized civil society organizations on the one hand, and miners on the other hand, brought to Bucharest to support the ruling party (FSN) (Roper, 2004, Keil, 2006). The FSN split into a faction that retained the name (FSN) and later became the Democratic Party (PD), and the Democratic Front of National Salvation (FDSN), which later became the Social Democratic Party of Romania (PDSR), led by Iliescu. The FDSN won the 1992 elections, and formed a minority government that governed with the support of a number of smaller, mostly nationalistic, parties. The 1990-‐1996 governments led by Iliescu were viewed critically abroad, for a variety of reasons – their communist roots, the slow or stalling economic reforms, Iliescu’s association with the miners’ marches on Bucharest, and the alliance with nationalistic far-‐right parties after 1992 (Carothers, 1996, Pop-‐Eleches, 2001). However, despite early doubts about their democratic and “Western” orientation (Papadimitriou & Phinnemore 2008), Iliescu’s FSN and later PDSR did take the first steps towards Western integration, especially after 1992 (Papadimitriou & Phinnemore, 2008, Pridham, 2007b, Pop-‐Eleches, 2001: 161), such as
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acceptance into the Council of Europe (October 1993), cooperation with NATO (North Atlantic Treaty Organization -‐ January 1994), and application for EU membership (June 1995). By 1995 there was a consensus across the political spectrum – including from Romania’s nationalistic parties -‐ that Euro-‐Atlantic integration, including into NATO, was a fundamental goal. The political consensus reflected the popular support for European and Western integration, which was higher than in other Central and Eastern European (CEE) countries (Papadimitriou & Phinnemore, 2008). 1996-‐2000 The 1996 elections were considered the watershed in Romania’s democratic transition, as they resulted in the first post-‐communist alternation of power (Tismaneanu & Klingman, 2001). The election winner was a broad alliance of hitherto opposition parties – including the historic, i.e., pre-‐communist parties (PNL and PNTCD) who formed the Democratic Convention or Romania (CDR), the PD, and the party of the Hungarian minority (Democratic Union of Hungarians of Romania -‐ UDMR). Their presidential candidate, Constantinescu also won the presidency. The promise to fight corruption was one prominent electoral agenda item of the CDR (Pridham, 2007a, Keil, 2006). However, Constantinescu and the coalition government failed to deliver on this and other promises made. The 1996-‐2000 period was marked by a weak presidency, infighting between the coalition partners and overall government ineffectiveness (Sellin, 2004, Roper, 2004). Despite the improving positive image abroad, Romania did not receive invitations to start accession negotiations for EU and NATO in the first wave, in 1997 (Barany, 2004; Pridham, 2002; Noutcheva & Bechev, 2008). These started in 1999 for NATO and in 2000 for the EU. Among other conditions, EU accession required the fulfillment of the Copenhagen Criteria: respecting democracy and the rule of law, having a functioning market economy, and
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adopting the acquis communautaire (the body of laws accumulated by the European Union).31 Romania’s progress towards meeting the EU accession criteria was monitored through the yearly country reports of the European Commission (EC). The delayed start of EU accession was due to the fact that Romania had not achieved a “functioning market economy” (Ibid., Noutcheva & Bechev, 2008). This meant that, technically, the EU considered that Romanian fulfilled the political criterion on democracy and the rule of law. Nevertheless, inadequate functioning of the judiciary and insufficient respect for rule of law were noted already in the first EC country report in 1997 (Papadimitriou & Phinnemore, 2008). In 1998, the EC report also highlighted the need to do more to fight corruption (EC, 1998). Anti-‐corruption and the related reform and performance of the judiciary remained perennial themes of Romania’s EU country reports. 2000-‐2004 The infighting and ineffectiveness of the governing coalition, the failure to gain access to NATO and the EU in the first enlargement wave, as well as corruption scandals and the lack of convincing anti-‐corruption efforts contributed to the defeat of the CDR in the 2000 elections (Pop-‐Eleches, 2001: 159; Papadimitriou & Phinnemore, 2008). Iliescu (as president) and the PDSR (since 2001, PSD -‐ Social Democratic Party) returned to power, forming a government led by Prime Minister (PM) Adrian Nastase. Nastase, was considered a representative of a younger and more “Western-‐oriented” PDSR generation (Tismaneanu 31 The Copenhagen criteria were (Papadimitriou & Phinnemore, 2008: 32):
1. 2. 3.
“stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union; the ability to take on obligations of membership, including adherence to the aims of political, economic, and monetary union.”
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& Klingman, 2001; Pop-‐Eleches, 2001). The choice of the UDMR over the far-‐right Greater Romania Party (PRM) as a coalition partner was a further sign of commitment to democracy and to Euro-‐Atlantic integration (Pop-‐Eleches, 2001). The 2000-‐2004 government was, alongside the 1992-‐1996 government, the most stable one in Romanian post-‐communist history, without any change in prime-‐minister. It presided over a substantial improvement in macroeconomic indicators (Papadimitriou & Phinnemore, 2008), including economic growth of over 8% (in 2004 -‐ Downs & Miller, 2006). Driven by the desire to succeed where the previous government(s) failed, i.e., join NATO and the EU, the PDSR government adopted a series of reforms, including also a spate of legislation in the area of good governance and anti-‐corruption. In November 2002 Romania was invited to join NATO, to which it formally acceded in 2004 (Phinnemore, 2006). Negotiations for EU accession also proceeded relatively well – by the end of 2004 Romania had been certified as a “functioning market economy,” had closed all 31 negotiation chapters of the acquis communautaire, and the European Council had set January 1st 2007 as the target date for EU accession (Papadimitriou & Phinnemore, 2008). However, despite these achievements, the PSD could not shake an image of corruption and of semi-‐authoritarian inclinations (Carey, 2004, CSO 1). Shortly before the 2004 elections, leaked transcripts documented PDSR/PSD leaders discussing strategies to control or politically influence key state and non-‐state institutions, like the judiciary, the press and civil society (Ionita, S., 2004; Pridham, 2007b). Existing anti-‐corruption legislation was only weakly enforced, and there were no serious prosecutions and condemnations for high-‐level corruption (Noutcheva & Bechev, 2008). While corruption had always been criticized in the EC’s country reports, it became a particularly salient issue around 2003, when a number of ministers were forced to resign amid allegations of corruption (Papadimitriou &
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Phinnemore, 2008). One of the most prominent cases was – ironically – the Minister of European Integration, whose husband and son were accused of embezzling EU money (ibid.). Given increasing concerns about corruption, the EU introduced a so-‐called “safe-‐ guard” clause in the 2005 accession treaty, whereby Romania’s accession to the EU could be delayed by one year if “serious shortcomings” were observed in the area of anti-‐corruption and justice reform (Papadimitriou & Phinnemore, 2008: 58). Even though this one-‐year delay might not seem a severe punishment, it did become a matter of national pride (Pridham, 2007a) and was seen as a very strong – and unprecedented – form of conditionality, through which the EU exercised “extreme leverage” in Romania’s case (Young, 2008; Pridham, 2007a). 2004-‐2008 Given its image of corruption, as well as the fact that many of the economic reforms introduced alienated some of the PSD’s base, which included a large rural population, workers, and people employed in the state-‐controlled sector of the economy, the PSD performed worse than expected in the 2004 election (Papadimitriou & Phinnemore, 2008, Keil, 2006). The center-‐right Justice and Truth Alliance (DA), formed by PNL and PD, made anti-‐corruption the top electoral campaign issue (Pridham, 2007a). Its presidential candidate, Traian Basescu (PD), was particularly out-‐spoken. Against expectations, he won the election, albeit by a narrow margin (King & Marian, 2011). His election and the formation a center-‐right government was once again heralded as a sign of democratic deepening and consolidation -‐ as “the end of post-‐communism in Romania” (Gross & Tismaneanu, 2005). However, the following years were once again marked by infighting between coalition members, and general government instability. Relationships between the president and the
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PM, who belonged to the PNL, worsened, as Basescu repeatedly criticized the government for failing to combat corruption (Marian & King, 2011). The government coalition collapsed in March 2007, only two month after Romania joined the EU. The president’s former party, PD,32 left the government coalition and PSD and PNL members of parliament (MPs) promptly suspended33 the president. However, the president resoundingly won the referendum on his suspension. The remaining time until the elections in 2008 was marked by struggles over presidential prerogatives, such as his ability to veto individual cabinet members, or his powers regarding anti-‐corruption institutions and investigations (Marian & King, 2011). Nevertheless, anti-‐corruption reforms continued during this time, under substantial EU pressure. With presidential support, a well-‐regarded former civil rights lawyer, civil society activist, and consultant for international organizations (Monica Macovei) was named as justice minister in 2005. She expanded and strenghtened a number of anti-‐corruption reforms and institutions, despite substantial domestic resistance. Nevertheless, EU concern about insufficient progress in judicial reform and anti-‐corruption continued, and in 2006 the EU decided to continue monitoring Romania against a set of benchmarks in these areas through the „Cooperation and Verification Mechanism” (CVM). The benchmarks were: 1. Ensure a more transparent, and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of 32 In Romania, according to the Constitution, the President cannot belong to any political party. However, presidential candidates are nominated and supported by parties, generally maintain their influence in the party while in office, and return to these parties once their mandate is over. This is explained more in detail in section 5.2. 33 The term “impeachment” is sometimes used in this context, however that term is not entirely accurate. Impeachment can be done only for “very serious” offenses and results in the immediate loss of office for the president, while the suspension must be validated through a referendum with the participation of at least half of the electorate.
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Magistracy. Report and monitor the impact of the new civil and penal procedures codes. 2. Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken. 3. Building on progress already made, continue to conduct professional, non-‐ partisan investigations into allegations of high-‐level corruption. 4. Take further measures to prevent and fight against corruption, in particular within the local government. (EC, 2006b: 9-‐10) In the case of insufficient progress on these benchmarks, the EU could activate safeguard measures, such as delaying Romania’s accession for a year, reducing financial aid or suspending the recognition of Romanian judicial decisions within the EU after accession (Papadimitriou & Phinnemore, 2008). The EU’s concerns proved justified, as parliament and the new government ousted the reformist justice minister and attempted to roll back anti-‐ corruption policies immediately after Romania’s EU accession in January 2007 (Freedom House [FH], 2008). 2008-‐2012 In the December 2008 parliamentary elections the PD (now Liberal Democratic Party -‐ PDL) won a very slim majority in parliament over the PSD34 (Marian & King, 2010). The two parties formed a government led by prime-‐minister Emil Boc (PDL). However, this coalition survived less than a year, until October 2009. In December 2009, Basescu was re-‐elected as president, again with a very slim majority, and nominated Boc again for prime-‐minister, who formed a government with the UDMR, as well as with the support of defectors from the opposition parties (Romanian Academic Society [SAR], 2012). The following years where characterized by increasing acrimony between the main government party (PDL) and the 34 115 vs. 114 seats in the Chamber of Deputies.
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president on one side, and the main opposition parties (PSD and PNL) on the other. At the same time, while there was some progress with strengthening anti-‐corruption institutions, their actual impact on corruption was not visible enough. As a result, in 2009, the EU decided to continue monitoring Romania’s progress on judiciary reform and anti-‐corruption through the CVM (Stefan, Tapalaga, Ionita, 2010) As the financial crisis hit, the government introduced drastic austerity measures. In parallel, even though anti-‐corruption measures were being pursued, the perception of government corruption and clientelism did not decline. The combination of austerity plus corruption ultimately led to a wave of protests in the winter of 2011-‐2012 (SAR 2012). PSD and PNL formed the Social Liberal Coalition (USL), commanding a large majority in parliament, and, since May 2012, a government led by PSD’s Victor Ponta (SAR, 2012). An increased power struggle and political instability followed (L.C., 2012, June 29; Economist, 2012, Aug 23), including attempts of the new government to gain control or influence over autonomous institutions (E.L., 2012)35 and another suspension of the president (Schepple & Perju, 2012, Schepple 2012), again rejected via a referendum.36 This increased power struggle has at least in part been attributed to a few successes in high-‐profile corruption cases, and particular the sentencing, in summer 2012, of former PM Nastase to two years in prison (Buckley, 2012). In response to the political turmoil and overreach of the USL government, in summer 2012, the EC issued it’s most damning country report so far, questioning the adherence of Romanian political elites to the rule of law (Geitner, 2012). However, the USL won an overwhelming majority in the December 2012 parliamentary elections, leading to 35 See also http://eruptieanticoruptie.ro/sustinem-‐si-‐ne-‐alaturam-‐demersului-‐civil-‐society-‐warning-‐ the-‐rule-‐of-‐law-‐under-‐unprecedented-‐attack-‐in-‐romania/305 for a protest letter against the government actions addressed to the EU signed by 10 Romanian NGOs. 36 Unlike the 2007 referendum, the majority of votes were for the dismissal this time around.
However, since less than 50% of the electorate voted, the referendum was invalid.
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the current co-‐habitation between Ponta as prime-‐minister and Basescu as president. The “cohabitation agreement” between the President and the Prime Minister and his government included provisions for protecting key anti-‐corruption institutions and legislation. Conclusion: Impact of “Western” Integration on Domestic Politics In conclusion, Romania’s democratization and post-‐communist political development is inseparable from the story of its integration into Euro-‐Atlantic structures – first NATO, and then the EU. Both processes were accompanied by a series of requirements that can be called “democratic conditionality,” since Romania’s accession was conditional on the respect of democratic principles and the rule of law (Barany, 2004; Papadimitriou & Phinnemore, 2008). There is a general consensus that both processes helped consolidate Romanian democracy (Schimmelfennig, 2007). At the same time, there were limits to the EU’s positive influence on domestic policy making. The EU’s Copenhagen Criteria were vague on what constituted “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” (Papadimitriou & Phinnemore, 2008). While the criteria were gradually refined, uncertainties remained about the exact policy reforms needed to fulfill them, the hierarchy of tasks, the standards, thresholds, and sources for judging compliance (Grabbe, 2002). EU conditionality was thus not “a precision tool to sculpt institutions and policies during the accession process; rather, […] a mallet that can be used only at certain points in the process to enforce a few conditions at a time.” (Grabbe, 2002: 15). Other EU accession conditionalities, such as the adoption of the acquis or other benchmarks, were quite detailed or intrusive, requiring the adoption of specific laws, regulations,
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institutions, etc. (Mungiu-‐Pippidi, 2010; Ghinea & Stefan, 2011). Coupled with the pressure of fulfilling all accession requirements in the shortest time possible, this specificity had the unintended effect of shortening time and willingness for domestic debate (ibid.). This was worsened by the EC’s tendency to deal primarily with the executive and – to a lesser degree – with the public administration, which, paradoxically, reinforced Romanian habits of executive dominance (Young, 2008). NATO and EU were able to exert such a strong influence on Romanian politics because Western integration was a goal unambiguously shared by both elites and citizens. For example, in 2002 88% of Romanians were in favor of joining NATO – higher than in any of the other accession candidates at the time37 (Barany, 2004: 69). Support for joining the EU has been equally high or higher throughout the years (Noutcheva & Bechev; 2008, Burduja, 2006:60). This unambiguous support superseded other fault lines in society. It was driven not just by concerns about geopolitical security and economic integration, but – crucially -‐ also by an aspiration for a Western state identity (Barany, 2004: 70; Pridham, 2007a). These “cultural dispositions towards Europe” sometimes resulted in an almost uncritical acceptance of EU suggestions (Pridham, 2007a, 2007b) or “over-‐compliance” with NATO conditionality, anticipating NATO requests even before they were uttered (Epstein, 2005). Some analysts even critiqued exaggerated expectations that Romania’s problems will be solved from outside as a form of “dependency culture” (Pridham, 2007a, 2007b). Despite this strong “Western” orientation, it is doubtful that the integration process has resulted in genuine elite conversion to democratic and rational-‐legal norms. Rather, even the imperfect adherence to democracy and the rule of law was driven primarily by the 37 These were: Bulgaria, Slovakia, Slovenia, Estonia, Latvia, Lithuania.
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desire for accession to “Western” clubs and international respectability in general (Pridham, 2007a, 2007b). When democratic and rule of law principles collided with domestic and political party interests, the latter tended to win (ibid.). This is why insuring the independence of the judiciary and fighting corruption were the two most difficult areas of reform (ibid.). Romanian governments were frequently criticized by the EU for paying only lip-‐service to reform, i.e., producing “impressive, even elegant, paperwork” while failing to follow-‐up through implementation (Pridham, 2007b: 538). Thus, both the extensive conditionality and the socialization of political elites resulted in something more similar to mimicry than to actual persuasion. Beyond political elites, the impact of the EU on domestic politics is mixed. The most successful socialization was that of NGOs, which received financial support from the EU, and were strengthened through participating in an advisory capacity to the government and to the EU in the accession process (Pridham, 2007a). It also worked among a small group of young technocrats in the public sector who interacted intensely with EU institutions, through technical assistance or general exchange programs (Ionita, A.L., 2004). However, given low pay, excessively hierarchical structures and high politicization, these technocrats often left the public administration in favor of the private sector or EU institutions (Ionita, A.L., 2004). The least socialized actors were the members of parliament (MPs) and the judiciary, which had little exchange with similar European actors compared with members of the executive and administrative branches (Ghinea & Stefan, 2011:22).
5.2
Political System and Actors
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Party System As mentioned in section 5.1, the communist regime in Romania essentially destroyed any alternative civic or political organizations. While initially the Romanian party system was defined by the cleavage between “post-‐“ and “anti-‐communists” (mostly historical parties), over time, this cleavage subsided (TI-‐Ro, 2011: 15). The former consisted of the “center-‐ left” PDSR/PSD (Social Democrats), which draws its electoral support mostly from rural areas and from lower income and lower education people and regions (South and East). The latter were “center-‐right” parties, especially PD/PDL (Liberal Democrats), as well as the historical (i.e., pre-‐war) parties, PNL (National Liberals) and PNTCD (Christian Democrats, out of parliament since 2000), which draw their support mostly from “urban professionals and young people, and in cities in general,” as well as, regionally, from the west and north-‐ west regions (Carothers, 1996: 123; Keil, 2006). However, the left-‐right divide is fluid, as evidenced by the frequently changing alliances and coalitions between center-‐right and center-‐left parties (Figure 5.1 below). Nationalistic, far-‐right or far-‐left parties, chief among them PRM (Greater Romania), have declined in power in the last years, failing to enter parliament since 2008. The most stable party in Romania’s post-‐communist history has been the ethnic party of the Hungarian minority (UDMR). Figure 5.1 below illustrates the evolution of the main Romanian parties and coalition in parliament.
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Figure 5-‐1. Main parties in parliament and government (1990-‐2011)38
Source: Author39 Legend:
The enduring feature of Romanian political parties is that they are based primarily on clientelistic patronage networks rather than programmatic ideas (Carey, 2004; Keil, 2006). They coalesce around strong leaders or “personalities,” lack internal democracy, are run in a top-‐down fashion, and lack significant roots in society (USAID, 2001; Keil, 2006: 465-‐466, Radu & Buti, 2012). The distribution of clientelistic advantages has been one of the main strategies through which minority governments or governments with a narrow majority maintained support in Parliament. This has resulted in high political migration from opposition parties to the party in power, both at the local and the national level. For 38 An alternative (slightly more detailed) presentation of the evolution of the Romanian party system can be found in Lonean (2012: 92). 39 The figure includes only parties that have had a significant presence in more than one legislature.
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example, almost half of mayors and county council leaders, who are directly elected at the local level, migrated from the opposition to the national ruling party (PDSR/PSD) between 2000 and 2004 (Mungiu-‐Pippidi, 2009b; Roper, 200640). At the national level, as much as 20% of MPs in the 2008-‐2012 legislature have changed parties during their political careers, sometimes as often as 4 times (Popescu, 2012, April 24). The loss of parliamentary majority support and the recent dramatic decline in the electoral support for the PDL illustrates the deeply entrenched clientelistic system. As the (re-‐ )election prospects and resources for clientelisc distribution dwindled in the face of austerity budgets, many party members and allies in parliament started defecting to the opposition (Mungiu-‐Pippidi, 2012). In addition, the first successes in the fight against corruption, though insufficient to sway voters, had started to reach MPs of the PDL. This amplified tensions between the anti-‐corruption reformers (like former Minister of Justice Monica Macovei) and the “barons” (power-‐holders controlling key clientelistic networks) (Gallagher, 2012), further weakening the party. The President Romania is a semi-‐presidential or premier-‐presidential system. The president, who is popularly elected, is the head of state, and the prime-‐minister is the head of government. Presidents cannot belong to a political party, but presidential candidates are nominated by parties41 (Downs & Miller, 2006), thus have hitherto been party members who resigned from their party once elected. The prime-‐minister is nominated by the president but 40 As an illustration of the severity of local level political migration: “In 2000, PSD won approximately 30 per cent of the mayoral and county council contests; however, by the time of local elections in 2004, the party controlled almost 70 per cent of local government administration.” (Roper, 2006: 369). 41 Independent (non-‐party) candidates have to gather at least 200,000 signatures for their candidacy.
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approved by parliament, alongside with his cabinet.42 The president’s main powers regard foreign policy and national security, including control over the secret services (FH, 2003). He also nominates many high-‐level officials, such as the chief prosecutor and the chief anti-‐ corruption prosecutor. However, he can only nominate individuals who have been proposed by other institutions, such as the Minister of Justice (MoJ), who also make the final decision about these appointments. He has no powers to initiate or propose legislation, and even though he can refuse to sign and re-‐send legislation to parliament with a request for reconsideration, his veto can be overridden by a simple majority (Metcalf, 200043). Thus, formally, the president has little influence over domestic policy and the Romanian system is closer to a parliamentary than a presidential system. In reality, the influence of Romanian presidents over policy making is highly context dependent, as informal power matters as much or more than formal power. In reality, presidential resignations from the party backing him are symbolic, since presidents often maintain strong ties and considerable influence over their party (Iliescu, Basescu), and return to it after leaving office (Iliescu). Presidential power depends substantially on individual characteristics, including the President’s informal power basis in his party of origin, and that party’s power in Parliament and access to patronage resources (see, for example, Sellin, 2004: 122 on Iliescu). Additionally, given the high visibility of the president, 42 The President appoints the Prime Minister after "consultation with the party that holds the
absolute majority in Parliament or if there is no majority, with the parties represented in Parliament" (article 103-‐1 of the Constitution). http://www.robert-‐schuman.eu/oee.php?num=544 43 The president can initiate referenda, but needs to consult the parliament first (Metcalf, 2000). However, it is not clear how binding the outcomes of these referenda are. For example, in 2009 the president initiated and won a referendum on reducing the number of MPs and switching from a bi-‐ cameral to a unicameral parliament. However, to date, no such change has occurred. The only consequence of the referendum so far is that the Constitutional Court struck down a law changing the Romanian electoral system to a pure first-‐past-‐the-‐post (FPTP) system, on the grounds that it would increase the number of parliamentarians, which would be against the ‘“will of the people” as articulated through said referendum.
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his popularity (or lack thereof) also increases the electoral prospects of his party. He can also greatly influence public debates through his public statements, including through largely symbolic actions such as resending laws to parliament or refusing to appoint officials nominated by the government. Skilled presidents can thus exert substantial leadership and influence on areas that are outside their official responsibilities. Out of the three post-‐communist presidents, two (Iliescu, especially 1990-‐1996, and Basescu, 2004-‐ 2012) are considered strong presidents who had a considerable influence on policy-‐making. The Legislature and the Executive Romania has a bi-‐cameral legislature consisting of the Chamber of Deputies (CD -‐ lower house) and the Senate (upper house). Overall, the Parliament has low policy-‐making capacity – including weak capacity for independent research and oversight (TI-‐Ro, 2011). The clientelistic structure of Romanian parties also weakens incentives for independent, programmatic participation in policy-‐making by MPs. As a result, the perception is that the parliament tends to “rubberstamp” laws developed by the government with little substantive involvement, and legislative initiatives stemming from other parties have low chances of success (CSO 8, 11, Gvt 6). In other words, as one MP put it, parliament is “far from the aspiration of controlling government” (Gvt 6) and very rarely are laws adopted without government endorsement of the bill. For example, between 2008 and 2010, only around a quarter to one-‐third of the laws adopted where initiated by MPs rather than by the government (TI-‐Ro, 2011). Thus Romania is characterized by a strong executive and a weak legislature (TI-‐Ro, 2011: 28). This executive dominance is reinforced by certain legislative practices of the government. One of them is issuing government emergency ordinances (GEOs) that have the effect of a law immediately upon adoption by the government, and need only ex-‐post
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approval from the legislature. This effectively shortens time for public consultation and debate and contributes to legislative instability, when GEOs are modified or rejected by the parliament after they have been in force for a period of time (Mungiu-‐Pippidi, 2010). The second practice is that of “assuming responsibility” for a law, which means coupling the passage of the law with a vote of no-‐confidence in the government. This strategy can be particularly effective in overcoming resistance from within the ranks of the government’s own party or party coalition, by making legislators choose between voting for a law they do not support or losing the significant “perks” that come from being the party in power. The EU and other international organizations have consistently criticized the government’s over-‐reliance on such techniques that undercut the legislative power of Parliament (see for example World Bank [WB], 2004). Nevertheless, the EU accession process reinforced executive dominance over the legislature, for two reasons. First, as part of the accession process, Romania had to adopt a large number of laws to transpose the aquis communautaire into national law and comply with other EU conditionality. This overwhelmed the limited capacity of the legislature. Hence successive governments, especially those relying on fragile coalitions in parliament have relied on GEOs to get laws passed, as well as on “assumption of responsibility” for particularly sensitive bills, such as the Civil Code, the Criminal Code, the revised Labor Code, and the Education Law (TI-‐Ro, 2011).44 Often, legislation promised during EU accession, was issued first through GEOs, then modified, and often weakened, in Parliament, and then amended again by the government through a new GEO to satisfy EU demands (Mungiu-‐Pippidi, 2010). Half of the 44 In total, during the Boc government, nine laws were adopted with the assumption of responsibility
(http://omrau.ro/legi-‐adoptate-‐prin-‐asumarea-‐raspunderii/), apparently more than during previous governments, prompting protests from civil society (http://www.apador.org/show_report_nf.php?id=207)
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bills sent to Parliament by the government between 2001 and 2003, as well as between 2008 and 2010 were GEOs (WB, 2004; TI-‐Ro, 2011; see also Figures A.1, A.2 and A.3 in Annex 2). Second, EU and other donor support for strengthening capacity has focused primarily on the executive branch and the public administration, further amplifying the capacity differential between the executive and legislative branches. Yet, despite this executive dominance, the overall policy-‐making capacity of the government is also weak (Mungiu-‐Pippidi, 2010). This is in part due to the weak capacity of the public administration (see next section) and the concentration of decision-‐making at the top, i.e., at the highest level of the cabinet or the political party controlling the government (ibid.). Given the clientelistic nature of the political parties, these also lack programmatic or policy units and target most legislation towards obtaining individual or narrow group benefits (ibid.). This is amplified in the case of coalition governments based on weak majorities in Parliament, who have to negotiate laws with individual MPs, thus increasing the amount of pork even more (ibid.). Political instability, resulting in high turnover of personnel and frequent re-‐organization of ministries, departments etc., further reduces policy-‐making capacity, consistency, continuity and quality (Papadimitriou & Phinnemore, 2008). The tension between EU pressures for rational-‐legal governance and Romania’s inherited and self-‐reproducing clientelistic and patrimonial system of governance resulted in a pattern of policy-‐making that Sum and King (2011:7) describe as “triage democratization,” i.e., “a process in which officials react under pressure to the latest emergency or crisis, and reform is conducted in partial and piece-‐meal fashion shifting rapidly from one issue to the next.”
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The Special Case of Divided Government One challenge is that it is hard to establish what constitutes divided government in the Romanian context. Theoretically, a semi-‐presidential system has similarities to a presidential system when president and prime-‐minister belong to the same party, and to a parliamentary system when not. Overall, based on his formal powers, the Romanian president is substantially weaker than presidents in presidential systems or even some other presidents in semi-‐presidential systems (Metcalf, 2000). However, as argued above, a skilled president can still exercise substantial influence on policy-‐making. Three interpretations of what constitutes divided government under these circumstances are possible. The first one is the classic one of a government that does not have a majority in the legislature (i.e., consists of a minority coalition). Minority coalitions were present in Romania from 1992-‐1996, 2007-‐2008, and the beginning of 2010. This is, however, an imperfect measure in the Romanian context, given the high level of pork and political migration, which make it relatively easy for the government to buy support from MPs. If resources for pork or other types of MP vote-‐buying run out, as seems to have happened as a consequence of the financial crisis and resulting austerity politics, it is more likely that MPs exercise their power to change the government, rather than demand more government transparency and accountability. A more appropriate approximation of divided government is when there is a (strong) president who belongs to a different party than the prime-‐minister. In such cases, the president has incentives to criticize the government, and push for transparency and anti-‐ corruption policies, as this not only allows him to show his commitment to the public interest (i.e., reap image benefits) but also inflicts less costs on his constituency, i.e., his party of origin. The situation is more ambiguous when the President’s party is the minority
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partner in the coalition, but even then, the president can gain reputational capital from criticizing the lack of transparency and corruption of the ruling party (the PM’s party). Based on this definition, in Romanian post-‐communist history there was only one period of divided government: 2004 – 2008, which can be further subdivided into two periods:
•
12/2004 -‐ 04/2007 – the President’s party is a minority party within a coalition government, and the PM belongs to a different party.
•
04/2007 -‐12/2008 – the President’s party is not part of the government.
Public Administration/the Bureaucracy High politicization, clientelism and patronage also affect the public administration (TI-‐Ro, 2011; Mungiu-‐Pippidi, 2010; Ionita & Freyberg-‐Inan, 2008; Roper 2006; Carey, 2004). They reinforce other weaknesses, such as low capacity, overly centralized and hierarchical decision-‐making, “formalism” – i.e., a tendency to follow the letter rather than the spirit of the laws, weak internal communication and coordination systems and general “non-‐ Weberianism” (Nunberg, 1999; Mungiu-‐Pippdi, 2010; Papadimitriou & Phinnemore, 2008; Pridham, 2007b). These traits result in decision bottlenecks and low policy-‐making and implementation capacity of the public administration. As a part of Romanian administrative culture, these traits predate communism and are related to the history of state formation. In the mid-‐ to late-‐nineteenth century, when parts of Romania gained independence from the Ottoman and Russian Empires and unified, Western-‐educated Romanian elites attempted rapid political modernization by massively copying political and administrative institutions from Western Europe. For example, the Romanian Constitution of 1866 was inspired by the Belgian constitution, the main legal
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codes by French codes, etc. (Hitchins, 1992).45 This discrepancy between “Western” rational-‐legal institutions and traditional modes of governance characteristic of a highly unequal agrarian society is one reason why people tended to follow the letter rather than the spirit of the law, i.e., formalism. This tendency has been reinforced by other traits of Romanian public administration and society over time, such as very hierarchical decision-‐ making, which stacks incentives against initiative at lower levels of administration and reinforces the tendency to follow the letter rather than the spirit of the law. Communism reinforced these tendencies by centralizing authority and decision-‐making even further. Strengthening administrative capacity and professionalism has been another continual EU request. Under EU pressure, a Civil Service Reform Law was adopted in 1999. Nevertheless, the law remained largely on paper and did not reduce the politicization of the bureaucracy (Mungiu-‐Pippidi, 2010). In a survey carried out in 2004, “almost half the respondents believed that a personal connection with political leaders was the most important factor when applying for employment in the public sector” (Roper, 2006: 368). High-‐level public officials are changed with each change of government (Mungiu-‐Pippidi, 2010), often with people who do not have the necessary qualifications (for recent examples see Popescu, 2012, November 13). In some cases, those who were thus removed from office sued the
45 This provoked a domestic backlash, with many Romanian thinkers arguing that this wholesale institutional import was incompatible with Romanian culture and tradition and resulted only in ‘“forms without content (or substance).” The institutional import represents isomorphism or isomorphic mimicry, whereas the ‘“forms without content” phenomenon is called ‘“decoupling” by authors such as Andrews (2013) or Meyer & Rowan (1977). The key difference is that in the case of Romania, elites were not only driven by Western legitimacy concerns, but also by genuine desire to modernize Romania -‐ i.e., state identity and attempts at policy/institutional learning also played a role.
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government and won their cases, obtaining substantial financial damages, but without being reinstated (ibid46). Some improvements in professionalization and capacity have been achieved in those agencies or departments that most closely interact with EU institutions (Mungiu-‐Pippidi, 2010). However, these have remained isolated islands of excellence and have not spilled over to the rest of the public administration (Mungiu-‐Pippidi, 2010; Pridham, 2007b; Ionita & Freyberg-‐Inan, 2008). Furthermore, the low salaries and lack of meritocratic career opportunities in the public sector discouraged qualified and reform-‐oriented staff, and many of them left for the private sector (Pridham, 2007b) or EU institutions (Ionita & Freiberg-‐Inan, 2008). In conclusion, the clientelism and patronage of the Romanian political system has had a deleterious effect on the public administration as well, and neither conditionality nor technical and financial assistance managed to change this so far. Low administrative capacity and high corruption resulted not only in low absorption rate of EU funds, but, even worse, in the requirement that Romania pay back a part of these funds due to irregularities in spending and procurement (Mihailescu, 2012). Perhaps the most illustrative diagnosis comes from within the (local) public administration itself, where in a focus group discussion about the problems that contribute to corruption, and implicitly also to other ills of the public sector, public employees identified the following: 46 As an illustration: “Thousands of law suits by fired executives from the public sector have been filled after 2007 alone, despite the solution of offering them to preserve all their privileges (therefore expenses) even when removed from office to another position. In an exemplary case in 2009, the managers of the Proprietatea Fund were granted half a million euro stipulated in their contracts as a firing clause just to leave the positions vacant for the new government. The fund was not even under-‐ performing at the time. Politicization, a major source of both incompetence and instability has come to include even hospital managers” (Mungiu-‐Pippidi, 2010: 8).
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•
“Laws are written unprofessionally, are permanently changed and are not correlated with each other.
•
Parties promote leaders that are incompetent, blackmail-‐able, used for attracting bribes, into key leadership positions of public authorities.
•
The implementation of a law perceived as being unprofessionally written is only formal (‘theoretically, the volume of work is enormous, practically, nothing is being done’)
•
Administrative procedures are too complicated, which leads public officials to not assume any responsibility.
•
The justice system, which has to control the public administration, functions even worse than the system it is supposed to control.
•
Internal control/audit is just a way to cover irregularities.
•
Dissatisfaction regarding the pay system (lack of framework law regarding public sector pay).
•
Incompatibility provisions for civil servants are much more restrictive than those for elected officials.
•
Many public authorities do not have ethics councilors, and where they exist, they have only little activity – completing trimester reports.
•
Employees are afraid to ‘blow the whistle’ when they observe illegalities ([due to] fear, constraints, compromise).
•
Employees are dissatisfied by hierarchical superiors (who are perceived as despotic in their decisions).
•
‘Attentions’ (i.e., small gifts) are tolerated by some public officials.
•
Public employees/officials are not willing to get engaged to change things (they think that their efforts would not have any impact or make any sense).
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•
Public employees/officials believe that they are often unfairly accused by citizens and the press” (CRJ & APD, 2008: 6).
The Judiciary While both the public administration and the judiciary were “transmission belts of the party” during communist times, the judiciary had a special place as an enforcement agency (Noutcheva & Bechev, 2008: 128). As a result, after the fall of communism, the judicial system was dominated by conservative elites who were socialized into the same networks of influence, clientelism and patronage that pervade the Romanian political system (Pridham, 2007b; Macovei, 1998 on the lack of rule-‐of-‐law culture in the Romanian judicial system; Ghinea & Stefan, 2011). As a result, the Romanian judiciary remained subject to political and other informal influence (Barany, 2004: 71; Carey, 2004; Noutcheva & Bechev, 2008; Grodeland, 2005; USAID, 2001; Open Society Foundation [OSI], 2002). This is reflected also in the public perception of the justice system, where, in a survey in 2006, 78% of respondents rated corruption of judges and prosecutors as a major problem (Dorinica, 2006: 119). Maintaining judicial independence has been another perennial topic of EU monitoring reports on Romania (Pridham, 2007b; OSI, 2002). It is currently one of the main benchmarks of the CVM, and one of the areas where the EU intervenes most frequently and explicitly, up to the point of commenting on the progress of individual corruption trials or the selection of candidates for high-‐level positions such as the Prosecutor General (e.g., Fotache, 2012). With support from various donors, a number of reform packages have been introduced, ranging from random assignment of cases to judges to reducing the control ability of the MoJ over judges and prosecutors. Among the most important reform measures was expanding the attributes of the judiciary’s self-‐governing council – the Supreme Council of
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the Magistracy (CSM), whose majority of members are judicial professionals elected by their peers (Ghinea & Stefan, 2011). However, the CSM has often been criticized for protecting the interests of its members, rather than ensuring the integrity or professionalism of the judicial system (Ibid., SAR, 2010 on CSM). In 2010, some reformist judicial professionals did get elected to the CSM, offering some balance of powers and hope for further reform (Ghinea & Stefan, 2011; Danilet, 2012). Whether the reforms have contributed at least somewhat to increased judicial independence remains a contested issue (Danilet, 2012; Ghinea & Stefan, 2011; Mendelski, 2012). The sentencing, in 2012, of the former 2000-‐2004 prime-‐minister (Nastase) to two years in prison on charges of corruption was seen by many as a sign of such independence. However, the sentence probably also fueled political instability further, and the political battles of 2012 were seen by many as battles over the control of justice system, including over key appointments, such as the prosecutor general and the anti-‐corruption prosecutor. Thus, even if there are a few signs of a increase in judicial independence, progress in this area is at best tenuous and could be overturned (Economist, 2012 August 23; L.C., 2013).47 The Private Sector and the State The relationship between the private sector and the state in Romania is also not characterized by an orderly or transparent institutionalized system of communication and negotiation, whether pluralist or corporatist. Rather, it is also characterized by clientelism and patronage, resulting in a fusion of political and economic power (Sellin, 2004) or state capture (Noutcheva & Bechev, 2008). This high level of state capture is due to the post-‐ 47 It should be noted that 2013 saw more high-‐level convictions for corruption, including that of a
sitting minister of the ruling government coalition. Should this trend continue, more confident statements about judicial independence can be made.
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communist dynamics of economic development. After the 1989 revolution, given the lack of alternatives, the emerging domestic entrepreneurs came from the old communist nomenklatura, especially from the former Secret Services and the external trade departments (Gabanyi, 2004). A substantial part of the initial capital accumulation was done through looting state resources (ibid.), resulting in the emergence of an oligarchy closely aligned with the party in power (Iliescu’s FSN/FDSN/PDSR). After 1996, the structure of patrimonialism changed, with control from the center weakening, and the influence of local “barons,” i.e., local economic and political power-‐holders, becoming stronger (Sellin, 2004). This is in part due to the successive splits of the first post-‐ communist successor party (the FSN), in part because the – albeit slow – progress with privatization and liberalization reduced many of the patronage resources the central state had at its disposal. However, other sources of patronage remained – such as the preferential awarding of public contracts or the distribution of central state funds preferentially to mayors of the governing party (Mungiu-‐Pippidi, 2010). Over time, the importance of so-‐ called “sponsors,” i.e., wealthy businessmen or top bureaucratic elites that could help fund political campaigns, grew in all parties (Matichescu & Protsyk, 2011). This once again demonstrates the fusion of politics and business in Romania, which limits the incentives for private sector support for transparency and anti-‐corruption policies. The Media Since 1991 the Romanian press has been ranked only “partially free” in FH’s Freedom of the Press Index. Throughout the years, media freedom, professionalism and independence have been limited both through legal constraints and through the underlying revenue and property structure. Defamation, libel and insult remained criminal offenses punishable by
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prison sentences until 2006 (IREX, 2008, 2011).48 While few journalists have served prison terms, hefty fines have been applied and have had dissuasive effects on coverage of controversial issues, including corruption cases. Attempts to limit media freedom have surfaced repeatedly from across the political spectrum, and some of them were repealed only under international pressure and criticism, including from the EU. Examples include overly draconian “right-‐to-‐reply” legislation (EC, 2002), a proposal to allow prosecutors to order journalists to reveal their sources without a court order (A19, 2005: 62), or a 2008 bill requiring half the news coverage to be “positive” (IREX, 2009; FH, 2008). Representative media organizations, whether of owners or of journalists, are weak and have been plagued by infighting. The main defenders of media freedom and media rights are media-‐ and human rights-‐themed NGOs (IREX, 2009; Stefan, Ionita, Dobre & Nutu, 2012). As one interviewee from such an NGO put it: “the press is not a good advocacy ally if you leave it by itself,” as it is more focused on scandals than on public interest issues (CSO 7). Political influence over the media is high, given the small advertising market (Pralong, 2002: 320). Media companies rely on government subsidies, either directly via preferential access to government advertising, or indirectly through re-‐structuring of debt owed to the state in taxes (Coman, 2009; Article 19, 2005; IREX, 2004; IREX, 2012:125). Alternatively, economic entrepreneurs with political ambitions or ties buy up media outlets, cross-‐ subsidize them with funds from their other economic activities, and use them as a mouthpiece to advance their political agenda (Coman, 2009; IREX, 2003; Pralong, 2002: 48 The penalties have been weakened in the 2002-‐2004 period, first through executive orders and
then through the 2004 revision of the Criminal Code (FH, 2003: 490; EC, 2002: 32; Article 19, 2005: 61-‐67). At the initiative of MoJ Macovei a law was adopted in 2006 that eliminated prison terms for libel (IREX 2005, 2006, 2007).
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320). The situation is even worse at the local level, where a long list of local political and business elites, or “local barons,” bought up publications (IREX, 2004; Coman, 2009). The result is “a marked collusion between business, media, and political interests that inhibits media from fulfilling its democratic role” (USAID, 2001: 14). The political capture of the media has not improved over the years; if anything, it has worsened (Mungiu-‐Pippidi, 2009a). Coupled with the increasing polarization of the Romanian political and public sphere after 2007, this has resulted in an increasing politicization and polarization of the media (IREX, 2009, 2010, 2011). Finally, the tabloidization of the media (IREX, 2009; Stefan, Tapalaga, Ionita, 2010) means that media professionalism and investigative journalism of the type most likely to use FOIA or PAD are weak.49 Civil Society After the fall of communism, the emergence of civil society in Romania had to start essentially from zero, under very unfavorable circumstances. These included a lack of history of social organization and mobilization, very low levels of social trust, and the inexistence of resources for funding. Between 1990 and 1996 the NGO sector was very weak and largely acted as a political opposition. It started to consolidate around 1996 and engage more systematically with the state, through various means ranging from advocacy to partnership (Foundation for Civil Society Development [FDSC], 2010). However, even today, NGOs are concentrated in urban areas, especially in the capital city, and lack deep roots in society (Carothers, 1996: 122, FDSC 201050). This is at least in part due to low civic engagement and to a “lack of a participatory and philanthropic ethos in society” (FH, 2000: 49 For the latest example of tabloidization see L.C. (2013b). 50 In 2009, 87% of CSOs/NGOs were registered and active in urban areas.
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510; GHK n.a.). Only around 7% of the population volunteers as part of an association, a figure that has not changed substantially between 1993 and 2007 (Badescu, 2007: 87). However, the sector is relatively strong in terms of those types of organizations relying on the expertise of a few highly qualified people, ranking 19 globally and second in Central and Eastern Europe in terms of the number of think-‐tanks (McGann, 2013). This was confirmed also by the interviews. Some of the NGOs presented themselves as highly skilled, highly professional research and advocacy organizations (CSO 3). Some more or less stated that their organization lacks roots in society, decried the lack of political mobilization of Romanian citizens in general and/or argued that there was no significant “manifest” demand from the population for transparency policies (e.g., CSO interviewees 1,2,3). External support was crucial in igniting the NGO sector in Romania. US-‐support, most notably from USAID and the Soros Foundation, including through training in advocacy and lobby techniques (USAID, 2007; see also World Learning 199951) played a fundamental role in socializing Romanian NGO elites by exposing them to “Western” (US) values and practices. As one interviewee put it, “we are all George’s [Soros] people” and “if these are your formative years, it marks you for the rest of your life” (CSO 3). The EU accession process also had a significant impact on the NGO sector, both through funding NGO activities via pre-‐accession programs, and through creating space for – or demanding -‐ NGO consultation in policy-‐making (see, for example, calls for more consultation on legislation and government decisions with social partners, including NGOs, articulated in EC country reports from 2000 to 2005). The EU also relied systematically on NGOs for judging Romania’s progress on a range of accession criteria (FDSC, 2010), especially those
51 For example, APADOR and SAR received grants through this program
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regarding human rights, democracy, the rule of law and anti-‐corruption.52 This created space and gave NGOs more leverage in the policy-‐making process (ibid.:159). Advocacy campaigns were most successful when they involved large NGO coalitions and were pursued for the long haul. Such campaigns managed to influence a number of policies, including FOIA, which is counted as one of the most successful instances of NGO mobilization (FDSC, 2010). However, according to a number of interviewees, the change in financing from US funds and EU pre-‐accession funds to EU structural funds after accession diminished the involvement of NGOs in policy advocacy and monitoring, especially in the area of transparency policies and good governance more generally. Some interviewees suggested that reliance on EU funds is skewing NGO activities towards EU priorities, which are currently more about service delivery than transparency and good governance (CSO 4, 6). Domestic sources of financing for such activities are few – there is little philanthropy, and while citizens can in principle redirect 2% of their income to CSOs instead of paying it to the government as taxes, few do that, and most of them direct their contributions towards social and humanitarian issues, such as orphans, the elderly and the poor (CSO 4, 10). As one interviewee from a democracy-‐themed NGO put it “we are only ‘sexy’ around election time, and not even then” (CSO 10). Some interviewees even argued that it is easier for many NGOs to write a project for obtaining (potentially substantial) EU funds than to convince a large enough mass of citizens to donate or re-‐orient a proportion of their taxes to them (CSO 4).
52 In 1999 17,10% of NGOs were human rights NGOs. In 2010, 12,53% were active on “Civic Issues
and Advocacy, the majority of which (69%) focused on human rights, 45,5% on anti-‐discrimination, and 56% on good governance and public policy. (FDSC, 2010: 159)
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The relationship between CSOs and governments also deteriorated after 2008 (FDSC, 2010: 95-‐103; CSO 3, 8). Indeed, initially, many NGOs supported Basescu and the PDL. However, the political battles between the president and the PDL on the one hand, and the other parties on the other, led to a hardening of the fronts and less government openness to dialogue with anybody perceived as critical, including NGOs. This hardening of the fronts was further reinforced by the impact of the financial crisis, budget austerity and the resulting decline in government popularity. To paraphrase CSO interviewee 4, the government at the time (2011) was “receiving so many critiques and had such a bad reputation, that accusing them of lack of transparency was almost a compliment.” On the other hand, former and current government staff also complained that many NGOs (and citizens) are often unnecessarily conflictive and lack the capacity or the willingness to constructively and systematically engage in policy process (e.g., Gvt 4 and 5). This is compounded by the fact that NGOs tend to get involved only at certain moments on high-‐ profile issues (Gvt 5). There seems to be a vicious circle of low mutual trust, low government responsiveness (CSO 2) and limited or unconstructive involvement of NGOs in public policy processes beyond isolated, high-‐profile issues (CSO 9). This is compounded by low citizen mobilization and lack of a civic culture and civic education, which was decried by both government and CSO interviewees (e.g., Gvt 5, CSO 5). Public Concern with Transparency and Corruption Confidence in and satisfaction with government and other political institutions has always been low in Romania. Throughout the years, a large majority of citizens have been dissatisfied with the government (Sandu, 2007) and tend not to trust it (see also Figure A.4 in Annex 2 on trust in public institutions). This suggests that the Romanian government is in a permanent crisis of legitimacy, together with Romanian decision-‐makers and political
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elites in general, thus having at least some incentive to look towards TAC policies as possible legitimization strategies. Corruption became an issue of high public, political and media salience in the latter half of the 1990s (Noutcheva & Bechev, 2008; Grigorescu, 2006 for CEE in general). It is hard to disentangle what drove this increased salience. Noutcheva & Bechev (2008) argue that public concern with corruption increased due to the increasing pace of privatization and economic liberalization in the late 1990s, which had also increased opportunities for and thus incidence of high-‐level corruption. This was even more disappointing given that the 1996 government parties promised to fight corruption once in power. Grigorescu (2006) attributes increased media coverage of corruption in Central and Eastern Europe after 1996 to the increased focus on corruption of EU country reports of accession countries. It is likely that all of these factors played a role, reinforcing each other. Regardless of what the main reason is, the public has consistently perceived corruption as one of the main sources of Romania’s problems. Corruption ranked 3rd in 2003, 5th in 2006 and 1st in 200753 in terms of the percentage of people who chose it as one of the two main problems facing the country, at 30%, 20% and 27% respectively (Gallup Organization Romania, 2003: 15; Comsa, Sandu Toth, Voicu & Voicu, 2006: 52; Basecu, Comsa, Sandu, Stanculescu, 2007: 111 -‐ see Figure A.5 in Annex 2). Public concern with corruption in Romania is very high in international comparison. For example, in 2004 38% of Romanians considered that corruption was the main problem facing the country, compared to 12% in
53 Judging by percentage of respondents choosing corruption as their first or second choice in answer
to the question: “Which of these problems do you think is most important”? [only two answers possible].
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Bulgaria and only 5% in Mexico, countries with relatively comparable level of internationally perceived corruption54 (Badescu, 2007: 88). Overall, throughout the years, satisfaction with government performance in fighting corruption has always been low, as illustrated in Figure 5.2 below. In 2006, only the national anti-‐corruption prosecution (52,3%) and the media (49,7%) were seen as effective in fighting corruption by a majority of people, followed distantly by the Presidency (31%). Only 15,6% of respondents saw civil society as effective in combating corruption, which put it still ahead of the courts (10,5%), the government (7,8%) or the parliament (5,1%) (Dorinica, 2006: 94). There is also evidence of “defeatism” in the face of the perception of generalized corruption. For example, in 2006, which was a comparatively “good” year for the perception of government effectiveness in combating corruption, only 37% of those surveyed believed that corruption can be reduced to a substantial degree, while 50% believed it can only be reduced to a small or very small degree (Dorinica, 2006: 91).
54 Romania: 2.9, Mexico: 3.6, Bulgaria 4.1, with 10 being the least corrupt on the TI CPI index 2004,
retrieved from: http://archive.transparency.org/policy_research/surveys_indices/cpi/2004 .
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Figure 5-‐2. Satisfaction with the government’s anti-‐corruption policy (% satisfied minus % dissatisfied)
2007/1 2006/1 2005/1 2004/1 2003/1 2002/1 2001/1 2000/1 1999/1 1998/1 -‐80%
-‐70%
-‐60%
-‐50%
-‐40%
-‐30%
-‐20%
-‐10%
0%
Source: Author, based on data from Sandu (2007: 60). No data available for May and October 2005.
However, the correlation between general government dissatisfaction and dissatisfaction with the fight against corruption was strongest (i.e., statistically significant) between 2001 and 2004, i.e., throughout the PDSR/PSD government, as well as in 2007 (Sandu, 2007: 43). This reinforces the explanation that PSD lost re-‐election in 2004 as the result of wide-‐ spread perception of corruption, which trumped the good economic and foreign-‐policy results of that government. In 2007, the year of EU accession, “shocking” attempts were made to roll back anti-‐corruption legislation and weaken anti-‐corruption institutions (Stefan, 2012). Therefore, the data available up to 2007 confirms the prominence of corruption on the public agenda and the public dissatisfaction with government attempts in fighting corruption mentioned in section 5.1. The public concern with transparency (or lack thereof) has been less salient. Transparency is covered much less – if at all – in public opinion surveys. In the 1993 World Values Survey,
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86.2% of Romanian respondents agreed somewhat or completely that the government should be made more open to the public”.55 On the other hand, in 2009, 42% of respondents in a poll conducted by a Romanian think-‐tank said public institutions provide citizens with enough information, while only 42% found the information insufficient (IPP, 2009: 19). Without additional data points it is difficult to tell if this reflects a genuine increase in government transparency over the years, shifting public priorities, or simply different question formulations. When asked about ways to address corruption, the public also seems to favor adopting and enforcing laws with severe sanctions for corruption -‐ around 80%-‐90% of surveyed households and enterprises fully supported such measures in 2000 (Anderson et al., 2001: 31). Yet, measures to increase government transparency as a way to fight corruption also enjoy support from a majority of the population, including:
•
“Requiring public officials and political candidates to declare their financial assets” (69% fully support it);
•
“Using the mass media to inform the public about corruption cases and prosecutions” (69%);
•
“Disseminating more information about citizens’ rights” (66%);
•
“Public debates of budget and competitive procurement procedures for public construction projects” (44%) (ibid.).
Predictably, public officials favored increasing salaries and professionalization of the public administration as anti-‐corruption policies, but a FOIA was also fully supported by 62% of
55 http://www.wvsevsdb.com/wvs/WVSAnalizeQuestion.jsp, not asked in later surveys.
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surveyed officials (“Law offering citizens free access to all the information owned by the state, except for classified information” – 62%; ibid.: 32). The media is the main source of information about corruption for most people: in 2006 90% of people surveyed said they get their information about cases of corruption from TV, 66% from newspapers, and 56% from radio (Dorinica, 2006: 58). Less than 20% of those surveyed got their information about corruption from personal experience or direct observation. As in other CEE countries, corruption has also been a highly salient topic in the media in Romania (Grigorescu, 2006)56. Moreover, media coverage has followed a similar pattern as public concern with corruption, peaking in 2003-‐2004, with a small uptick again in 2007 (see Figure 5.3 below). Overall, at its maximum, this amounts to an average of ca. 4.5 articles per day in 2004, and a low of ca. 1 article per day on average in 2000.
56 While the proportion of articles (between ca. 1.5% and 5.5%) might seem relatively small at first sight, it is in line with Grigorescu’s (2006) findings about the salience of corruption in CEE. He finds that “somewhere between 1 percent and 2 percent of the articles from ECE [CEE] mention corruption in the period between 1996 and 1998—about the same proportion as in the press in the other regions—this level grows to more than 7 percent by 2004” (p. 528). This percentage is by far higher than for other regions with similar levels of corruption (as measured by TI’s Corruption Perception Index) (ibid.).
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Figure 5-‐3. Salience of corruption in the Romanian media
No. of articles mentioning corruption (EZ)
corupt
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
corupti
1999
coruptie
1998
1800 1600 1400 1200 1000 800 600 400 200 0
% of articles mentioning corruption (EZ) 6% 5% 4% % coruptie
3%
% corupt
2%
% corupti
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
0%
1998
1%
Source: Author, based on data from the online archive of Evenimentul Zilei. 57
Media coverage of transparency has also been substantially less intense than that for corruption, but it has followed a similar pattern, with a dramatic increase after 2001 and a decline almost to previous levels after that. 57 Data was gathered by performing searches for the word “coruptie” (corruption) as well as its
declination in the online archive of www.evz.ro. Total number of articles in the EZ online archive was calculated by searching for “a”. A validity check was conducted by performing searches for the word “corruption” in the Newsbank database for two Romanian newswires. This showed similar results in terms of patterns and levels, with a somewhat steeper decline in 2009/2010, higher peaks in 2002-‐ 2003, and a maximum of 11% of articles covering corruption in 2005. See Figure A.6 in Annex 2.
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Figure 5-‐4. Salience of transparency in the Romanian media
% of articles mentioning transparency (EZ) 0.8% 0.7% 0.6% 0.5% 0.4% 0.3% 0.2% 0.1% 0.0% 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
No. of articles mentioning transparency (EZ) 300 250 200 150 100 50 0 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Sources: Author, based on data from the online archive of Evenimentul Zilei58
In conclusion, corruption has been a very salient issue on both the public and the media agenda since the latter half of the 1990s, and the public has been constantly dissatisfied by the lack of government progress in fighting corruption. However, at the same time, there are signs of fatalism, i.e., the belief that not much can be done to fight corruption. Transparency 58 The validity check based on the Newsbank database showed a proportion of articles about
transparency oscillating between 1% and 2% from 2000 onwards (with a low of 0.1% in 1999 – see Figure 0.7 in Annex 2). Note that the number/proportion of relevant articles covering transparency might be even lower, given that not all articles mentioning transparency refer to political/government transparency.
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has been a less salient issue on the public and media agenda. Yet, measures to increase government transparency also enjoy a significant level of public support.
5.3
Conclusion: Structural and Institutional Factors and their Implications
Overall, the description of the Romanian political context and its evolution confirms Romania’s classification as a qualified democracy, characterized by regular elections that lead to an alternation between one party dominance during FSN/PSD times and feckless pluralism during times of unstable party coalitions. As expected for a high-‐corruption, qualified democracy, democratic competition is accompanied by weak institutions and clientelism and patronage networks that have penetrated all spheres of governance. Despite the political instability, the main indicators of democratic development have not changed much since 1996, which is considered the key moment of democratic consolidation (i.e., the first peaceful, democratic, transfer of power). Figure 5.5 below shows the relative stability of Romania’s democracy and governance indicators between 1997 and 2012 in Freedom House’s Nations in Transit reports. Figure 5-‐5. Freedom House: evolution of key democratization indicators for Romania 5.5
Electoral Process
5.0 4.5
Civil Society
4.0 Independent Media
3.5 3.0
Governance
2.5 2.0
Constitutional, Legislative and Judicial Framework/ Judicial Framework and Independence Corruption
1.5
Source: FH-‐NIT 2012 and 2004. Explanation: scale from 1 to 7, with 7 being the least democratic and 1 the most. No data on Legislative and Judicial Framework for 1997 and 1998
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The Freedom House ratings also reinforce the findings of this chapter. The best-‐performing areas are civil society and electoral process (with the caveat that since FH-‐NIT are authored by civil society there could be some bias in its respective rating). The media, the judiciary and corruption overall receive the worst scores; with governance, a category which covers policy-‐making in general, in between. Again, this is in line with the description of Romania as a qualified democracy, where the electoral process is free and relatively fair, but alternative mechanisms of accountability are weak and there is weak policy-‐making capacity. Table 5.1 below summarizes the findings from this chapter and their implications for FOIA/PAD support from different actors. The rest of this section discusses the implications of these findings for the case study propositions. Table 5.1. Key actors, enabling conditions, and incentives to support FOIA and PAD Actors Enabling structural and institutional factors (theorized)
Enabling structural and institutional factors found in the case of Romania
Implicatio Implicatio ns for FOIA ns for PAD
Media Freedom of the press, no preferential access to government information, competition in the media sector, weak connections to power-‐holders, no government capture
Political influence over the media is high, due to dependence on government advertising or direct ownership of media outlets by businessmen involved in politics.
Low demand for FOIA from the press
Low demand for PAD
The privat e sector
Not the case – high level of patronage and clientelism and state-‐capture means that economic and political power are close. External influence: Limited, with the exception of initial push for privatization and adoption of EU market related acquis.
No demand for FOIA from the private sector
No demand for PAD
No preferential access to government information, pluralist rather than corporatist interest group organization, weak connections to
External influence: Some, through training for journalists and broad democratic conditionality, which included freedom of the press. However, not enough to overcome the limitations of ownership and revenue structure, and resulting political influence on the press.
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Actors Enabling structural and institutional factors (theorized)
Enabling structural and institutional factors found in the case of Romania
Implicatio Implicatio ns for FOIA ns for PAD
Civil society is among the better-‐ performing democratic actors, albeit only marginally so. While external funding (esp. for governance/anti-‐ corruption advocacy), as well as access to decision-‐making, have declined over the last couple of years, CSOs remain key actors in the good governance arena.
Potentially high demand from CSOs
power-‐holders Civil societ y
Has political space, has resources, not captured or too strongly aligned with elites in power.
Potential demand from CSOs
External influence: Substantial and critical: from igniting the sector, to socialization, to funding, to strengthening CSO power via requirements or expectations of more participatory decision-‐making. Decisi on-‐ maker s
1. Type of bureaucratic accountability/legi slative control over the executive: separation of powers, tradition of parliamentary accountability of the executive and bureaucracy, responsiveness of MPs to their constituencies, a capable and professional bureaucracy. Under these conditions, support for TAC policies is higher when different parties control the executive and the legislature (divided government).
1. Weak separation of powers, legislature lacks both incentives and capacity to hold the executive/bureaucracy to account. •
De jure: parliamentary-‐presidential system, where the prime-‐minister and the cabinet are invested by the legislature. Theoretically, has similarities to a presidential system when president and prime-‐minister come from the same party, and to a parliamentary when not.
De facto: Weak separation of powers, strong executive, weak legislature. Presidential power differs depending on individual characteristics, including informal influence. Clientelistic networks supplant rational-‐legal accountability mechanisms, both from citizens to the legislature and from the legislature to the executive/bureaucracy. In this context, whether the legislature is controlled by a different party than the executive is of limited relevance. Divided government describes better the situation when the President is from a different party than the PM. External influence: Ambiguous. On the one hand, broad political/democratic conditionality has helped maintain a •
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No incentives to adopt FOIA/PAD/TAC policies to increase bureaucratic accountability.
Actors Enabling structural and institutional factors (theorized)
Enabling structural and institutional factors found in the case of Romania
Implicatio Implicatio ns for FOIA ns for PAD
minimum of separation of powers and rule of law. On the other hand, the EU accession process has further strengthened the executive over the legislature.
2. Moderate political uncertainty: moderate stakes and long time-‐ horizon, existence of established institutions of governance and accountability, absence of extreme political instability or “winner-‐take-‐all” politics
2. High stakes and short time-‐ horizons. Romanian politicians have repeatedly been criticized for their short time-‐horizons and resulting ad-‐hoc and chaotic policy-‐making. The high degree of clientelism and patronage raises the stakes of controlling the government (winner take all politics), as whoever controls it has not only preferential access to clientelistic resources, but also control or influence over accountability and other public institutions.
No incentives to adopt FOIA/PAD/TAC policies to tie the hands of future governments.
3. Public pressure and need for re-‐ legitimization: low trust in or satisfaction with government, and public concern with lack of government transparency and with corruption.
Trust in government has been low throughout the years, and corruption has been a prominent public concern and media topic. Thus, government can be seen as in need for “permanent re-‐ legitimization.” Lack of government transparency has been less salient for the public and the press. In terms of specific anti-‐corruption measures, punishment of corrupt officials has been the measure with most support. Transparency policies also enjoy majority support. External influence: External criticism of government actions, including corruption, has further contributed to lowering trust in government and raising the domestic salience of corruption. This was less the case for transparency.
4. Existence of potential policy entrepreneurs
4. Potential (though few) policy Potential incentives entrepreneurs exist, especially from for/from policy civil society and some reform-‐minded or entrepreneurs.
External influence: Ambiguous. On the one hand, broad political/democratic conditionality has helped ensure [some] adherence to the rule of law among major political actors, on the other hand the accession processes has narrowed time-‐horizons to the quick achievement of the next EU integration milestone.
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Some incentives for adopting FOIA as a way of re-‐ legitimizati on.
Incentives for adopting PAD as a way of re-‐ legitimizat ion (possibly higher than for FOIA since tied more directly to corruption ).
Actors Enabling structural and institutional factors (theorized)
Enabling structural and institutional factors found in the case of Romania
from among the interest groups or potential sources of demand, or value actors among public officials.
value-‐oriented decision-‐makers (e.g., 2005-‐2007 Minister of Justice) or political figures running on anti-‐ corruption issues (e.g., presidents Constantinescu and Basescu). External influence: Significant: reformist actors have received substantial support from abroad, for example through praise for high-‐level political figures, financial support in the case of CSOs, etc.
Exter nal actors
Type of international policy diffusion mechanism or external influence Degree of domestic receptivity to external influences, status and leverage of key actors/sources of potential policy diffusion
The international policy diffusion mechanisms for FOIA/PAD in Romania will be investigated more in detail in the next chapter, but broad external pressure to address corruption has existed since at least 1998, primarily from the EU, but also from other actors such as NATO and other international organizations (potential for conditionality and mimicry). Pressure from the EU on anti-‐corruption has permanently increased, culminating with the adoption of the CVM, which is still in place. Transparency has been a less prominent issue on the EU agenda. CSOs and reformist officials have also been socialized through Western support (potential for persuasion, policy learning and mimicry). Given the strong desire of Romanian political elites and citizens to enter “Western clubs” (in particular NATO and the EU), and their positive image in Romania, external actors had/have very high leverage and potential influence in Romania.
Potentially low incentives for FOIA adoption via conditionali ty if tied to transparenc y, potentially high incentives via persuasion, policy learning and mimicry.
Potentially incentives for PAD adoption via conditiona lity if tied to anti-‐ corruption
Imple menta tion and oversi ght agenci es
Institutional capacity and incentives for compliance and enforcement, including independence, professionalism and resources.
Bureaucracy and Judiciary: Capacity is weak to medium, but the biggest problem is the lack of professionalism and political independence, or “Weberianism”, which makes it unlikely that the bureaucracy will adequately implement policies that go against its own interest. This has not improved over time. The judiciary has also been criticized for lack of political independence – which lowers incentives for enforcement of policies that go
Low incentives and capacity for FOIA implementa tion and enforcemen t
Low incentives for (P)AD enforceme nt
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Implicatio Implicatio ns for FOIA ns for PAD
Actors Enabling structural and institutional factors (theorized)
Enabling structural and institutional factors found in the case of Romania
Implicatio Implicatio ns for FOIA ns for PAD
against the interest of the ruling party. External influence: Through conditionality, financing and support for policy learning via technical assistance, the EU (and other donors) supported increased professionalization and increased independence for both the bureaucracy and the judiciary. However, success seems to have been low in the bureaucratic arena and mixed for the justice system. Source: Author. Table is based on and updates Table 4.1. Key structural and institutional factors influencing the incentives for FOIA/PAD adoption and evolution, by actor and underlying tables.
In conclusion, in terms of incentives for decision-‐makers, neither increasing bureaucratic accountability nor tying the hands of future governments seem likely explanations. The politicization of the bureaucracy, based on clientelism and patronage, functions as an alternative accountability mechanism which links the legislature to the executive and the bureaucracy via the ruling party or parties. This reduces both the incentives and the ability of legislators to try to hold the executive and the bureaucracy to account through transparency and anti-‐corruption policies. The lack of independence of existing [horizontal] accountability institutions, like the judiciary, reduces the incentives to use transparency and anti-‐corruption measures to tie the hands of future governments. However, dissatisfaction with government in Romania has always been high and corruption has been a prominent reason for this dissatisfaction – even the main reason in some years. Therefore, incentives to adopt FOIA/PAD as a means for (re)legitimization have been very present. Additionally, (influential) external actors, like NATO and the EU, have demanded and supported adherence to democratic norms and visible progress in fighting corruption. They have thus been an important target for government efforts at re-‐legitimization, by
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demonstrating its commitment to fighting corruption and increasing government transparency. In terms of incentives and opportunities for demand-‐side groups to support transparency and anti-‐corruption policies, the conclusion is that the factors conducive to media and private sector support for FOIA are weak to non-‐existent. However, there are some civil society actors and reformist officials and political figures who can serve as advocates and policy entrepreneurs linking TAC policies to the problems of corruption and lack of transparency. Conditions for the implementation and enforcement of the two policies are also not very favorable: the bureaucracy and key horizontal accountability institutions like the judiciary have weak capacity and are politically captured or influenced (to different degrees), and adherence to the rule of law by high level officials is questionable. Finally, the main secular trend that can affect FOIA and PAD policy evolution over time is the increased salience of corruption and of specific anti-‐corruption measures on the EU’s agenda after 2006. On the other hand both the EU’s leverage and the strength and access to decision-‐making of CSOs (the main potential demand-‐side constituency for both policies) seem to have decreased somewhat after accession. Whether this was actually the case for the two policies is investigated in the next chapter.
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6
Chapter 6: Evolution of Transparency and Anti-‐Corruption Policy in Romania
As indicated in Chapter 5, the demands of EU accession and post-‐accession monitoring, coupled with the public’s high dissatisfaction with government and concern with corruption, made corruption a highly visible political agenda item. First efforts to strengthen anti-‐corruption policies and institutions started during the 1996-‐2000 CDR (Democratic Coalition of Romania) government, but the most significant anti-‐corruption reforms were undertaken in response to intensifying EU pressure during the 2000-‐2004 PDSR and the 2005-‐2010 coalition governments. The policies studied here – FOIA and PAD – were also adopted and strengthened during these periods. While transparency was a less salient domestic and international issue, transparency policies initially followed a similar pattern as anti-‐corruption policies. Attention to PAD-‐related issues remained high and even intensified after EU accession, as the controversy surrounding the agency in charge of their monitoring and enforcement (Agency for National Integrity – ANI) intensified. In contrast, attention to FOIA and transparency issues more generally decreased after 2007-‐2008. This chapter starts with a general overview of the evolution of anti-‐corruption and transparency policies in Romania (section 6.1.). It then traces more the evolution of the two key policies studied here, along the policy cycle of adoption, implementation and revision, taking into account both domestic and external influences (FOIA – section 6.2. and PAD – section 6.3). It closes by summarizing the key dynamics of the policy evolution of FOIA and PAD in Romania (section 6.4).
6.1
General Evolution of Transparency and Anti-‐Corruption Policy in Romania
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Anti-‐Corruption Policy Corruption became a topic on the political agenda already in 1993 (Pridham, 2007a), when the CDR accused the (PDSR) government of “tolerating and, indeed, fostering, wide-‐spread corruption” (Keil, 2006: 443). The 1996-‐2000 government did undertake a few anti-‐ corruption efforts. In 1997 the then president (Constantinescu) established a National Council for Action against Corruption and Organized Crime (OSI, 2002; FH, 2000). However, the Council did not initiate any substantive activity and was abolished in September 1999 (OSI, 2002). A dedicated anticorruption and organized crime unit was established within the General Prosecutor’s Office. In January 1998, a more comprehensive anti-‐corruption law was initiated, which was adopted in May 2000 (L78/2000).59 During this time, the government also commissioned the first large-‐scale, systematic corruption diagnostic in Romania, which was carried out by the WB in cooperation with Management Systems International (Anderson, Cosmaciuc, Dininio, Zoido-‐Lobaton, 2001). However, the anti-‐ corruption policy of the 1996-‐2000 government was rather weak and had little impact. L78/2000 focused on petty rather than grand corruption, did not substantively regulate conflict of interests, and did not set up an independent anti-‐corruption investigation and prosecution agency (OSI, 2002; Ristei, 2010; FH, 2003). During this time, international pressure to fight corruption increased substantially. Corruption was one of the main hurdles in Romania’s accession to the EU and NATO (OSI, 2002). The US ambassador to Bucharest highlighted the lack of progress in fighting corruption as jeopardizing Romania’s NATO entry (Pralong, 2002: 324). Romania joined a 59 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=1063 . The 2000 Anti-‐Corruption
Act (L78/2000) expanded the definition of corruption-‐related offenses and the categories of persons covered by the act, compared to the provisions contained hitherto in the Criminal Code (OSI, 2002; Ristei, 2010).
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number of international anti-‐corruption initiatives, including GRECO (the Group of States against Corruption60) in May 1999, as well as engaging in the anti-‐corruption activities of the Stability Pact and of the Southeast European Co-‐operative Initiative (OSI, 2002). Romania also received assistance for anti-‐corruption reforms from a variety of external actors, such as the US Department of Justice, the UNDP and the UN Centre for International Crime Prevention in Vienna. (OSI, 2002). Thus, NATO and EU accession processes gave anti-‐corruption policy traction in the early 2000s (OSI, 2002). To address its critical image abroad and achieve its foreign policy goals of NATO and EU accession, the PDSR government initiated a number of anti-‐corruption efforts. It developed the first Romanian anti-‐corruption strategy (in 2001) and enacted key laws on both transparency and anti-‐corruption. In February 2002 the government introduced incompatibility provisions for local officials through emergency ordinance and during the same year it adopted a draft act on conflict of interest for executive branch officials (ibid.). Also in 2002, it established the National Anti-‐Prosecution Office (NAPO/PNA) (Ristei, 2010), developed with the help of a PHARE twinning project with the Spanish Fiscalia Anticorrupcion. The law establishing the NAPO became one of the most often revised pieces of legislation in Romania (ibid.). In 2003 the government passed another landmark anti-‐corruption act, the “Law 161/2003 regarding some measures for ensuring transparency in the exercise of public dignities, public functions, and in the business environment, prevention and sanctioning of corruption,” which introduced for the first time the requirement of public disclosure of official’s asset declarations, and 60 www.coe.int/greco
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strengthened the conflict of interest and incompatibility provisions for public officials. The series of anti-‐corruption legislation adopted in 2000-‐2004 was significant (Burduja, 2006) and still represents the basis on which anti-‐corruption efforts are being carried out today (Stefan, 2012). Some analysts surmise that these laws would not be adopted by the current Parliament, and that the Nastase government adopted the AC legislation because they were convinced that the legislation would not be applied [to them] (Stefan, 2012). Nevertheless, most observers, including the EU, perceived this effort as a form of window dressing rather than as a genuine attempt to fight corruption (Pridham, 2007a, 2007b; Ristei, 2010). The AC legislation still had significant loopholes and was not being implemented, corruption scandals and political meddling in judiciary proceedings continued, and no high-‐level anti-‐corruption prosecutions took place (Pralong, 2002: 324). Therefore, policy adoption was by itself not sufficient to convince the European Union or the voters that significant progress was being made on the anti-‐corruption front. The topic of corruption became so salient for the EU, that, in spring 2004, the EU Delegation in Bucharest worked directly together with the Ministry of Justice to develop a major judicial reform package, aimed at insuring political independence of judges (Pridham, 2007a: 178). The EU’s distrust of the anti-‐corruption commitment of political elites led to the introduction of the safeguard clause, which further accelerated the anti-‐corruption and judicial reform efforts (Pridham, 2007a: 179). In the 2004 elections, the opposition, and especially its presidential candidate (Basescu) made government/PDSR corruption one of the main campaign issues. Pridham (2007a: 245-‐246) argues that this was both due to Basescu’s desire to capitalize on the perception of corruption engulfing the Nastase administration, and due to his personal conviction that corruption needs to be addressed (Pridham, 2007b: 541, fn 42). Among the most
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consequential decisions of the new government was the appointment, at the President’s behest, of a reformist, independent, Minister of Justice, Monica Macovei -‐ a civil rights lawyer, former head of the human rights NGO APADOR-‐CH, and consultant with international organizations on anti-‐corruption. As a first step the new Minister of Justice commissioned Freedom House Romania to carry out an audit of the existing anti-‐corruption strategy, and developed a new strategy. Based on this, a series of reforms were carried out – including changing the NAPO into the National Anti-‐Corruption Directorate (DNA) of the General Prosecutor’s Office, increasing its independence, limiting its competencies to high-‐corruption cases and appointing (in 2005) a young and dedicated chief anti-‐corruption prosecutor (FH, 2006). The law, based on a GEO, faced significant resistance in parliament (FH, 2007). With these changes and the new head, the DNA started working more effectively (Stefan, 2012), pursuing a larger number of high-‐profile cases, including one against the former prime-‐minister, Adrian Nastase (ibid.). Other changes included removing immunity from prosecution for former ministers in April 2005. The reform bills and the high-‐level prosecutions initiated by the DNA faced intense opposition in parliament, even from with the coalition government itself (Pridham, 2007a). Many of the anti-‐corruption bills and the requests for lifting parliamentary immunity so that anti-‐corruption investigations could be started could only be adopted with explicit EU pressure. The EU had increased its pressure during this time, praising the new DNA and openly criticizing attempts by the parliament to weaken anti-‐corruption laws or hinder high-‐level corruption investigations of fellow parliamentarians (FH, 2007; EC, 2006a). As one anti-‐corruption analyst put it: “Europe was tired of laws and institutions” (Stefan, 2012).
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The resistance to AC laws and high-‐level prosecutions reinforced EU concerns about lack of political commitment to fighting corruption, so in 2006 the EU instituted the “Cooperation and Verification Mechanism” (CVM) for Romania. Compared to the pre-‐accession period, when country reports included a broad array of areas covered by the acquis communautaire, the CVM focused specifically on judicial reform and anti-‐corruption issues, and thus greatly increased the salience of corruption on the EU agenda vis-‐à-‐vis Romania. This is confirmed by the frequency with which corruption appears in EC country reports (pre-‐accession reports from 1998 up to and including 2006, CVM reports since 2007), presented in Figure 6.1 below (detailed data in Table A.4 in Annex 2). In comparison, the mention of transparency remained at a comparatively low level even after 2006. Figure 6-‐1. Salience of corruption and transparency in EC country reports 5.0 4.5 4.0 3.5 3.0
Mentions of corruption per page
2.5 2.0 1.5
Mentions of transparency per page
1.0 0.5 0.0
Source: Author, based on EC country reports 1998-‐2011
The forays into prosecuting high-‐level corruption, combined with the president’s conflictive governing style also led to increasing tensions between the president and the prime-‐ minister, and between their two parties in the coalition government. After Romania’s accession to the EU in 2007 there was an immediate backlash against the anti-‐corruption legislation adopted, the institutions created, and their main advocates. Almost immediately
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after accession, Parliament voted a motion against the popular, EU-‐supported, justice minister Macovei (Mungiu-‐Pippidi, 2009b; BTI, 2009). Efforts were also made to roll back important anti-‐corruption legislation and dismiss the head prosecutor of the DNA (Mungiu-‐ Pippidi, 2009b; BTI, 2009; see also De Pauw, 2007 for a damning report on Romania’s backtracking immediately after accession). As a prominent anti-‐corruption analyst noted: 2007 was a shocking year, considering the cynicism of Romanian politicians. […] the most difficult years of this decade have been 2007 and 2008. 2007 was a terrible year considering the pressure on anti-‐corruption institutions. It was a huge ‘reflux’ and now we look back and say that no irreparable damage has been committed. (Stefan, 2012) These efforts triggered international outrage, from the EU and US alike (Initiative for a Clean Justice [IJC], 2007). They did not succeed -‐ in part, due to continued EU pressure, in part, due to domestic support from president Basescu and from domestic civil society for key corruption “fighters” and AC legislation (Stefan, 2012). The battles over the key anti-‐corruption institutions and laws continued throughout the following years, driven by the same dynamic of support and opposition. The president succeeded in re-‐appointing the DNA head, and more high-‐level corruption cases reached the courts. Most of the time, the trials took excessively long, did not end in convictions, or had very lenient sentences, which the EU criticized repeatedly (Stefan et al., 2010). Therefore, while progress was being made, it was still insufficient, and the EU decided in 2009 to extend the CVM for another three years. MPs also started to vote for lifting the immunity of MPs that were accused of corruption -‐ albeit selectively, so that they could be charged in court, including for the former prime-‐minister, Adrian Nastase, in 2009 (E.M., 2009). On the other hand, efforts to limit the efficacy of anti-‐corruption legislation and institutions continued, for example through trying to decriminalize some forms of corruption and reduce the statue of limitation for corruption via the new Criminal Code (Stefan et al.,
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2010). In 2010, the Constitutional Court ruled against the 2007 law on the National Integrity Agency (ANI -‐ discussed in section 6.3), leading to a bitter fight between the parliament and the President, supported by the EU and civil society (Stefan & Ionita, 2011). Overall, currently Romania has extensive anti-‐corruption legislation and anti-‐corruption institutions in place (Global Integrity Report [GIR], 2010). However, the legislation is still not being consistently enforced (ibid.). Many anti-‐corruption or accountability institutions, with the exception of the DNA, which has been under EU surveillance, are politicized and therefore mostly ineffective (Marian, 2008). Nevertheless, the number and the severity of high-‐level corruption convictions have increased in recent years (2012/2013). The EU’s experience with supporting Romania’s (and Bulgaria’s) anti-‐corruption reforms has also informed the EU’s approach to anti-‐corruption and justice reform in the current EU candidate countries (Toma, 2011; Ghinea & Stefan, 2011). Macovei, the 2005-‐2007 reformist Justice Minister, is now a member of the European Parliament (EP), where she is advocating EU-‐wide anti-‐corruption legislation based on her Romanian experience61. At the same time, the degree of EU involvement in advancing anti-‐corruption and protecting the rule-‐of-‐law in Romania is perhaps unprecedented in international comparison. The EC’s monitoring on justice, through the CVM, continues, and has come to focus on such highly specific issues as the trials of individual high-‐level officials (Bonea, 2012). In essence, the EU is by now almost a domestic political player – one with limited legal powers but with a massive ability to “name and shame,” or with it’s own massive “bully pulpit.” Even though it has been losing popularity, the majority of the population still trusts it, and the EU is still 61 See e.g., Ghergut, (2013) on her role in the adoption of an EU report on confiscating illicit wealth;
Gvt. 3 on her advocacy for an EU-‐wide CVM-‐type mechanism for monitoring anti-‐corruption and justice in low-‐performing EU countries.
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better perceived than domestic Romanian actors (see Figure A.4 in Annex 2). As long as this remains the case, the dismantling of anti-‐corruption institutions will be difficult. Table 6.1 below summarizes the four key periods for EU-‐Romania relations, based on how salient the issue of corruption was for the EU, and how strong the incentives for the Romanian government were to comply with EU requirements (leverage). Table 6.1. Key periods of Romania-‐EU relations – an anti-‐corruption perspective Period
Salience of corruption
Degree of leverage
EU pressure for TAC policies
1. 1995-‐1999: From signing the association agreement to receiving candidate status
Not very high – focus on broad democratic and economic conditionality, corruption emerging as a more explicit concern in 1998 (after broad political criteria have been met).
Medium: on the one hand, the possible reward was very high (achieving candidate status), on the other hand, it was unlikely that Romania’s candidate status would be denied rather than just delayed.
Other policy priorities trump TAC policies (low salience + high leverage)
2. 2000-‐2004: From receiving candidate status to setting an accession date and introducing the safeguard clause (possible accession delay for one year)
Medium – corruption increased as a topic of concern for the EU, given high-‐level corruption scandals. Transparency was not a highly visible concern.
High: as above, it was unlikely that Romania would not be accepted into the EU. However, the government wanted this to happen under their watch to be able to reap electoral benefits.
High external AC pressure (corruption salience + leverage)
3. 2004-‐2006: From setting the date to actual EU accession (safeguard clause in effect)
Medium – corruption remained a topic of concern, transparency remained not particularly visible.
Very high: the (unprecedented) threat of delaying accession was seen as a powerful shaming signal for the government
High external pressure (corruption salience + leverage)
4. 2007-‐present: Post-‐ accession CVM (Cooperation and Verification Mechanism)
Very high – CVM focuses specifically and exclusively on anti-‐ corruption, including through specification of benchmarks to be met. Transparency continues not to be very visible.
Medium: the accession incentive subsided, and the only specific sanction for lack of progress on the benchmarks is the suspension of the recognition of Romanian judicial decisions and
High external pressure (Very high salience + low(er) leverage)
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Period
Salience of corruption
Degree of leverage
EU pressure for TAC policies
(arrest) warrants by other EU member states.62 While this is not as strong of an incentive as accession, the shaming effect of activating the safe-‐guard can also be significant, resulting in some leverage. Source: Author
Transparency Policy Perhaps as a reflection of the lower salience of the topic, there is less literature on the evolution of transparency policies in Romania. Romanian governments have also not developed any distinct transparency strategies. However, transparency measures have been included in all anti-‐corruption strategies since 2000. The 2001 AC strategy mentions access to information (p. 3, 19), public declaration of officials’ assets, incomes and conflict of interests, as well as transparency in political financing (p. 19) (Government of Romania [GoR], 2001). Transparency is maintained as a principle and an objective throughout the two sub-‐sequent anti-‐corruption strategies (GoR, 2005a, 2008). Both include awareness-‐ raising and communication campaigns to inform citizens about their rights and obligations with regard to the public administration. And both include various provisions to strengthen access to information, to increase participation and consultation with civil society and to improve clarity and consistency of administrative rules and decision-‐making. The 2012 AC strategy also has increasing transparency of various public institutions among its main 62 More specifically: “Should either country [Bulgaria or Romania] fail to address the benchmarks
adequately, the Commission will apply the safeguard measures of the Accession Treaty. They lead to the suspension of the current Member States' obligation to recognise those judgements and execute warrants issued by either country's courts or prosecutors falling under the principle of mutual recognition” (EC, 2006b, September: 10).
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objectives, including through open data (GoR, 2012). The latter is also one of the objectives of Romania’s National Action Plan63 for the Open Government Partnership global initiative, to which Romania signed up in 2011. However, many CSO interviewees saw transparency and anti-‐corruption as related but distinct policy areas, based on different values and with a different division of roles and responsibilities between government and civil society. For example, few interviewees named public asset disclosure as a transparency policy (unprompted). Rather, most saw it more as an anti-‐corruption measure (e.g., CSO 8; also Gvt 6). One interviewee pointed out that transparency is supposed to prevent corruption, whereas PAD is a form of combating it (CSO 2). Another saw it as a form of “representational transparency,” i.e., intervening between the electorate and their representatives, as opposed to “government transparency” – i.e., institutional and decisional transparency (CSO 1). And while CSOs see transparency policies as useful for fighting corruption, they assign the primary responsibility for fighting corruption to the state. Thus, even if public asset and income disclosure does open the door for civil society to scrutinize the behavior of public officials, this is still first and foremost a government task rather than a responsibility of citizens, media and NGOs. As one interviewee put it: “we may be the watchdogs, but the state is the guardian” (CSO 8). Thus, even though transparency can contribute to reducing corruption, NGOs see it primarily as a value in itself (CSO 8). Transparency laws and policies are important because they shape the way in which the state relates to citizens in a democratic country. Transparency allows citizens to fulfill fundamental democratic rights of understanding and participating in decision-‐making. NGOs do not just use transparency laws in an instrumental 63 See: http://www.opengovpartnership.org/country/romania
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manner to obtain information from the state, they frequently invoke them in critiques of broader government decision-‐making. For example, the lack of transparency in decision-‐ making was one of the main criticisms of the government in the wake of the protests that gripped Romania in December 2011, and increasing transparency, openness and participation were among the main demands of CSOs vis-‐à-‐vis the government and all political parties (ARC, 2012, Feb 5; APADOR-‐CH, 2012 April 4). However, when asked to name the most important transparency policies in Romania, all interviewees pointed out that there is no “transparency policy” per se, in the sense of a deliberate government strategy or set of related actions and goals to increase transparency (e.g. CSO 4). Rather, there are a few transparency laws, whose implementation has been somewhat halting and inconsistent over time. There are also a number of disparate transparency regulations in public institutions like the judiciary, parliament, and government, which have led to an increased – though imperfect -‐ opening of these institutions over time (CSO 2). The two main transparency laws are considered to be FOIA, discussed more at length in the next section, and the Open Meeting Law (OML) or so-‐called sunshine law. FOIA was adopted in 2001 and OML was adopted in 2003, as part of a broader attempt at increasing government transparency, under some international influence (see below). It was criticized by some NGOs for coming late in the governing cycle and for lacking penalties for non-‐ compliance. However, despite its weaknesses, the OML represented a significant step forward from the traditions of secrecy that characterized Romanian public administration and policy-‐making. For example, until 2001, government employees were prohibited from disclosing any information about draft legislation to other parties than the institutions
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concerned (Ristei, 2010). However, as late as 2005, there were still provisions discouraging public employees from sharing information (GRECO, 2005: 15). The OML is only weakly used in practice, not just because of resistance from public agencies, but also because the demand-‐side is weak or missing altogether (CSO 5, 4, 10; Gvt 4, 5). There are few civil society organizations capable of representing citizens and engaging in the public decision-‐making process. Even where such organizations exist, they have difficulties mobilizing the public to participate (CSO 5, 4, 10). The situation is even worse at the local level (ibid.). However, the OML was strengthened in 2010,64 extending the application of the law from local to central authorities and requiring public agencies to argue in writing why they rejected inputs made by the public. This was done as part of a technocratic effort to improve the public policy process, through the 2008-‐2013 “Strategy for Better Regulation” (CSO 4; Gvt 4). The strategy had been requested by the EC, and its main goal was to reduce administrative costs, rather than increase transparency (Gvt 4). The 2010 law strengthening OML was adopted by parliament without a real understanding of and reflection of its implications (CSO 4). Civil society organizations have also pushed for more transparency in other branches of government. NGO campaigns have succeeded at making public information about MP presence at parliamentary sessions65 and about the votes of each MPs, which are now available on the web page of each of the two parliamentary chambers, together with information about current parliamentary activity of each MP (SIGMA, 2006). One NGO (IPP) 64 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=11102 65http://www.alesiivoteaza.ro/ (site had been take down as of December 2012 due to the fact that
the Senate had stopped publishing the votes of each individual senator). Other sites that pool and publish information about elected representatives are http://hartapoliticii.ro/ and http://www.alegeri.tv/
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requested the public release of the expenses of individual MPs.66 After drawn out and substantial resistance,67 including a series of FOIA lawsuits, IPP obtained this information for parts of 2010 and 2011.68 However, this did not lead to routine publication of MP expenses. The judiciary has also been the target of transparency campaigns and critiques for lapses in transparency, such as when it stopped publishing judicial decisions online (Manolea, 2010). NGO campaigns have also targeted transparency in procurement, for example through advocating legal provisions limiting the use of confidentiality clauses in procurement contracts and specifying that such contracts are public documents, falling under the scope of FOIA (SAR, 2009). However, other traditional areas of transparency seem to be less well covered by government and CSOs. In particular, budget transparency is relatively limited. Romania’s Open Budget Score has been declining since 2006, the first time it was measured, from 66 (out of a 100) to 47 in 2012 – the lowest score in the EU and one of the lowest scores in Eastern Europe. This is largely due to the decreasing quality and extent of information published in budget reports, weak legislative oversight, and weak public information and participation in budget debates (OBI, 2006, 2008, 2010, 2012). Yet, none of the interviewees brought up budget transparency as an area of worthy engagement or discussion.69 Finally, even CSOs themselves have been criticized by some interviewees as being insufficiently transparent, by not being easily accessible to the public, not making their 66 http://www.ipp.ro/pagini/apel-‐pentru-‐transparen355259-‐351.php,
http://www.ipp.ro/pagini/dup259-‐5-‐ani-‐de-‐campanie-‐pentru-‐trans.php 67 http://www.ipp.ro/pagini/conducerea-‐camerei-‐deputa355ilor-‐a-‐in.php 68 http://www.alesiivoteaza.ro/blog/?p=489 (site not active anymore) 69 When asked directly, CSO 3 conceded that it is an important area of transparency, but stated that
NGOs generally lack the expertise for this area, since they are mostly lawyers and political scientists.
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financial statements public, or due to the low user-‐friendliness of websites (CSO 1). Thus, overall, transparency in Romania is uneven, combining some notable successes (such as the adoption of FOIA and OML) with some critical areas. In terms of external influences, these are less visible than for anti-‐corruption. Interviewees name most often the US as the main influence on the Romanian transparency agenda. According to some interviewees, the US advocated for increasing government transparency through informal diplomatic pressure, including in the context of NATO accession (CSO 1; Gvt 1). The US’s bilateral aid program supported training, seminars, learning events, and exchange visits between Romanian CSO representatives and government officials and US counterparts (Gvt 1). For example, exchanges of experience with the US Department of Justice and the Pentagon were particularly useful because they illustrated a professional management of information disclosure and secretization (ibid.). As one interviewee put it, “there was an export of democracy from the US [to Romania]” (ibid.). Opinions on whether and how much the EU was a driver of government transparency in Romania are split. Many argue its contribution has been marginal, mostly because it has itself serious transparency deficits (Grigorescu, 2002; CSO 7). Nevertheless, the EU did urge increasing government and political transparency, especially in the run-‐up to accession. As one interviewee put it “in the year and a half before accession, all consultants sent by the EC were talking about transparency” (Gvt 4). Even though they don’t require the adoption of FOIA and OML beforehand, the EU’s country reports do praise their adoption after the fact. The lack of consistent implementation of both FOIA and OML is a pervasive theme of EU country reports from 2003 to 2006– essentially the same paragraph is repeated every year. Transparency in party financing is also a recurring theme, along with lack of transparency in government decision-‐making, including excessive reliance on government emergency
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ordinances (GEOs) and votes of no-‐confidence, and general lack of consultation on draft legislation and government decisions. The EU also influenced domestic discussions on transparency through its broader recommendations and support for administrative reform (Gvt 4). However, after accession, the EU’s concern with transparency and related policies subsided, being trumped by the more salient issues of corruption and judicial independence. Most civil society representatives agreed that the importance attributed to transparency by the government and international organizations and other external actors has decreased in recent years, i.e., since 2008-‐2009 (e.g., CSO 1, 4, 8). The financial crisis and resulting budget austerity have reduced the funds available for awareness-‐raising and training of government officials on transparency-‐related issues. Funds for CSOs to advocate for and monitor government transparency have also decreased with the transition from US and EU-‐ PHARE support for civil society strengthening and democratization to EU structural funds, which are less focused on good governance. Finally, successive Romanian governments are perceived as having developed an increasingly top-‐down, closed, decision-‐making style. Many CSO representatives pointed out that, despite existing legislation, de facto government transparency has deteriorated steadily in the last years, and many critical laws have been developed and adopted with little consultation, relying more and more on emergency ordinances (GEOs) and assumption of responsibility (CSO 1, 2, 4, 5, 6, 7, 8; also Gvt 6 on excessive use of GEOs and assumption of responsibility). This has decreased transparency in decision-‐making. As on interviewee put it, the current (i.e., November 2011) government has so many criticisms to face, that lack of transparency is the least of their concerns (CSO 4).
6.2
FOIA 172
History of FOIA Legislation In Romania, the right to information was established in Article 31 of the first (1991) post-‐ communist constitution, which states that a person have the right to access public interest information, and that public authorities are obligated to adequately inform them.70 However, it took 10 years for this to be translated into legislation. Access to information surfaced on the government agenda already in 1999, when the state secretary of the Department of Public Information declared a FOIA was under preparation, and that it would also include public access to the asset declarations of public officials (EZ, 1999). The need for a FOIA also came up in connection with the right to access environmental information. In January 2000, a cyanide spill generated international outrage and illustrated the weakness of government disclosure of information, particularly in comparison to the information released by a EU task force investigating the incident (Grigorescu, 2003). The government adopted the Aarhus Convention, which covers public participation and access to information in the environmental realm, in July 2000, and set up a working group to develop a FOIA the same summer (Ibid.). However, actual legislative proposals for a FOIA didn’t emerge until after the change of government in December 2000. The specific trigger was the proposal for a Classified 70 “ARTICLE 31
(1) A person's right of access to any information of public interest shall not be restricted. (2) The public authorities, according to their competence, shall be bound to provide correct information to the citizens in public affairs and matters of personal interest. (3) The right to information shall not be prejudicial to the measures of protection of young people or national security. (4) Public and private media shall be bound to provide correct information to the public opinion. (5) Public radio and television services shall be autonomous. They must guarantee any important social and political group the exercise of the right to broadcasting time. The organization of these services and the parliamentary control over their activity shall be regulated by an organic law.”
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Information Law.71 Earlier (1993, 1999) proposals had been highly contested, for not having a clear definition of what “classified” means and for introducing severe penalties for citizens who did not “protect” such information. A group of conservative MPs seized the opportunity of the return to power of their party (the PDSR) to push for the adoption of the a Classified Information Law, under the guise of EU and NATO requirements for protecting sensitive information (Mungiu-‐Pippidi, 2001). In response, CSOs formed a “Coalition for Transparency,”72 which started advocating for the adoption of a FOIA. The coalition included human rights NGOs, good-‐governance think-‐tanks and independent media-‐themed NGOs (Mungiu-‐Pippidi, 2001). Civil society argued that protecting the public’s right to know through a FOIA should be done before limiting it through a classified information act. CSOs activated the opposition through a sympathetic MP, who submitted a bill to Parliament in January 2001.73 The fact that the right to information was constitutionally enshrined helped mobilize support for the FOIA not just from civil society, but also from elected representatives (CSO 1). Western socialization of CSOs through foreign aid programs and international NGO advocacy networks helped put FOIA on the CSOs agenda and helped them learn about other FOI experiences and good practices. For example, SAR (the Romanian Academic Society), one of the main NGOs behind the proposal, previously carried out a Freedom House funded 71 www.cdep.ro/pls/proiecte/upl_pck.proiect?idp=2517. 72 This included the Civil Society Development Foundation (FDSC), Transparency International,
FreeEx (a program of the Media Monitoring Agency), APADOR-‐CH, Freedom House Romania, the Romanian Academic Society (SAR) (Mungiu-‐Pippidi, 2001), as well as CJI, AMP, APD, IRIS Center, and TI-‐Romania (http://www.transparency.org.ro/despre_ART/coalitii/) 73 Note: Both Grigorescu (2003b) and Mungiu-‐Pippidi (2001) mention a FOIA proposal initiated by PNL senator Eugen Vasiliu in 2000. However, an online search (including consultation of his CD file http://www.cdep.ro/pls/parlam/structura.mp?idm=1137&cam=1&leg=1996&pag=2&idl=1 and his online bio http://www.artfreepress.ro/Pages.aspx?idP=355) did not find any mention of such a law. Furthermore, none of the interviewees brought up his name. The story here thus refers only to the proposal tabled by PNL MP Mona Musca.
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research project, which concluded that accountability institutions in Bulgaria, Romania and Slovakia had be to strengthened – including through the adoption of a FOIA (Mungiu-‐ Pippidi, 2001). SAR also carried out a study on FOIA experience in Eastern Europe, with a special focus on the experience of Slovakia, and translated the conclusion into advocacy materials distributed to parliamentarians and journalists. APADOR-‐CH, a human rights NGO that was also deeply involved with the proposal, had benefitted from support from Article 19, the leading international NGO advocating FOIA (CSO 8, 10). USAID programs financed a number of seminars, exchanges of experiences, and other small-‐scale support that touched upon FOIA as part of their broader democracy and programs. Both CSO and government representatives participated in these events, where they learned about the US FOIA, including the State Secretary74 who developed the government’s FOIA proposal (Mungiu-‐ Pippidi, 2001; CSO 1; Gvt 1). These trips and seminars also helped initiate informal ties between government and civil society, which facilitated later collaboration regarding FOIA (CSO 1). Mungiu-‐Pippidi (2001:14), the head of SAR, sums up the dynamic well: First we have a small group of Western-‐educated intellectuals, mostly with an American background or belonging to American-‐sponsored Romanian NGOs able to work together and put forward a project drawing on a cultural model of freedom shared by this group, but on behalf of the society as a whole. In so doing they also act to mobilize other actors as well, under the banner of self-‐interest this time, actors enjoying considerable influence, such as political parties or journalists associations. At the same time, the government, through the Minister of Public Information, also developed a FOIA proposal. Some observers argue that this was a reaction to the FOIA initiative of civil society and the opposition MP, the government considering that “it’s not normal to have such a law coming from the opposition” (Gvt 1). On the other hand, it is 74 In Romania, State Secretaries are one level below Ministers (which are the heads of the ministries
and part of the cabinet)
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possible that technocratic members of the government genuinely supported the idea of a FOIA (CSO 1; Gvt 1). Five years later, in an interview to the, generally PSD critical, Evenimentul Zilei newspaper, the former Minister of Public Information (Vasile Dancu) names FOIA and OML as his main achievements as a minister, especially considering the resistance from within the government and from his own party (emphasis added): The most important achievement as a minister: No doubt, I was the initiator of the policy to institutionalize decisional transparency [OML] and free access to public interest information. Through the two laws […] I promoted a model of tolerance and civic responsibility. It was for the first time that a parliamentary majority was convinced to vote laws that were practically disadvantaging the ruling party. The information obtained through law 544 [FOIA] was used to fire ministers, colleagues of mine, and my position as an initiator wasn’t easy, considering that all parties in Romania value loyalty excessively, instead of integrity and expertise’ (EZ, 2006, September 20). However, the most often invoked explanation for the government’s decision to support FOIA is external pressure. A number of observers argue that NATO “demanded” a FOIA through indirect and informal channels (Ristei, 2010; CSO 1, 3). While NATO seems a counterintuitive promoter of freedom of information, it did have some impact on advancing transparency in the Eastern European accession countries, especially with regard to defense budgets (Barany, 2004). Most interviewees, however, attributed to NATO a more general and diffuse impact on motivating the government to send signals about its openness and democratic commitment (Gov. 1; CSO 13). Others highlighted the role of the EU, arguing that that FOIA was part of a soft (informal) acquis (WB, 2012), that the European Parliament (EP) recommended FOIA in its 2001 report and resolution on Romania’s application for membership, and that the EU promised financial aid for supporting FOIA implementation (Ristei, 2010). The EC’s country report for Romania does mention the lack of implementing legislation for the constitutional right to information (EC, 2001: 22). However, both reports (the EP’s and the EC’s) are issued after a FOIA bill was tabled in parliament (July and
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November), and do not explicitly require the adoption of FOIA as a benchmark of progress towards accession.75 The World Bank also recommended ensuring free access to information in its diagnostic of corruption in Romania (Anderson et al., 2001). The government committed to this in the World Bank’s 2001 (May) Country Assistance Strategy (WB, 2001)76, and the World Bank pledged implementation support for access to information (ibid.). However, once again this looks less like a conditionality imposed top-‐down by the WB, and more like a commitment assumed by the government as a reaction to ongoing domestic and international discussions. There was basically no awareness of this agreement in Romania: the WB is one of the few international organizations not named as demanding FOIA in any of the sources consulted (interviews,77 news articles, debates in parliament or academic articles). However, some interviews mentioned other WB initiatives, such as supporting learning and exchanges of experience on FOIA (CSO 10; Gvt 2) or advancing broader public administration reforms targeted at improving policy making (Gvt. 4). Thus, a number of conditionality-‐like elements were present, even though in none of the cases was FOIA an official requirement tied to sanctions for non-‐compliance. Rather, almost all sources agree that the Nastase government was driven by its desire to improve its international image in the context of the desired NATO and EU accession (e.g., CSO 1; 75 These benchmarks are explicitly listed in “Part D” of the EC regular reports on progress towards
accession. The most important ones also issued separately as Council Decisions in the Official Journal of the European Communities. There are three such decisions (1999, 2002, 2003). They have a paragraph titled “Conditionality”. The 1999 partnership does not mention FOIA or access to information. 76 “Establishment of a regime of openness with free access to state information, without excessive penalties for disclosing vaguely defined state secrets” (WB, 2001: Annex B9, p. 11) 77 Only one interviewee (CSO 11) mentioned the WB’s PSAL’s in connection to the adoption of FOIA,
but only in passing and not as a central driving force.
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Mungiu-‐Pipppidi, 2001). Given that FOIA was “in fashion” at that point in time – witness the diversity of IOs and international NGOs (INGOs) involved directly or indirectly in its promotion – it was a good way to signal the government’s commitment to democracy. Indeed, subsequent IO country reports for Romania praised the adoption of FOIA (EC, 2001; WB 2006). Given its domestic and international popularity, FOIA sparked a credit claiming competition between the government and the opposition. The result was two FOIA bills considered simultaneously in parliament. CSOs helped mediate between the government and the opposition and participated in the drafting a joint government–opposition bill (Mungiu-‐ Pippidi, 2001). Among other contributions, they raised public awareness, brought in expertise, for example by translating the Slovak FOIA, and lobbied for specific provisions (ibid.). CSO contributions led to improved response time for journalists, requirements that agencies have specialized FOIA offices, and administrative complaints mechanisms (ibid). The cooperation between government, civil society and opposition was widely praised as a first successful collaboration in the development of a law (EC, 2002; WB, 2004; Musca, 2001, April 18; Ristei, 2010; Gvt 1; CSO 1). The final FOI bill was defended together on the floor of the CD by the Minister of Public Information and the opposition MP. During the parliamentary debates, all parties expressed their support for the law and there were only minor disagreements about formulations, special access rights and other provisions for journalists, and about appropriate sanctions for non-‐compliance78 (CD, 2001a,b). The normative and value-‐based dimension of FOIA as 78 For example, the proposed sanction of prison from 6 months to a year was rejected as too
draconian. MP Musca’s more ambitious suggestions were to bundle the Classified Information and Personal Data Protection laws with FOIA, making FOIA the “framework law”. This did not pass.
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(re)instating a fundamental democratic citizenship right was emphasized throughout the debates. Political parties across the spectrum not only expressed their support for FOIA, but accused each other of having delayed its adoption and undermined transparency and access to information through other legislation (ibid.). FOIA was adopted unanimously. All actors made references to international best-‐practice. For example, the government’s Exposition of Motives made reference to (unspecified) EU legislation, Council of Europe decisions, and similar FOIA laws in France, UK, Finland and Italy. FOIA supporters argued that this is a law that all democratic, “civilized” countries have. The discourse of the oppositional MP who introduced the bill is telling of the international influence, the normative valence, as well as the contribution of civil society, government and opposition to the development of the FOIA: I want to thank all colleagues, because this is an important moment for Romania. It is a law that ‘certifies’ that Romania is a democratic country, a transparency law that should have been adopted a long time ago, if we really want to enter the civilized world. I was requested by the European Union, by NATO, and it is requested by the democratic essence of a country. I want to thank profoundly those who helped [in the development of the law], and especially the NGOs, namely APADOR-‐CH, SAR, CJI, who also offered international expertise for this project. I want to thank the press, because they helped us reach the best formulations. I thank Minister Vasile Dancu because (1) he developed a legislation draft in a short amount of time, (2) it was a good draft, (3) even though there were many hindrances and I was held back until we started to discuss both legislative proposals, I recognize that, on the last 100 meters, we collaborated very well. [….]. I thank everybody a lot and am very satisfied with this legislative project, worthy of any other democratic country on this planet” (Musca, 2001 April 18). The project takes into account all recommendations and resolutions of the Council of Europe, all of which insist on protecting access to public information. These are: the European Human Rights Convention, the Charter of Fundamental Right of the EU adopted in 2000, which, through article 11, states clearly: “Freedom of information and expression are guaranteed on the basis of pluralism and” – attention – “transparency of public institutions”. […] Additionally, the law does nothing else but put into practice article 31 and 30 of the Romanian Constitution. It is also very important that this bill becomes law as fast as possible because the European Union is sponsoring an international nongovernmental project that aims to support the implementation, at the highest standards, of these 179
bills regarding free access to public interest information. (Musca2001, April 24) Strength of FOIA While there seems to be a consensus among Romanian interviewees that the law was a strong one, the Romanian FOIA does not rank high in international comparison. For example, it scores only 86 out of 150 points, ranking 45 out of 93 countries, in the “Global Right to Information Rating” produced by the Center for Law and democracy and Access Info, making it a moderately weak law.79 Table 6.2 below presents the detailed scores for Romania’s FOIA according to this rating.
TOTAL
Promotio nal measures
Sanctions and Protectio ns
Appeals
Exceptio ns and Refusals
Requesti ng Procedur es
Scope
Right of Access
Table 6.2. Romania’s FOIA in international comparison (RTI)
Romania
5
29
18
13
6
6
9
86
Average score of previous adopters
3
22
17
15
14
2
6
79
Maximum score of previous adopters
6
30
24
27
24
7
14
115
Maximum score possible
6
30
30
30
30
8
16
150
Source: Author’s calculations based on http://www.rti-‐rating.org/country_data.php
It should be noted that in other rankings, Romania’s FOIA performs substantially better. For example, if the aggregated score of the World Bank’s Public Accountability Mechanisms (PAM) – Right to Information Rating80 is used, Romania’s FOIA ranks fifth in strength out of 77 countries with some right-‐to-‐information regime included in the database (see also 79 See also Michener’s 2011 characterization of Bulgaria’s FOIA as ‘“moderately weak.” The Bulgarian FOIA ranks higher than Romania’s in the same rating scale, but lower on the WB’s scale. 80 https://agidata.org/Site/DataQuery.aspx.
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Table A.5 in Annex 2).81 The difference between the two rankings is due both to the different samples (WB-‐PAM does not include all countries with a FOIA) and to the difference in scoring criteria, which make them hard to compare. For example, WB-‐PAM does not assign value to legally mandated promotional measures (on which the Romanian FOIA is not very strong), but does assign value to short deadlines for the release of information (on which Romania’s FOIA does very well). However, both indices, along with other assessments (e.g., GRECO, 2005) agree that the Romanian FOIA lacks strong oversight and enforcement provisions. One of the main weaknesses is that Romania’s FOIA does not have an Information Commissioner or an independent agency dedicated to enforcing and monitoring the law. Such an agency was not proposed in part because the MoPI82 saw monitoring the law as its own responsibility, in part because civil society feared political cooptation of such an agency and saw the Ombudsman, which at that time had a good reputation, as sufficient for protecting citizens’ right to information (CSO 1). However, as the Ombudsman’s head was replaced with less active and independent leaders, the agency lost its effectiveness. Over time, the MoPI was downgraded first to a government agency (Agency for Government Strategies-‐ASG, in 2003), and then to a department within the General Secretariat of the Government in 2009 (Department for Government Strategies – DSG83) (WB, 2012), losing 81 To compare countries, I aggregated the scores across individual indicators, weighing each indicator
equally. This is not necessarily a very rigorous assessment, since the aggregation should be done on clear and theoretically well-‐grounded criteria for weighing the component indicators. However, the rating is used here for illustrative purposes, rather than precise measurement, so this method of aggregation is considered appropriate. 82 MoPI, set up in 2001, used to be in charge of the development and communication of a unified government message, including through establishing what government documents are to be published and distributed. 83 http://www.publicinfo.ro/pagini/agentia-‐pentru-‐strategii-‐guvernamentale.php. [link not working
anymore as of October 18, 2013]
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clout and resources. Furthermore, the MoPI and its successor agencies were not in charge of enforcing FOIA. Those who wanted to challenge an agency’s refusal to disclose information had to either lodge an administrative complaint or sue the agency in a court (IPP, 2008b). 84 This explains why the appeals procedure receives such a low score in Table 6.2 above. Another substantial limitation stems from the general exemption of classified information – without specifying what kind of information is classified and if and how to weigh the possible negative consequences against the public benefit of disclosure (i.e., it has no “public interest override clause”). FOIA does not require agencies to periodically review which information needs to be classified and which can be de-‐classified (APADOR-‐CH, 2002). Agencies do not have to publish a list of classified information, which makes the independent judgment or even contestation of the classification of certain information difficult (i.e., an agency can hide information without anybody knowing that it has done so) (ibid.). This results in a circular logic: all information is public, except that which is classified, but it is not clear what is classified and why, and citizens have no way to find out. FOIA also does not have legal priority over other laws that could restrict access to information (i.e., it is not a “framework law”) (APADOR-‐CH, 2002). There are a number of laws that limit what kind of information can be disclosed (ibid).85 Chief among them is the Classified Information law (FH, 2005b), which was passed only shortly after FOIA, and which basically lets public officials arbitrarily decide what constitutes classified information (FH, 2003), by introducing the internationally uncommon notion of ”secrets of service” (or 84 Given conflicting statutes of limitations, choosing one option essentially rules out the other (IPP, 2008b: 22) 85 National Archives Law (L16/1996), Classified Information Law (L 182/2002), National Security Law and related laws (L 51/1991, L 14/1992, L 7/1997), Personal Data Protection Laws (L 682/2001, L 677/2001, L 676/2001), parliamentary rules that restrict access to information, laws affecting the protection of journalistic sources (L 78/2000), the Criminal and Civil Codes, etc.
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”business secrets”) (CSO 4). Furthermore, judicial review of whether the information is properly classified can only be done by judges who have been cleared by the Secret Services (i.e., have receivded the ORNISS certifticate). Only few judges have this certificate, especially outside Bucharest, and their independence from the Secret Services is sometimes questioned (CSO 4). The result is that the legislative framework allows the arbitrary classification of information for an unlimited amount of time, without a reliable option of judicial or other independent review. The overall conclusion is that the Romanian FOIA does well on some measures, but not on others, and the strength of the law is best characterized as “medium.” In particular, the Romanian FOIA has weaknesses related to its oversight and enforcement mechanisms. While, theoretically, the Romanian FOIA has broad coverage, the lack of a public interest and harms test to determine whether information should be classified or not, as well as the limitations imposed by connected legislation, mean that it is fairly easy for public authorities to classify information and thus exempt it from FOIA. FOIA Implementation FOIA mandates that agencies have to prepare an annual FOIA report.86 Between 2003 and 2008, these reports were centralized by MoPI/ASG, which produced an annual report on FOIA implementation (in the later years, it also included data on OML implementation). The 86 The methodological or implementation norms, adopted in January 2002, require information on the number of FOIA requests by type of request, topic, number of requests granted and rejected (by reason for rejection), mode of request (verbal, paper or electronic), type of requester (individual or organization), number of administrative complaints solved for or against the institution, number of law suits (favorable, unfavorable, on the roll), total costs for the information and PR office, total sums received as copy fees, and estimated number of visitors of the information – documentation point. (see http://cetatenie.just.ro/wp-‐content/uploads/Norme-‐metodologice-‐de-‐aplicare-‐a-‐Legii-‐ 54420011.pdf)
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centralized report was discontinued in 2009, and resuscitated only once, in 2011, in response to an NGO request.87 The last report concludes that there has been substantial and sufficient progress on FOIA implementation and compliance among public agencies, which makes centralized reporting unnecessary (SGG-‐DSG, 2011). Referencing international best practices and recommendations,88 the report suggests to re-‐orient Romanian transparency policies towards proactive disclosure, and set up a dedicated Information Commissioner or Information Ombudsman (Ibid.). Currently, the government website dedicated to FOIA and OML, and transparency more general, has been taken down. In 2002, soon after FOIA adoption, both the MoPI and a number of NGOs carried out campaigns to raise awareness, train civil servants, NGOs and journalists, and monitor FOIA implementation (Gvt 1, 2; CSO 1, 2, 8). The MoPI/ASG received funding for promoting FOIA from the regular government budget, but the bulk of support, especially for CSOs, came from international actors. These funds were part of larger programs to support the development of civil society and/or fight corruption in Romania – mostly the EU’s PHARE program, but also programs from USAID (through World Learning and IRIS), OSI, or the Trust for Civil Society in CEE. Thus, CSOs have been very active in producing citizen guides, raising awareness about the law, and especially in monitoring compliance and pressing for implementation of FOIA, including through systematically suing public agencies in cases of noncompliance.
87 The reports used to be found at www.publicinfo.gov.ro or www.publicinfo.ro. As of October 17, 2013 the sites had been taken down, due to a hacking attack. 88 US practices, recommendations from the European Parliament and Commission, the Council of
Europe, the OECD, and the World Bank Institute.
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Use of FOIA These efforts at awareness-‐raising paid off in terms of public demand. The number of FOIA requests almost doubled between 2002 and 2003, from ca. 335.000 to 662.000, peaking in 2004 with a total of 815 528 requests (see Figure 6.2 below). However, the numbers can be misleading, as public agencies, in an “excess of zeal” (SGG-‐DSG, 2011: 6), tend to register all the requests received from citizens as FOIA requests, including petitions. According to ASG/DSG, this explains the substantial but temporary drop in 2006, when public agencies # did not $%&'&()*+)! ,- %+&! a+'+.%*-/&.+! 0+#1)&'2! ,+/%*$! ,*&1&*+)! *&'-*! &! of training report petitions s information requests anymore, as a3-'&.&% consequence 4&5$()*+)! &/5-*1) &&'-*! 3-'&.&%)%+! 6/*+7&3%*+)( ! 4-)*! -! 1+4&+! 4+! 89! 4&/! (ASG, 2007). This practice seems to have returned in 2007. However, even conservative %-%)'$'!3-'&.&% *&'-*:!
lace ')! Romania among countries with the highest FOIA request rates world-‐ # estimates )5& p)*+)! 3+4&$'! &/3%&%$ &+&!t*he 1;/+! 1-4)'&%)%+)! ,*+4&'+.% ! 4+! &/5-*1)*+! ,$+
The vast majority of requests come from private individuals89 (“physical” as opposed to “juridical” persons – around 70%), and the percentage is even higher at the local level. In a survey carried out by IPP in 2009, 68% of those surveyed had ever requested information from a public institution (IPP, 2009: 27), but only 39% of those surveyed knew about FOIA, and only 18% ever used it -‐ which amounts to 45% of those who know it (IPP, 2009: 37). Thus, the data indicates that there is more public (citizen) demand for FOIA than most observers assume. Nevertheless, most interviewees saw low public demand for FOIA (or OML) implementation (e.g., CSO 1, 2, 4, 10). They attributed this to popular apathy and lack of political participation and mobilization. Citizens use FOIA most often for private rather than public interest purposes, i.e., to obtain personally relevant information, rather than for the broader purpose of holding government to account. Both official data and CSO surveys show that FOIA is most often used to request information about taxes, fees, laws and regulation, and only rarely used to obtain data about public spending, procurement, or the way in which FOIA itself is being implemented.90 Yet, citizens’ (professed) interest in public spending is much higher than use of FOIA to obtain such information (IPP, 2009: 49% vs. 8%). This discrepancy could indicate a gap between interest and action on holding the government to account. 89 Although in some cases, employees of organizations can place the requests in their own name
rather than in the name of their organization. An additional problem is that it is not clear whether journalists are counted as individuals or as representatives of organizations. 90 For example, in the IPP (2009) survey, the most often demanded information was about taxes and fees (64%); laws, regulations and decisions (37%); public spending (8%); procurement (5%). Official figures reflect somewhat similar patterns of use: the majority of requests were for laws and regulations (20–45%), the way the public authority fulfills it functions (16-‐20%), the use of public money (8–10%), the way FOIA itself is applied (2-‐4 – which probably reflects CSO monitoring of FOIA), activities of the leaders of public institutions (2-‐6) and other information requests that are specific to the nature of the institution (25-‐30) (ASG, 2003-‐2009). However, according to IPP (2009), the information citizens were most interested in was taxes and fees (50%), public spending (49%), laws, regulations and decisions (34%), procurement (5%).
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The use of FOIA primarily for private purposes could also explain why NGO representatives perceive public or citizen demand for FOIA to be low. However, this dominance of private interests in the use of FOIA is by no means unusual. Rather, it represents a normal use of FOIA by citizens for claiming their individual rights and entitlements vis-‐à-‐vis the government. It could also represent a weakness of pro-‐active information disclosure and general difficulty to access relevant government information. Besides the general public, NGOs/CSOs have been the most assiduous category of users. NGOs have systematically used FOIA as part of their other lobby and advocacy activities, to gain access to government data and decision-‐making (CSO 3). For example, FOIA requests have been used to assess the implementation of the asset and interest disclosure requirements (CRJ, 2009b), the activity of ethics councilors in public institutions (CRJ, 2009b), compliance with the law on people with disabilities (APADOR-‐CH & MOTIVATION, 2009), procurement practices (CRJI & IPP, 2009; SAR, 2009; IPP, 2012a) and use of European funds (AMP 2008, 2009, and 2010). In a 2009 survey of NGO leaders, 31,7% had used FOIA in their work (FDSC, 2010: 111). NGOs continue to use FOIA and OML for their engagement with governments on a variety of topics, even though external funds specifically for monitoring and advocacy activity surrounding FOIA and OML have decreased in recent years (see also FDSC, 2010 for the more general decline in support for good-‐ governance NGOs). According to some interviewees, the media has learned the value of FOIA and uses it to demand information from the government, including sensitive information (e.g., CSO 1; Gvt 1). In 2008, 60% of surveyed journalists used FOIA often in their work, and 29.4% used it sometimes (CJI & IPP, 2009: 38) -‐ despite the fact that public authorities didn’t always comply with FOIA’s special provisions for journalists. The media did report on government
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compliance with FOIA or lack thereof, both at the national and at the local level (EZ, 2002, Sept 16; EZ, 2002, Nov 2; EZ, 2007, Apr 27; EZ, 2003, Jan 15), mostly based on NGO reports. It also covered some high-‐profile FOIA cases, such as one surrounding secret surveillance warrants (EZ, 2003, Jun 30). However, as Figure 6.3 below illustrates, media coverage of FOIA – if not necessarily its use -‐ seems to have substantially declined after a peak in 2007, the last year of legislative activity on FOIA. Figure 6-‐3. News coverage of FOIA (EZ)
EVZ -‐ FOIA-‐related articles 7 6 5 4 3 2 1 0 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Source: Author [articles referencing FOIA resulting from a search for the word “transparency” in the online archive of www.evz.ro]
Finally, interviewees considered that the private sector does not significantly use FOIA (CSO 1; see also WB, 2012). One interviewee put it bluntly: “the private sector hasn’t heard about FOIA and doesn’t care about it” (CSO 1). He attributed this to private sector access to other sources of information, lack of trust in official reports, or lack of understanding of the benefits of FOIA (ibid.). Nevertheless, CJI & IPP (2009: 4) find that as many as 27% of FOIA requests at the local level were placed by companies.91 Government statistics also suggest that, between 2005 and 2008, 29% -‐35% FOIA requests were placed by organizations
91 Compared to 57% by citizens and only 2% by NGOs.
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rather than individuals (ASG, 2009).92 Given the weak representation of the NGO sector outside the capital city, it is highly likely that most of these requests come from private sector organizations. This suggests that private sector companies do use FOIA to a certain degree. The reason for the low visibility, as well as the nature and the patterns of FOIA use by the private sector, require further investigation that goes beyond the scope of this dissertation. FOIA Compliance According to official figures, FOIA compliance is very high in Romania. Only a surprisingly small number of requests has been denied by public authorities, oscillating between a low of 1.5 % in 2004 and a high of 3.1% in 2007 (ASG, 2009) (see Figure 6.4 below).
Dinamica implement rii 2003-2008 Figure 6-‐4. FOIA rejection rate Dinamica solicit rilor respinse 21,567
17,798 12,389
15,078 12,644
7,137
3%
1,5%
2%
2003
2004
2005
1,7%
3,1%
2006
2007
2,3%
2008
Source: ASG (2009: slide 14), red line = number of requests rejected by public agencies, blue line = % of requests rejected by public agencies. SGG-‐DSG (2010) says that rejection rate for the last seven years solicit had been “around tîn wo percent”, but does not give exact figure for that year. din Num rul Num rulde de solicit ririrespinse respinse înultimii ultimii ase aseani anise semen menine ineînînjurul jurulaadou dou procente procente din
totalul totalulsolicit solicit rilor rilor(aproximativ (aproximativ2,3% 2,3%înîn2008). 2008).
92 However, at the local level, the percentage reported by CJI & IPP (2009) differs substantially from
the ASG (2009) data, where 83% of requests at the local level were lodged by citizens, and only 17% by organizations (at the central level, the figures are 68% citizens, 32% organizations).
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However, monitoring reports of NGOs on FOIA implementation paint a different picture, which casts doubt on the official compliance rate reported by ASG. Successive NGO monitoring reports have documented instances of sometimes blatant93 non-‐compliance, such as: requiring justification or ”proof of legitimate interest” for the FOIA request (in 70% of the cases in 2004 -‐ APD & IRIS, 2004), charging excessive fees (CRJI & IPP, 2009), or giving sometimes sarcastic and even insulting answers (CJI & IPP, 2009). Furthermore, compliance seems to differ, depending on the requestor. Interviewees indicated that public authorities are more likely to provide information to “known” NGOs rather than “common citizens,” especially if the requesting NGO is known to have the financial capacity and track record in suing the government in case of non-‐compliance (CSO 3). Studies seem to confirm this claim, with NGOs receiving complete answers for 83% of requests, whereas citizens received complete answers only in 70% of cases (APD & TI, 2007: 100). Compliance also differs by type of request – complex requests or requests for sensitive information have a lower compliance rate. Disclosure for sensitive issues is often avoided through measures such as outright denial of access,94 release of incomplete information, or arbitrary classification. A substantial number of FOIA refusals and court cases seems to have revolved around information requests about procurement or privatization contracts. These were often rejected citing protection of commercial or private information and/or clauses of confidentiality included in the contracts (IPP, 2012). CRJI and IPP (2009) find that compliance with FOIA requests is lower in the area of procurement than for 93 For example, the mayor of a midsize city refused to answer a FOIA request on the grounds that his office is not a public institution (APD & IRIS, 2004); and another one refused to supply the job description for the civil society liaison person because it represents “personal data” (APD & TI, 2007b). 94 For example, the EU audit of one of the structural programs in Romania (POSDRU) could not be
obtained via FOIA (there is no reason to classify the report and no reason has been given by the Ministry of Labor), only via a whistleblower (Popescu & Pop, 2012).
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general requests. FOIA requests regarding the use of public money have been those most often rejected or unanswered by public agencies -‐ 32,6% of FOIA requests on this topic were rejected in 2008 (ASG, 2009). Excessive secrecy and refusal to disclose information from privatization or procurement contracts has been a recurring FOIA-‐related topic in the press and among NGO litigation activities (SAR, 2009). Even for less sensitive questions, compliance can vary greatly, depending on the disposition of the public official in charge. Worrying anecdotes exist, such as a case in 2009, when the Ministry of Justice refused to communicate the name of its ethics councilor, on the grounds that it represented personal data (CRJ, 2009b: 24). However, going beyond anecdotes and perceptions, the data on compliance gathered by CSOs is also fairly positive, albeit less so than official data. One problem is that the different studies have different data collection methodologies, units of analysis, samples, etc., which make it difficult to accurately compare them against each other.95 However, the data taken together indicates that (i) compliance rates were quite high, even though not as high as official reports, and probably lower for sensitive requests, and (ii) there has been an improvement in compliance after adoption, at least until 2008, which is the last year for which data from both official sources and NGOs is available. Relatively high compliance as compared to other counties is also borne out by a 2006 study of the Open Society Justice Initiative (OSJI), which finds that Romania is one of
95 Especially when they vary substantially. For example, data for FOIA compliance at the local level:
APD & TI (2007: 100) 49,7%; IPP (2008: own calculation based on p. 24 and 28) 63%; CJI & IPP (2009: 16) 90%. There is no way to tell whether these different numbers are due to sampling or other errors, or due to variations between the years.
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the best performers among fourteen countries studied.96 Table 6.3 below summarizes the findings of the only two NGO studies that use the same methodology. Table 6.3. FOIA compliance: 2003 vs. 2006
Average no of days for response
Compliance rate (% of requests answered positively)
Year
2003
2006
2003
2006/7
Requests for yearly FOIA report
11,9
7,8
58,4%
74.90%
Various FOIA requests
Na
Na
69.6%
77.3%
Various FOIA requests – overall complete answers
Na
Na
42%
76,8%
Various FOIA requests – central authorities
12,3
8,4
73,2%
90,5%
Source: APD & TI (2007: 84)
Interviews confirm the upward trend in FOIA compliance in the first five years after adoption, peaking around 2004 (CSO 1) or in the period 2004-‐2006 (CSO 4). But many see a decline after that, attributing this to the general decline in government transparency and the decline of external funds for CSOs (see respective sections). Other sources seem to confirm this trend. For example, the Global Integrity Index (GII) country reports for Romania also indicate that public access to information has decreased after 2006/7 (see Table 6.4 below). However, since GII scores are based on assessments of Romanian experts from CSOs (like the majority of interviews), a similar perception bias might apply to both sources. Additionally, since the GII in-‐country experts assigning the scores can differ from one year to the other, it is possible that the change in ratings reflects a change in respondents rather a change in the underlying reality.
96 Countries included: Argentina, Armenia, Bulgaria, Chile, France, Ghana, Kenya, Macedonia, Mexico,
Nigeria, Peru, Romania, South Africa, and Spain. Romania had the highest compliance rate (at 57% -‐ p. 74), and also the highest consistency of response between different types of requesters (p. 59).
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Table 6.4. Evolution of public access to information in practice (GII)
2006
2007
2008
2010
Is the right of access to information effective?
80
70
50
50
In practice, citizens receive responses to access to information requests within a reasonable time period.
75
75
50
50
In practice, citizens can use the access to information mechanism at a reasonable cost.
100
100
75
75
In practice, responses to information requests are of high quality.
na
na
na
50
In practice, citizens can resolve appeals to access to information requests within a reasonable time period.
75
50
25
25
In practice, citizens can resolve appeals to information requests at a reasonable cost.
75
50
50
50
In practice, the government gives reasons for denying an information request.
75
75
50
50
Source: Author based on data from the Global Integrity Index www.globalintegrity.org; 0 = lowest score (“never”), 100 = highest possible score (“always”).
Other data for 2007-‐2009 seems to show more an uneven degree of compliance, rather than a systematic decline. For example, in 2008, municipalities (larger cities) had a response rate of 83% to FOIA requests placed by an NGO (IPP, 2008a: 24-‐2597). A citizen survey conducted in 2009 found a response rate of 85% (IPP, 2009). Although not all of the information requests were based on FOIA, such a response rate is quite high -‐ above the compliance rates typically found by NGOs, but still below the ASG-‐reported compliance rates. Even more encouragingly, in the same survey, the official route for requesting information was ranked higher in effectiveness than “knowing somebody,” “knowing somebody ‘important’,” or offering a bribe: 49% of respondents found it effective, compared to 25%, 22%, and 13% respectively (IPP, 2009: 35). 97 Smaller cities had a lower initial response rate of only 30%. However, even this jumped to 87%
once they were sued for non-‐compliance (IPP, 2008a: 28).
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The lack of data on FOIA compliance after 2010 from any source does, however, reflect decreasing interest in the topic. It is not clear whether this has translated in lower usage and compliance rates. It is most likely that FOIA implementation is subject to opposing tendencies or conflicting pressures. Despite decreasing support for monitoring and enforcement of FOIA, the practice has been institutionalized and routinized to some degree (WB, 2012). As one interviewee explained, in the beginning there was confusion, fear and resistance to FOIA. The first time he placed an information request he had to wait in front of the building for 15 minutes, as the local official didn’t believe such a law existed and had to look it up and check with their supervisors (CSO 10). However, as of 2011, “they have gotten used to it” and the laws had been institutionalized (ibid.). Thus, initial investment in training and awareness-‐raising paid off in terms of both use of FOIA and compliance. In addition, especially in the early years, a number of NGOs98 engaged in strategic litigation for FOIA, further raising its profile and creating precedents for information disclosure (WB, 2012). For example, one of the most high-‐profile cases was the request of APADOR-‐CH for information about the number of phone-‐tapping warrants requested, approved, and resulting in prosecution (EZ, 2003, June 30).99 Both the Secret 98 Mainly APADOR-‐CH, IPP, and SAR. For example, between 2002 and 2005 APADOR-‐CH documented
18 cases in which individuals or NGOs sued government agencies for rejecting FOIA requests: http://www.apador.org/acc_cases.php?tip=8&order=date%20desc#acaz16. IPP requested information from Romania’s 15 Courts of Appeal as well as from the Supreme Council of the Magistracy about FOIA cases on the roll during 2009 and 2010. Based on this, it compiled a website (http://www.ipp.ro/jurisprudenta544/) with judicial decisions on 851 FOIA cases initiated between 2005 and 2011 by citizens and NGOs. 99 Specifically, APADOR-‐CH asked the SRI on information about: requests for secret surveillance measures against members of political parties, civic associations and journalists filed with General Prosecutor Office (GPO); warrants granted and extensions; total duration of surveillance in each case; commercial companies set up or taken over, their revenues and expenditures. From the GPO it requested the number of: requests for secret surveillance measures filed with GPO between 1990 and 2002 on grounds of national security and criminal investigation; warrants granted and extensions; [number of] persons subject to secret surveillance; persons prosecuted; final convictions; persons notified of being under secret surveillance after expiration of warrant; complaints against
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Service (Serviciul Roman de Informatii – SRI) and the General Prosecutor’s Office (GPO) refused to answer, arguing that the information was classified. The courts sided with SRI, arguing that, based on the Law on Classified Information, all information on SRI activities is classified,100 but ordered the GPO to release the information.101 Even after the court verdict, the GPO provided only a partial response, with a delay of more than 200 days. Nevertheless, the second time APADOR-‐CH filed a similar FOIA request, the GPO complied in due time. This represented a significant breakthrough, as it was the first time that information on secret surveillance of citizens was made public by Romanian authorities. However, overall, the data, analysis and the interviews about FOIA enforcement through the courts paint a mixed picture.102 Some CSO interviewees said that they won almost all FOIA-‐related lawsuits (CSO 3), whereas others said they lost many (CSO 4), and others painted a mixed picture. However, even the most positive NGO assessment of judicial enforcement of FOIA saw the most frequent losses in high-‐profile, sensitive, cases. An analysis of 851 FOIA cases initiated between 2005 and 2011 by citizens and NGOs found that only about 34% of FOIA cases were accepted/adjudicated in favor of information requesters in the first instance, and 29% obtained a favorable decision at the Courts of
secret surveillance activities/warrants; number of those found legitimate; and longest duration of an authorized surveillance. 100 The Court rejected APADOR-‐CH’s argument that SRI needs to prove that the release of information
harms national security, and that the Law on Classified Information forbids classification of information that covers up law-‐breaking activities (meaning that information revealing possible unlawful surveillance cannot be classified). This highlighted the limits of FOIA imposed by the Law on Classified Information, the law governing the SRI. APADOR-‐CH continued its advocacy to align these laws with the FOIA, so far without success. 101 On the grounds that the information requested could not be classified as it represents aggregated statistical data and its release does not endanger national security. 102 Some authors (WB, 2012) argue that the judiciary and judicial enforcement have been at the
forefront of improving FOIA implementation.
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Appeal103 (IPP, 2011). ASG data also shows a somewhat erratic evolution of jurisprudence, only 2004 and 2007 being favorable years for information requesters. In contrast, administrative appeals have been resolved in favor of information requesters a majority of time in each year for which there is data, oscillating between a low of 45% in 2008 and a high of 92% in 2004 (ASG, 2009). The data for 2002-‐2005 indicates that most information requesters prefer the route of administrative appeals over judicial complaints in the case of non-‐compliance (ASG, 2007). This is understandable, given the significantly slower, more expensive and more cumbersome process of judicial as opposed to administrative procedures. However, survey results show that, in general, most requesters do not take follow-‐up action in the case of a refusal: 50% didn’t take or don’t intend to take any action in the case of a refusal or incomplete answer to an information (not necessarily FOIA) request, while only 17% placed a new request, 16% lodged a written complaint, and only 5% sued the institution (IPP, 2009). On the other hand, in addition to decreasing resources due to the financial crisis and dwindling donor interest, FOIA compliance could have been weakened by the fact that many of the public employees originally trained in FOIA implementation have left their positions or the public administration all together. This is in part due to the generally high employee turnover in the public sector, given high politicization and the lack of career opportunities (see also Ch. 5.2.). Furthermore, qualified personnel tends to leave information officer 103 The study also found that FOIA cases last 7.4 months on average, but some cases lasted over 4 years. Mayor’s offices/ municipalities are by far the most often sued public institutions based on FOIA. The Ministry of Foreign Affairs (MoFA) has also been the target of a substantial number of FOIA requests, many of them from immigrants from the Republic of Moldova. This illustrates an unexpected use of FOIA by foreign citizens to strengthen their case when seeking Romanian citizenship. FOIA cases are also regionally concentrated – a relative majority of cases is judged in Bucharest, the capital (30%), followed by two other southern Romanian Appeal Courts (Ploieşti and Craiova).
196
positions fast or to accumulate other functions or responsibilities (ASG, 2007), given both the low resources and the low prestige attached to this position within the public administration. Finally, there is still insufficient knowledge about the law and limited capacity for its implementation– including due to the weakness of public records and information management system –, particularly at the local level (ibid.; CSO 2, 7; WB 2012). In conclusion, a combination of civil society activism, most of it with foreign funding and support, judicial enforcement (albeit uneven), initial bureaucratic activism (from MoPI/ASG), and press interest in the more “juicy” FOIA non-‐compliance stories has promoted better implementation and compliance with FOIA over time. While both support for and attention to FOIA has declined recently, the initial investment has resulted in some institutionalization and routinization of FOIA, both on the demand and on the supply side. At least to some degree, this routinization counteracts the still limited capacities for FOIA enforcement and implementation in the public sector. Legislative Evolution As discussed in the previous section, while overall compliance with FOIA has been fairly high, there were still significant problems with regard to information deemed sensitive, such as procurement or privatization contracts. In part, this was because FOIA had some loopholes and left some issues open to interpretation. For example, some autonomous public companies that had been transformed into commercial (private law) companies considered themselves exempted from the law, even though they were still majority owned by the state and most of their funding came from public money (APD & IRIS, 2004). Another hurdle was the widespread inclusion of unnecessary confidentiality clauses in procurement contracts (EZ, 2005, Nov 10). This, despite a court ruling that confidentiality clauses do not supersede the public’s right to know, and that information on how public money is spent is 197
of public interest and thus cannot be protected by confidentiality clauses (APADOR-‐CH vs. Municipality of Bucharest – see APADOR-‐CH, 2006). The need to strengthen FOIA implementation and remove loopholes has appeared in the EC’s country reports explicitly from 2002 to 2004. In 2005, an international review of Romania’s anti-‐corruption policy also recommended to “review, as necessary, the legislation unduly restricting the right of individuals to have access to official documents and to provide appropriate training to public officials on the implementation of the rules on freedom of information” (GRECO, 2005: 22). The same year, a number of NGOs signed a petition criticizing lack of transparency in procurement and privatization, as well as the fact that some national companies consider themselves exempt from the law. They demanded the inclusion of an explicit transparency requirement in the law on public procurement, concessions and public-‐private partnerships, banning confidentiality clauses and requiring automatic publication of contracts upon signature (Adevarul, 2005 Oct 24; SAR et al., 2005). They also demanded greater transparency regarding privatization contracts. In response, the then prime-‐minister (Tariceanu) invited the NGOs to participate in the development of the GEO 34/2006 regarding procurement (SAR, 2009). This resulted in the inclusion of an article in the GEO stating explicitly that procurement files are public documents, among other provisions aiming to guarantee the transparency of the procurement process (SAR, 2009). As a result of external criticism and civil society pressure, FOIA resurfaced on the public and government agenda in late 2005/early 2006, and on the legislative agenda in 2006/2007. Overall, FOIA resurfaced on the legislative agenda of the Chamber of Deputies (CD) eleven
198
times after its adoption (2002-‐2011), peaking in 2006 (see Figure 6.5 below). Most legislative proposals aimed to strenghten FOIA (with one exception in 2011104). Figure 6-‐5. FOIA-‐related bills introduced and adopted in Parliament (2001-‐2011) Source: Author, based on data collected from www.cdep.ro
5 4 3
FOIA bills tabled
2
FOIA bills adopted
1 0
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011
Three FOIA-‐related laws were adopted in 2006-‐2007, all addressing issues raised by civil society: mandating explicitly that FOIA apply to public procurement contracts (Law 380/2006), to companies in which the state owns at least a majority stake (Law 371/2006), and to privatization contracts (albeit not retroactively, as civil society had demanded) (Law 188/2007). One of the interesting features of these three laws was that none of them was initiated by the government, which is comparatively unusual for Romania (see section 4.2). Rather, they were initiated by MPs of the ruling coalition, one of them even in partnership with an opposition party (PRM for 188/2007). Furthermore, despite public pronouncements to the contrary, including from the PM (EZ, 2005, Nov 8), many government-‐aligned MPs did not support the proposal on publicity of procurement contracts, citing the need to protect commercial information (Senate, 2006) and even the
104 Proposed a provision expressly forbidding publicity of criminal files under investigation, as well
as disciplinary sanctions for heads of institutions who reveal non-‐public information. Pl-‐x 479/27.06.2011: http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=11760
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government issued a statement opposing the adoption of the bill on these grounds.105 However, the bills were approved by parliament without much debate, beyond a few critiques of weak FOIA implementation and enforcement. The best-‐known attempt at weakening the FOIA happened in 2007, when the Ministry of the Interior and of Administrative Reform wanted to include FOIA (and OML) into a new Code on Administrative Procedures (EZ, 2007, November 22; APADOR-‐CH, 2007). Civil society successfully opposed it, on the grounds that the laws would lose some of their teeth if re-‐ considered in Parliament, and that citizens and CSOs had just learned to use these two laws (IPP 2008a). The evolution of FOIA indicates that, while the subsequent legislative changes were much less salient or high-‐profile than the initial FOIA adoption, and the consensus was somewhat weaker, FOIA expansion still enjoyed enough general support, even in the face of, admittedly relatively low, government resistance. It should be noted that the problems that the 2006/2007 laws sought to address persisted to some degree even after their adoption. Confidentiality clauses were maintained for a number of controversial contracts, such as electricity sales contracts from the state-‐owned electricity producer Hidroelectrica to private companies (ARC, 2011; Popescu, 2012, July 26) or concessions like Chevron’s oil exploration contracts (Pavelescu, 2012), parts of which were declassified only as the result of pressure from an NGO coalition (ARC)106. Overall, a 2009 SAR report on procurement practices concluded that the provisions regarding the transparency of procurement files are among the least respected requirements of the procurement law. 105 See http://www.cdep.ro/proiecte/2006/300/40/5/pvg345.pdf 106 Both Hidroelectrica and Chevron contracts are not procurement contracts. This is a good example
of how fixing some loopholes (transparency in procurement) shifts corrupt activities towards other loopholes (transparency in public sales and concession contracts).
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Opinions on whether it is possible that FOIA will be weakened in the future differed among interviewees. Some saw a risk of reversal if FOIA is put on the legislative agenda again (CSO 7). Indeed, such suggestions for rolling back FOIA have been made behind closed doors. For example, in the leaked PDSR transcripts of 2004, the Minister of European Integration argued that the FOIA is too permissive and offers too much information too easily to journalists: ‘I think we should reconsider the transparency law and see if we could amend it somehow, because it gives journalists the right to get all over the place, which means transparency for everybody; in 24 hours they can get access to every little file which was not specifically mentioned in the government decision regarding classified information – I believe this law is excessively permissive’ (Pridham, 2007b, p. 541). But other interviewees pointed out that attempts at FOIA reversal would prompt vocal protests from the NGOs and the media, which is not in the interest of any of the parties in parliament (CSO 3). The experience so far seems to confirm the latter statement. Not only has no party dared to roll FOIA back through legislation directly targeting it, but the one attempt to weaken it less visibly, through its inclusion in the Administrative Procedure Code, remained unsuccessful due to civil society pressure. This demonstrates both the potency of FOIA as a valence issue, with no political figure daring to question FOIA openly, and the fact that, despite its weakness, there is sufficient domestic support for FOIA to counteract such an initiative.
6.3
(P)AD
History of Adoption of First Key Legislation Romania’s history with legislation requiring public officials to declare their assets goes as far back as 1932. The 1932 law foresaw a 90% tax on unjustified wealth, but also punishment for whistleblowers if the accusations turned out to be false, and even prison for 201
accusations brought in “bad faith” (EZ, 2008, August 7). During the communist era there was also a law against illicit enrichment (18/1968), which applied to the entire population rather than just public officials and required investigations to be started about a person’s wealth if there seemed to be a substantial difference between the person’s income and their assets (CRJ&IPP, 2006; Jorge, 2007). In the communist context, its purpose was to control people and encourage them to “turn each other in” (CSO 4). Already in 1993, the Government issued a decision requiring civil servants working for the executive to prepare asset declarations and submit them to the agency employing them.107 The same year, Parliament set up a commission to identify sources of corruption and suggest ways to address it (CRJ & IPP, 2006). Based on the Commission’s report, Parliament asked the government to develop anti-‐corruption legislation, including one on asset declarations (ibid.). Thus, a law requiring public officials to prepare (nonpublic) asset declarations was adopted already in 1996, under the second FDSN/PDSR government (Law 115/1996108), building to a large degree on the communist-‐era law mentioned above (CSO 4). There is not much documentation to be found about the 1996 law,109 its supporters and opponents, their motivations, arguments, etc. From what is available, it looks like even at that point in time, political parties did not dare to openly question the goal of fighting corruption, but doubted the constitutionality of the law. As the law included provisions for confiscation of “unjustified” assets, the argument was that it does not respect the presumption of innocence, i.e., the assumption that all assets have been obtained legally 107 H.G. nr.473/1993 about the declaration of wealth by civil servants [public functionaries] in the
executive branch. 108 “The 1996 Act on the Obligation of Public Officials to Declare their Personal Wealth and the Procedure for Controlling Wealth Obtained through Illicit Means” (OSI, 2002). 109 For example, there is no documentation at all on the CD site, this transcript
http://www.cdep.ro/pls/steno/steno.stenograma?ids=582&idm=3&idl=1, was found only through CRJ/IPP (2006).
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unless proven otherwise, which is a Romanian constitutional principle. Given that the law was adopted shortly before elections, it is possible that the government was trying to send a signal about its intention to fight corruption. However, the 1996 law was very weak overall (Jorge, 2007; OSI, 2002). Not only were the declarations not public – they were explicitly protected by a confidentiality clause (alin. 2, art. 5) and their disclosure was punishable by 6 months to 3 years in prison (art 37). Public officials had to submit the declarations to their hierarchical superiors or to institutional control bodies,110 and update them only upon leaving office (art. 6). There was no system for routinely monitoring asset declarations (Jorge, 2007). The law allowed for Asset Investigation Commissions (AICs) to be set up at each Appeal Court, consisting of two judges and a prosecutor. But these could only verify the asset declarations at the request of the prosecutor, the head of the agency, or the public official himself (art 8). Citizens could notify the prosecutor or the agency head, but only if they had „clear evidence” that the assets could not have been obtained through licit/legal means (ibid.; OSI, 2002). Investigations could only be started if the differences between the assets owned at the beginning and at the end of the mandate were “evident” and it was “clear” that goods could not have been obtained legally. The commissions had to decide, within three months, whether to reject the case, send it to the Court of Appeal or transfer it to the Public Prosecutor’s Office.
110 “Civil servants submit their declarations to the public authority that employs them, whereas local
elected officials (together with the mayor) make their statements to the prefect. […] Senior officials submit declarations to the Prime Minister, MPs to the President of their respective Chamber of Parliament, the Prime Minister and the Presidents of the two Chambers of Parliament to the President of Romania, the President to the Head of the Constitutional Court, judges to the Minister of Justice and prosecutors to the Prosecutor-‐General.” (OSI, 2002: 474-‐475)
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For high-‐level officials (President, PM, MPs, Minsters) the commission would have to be set up at the High Court of Cassation and Justice,111 and could only initiate investigations at the request of the Minister of Justice or of the General Prosecutor (GP). Citizens could not notify the GP or the MoJ.112 Furthermore, for whistleblowers, “lying” about the illicit character of the assets was punishable by 6 months to 3 years in prison, and “producing false evidence” with one to 5 years in prison (art. 35) (see also OSI, 2002 for a discussion of the law). Thus, if the commissions did not confirm that the assets were obtained illegally, whistleblowers could face prison sentences. Officials whose wealth was declared totally or partially unjustified by the court were to be punished through removal from office, while Members of Parliament were to lose their mandate. Officials who filed incomplete or false declarations could be punished by imprisonment from three months to two years or a fine (OSI, 2002). Proposals to make asset declarations public surfaced in 1998/99 (Adevarul, 2002, Sept 26; EZ, 2003 February 11) from members of the PDSR (at that time in opposition), including from the former and future president, Iliescu and the future Justice Minister, Stanoiu. The idea of making asset declarations public was picked up in the 2001 AC Strategy (OSI, 2002). The first bills amending the 1996 law to make asset declarations public were introduced in Parliament in 2002, both by two different opposition parties113 and by the government.114 The opposition’s drafts had stronger disclosure and sanctions requirements. The Senate adopted the government’s version, but the bill got stuck in the CD for seven months. The
111 Highest court of appeals in Romania, also called Supreme Court of Justice sometimes. 112 Chapter 3. Special Provisions 113 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=3177, http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=2928 . Interestingly, while the PDL (right-‐wing) references practices from other developed countries, the PRM (nationalistic party) recounts the history of similar proposals in Romania, going as back as 1919. 114 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=3491
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strongest opposition to the government’s proposal came from its own party (the PDSR/PSD) and its coalition partner (UDMR), who argued that making the asset declarations public would entice thieves (EZ, 2002, Feb 20). This, despite the fact that the President and former leader of the PDSR (Iliescu) publicly declared his support for public asset disclosure (EZ, 2002 Oct 11). The Judicial Committee of the Senate eliminated the requirement of disclosing the value of jewelry and art collections owned (EZ, 2002, Dec 19) – presumably to protect the PM, who was rumored to have a large art collection himself. The Human Rights Committee did not endorse the public disclosure requirement (EZ, Feb 20 2002a, b); and the Judicial Committee of the Chamber of Deputies endorsed it only with the support of the opposition and two defectors of the government coalition, resulting in “screaming matches” between the MPs of the ruling coalition (EZ, 2002, Dec 5). The press covered extensively the conflicts and the resistance of the ruling parties (PDSR and UDMR) to the public disclosure of asset declarations. It also covered the frequent critiques of the opposition, spearheaded by PDL MP Emil Boc, who was the initiator of PDL’s bills to strengthen the asset disclosure regime. The attempt to pass a law requiring the public disclosure of asset declarations was thus accompanied by bitter fights between the opposition and the ruling party, as well as within the ruling party. While the ruling party was adamantly resisting the government’s public disclosure proposal, the opposition was criticizing the same bill for being too weak and attacking the government for its inability to pass this and other anti-‐corruption legislation that was “promised to NATO” (EZ, 2002, September 30; Adevarul, 2002, August 30). As a result of opposition within its own ranks, also regarding incompatibility and conflict of interest bills, the government made public asset disclosure part of a broader anti-‐ corruption legislation package, “Law 161/2003 regarding some measures for ensuring
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transparency in the exercise of public dignities, public functions, and in the business environment, prevention and sanctioning of corruption,” which it adopted in less than a month (March–April 2003) through assumption of responsibility (linking the passage of the law to a vote of no-‐confidence in the government). As discussed in section 4.2, this procedure eliminates parliamentary debate and requires MPs to vote on the entire law at once, rather than successively on its individual articles, thus eliminating the possibility of amendments. Most importantly, the procedure substantially raises the stakes for the MPs of the governing parties, essentially making those who oppose the law choose between voting to uphold it or risk having their party lose power. This helped the main government party (PSD) overcome resistance from its own ranks, especially from PSD businessmen who were particularly hard-‐hit (EZ, 2003, March 13). Law 161/2003 was a complex package of anti-‐ corruption legislation, perhaps even the longest and most comprehensive law adopted at that time (CSO 4). Next to making asset declaration public and setting up a conflict of interest and incompatibility regime, it also included a large set of other anti-‐corruption measures, ranging from transparency about companies’ debts to the state, to clarifying the competencies of the anti-‐corruption prosecution agency, to measures to combat tax evasion, to e-‐government initiatives. The PM himself presented the law in parliament. The central themes of his discourse were that such an anti-‐corruption law was long overdue and that it aims to “send a very clear signal to the political class, the Romanian society, and our external partners” that the government intends to start a “massive” anti-‐corruption effort (Nastase, 2003). He presents the law as “honoring” the promises made to the electorate, as well to EU and NATO, notes the broad consultation process and suggestions made by opposition parties and civil society in the development of the law, and emphasizes that corruption is a threat to democracy and the rule of law. In justifying public asset disclosure, he invokes Art 31 of the 206
Constitution on the right to information, the fact that public disclosure facilitates civil society oversight of public institutions, and reiterates the fact that the goal of the legislation is to “ensure transparency in the exercise of the public function.” However, the new law maintained the ineffective mechanism for monitoring and investigating asset declarations, including the asset commissions, which had been mostly non-‐functional or inexistent until then, and the measures aimed to discourage citizens from reporting discrepancies or inaccuracies in asset declarations (see also Ristei, 2010). The maintenance of the latter shows that the logic of transparency, i.e., of using asset declarations for citizen oversight of public officials’ integrity, was not really instrumental for the adoption of public disclosure, despite the rhetorical commitment to it. Furthermore, the public declaration templates were also weaker than the previous, confidential, ones: public officials were only required to declare whether they owned assets over 10.000 Euros, without specifying their actual value. The omission of the actual value of assets owned from the public declarations was intensely criticized in the press, and even by the president, resulting in the PM’s backtracking and issuing of a GEO (40/2003) requiring the disclosure of the actual value of deposits owned (EZ, 2003, May 27), only a month after the adoption of L161/2003. Nevertheless, other weaknesses of the law continued to be criticized in the media, which called for a consistent rather than superficial application of the principle of transparency in public life: The declarations are public, in the form in which they are filled out by the people in charge, but they cannot be verified. The media’s access to the [necessary] data remains blocked. The media cannot even verify the degree to which the taxes were paid on the assets declared. Which makes the entire comedy pointless. If the whole wealth [declaration] ‘drama’ was started in order to create the impression of transparency and honesty, then transparency has to be followed through to the end (EZ 2003, May 28).
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The role of external pressure, while critical, is once again less straightforward than usually assumed. The press and the public almost unanimously see the adoption of the law as result of external pressure from NATO (EZ, 2002, September 30) and EU (EZ, 2003, March 13). Throughout his speech explaining the motivation for the law, the PM mentions reports and signals from international organizations, including international NGOs, as well as foreign embassies and foreign investors,115 that the anti-‐corruption fight in Romania needs to be intensified (Nastase, 2003). Public disclosure of assets and interests, as well as strengthening the conflict of interest regime, were suggested in 2001 Corruption Diagnostic Report (Anderson et al., 2001), and were allegedly “promised” to NATO by the PSD government as part of the accession action plan (EZ, 2002, April 5a,b). Public disclosure of high ranking politicians and civil servants’ incomes and assets was also recommended in the July 2001 EP report on Romania’s accession progress (Ristei, 2010), but did not make it into the final EP resolution. Like FOIA, PAD was also absent from the 2002 and all earlier EC Country Reports and Accession Partnerships. GRECO reports – which focus specifically on corruption – discuss more in detail the requirements for assets and interests disclosure, but even there making them public does not appear as a recommendation. Like FOIA, public asset disclosure only surfaces after adoption in the 2003 EC report, which, reflecting some of the domestic critiques of the law, gives it a mixed, though somewhat positive review: In April 2003 a package of anti-‐corruption legislation was adopted using the legislative mechanism of a vote of confidence. The process of adoption restricted possibilities for consultation and as a result the legislation was not thoroughly prepared. Nevertheless, the package does contain several positive features. Requirements on the public disclosure of assets held by elected politicians and senior officials have been extended, the concept of ”conflict of interests” has been introduced into Romanian law, and the number of outside interests considered incompatible with being a public official has been significantly expanded. In May 2003 a further requirement 115 including EC, IMF, WB, TI, FH, BERD, GRECO, Council of Europe,
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was introduced for all individuals covered by the scope of anti-‐corruption legislation to declare the exact details of all their savings (world-‐wide) whose cumulate total exceeds €10 000. Despite these developments, a number of shortcomings remain. […] Available evidence indicates that these anti-‐corruption provisions are not being fully or consistently applied (EC, 2003: 21). Thus, it can be argued that public disclosure of asset and interests declarations was not an explicit requirement of the EU, i.e., an actual conditionality. Rather, like FOIA, it was suggested through various – including informal -‐ channels that such measures would be “welcomed” (CSO 1). The government accepted the idea because they were hoping for EU accession in the first wave (2004) and wanted to send a strong signal of commitment to anti-‐corruption (ibid.). In the words of one interviewee: “the only thing which could guarantee re-‐election was EU [accession] […]. Thus, in the balance between electoral interests and group interests, incidentally, the public interest won” (ibid.). Additionally, high-‐level officials expected to be able to use PAD as “window-‐dressing,” i.e., avoid its implementation and enforcement (ibid.; see also section 5.1). During this period, the government also negotiated a Programmatic Adjustment Loan (PAL) with the World Bank, signed in September 2004,116 which, beyond FOIA implementation, included a commitment to further strengthen the asset disclosure and conflict of interest regime.117 The WB offered assistance through an advisor to the MoJ (WB, 2004). The WB had also advised the Government in its development of the 2003 anti-‐corruption package 116 http://www.worldbank.org/projects/P008791/programmatic-‐adjustment-‐loan-‐pal-‐formerly-‐
institutional-‐govt-‐reform-‐sal?lang=en 117 The government’s “Development Policy Letter” details the policy commitments of the government as part of the loan as follows (WB, 2004, Annex 5, p. 7): “Completed Actions: Amendments to the Law on Declaration of Assets, acceptable to the World Bank. Medium Term Actions: […] Publication of an updated index enumerating the actual declarations as called for in the Law on Declaration of Assets, and the Conflict of Interest Law.”
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(i.e., L161/2003) (WB, 2004). Further amendments to the law became a condition of the WB’s 2004 PAL (WB, 2008: 5118). The loan was intended to be the first out of three loans, and one of its sub-‐components in the area of public administration and judicial reforms was a “Transparency rules sub-‐component, aimed at bringing accountability to public life” (WB, 2008: 4). However, with EU accession and decreasing fiscal pressures, the 2007 government did not pursue further loans, even though it had already fulfilled most of the conditions, with the exception of two privatizations (WB, 2008).119 Overall, among the public administration objectives of the loans, only the one relating to transparency was considered fully achieved: E. Transparency Rules: The objective of bringing transparency and accountability to public life, as related to the PAL1, was achieved. The amendments to the Law on the Declaration of Assets adopted in 2004 were substantial and resulted in a marked improvement of the process and quality of public declaration of assets. The declaration is among the strictest in the EU, especially the requirement that officials set specific amounts to the assets they declare, not ranges (as is the practice in a number of EU countries and even in the US). The policy actions in this area adopted under the PAL1 have not been reversed and are an essential prerequisite for further efforts in improving transparency. During the preparation of the PAL2, the Government adopted an anti-‐corruption strategy and plan ahead of schedule, as this was seen important for EU accession (WB, 2008: 12). Unlike for FOIA there was no external financing for CSOs to get involved in PAD-‐related projects in the early 2000s (CSO 1). However, civil society was also involved in the development of the government bill through participation in a group of experts on anti-‐ corruption (ibid.; CSO 4). Again, this opening towards civil society was influenced by external pressure, i.e., the EU’s requirements for more participation in policy-‐making (e.g., EC, 2002). As one CSO interviewee pointed out, the government at that time was not used to 118 Exact wording: “List conditions from Legal Agreement/ Program Document […] 3. The Borrower has enacted amendments to the Law on Declaration of Assets, satisfactory to the Bank.” 119 The privatization of CEC, the savings bank, and Turceni, an electricity generator, both core
conditions, were not completed; all the other conditions of the PAL2, by contrast, were met (p.2).
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“flexing its openness muscle” and strategically chose a few NGOs120 to showcase its participatory credentials in front of EU and US representatives, which were also invited to participate in the anti-‐corruption working group (CSO 1). The NGOs that were invited reached out also to other Romanian NGOs for informal discussions and support (ibid.). Civil society made suggestions for strengthening the law, such as expanding asset declarations to include financial interests and outstanding debts, and making them public along the British model (ibid.). Nevertheless, CSOs at that time publicly criticized the lack of consultation in the preparation of L161/2003 (EZ, 2003, March 14). Legislative Evolution As previously mentioned, in the face of public outrage and EU-‐critique, the government revised L 161/2003 through GEO 40/2003 less than a month after its adoption. Within a month of adoption, opposition parties from across the ideological spectrum also proposed bills strengthening the asset disclosure regime.121 During 2003 and early 2004, four such bills were initiated (two by PDL,122 two by PNL,123 and one by PRM124). The strongest bill(s) came from the PD MPs, led by MP Emil Boc, which proposed to strengthen both the content of the public declarations and the enforcement and sanctioning mechanism.125
120 TI, APD, and AMP. 121 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=3997, http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=3998 122 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=4078,
http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=4346
123 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=4053, http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=5451 . These were not particularly demanding, the main point being to add a more detailed but confidential part to the asset declarations. 124 http://www.cdep.ro/pls/proiecte/upl_pck.proiect?cam=2&idp=4045 , 125 Among other things, the PDL proposal included the disclosure of actual amounts in bank accounts, eliminating the punishments to whistleblowers for “lying” about the illicit nature of the assets,
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Some opposition parties repeatedly quoted EU requirements for progress in the anti-‐ corruption fight during the debates. At the same time, two core arguments against strengthening the PAD regime emerged, which would dominate future debates. The first one was that making asset declarations public was an infringement of the right to privacy (e.g., Timis, 2004). The second one was that strengthening AICs was unconstitutional because it created institutions that did not clearly belong to either the executive or the judicial power. This, despite the fact that the commissions, which were inspired by the French model, did not have judicial powers (Boc, 2004). Thus, the government and the ruling party were under continuous pressure: on the one hand, the EU, civil society and the media were criticizing them for insufficient progress against corruption, on the other hand, the bills initiated by the opposition were substantially stronger than the government legislation.126 As a result, the government issued another GEO (24/2004), incorporating some of the opposition’s suggestions, only three weeks after parliament adopted GEO 40/2003 (as L114/2004). GEO 24/2004 lowered the threshold for the value of the assets to be declared, broadened the category of financial assets and liabilities to be declared, and required also candidates in elections to prepare and publish asset declarations, in order to “ensure transparency already during the
allowing citizens to report potential cases directly to the Asset Investigation Commissions (AICs) rather than to the prosecutors or the heads of agencies, and endowing AIC with more expansive powers to systematically monitor and verify asset declarations, as well as apply sanctions for late submission, false information, or lack of explanation for the provenience of (some of) the assets. 126 The opposition (PDL) bill did not make it very far in parliament. In early 2004, the EP critiqued the government for its lack of progress in the fight against corruption, prompting the ruling party (PSD) to “reconsider” (i.e., re-‐open discussion on) the opposition’s bill to strengthen the asset disclosure regime, after the Judicial Commission rejected it (http://www.cdep.ro/proiecte/2004/400/00/1/em401.pdf). However, during this time, on April 7, 2004, GEO 40/2003 was adopted, which was weaker than the opposition’s bill.
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electoral campaign period” (Government Exposition of Motives127). This GEO also had a difficult way through Parliament. It was criticized for requiring electoral candidates to prepare asset declarations right before the local elections, and, again, for not introducing strong enough sanctions for lack of compliance (EZ, 2004, April 23). Nevertheless, the adoption of GEO 24/2004 was viewed positively by the World Bank, which used it as a progress indicator for its PAL (WB, 2004, Annex 10 p.3). More importantly, the EC’s 2004 country report praised the measures, noting that “Romanian anti-‐corruption legislation is well-‐developed and broadly in line with relevant EU acquis,” albeit it also highlighted areas for improvement (EC, 2004: 21). Thus, the government took further steps to strengthen the PAD regime. In August 2004, it introduced a bill in parliament that required the publication of interest declarations alongside asset declarations, and proposed a National Integrity Council, composed of judges, judicial experts from the MoJ and prosecutors, to monitor and verify these declarations. The bill was approved by the Chamber of Deputies, albeit in a weaker form (Adevarul, 2004, September 22), but never made it to the Senate before the December 2004 elections. As discussed in previous chapters, the new president, Basescu, ran on an anti-‐corruption platform, and supported the nomination of the reformist Monica Macovei as Justice Minister. In March 2005, the new government thus also issued a GEO strengthening once again the asset (and interest) disclosure regime (GEO 14/2005128). In its Explanation of Motives the government invokes the EC country report asking Romanian authorities to “intensify efforts to adopt the best practices existing in EU member states with regard to the
127 http://www.cdep.ro/proiecte/2004/400/00/1/em401.pdf 128 http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=55535
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control of assets and investigation of conflicts of interest”,129 the recommendations of GRECO, UNCAC and the Romanian law that ratified it, the WB’s PAL condition of ensuring transparency and accountability in the public sector, and the WB’s support in developing the revised declaration templates. Resistance against the bill was once again strong and debates in parliament were heated. Opposition to some provisions of the bill was so strong that it created highly unusual alliances, such as between the far-‐right nationalistic PRM and their “arch-‐enemy,” the party of the Hungarian minority (UDMR). Once again, even the MPs of the ruling party (PNL this time) were resisting the law, prompting an intervention of the PM to convince them to support it. The Senate eliminated requirements to declare the estimated value of jewelry, art, etc., the tax value of property, and the assets of the grown up children of public officials, as well as to disclose the identity of people from whom gifts were received or given to (EZ, 2005 April 22; EZ, 2005, April 1; Adevarul 2005, April 21). However, the Chamber of Deputies discarded these amendments and voted to uphold the original GEO without the changes introduced by the Senate. Nobody openly questioned the intention of the law or the principle of public disclosure. MPs from different parties restated the goal of transparency, not just to satisfy EU demands, but to address the low trust that citizens have in Parliament. The core rhetoric can be exemplified as follows: The parliamentary group of PNL considers that the adoption of such a bill by Parliament is necessary, is opportune, but is also a serious signal sent to the European community. Let’s not forget that the last EU country report for Romania was noting the lack of commitment of our country to fighting corruption. […] We believe that today we have to demonstrate the political will through our votes not through our words, to show that we want to fight corruption, that we want to bring transparency in Romanian public life when it comes to local and central officials of the Romanian state. The vote is 129 http://www.cdep.ro/proiecte/2005/100/50/0/em150.pdf
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also important for the signal we want to send to the European Union. I think that we should pursue, first and foremost, the interests of the citizens, the interests of those who sent us here, not the personal and group interests of some or others. Therefore, the parliamentary group of PNL decided to vote for the bill as the Government proposed it, and at the same time, we will request a nominal vote on this bill [i.e., the vote of each MP is public]. The citizens have to know if the parliamentarians they sent here are voting for transparency, are voting for disclosing their assets/wealth and conflicts of interests, where applicable, and do not come here to use their parliamentary seats to increase their personal wealth or hide their assets or the assets of their political clients. This is why we have to show political maturity and seriousness, and have to demonstrate that we represent what we should represent, namely the interests of the citizens that sent us to Parliament (Nicolaescu, 10 May 2005). Both the former (PSD) and the current ruling parties (PNL/PDL) claimed credit for increasing transparency and fighting corruption through the law. Yet, some MPs also raised issues such as the right to privacy, the lack of effective implementation mechanisms, and how the law compared to European practice. The Justice Minister argued that the EC requested such tough asset declarations. This argument received some push-‐back from the president of the Senate (which belonged to the main opposition party -‐ PSD): Let’s not blame the changes to the law on the European Union. We have to produce a good law here, one that addresses our specific corruption problems. The European Union doesn’t force us to adopt everything in a law. Parliament decides – national Parliament. I want this to be clear, there is no obligation to go to extremes on any text. We take the European mean, make a comparison with what exists in other countries and harmonize our legislation with that which exists in the European Union (Vacaroiu, 20 April 2005). The 2005 EC Country Report noted the more stringent declarations adopted in May 2005, which, according to the WB were “the strictest in Europe” (WB, 2006: 7), but emphasized that “an effective mechanism for overseeing this process remains to be established” (EC, 2005: 13) and that, in general, “it is widely acknowledged that Romania’s [anti-‐corruption] legislation already broadly complies with the relevant EU acquis and that what is urgently required is to implement the existing legislation more rigorously rather than proposing new laws” (ibid., emphasis added). The GRECO (2005) monitoring report also 215
criticized the lack of enforcement, noted that the government was considering the set-‐up of a dedicated agency as part of its anti-‐corruption action plan (ibid.: 11), and recommended the introduction of an effective system for supervising asset declarations (ibid.: 23). Indeed, one of the key measures recommended by the 2005 FH audit of the 2001-‐2004 Romanian Anti-‐Corruption Strategy was setting up a semi-‐autonomous agency to audit asset and interest declarations, supervised by a Council for Integrity composed of government, opposition, justice sector and civil society representatives (FH, 2005b). The set up of such an agency was included in the 2005-‐2007 Anti-‐Corruption Strategy as one of ten priority objectives (GoR, 2005; WB, 2006). It was justified by the promise made to the EU that the declarations would be verified and dissuasive sanctions would be applied for non-‐ compliance (GoR, 2005a). The plan was to have the legislative framework in place by June 2005, and to endow the agency with the necessary human and financial resources by October 2005 (GoR, 2005b). Therefore, the idea for an independent administrative body to verify assets, conflict of interests and incompatibilities of public officials arose domestically, with advice from international organizations (such as FH), in response to external pressure for better implementation from other international organizations (such as the EU). This is in line with the fact that, as mentioned, by itself, the EC does not make policy recommendations outside of the aquis, rather, it reacts (positively or negatively) to relevant domestic developments. However, while the development of legislation to create a national integrity agency started in 2005 (FH, 2006; WB, 2006 mentions August), it took over a year for it to reach parliament as a bill. There was resistance to the proposal from within the ruling parties and the government itself (EZ, 2006, June 7, 16), and even criticism from some CSOs (EZ, 2005, Dec 29). The first bill to set up an independent agency for monitoring and verifying asset 216
and interest declarations was introduced not by the government, but by an MP of the ruling coalition in December 2005. The government introduced its own bill for the founding of a National Integrity Agency (ANI) seven months later, in July 2006, which was more than a year later than initially planned in the 2005 Anti-‐Corruption Action Plan. The lack of progress in adopting “legislation establishing an independent agency to verify wealth declarations” was noted in the EC’s May 2006 Monitoring Report as being one of only three unfulfilled actions out of the 47 actions of 2005 the Anti-‐Corruption Action Plan (ACSAP) (EC, 2006a: 8). The September 2006 EC report on Bulgaria and Romania made the set up of the agency an explicit benchmark of Romania’s progress in fighting corruption (EC, 2006b: 10130). Thus, setting up an independent agency for monitoring and verifying asset declarations is the only policy studied so far that can be considered a conditionality in the narrow sense, i.e., a condition whose lack of fulfillment would trigger direct sanctions. The September 2006 Report even went as far as to criticize Parliament directly for delaying the adoption of the ANI legislation (EC, 2006b). The result of such an explicit conditionality can be seen in the arguments used against opponents of the ANI legislation. If hitherto arguments for previous bills made general references to “international organizations,” “external partners,” “the EU asks,” this time it was explicitly stated that ANI was an EU conditionality: I would like to quote from the EC Report the measures that Romania is obligated to fulfill before and after integration, if Romanian court decisions are to be recognized by other EU member states. […] your decision could affect the interests of the citizens of Romania. 130 “Establish, as foreseen, an integrity agency with responsibilities for verifying assets,
incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.”
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I quote exactly how the condition sounds: founding [setting up] a National Integrity Agency that verifies assets, potential conflicts of interests and incompatibilities. This agency should be able to make binding decisions, and, fourth, these decisions have to lead to sanctions which are discouraging. (Macovei, 2006, 23 October) Not only that, but the fact that EC increasingly directed its critique towards the Romanian political class, political parties and the parliament itself was also picked up as an argument: I will close by reminding you that, in all EC monitoring reports, the biggest worry regarding the fight against corruption is ‘the fragility of the political majority supporting the fight against corruption’. I don’t think I need to say more than that (Macovei, 23 October 2006). Again, the resistance in Parliament was fierce. Judging by the length of the debates and the number of amendments introduced, it was the most intense resistance so far (for a detailed summary of the events see FH, 2007). Arguments against the law included: that it is unconstitutional because ANI is an administrative body which has investigation, accusation and decision-‐making powers that belong only to the judicial branch, that an administrative agency staffed by public employees cannot verify elected representatives and cabinet members because these are “above” it/them, that the proposed agency is weaker than the draft law on the National Integrity Council introduced by the previous government, that the disciplinary sanctions that the agency can apply are not dissuasive enough, that the law was too vague and open to interpretation, and thus abuse, and that the existing legal framework is sufficient but is not being applied by the government (CD 2006, 23 October). One recurring argument that is invoked up to this day was that there was no such agency anywhere in Europe: We are talking about a requirement of the European Union, but the European Union cannot demand from us what it doesn’t have itself. There is no such agency in any European country. (Bolcas, 2006)
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The fear that this is a political instrument, similar to the communist-‐era law on illicit assets also came up: This bill could have been an exceptional law if it weren’t conceived as a political vengeance instrument, as an instrument under the control of somebody to follow somebody else. […]. We needed 16 years to get rid of secret service investigations, of police investigations, of investigations without the principles of transparency that judicial activity has. It looks like we want the same thing: to create an instrument, and institution, with inspectors that don’t answer to Parliament, that don’t answer to anybody, but only to those who name them, who pay them and who effectively control them (Dorneanu, 2006). Such arguments included charges that “there is no such thing as an autonomous agency in Romania,” and that the agency was an instrument through which the President and the Minister of Justice (Macovei) were trying to “control” parliament and their political adversaries: […] nothing is autonomous in this country. Is there one newspaper page that is autonomous? One minute on the radio? On TV? Even the private ones? Even more at the public ones? There is nothing [autonomous]. The only organism that can be cumulatively autonomous/autonomous in the aggregate is the Parliament. The Government is not autonomous. Even the President is not autonomous; he is subordinated to the PD and the PD is subordinated to the President. [Noises/protests]. Come on, let it be! Therefore, when we say “autonomous” we give the president the possibility to intervene as he wishes through naming the heads of the agency, and we give this possibility to a party, which is subordinated to the President – and only to it. […] We know very well that there is no autonomy in the version presented by Ms. Macovei, who wants to subordinate the agency one way or the other, openly or hidden (Tudor, 2006). Many arguments included direct attacks on Justice Minister Macovei, prompting an MP from the ruling party to note that this was the first time he saw MPs argue about a law based on the person of the Minister and not on its actual contents (Tabara, 31 October 2006), and another one to emphasize that this is not “a law of the Minister of Justice, but a law of the Government” (Oltean, 31 October 2006).
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In the Chamber of Deputies, the Judicial Commission changed some crucial aspects of the law, such as having the head of the agency named by the Parliament instead of the President, and limiting the definition of conflicts of interest and the types of officials to which they were applicable. The most dramatic change was limiting ANI’s powers to verifying whether the declaration adequately reflected the assets held, rather than whether the assets were obtained legally. Additionally, investigators were allowed to use only public available data, which meant, for example, that they did not have the possibility of verifying real amounts in bank accounts. If they found any discrepancies, they could not issue decisions themselves, but could only notify the institutions in charge. The amendments were criticized by outside observers (Jorge, 2007) and triggered a storm of protests from the EU, the President, the Minister of Justice, and some CSOs. The EU applied intense and possibly unprecedented pressure, including threats to activate the safeguard cause if the ANI law was adopted “without teeth” (EZ, 2006 October 26). The press covered extensively the evolution of the law (EZ, 2006 Sept 26, Oct 24, 31; EZ 2007 Jan 27, May 7, 17), EU critiques about corruption in Romania in general and the lack of political will in Parliament, including, but not limited to its weakening of ANI (EZ 2006 Sept 28, Dec 20), and the danger that Romania’s entry to the EU would be delayed because of this (EZ 2006, Sep 24, Oct 26). The press also offered a tribune where the Minister of Justice frequently gave interviews incriminating the opponents of the law and emphasizing EU demands for its adoption (EZ, 2006 Sept 18), and reported on the President’s statements supporting a strong agency (EZ, 2006 Dec 21, 2007, Jan 31). The press was also very critical of MPs efforts to limit the power of ANI (EZ, 2006 Sept 26b, Oct 13; Lupea 2006; Blagu 2006; Parvu 2006).
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The bill lingered in Senate at first, during which the original provisions of the government, giving more extensive powers to ANI, were reintroduced and then weakened again (EZ 2007, Feb 1, March 18). During this time, on January 1st 2007, Romania acceded to the European Union. Immediately after accession, Parliament voted a motion against the Minister of Justice, Macovei. This was seen as push-‐back against her anti-‐corruption reforms (EZ, 2007 March 8, Apr 4), including the establishment of ANI and the strengthening of the asset and interest disclosure regime (Papadimitriou & Phinnemore, 2008). Nevertheless, given EU pressure, amplified through the domestic media and the pronouncements of the president, the new Minister of Justice also supported the original – stronger – version of the law, and the Senate reintroduced many of the provisions that the CD had eliminated. This was done begrudgingly – MPs emphasized repeatedly that there is no similar agency anywhere in Europe, that some of the provisions were possibly unconstitutional, and expressed their concerns that the agency would be used as a political instrument. The following quote illustrates this, as well as how deeply EU representatives were involved not just in the technocratic drafting process of the bill at the MoJ, but also in helping to negotiate the law with individual MPs. Yet, the same EU representatives admitted that equally strict requirements did not exist in their country of origin: I want to underscore that this is a judicial innovation that Romania is undertaking as the only one of the 27 member states of the European Union. […] I hope that in the future this will not result in the abuse of the law by the agency against the persons investigated. [….] After finalizing the bill in the Commission for Human Rights, Cults and Minorities, we had a meeting with the experts of the European Commission. We presented them the draft law and the asset declarations that each of us had to fill out. The German experts present showed that in their country these declarations are not public, but are submitted to the general secretaries of the institutions they belong to, because they affect the right of the person to their own assets and their intimacy […] (Frunda 2007, 9 May).
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The bill was adopted in May 2007 (L144/2007). It maintained most of the provisions of the initial draft, but strengthened parliamentary control over the agency by setting up a National Integrity Council (CNI) with members from all categories of pubic officials required to submit asset declarations, as well as two observers from civil society. Assessments of whether the agency had too much or not enough power varied. Parts of civil society and a number of external observers considered the law did not go far enough. For example, Jorge (2007) criticized the fact that the law does not encourage – even discourages -‐ citizens to file a complaint or a notice with ANI if they observe irregularities, by requiring such notifications to be signed and dated, and by failing to provide protection for whistleblowers. He also criticized that “the President of ANI maintains the monopoly of the decision, with a lack of objective criteria to limit his/her discretion” (ibid.: 4), and that the law limits the powers of the integrity investigators to obtain information for their cases. A coalition of Romanian CSOs voiced similar critiques (IJC, 2008). The EU also criticized the fact that the discrepancy between declared and observed wealth that triggered investigation was too high and that the replacement of the expression “unjustified wealth” with “illicit wealth” made the agency’s activity a duplication to other organizations (such as the DNA), and made it difficult for the courts to seize assets that could not be justified (EZ, 2007 May 30; EC, 2007). On the other hand, not only MPs, but also judges/magistrates spoke out against the law and the agency, arguing that it contained unconstitutional elements (EZ 2007, July 2). Already in 2005 some judges allegedly quit the bench because of public disclosure requirements (Messick, 2009). Some judges compared asset declaration and their enforcement through ANI to the 1968 communist law against illicit enrichment (Gandul, 2010 July 22). After many magistrates did not submit their asset and interest declarations
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in time, the President of the Superior Council of the Magistracy (CSM) even asked the Ombudsman to challenge the constitutionality of the ANI law (L144/2007), among others on the grounds that it infringed the right to privacy (Konrad Adenauer Stiftung [KAS], 2008). However, the Ombudsman refused and the Minister of Justice, the President, and CSOs expressed outrage over the CSM’s actions (ibid.). Even the reaction from civil society to the 2007 ANI law was mixed. For example, in June 2006, three NGOs argued that the government’s draft bill was a step back from the 2004 bill on the National Integrity Council (CNI), and criticized that the law was too vague and that ANI was not accountable to anybody, both of which opened the door for abuse (FSD, TI-‐Ro, CRJ, 2007). Other NGOs protested against attempts to weaken the law while in Parliament (AA et al., 2006; EZ, 2006, Oct 20). Both supporters and opponents of the law invoked civil society statements during parliamentary debates (CD, 2006). Overall, not only was there no consensus on this law across domestic actors, but the conflicts were acrimonious. As often before, almost immediately (one month) after L 144/2007 was adopted, the government issued a GEO to correct the shortcomings criticized by the EU. GEO 49/2007 replaced "illicit wealth" with "unjustified wealth" and lowered the discrepancy threshold at which investigations begin. Again, there was substantial opposition in Parliament, especially to replacing the expression “illicit” with “unjustified” wealth. MPs raised the same arguments once again – the resemblance to the communist era law on “illicit enrichment,” fears of political misuse, and lack of a similar agency in other European countries, which therefore cannot be demanded by the EU/EC. Some MPs argued that they don’t want to repeat the mistakes made when setting up the PNA/DNA in 2001/2003 (Sarbu, 2007), when, in an “excess of zeal” to prove that they “are honest,” MPs adopted bills without fully understanding their consequences (Dinescu, 2007). Others argued that while corruption is
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bad, introducing the need to justify one’s assets is against human rights, as it reverses the burden of proof, and risks criminalizing an entire system.131 As before, EU involvement in the GEO’s progress through Parliament was deep and explicit, and the press covered the debates – though to a lesser extent than for the 2007 ANI law (EZ 2008, Feb 27). In its July 2008 monitoring report, the EU acknowledged the transposition of the GEO 49/2007 into L94/2008, but also listed again a number of shortcomings that reduced the effectiveness of the agency (EC, 2008c132). While some bills to change (minor) aspects of ANI were introduced in parliament during the rest of 2008 and 2009, in the next two years attention from the EU, from the press, and (to a lesser degree) from civil society focused more on implementation, i.e., on the actual functioning of ANI (see next section). The ANI law, including the public disclosure requirement, resurfaced on the public and political agenda in April 2010, due to a controversial decision of the Constitutional Court. A lawyer of a public official investigated by ANI, who was also an MP and who had previously tried to exercise undue influence on ANI regarding her client (see next chapter), challenged the constitutionality of the ANI law, on the grounds that it gave judicial powers to an administrative agency. The Constitutional Court (CC) had rejected ten unconstitutionality challenges until then (EC, 2009c). However, 131 I am not making a judgment about the validity of these arguments, I am just presenting Romanian
domestic debates. Jorge (2007) argues that international law and judicial practice do not lend credence to such arguments. 132 p. 8-‐9: “For example notifications cannot be anonymous as they must indicate the sources of their information, and be dated and signed, before they can be taken into account. Preliminary inquiries must be carried out within 30 days, and the scope of an investigation may not extend beyond the issues raised in the complaint. Inspectors do not have powers of subpoena nor the express right to request information of a sensitive nature. […] ANI cannot take mandatory decisions itself but is able to ask the court to order confiscation of wealth considered unjustified, and request disciplinary sanctions such as dismissal or suspension. The legal basis enabling confiscation of wealth considered unjustified was called into question by a Constitutional Court decision taken on 17 April 2008. […]. As a result the confiscation of unjustified assets may be challenged in court and may ultimately not be possible.”
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this time around, the Constitutional Court not only accepted these arguments, but ruled even further than requested, by finding that unjustified wealth cannot be confiscated because all property is presumed to be acquired legally, unless otherwise proven, and that the publication of the declarations on the websites of public agencies was also unconstitutional because it breached the right to privacy (CCR, 2010a). It also argued that the frequent changes of the law, including through GEOs, resulted in an incoherent and unstable legal framework and forbade the government to issue a GEO rectifying the law (ibid.; also EZ, 2010, Apr 22a). Essentially the Constitutional Court took up the arguments that had been raised against the ANI law from the beginning by its opponents. The decision of the CC was highly controversial and triggered a storm of protests, including unofficial accusations that the CC judges were trying to strip ANI of its powers because they were themselves being investigated by it (EZ, 2010, June 24; D.T., 2010), or because they were politically appointed and lacked legal expertise (Ionita, 2010 April 27).133 Both external actors like the European Commission (EZ, 2010 April 22b) and foreign embassies, and civil society were highly critical of the CC decision (Ciocoiu, 2010), on the grounds that it lacked proper justification. The OECD (2011: 124, emphasis added) assessment is illustrative: The Constitutional Court claimed that the NIA [ANI] has jurisdictional powers, and acts as a parallel justice. The decision is paradoxical because, as in the decision itself, the Court explains that NIA [ANI] decisions can be challenged in court, and are therefore subject to judicial control. Also, the Court decided that publishing the declarations of assets is a breach of the right to privacy of persons in public office. The Court does not explain how privacy is violated by publishing statements or if the violation is 133 Earlier comments argued that the CC was staffed by former high-‐level personnel from the
Communist regime, who were not interested in cleaning up the political class (Lupea, 2008).
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justified or not – both criteria are applied by the ECHR134 in deciding on such cases. The president asked for a new law that respects both constitutional limits and Romania’s commitments towards the EU (EZ, 201 Apr 26). The government re-‐drafted the ANI law within twelve days from the publication of the CC decision on its website and submitted it to parliament even before the CC decision was published in the Official Gazette.135 To comply with the requirement that the ADs should respect the right to privacy, some identifying information on the assets held, which could be considered personal data, was classified. To address the charge that ANI was taking on quasi-‐judicial functions, the new law also reintroduced the AICs at the courts of appeal, so that ANI would not address the courts directly. The dynamics of new bill were similar as for the first ANI law. However, the battle between supporters and opponents of the agency was even more intense. The arguments were largely similar, mainly that the disclosure requirements were the toughest in Europe and that a similar agency did not exist anywhere in Europe.136 New arguments were that ANI was unprofessional and ineffective, and was used by the ruling party to harass its political opponents (EZ, 2010, May 13). While the most intensive battles were about the investigative and sanctioning powers of ANI, the public disclosure requirement was also a target of criticism and counter-‐criticism. The Senate eliminated some of the disclosure requirements beyond what the government had suggested, for example eliminating again 134 European Court of Human Rights 135 The government’s bill was sent to Parliament on April 27 and the CD approved it on April 28. The Senate refused to vote on the law until the CC decision was published in the Official Gazette (EZ, 2010 May 5), which then happened on May 5 2010 (see http://www.cdep.ro/pls/legis/legis_pck.htp_act?ida=96188). According to the article, PDL delayed publication because it feared that it would result in ongoing cases pursued by ANI being nullified. 136 For example, EZ (2010, May 12): some Senators presented the much less informative asset
declarations of the Head of the EC (Barroso) and the British PM (Cameron) to underscore their point.
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the declaration of jewelry, art collections, etc. (EZ, 2010, May 12a; Rata, 2010), the requirements for electoral candidates to prepare declarations, and the requirement that ADs be made public on the sites of public institutions. Even more, MPs who wanted to voluntarily disclose their declarations on the Senate site were stopped from doing so, on the grounds that that would go against the CC decision on the need to protect the right to privacy of public officials (EZ, 2010, July 19). The changes introduced by the Senate triggered a new storm of protests from all sides (Rata, 2010a), including the US embassy (EZ, 2010, May 13b). Civil society organizations that also supported the law in 2007 urged the president to re-‐send the law to parliament, on the grounds that “it transformed ANI from an investigative into a decorative agency” (EZ, 2010, May 12b; C.I., 2010). The president did resend the bill to Parliament, asking it to reintroduce a number of provisions from the original government draft, including the more extensive public disclosure requirements (OECD, 2011; EZ 2010, June 2). Once again, the Chamber of Deputies adopted the changes suggested by the President, but the Senate eliminated them and adopted largely the same version as before (OECD, 2011). Unlike in 2007, this time around, the deep involvement of the EU representatives in the adoption of the law was not only less effective, but was openly criticized by some MPs. For example, MP Frunda (UDMR) argued again that the public disclosure requirements of the Romanian law went beyond European practice and breached his right to privacy, and decried the “political and psychological pressure” exercised through the participation of the representatives of EU embassies in the discussions surrounding the law (EZ, 2010, July 1). Another public and international outcry followed (Cochino, 2010a; see also Stefan & Ionita, 2011 for the story of the 2010 ANI law). In particular, the MP spearheading the weakening of ANI in the Senate, belonging to the UDMR, received very strong public criticism (Fati,
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2010) from civil society (Dinu, 2010a; Hotnews 2010, July 1; Simina 2010) and from the President, who accused him of “being against Romania’s interest, not because he is Hungarian, but because he probably has something to hide, him and his clientele” (EZ, 2010, July 9). The president also challenged the constitutionality of the revised law on procedural grounds. The CC concluded that the revised law did not respect the unconstitutionality findings of its previous decision and returned it to Parliament (CCR, 2010b). During this time the EU also released its 2010 CVM report, which leveled a heavy critique against the changes undertaken to the ANI law (Castle, 2010), including what could be read as a veiled critique against the CC decision and recommendations to Parliament to adopt the changes suggested by the President (EC, 2010, July): In this year's report the Commission points to important shortcomings in Romania's efforts to achieve progress under the CVM. Romania did not show sufficient political commitment to support and provide direction to the reform process and demonstrated a degree of unwillingness within the leadership of the judiciary to cooperate and take responsibility. These weaknesses must be corrected urgently in order to regain momentum in the reform process. (p.2) […] The amendments to the law on ANI adopted by Parliament in response to the decision of the Constitutional Court remove the possibilities to sanction discrepancies between assets and income identified and therefore eliminates the control of dignitaries’ and officials’ accumulation of wealth whilst in public office. In excess of the requirements of the court, the other amendments introduced in Parliament reduce the effectiveness of ANI's investigations and the transparency of assets by introducing less comprehensive declarations. Clearly, Parliament and Government have the responsibility to amend the law that was declared unconstitutional by the Constitutional Court but equally, given the commitments made at the time of accession, it has the responsibility to find adequate legal ways to deliver on its EU commitments. At present, the Commission considers that the new law on ANI represents a significant step back in the fight against corruption and breaches commitments Romania has taken upon accession. On 19 July the Constitutional Court ruled that the revised version of the law is unconstitutional. This provides an opportunity to adopt a new law in conformity with Romania's obligations (p.5 – emphasis added). In essence, the government was trapped between the seemingly conflicting demands of the EU and the CC. As a result, the government did not propose a new law that would 228
address the renewed critiques of the second CC decision, but re-‐initiated discussion based on the initial version (Simina, 2010). The EU’s CVM report, which was presented in the press as “the toughest one since president Basescu took office” (Cochino, 2010b), was used to increase pressure on the opponents of a strong ANI. The prime-‐minister took the unusual step of participating in the discussions of the judicial commission in the CD, arguing that: I hope that each Romanian politician has learned from the last experience of the country report of the European Union. This is not about my or somebody else’s personal interest, it is about the interest of the country, and those who don’t understand this should not be in the Romanian Parliament, because in the Romanian parliament you are serving the national interest. We do not want anything but transparency. Whoever has assets to hide – his place is not in the Romanian Parliament, his place is somewhere else (PM Boc, quoted in Rata, 2010b). The CD debates are essentially a reprisal of the arguments articulated in all previous debates. For example, PM Boc and representatives of his party argued along the lines of “we have to prove to the Romanian people that we are transparent and not corrupt, and we have to honor our commitments to the EU,” while the other parties emphasized that they, too, are for transparency, anti-‐corruption and compliance with EU commitments, but criticized the law for continuing to be badly written and unconstitutional, and expressed concerns that ANI could be used as an instrument of political control and persecution. Despite public expectations to the contrary (Simina, 2010), the law also passed the Senate, with the help of the opposition -‐ PSD, who abstained, and PNL who voted in favor, even though they thought the law was still unconstitutional (Lazar, 2010). The much-‐criticized head of the Senate Judicial Commission and the author of the amendments reducing the powers of ANI and sharply limiting public disclosure, MP Frunda (UDMR) refused to participate in the vote, arguing that both the bill and the procedure followed were unconstitutional (Dinu, 2010b). The adoption of the stronger version of the 2010 ANI bill helped repair the relation with the EU (EIU, 2010). The 2011 (February) interim report of the EC positively noted that 229
“Following recommendations by the Commission, Romania adopted an improved law to secure the functioning of the National Integrity Agency (ANI)” (EC, 2011, February: 3). However, even to this date some domestic analysts (Stefanut, 2011; CSO 2) and some MPs consider the law unconstitutional and lament that no other country has a similar agency (Gvt 6). Pressures against ANI and public disclosure continued. “Unofficial” sources suggested that UDMR asked PDL to make changes to the ANI law also in 2011 in exchange for their support for other government bills (Tapalaga & Pirvu, 2011). In 2012, the Ombudsman, in response to a request from an UDMR MP who had opposed the ANI laws before, challenged the constitutionality of the 2010 ANI law again, arguing that the unconstitutional provisions have been maintained (Biro, 2012). In conclusion, the legislation regarding public asset and interest disclosure and its enforcement has experienced more revisions and attempts at revision over time than FOIA legislation has. Figure 6.6 below offers an overview of the number of PAD-‐related bills introduced and adopted in Parliament, between 2001 and 2011. Figure 6-‐6. PAD-‐related bills and legislation 2001-‐2011 7 6 5 4
PAD bills tabled
3
PAD bills adopted
2 1 0 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 Source: Author, based on data compiled from www.cdep.ro
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More importantly, public asset disclosure has faced much more resistance and attempts at reversal than freedom of information. The strongest opposition was to an independent agency with powers to verify whether the underlying assets could be justified and whether public officials were in a situation of conflict of interest or incompatibility. As the story above illustrates, the fact that both public disclosure and ANI survived so far is due to a combination of public, political and external pressure. This pressure generated high political costs for openly opposing and trying to overturn the laws on public disclosure and on asset monitoring through new legislation. This was also confirmed through the interviews. Interviewees attributed the survival of PAD (and ANI) to the fact that attempts at rolling back the laws would trigger intense reactions from CSOs, the press and the public, as well as to continued pressure from the EU via the CVM (Gvt 3). This had two consequences for PAD/ANI policy evolution. First, the only party that has dared to consistently and publicly criticize and challenge the law has been the party of the Hungarian minority (UDMR). Being an ethnic party, it has a more loyal voter base, which votes along the lines of ethnic identity rather than policy (Ionita, 2011). Thus, UDMR faces a lower risk of losing votes due to its opposition to ANI than other parties. Second, (un)constitutionality challenges have become the main way of attacking the laws. Such challenges against the revised (2010) ANI law are still ongoing, and might bring ANI and PAD back on the political and government agenda. Strength of (P)AD The legislative history of (P)AD is one of successive strengthening over time. Judging the strength of the Romanian asset disclosure regime has to take into account these changes. As the description above illustrates, the original (1996) law was very weak – it lacked both public disclosure and an effective implementation, monitoring, and enforcement 231
mechanism. The 2003 law strengthened the regime by requiring public disclosure, but the information to be disclosed was relatively limited. Successive legislative changes expanded the scope of information to be publicly declared, and the categories of officials required to submit such declarations, making Romania’s a public disclosure requirements some of the most stringent in the world. However, only in 2007 was a centralized monitoring and enforcement agency set up (ANI). This made Romania a country with one of the strongest asset and interest disclosure policies in the world. Table 6.5 below presents Romania’s score in Djankov et al.’s (2010) study of the impact of public asset disclosure on corruption. It measures how much information is available to the public on the values and sources of six possible disclosure items (assets, liabilities, income, expenditure, gifts, and travel), as well as whether there is an independent body in charge of monitoring and sanctioning submission (non)compliance (registrar) and one in charge of monitoring and sanctioning the (lack of) veracity or accuracy of the submitted declarations (checking unit). Table 6.5. Strength of the public disclosure regime in Romania
Values publicly available
Sources publicly available
Registrar strength
Checking unit strength
Romania
0.60
0.79
0.67
1.00
Maximum score
0.71
1.00
1.00
1.00
Average score
0.09
0.15
0.32
0.21
Source: Author, based on data from Djankov et al. (2010) retrieved from http://www.economics.harvard.edu/faculty/shleifer/files/Transparency_Data_ForWeb_jan28_2009. xls. Highest possible score is 1.
The World Bank’s 2008 PAM rating for Romania’s asset disclosure regime also gives Romania’s PAD regime a high score across categories. Romania ranks sixth out of 77 countries in terms of the strength of the overall asset disclosure regime, fifth in terms of public access to declarations, but only 30th in terms of monitoring and oversight (although it is still above average in that category -‐ see also Figures A.8, A.9 and A.10 in Annex 2). In 232
conclusion, after 2005, Romania had a very strong public disclosure requirement, and after 2007 it had a strong and independent monitoring and enforcement agency. The 2010 revision of the ANI law weakened it by introducing a filter or an extra step between ANI and the courts (the asset or integrity commissions), but the prerogatives of the agency still remain strong by comparison. Implementation, Use, and Compliance It does look like, overall, PAD received less implementation support, in the form of training, awareness-‐raising, implementation guidelines, and funding for civil society than FOIA, especially in the early years. For example, implementation guides for filling out declarations were published as late as 2010 (SAR & ANI, 2010 – though it says 2nd edition). As late as 2009, while most organizations had ethics councilors, these councilors had almost never been involved in counseling on issues of asset disclosure, conflict of interest or incompatibility (CRJ, 2009b). Compliance with the 1996 asset disclosure law is difficult to judge, since the declarations weren’t public and there are no reports for that period. It looks like few public officials actually submitted asset declarations as required. The 1996-‐2000 government notified AICs about the fact that outgoing prefects137 of the former ruling party had not submitted their asset declarations, which should have triggered automatic verification (CRJ &IPP, 2006). However, none of the cases resulted in a conviction, and the government did not appeal the court decisions. Furthermore, only in six cases out of 45 did the commissions carry out a proper control of the assets. 137 Prefects (modeled after the French system) are the representatives of the central state in the
territory and are charged with verifying the legality of local government acts and other activities of the local government.
233
The 2000-‐2004 government also initiated a number of investigations, most of them against local policemen, and a few also against former mayors and some of their employees (ibid.). The AICs investigated these cases more systematically, but the – often flimsy – explanations for how the assets were obtained were accepted by the courts with little questioning, and none of the cases ended with confiscation of unjustified wealth. According to some interviewees, about 300 cases were investigated between 1996 and 2003 based on asset declarations, but very few ended in convictions and the public was not aware of them (CSO 4). Sometimes, the commissions even functioned as a “clearing” system, by certifying that the assets were legally obtained, even if the explanation for how the assets were obtained lacked plausibility (ibid.). By 2005, only 15 asset investigation commissions had been set up based on the revised 2003 law, and only two cases had been finalized – both lost by the government in last instance courts (GRECO, 2005). There was even less progress in using asset declarations to investigate high-‐level officials (OSI, 2002; EZ, 2002 Sep 24). As late as 2004 no such investigations had been carried out (Boc, 2004). The Asset Investigation Commission at the High Court of Cassation and Justice, in charge of high-‐level officials, started work only in 2005, nine years after the first post-‐ communist asset disclosure law. One of the requests for investigation it received -‐ which was rejected as unfounded – was placed by the former prime-‐minister (Adrian Nastase) for himself (CRJ &IPP, 2006138). The DNA started to use the asset and interest declarations as a starting point for corruption investigations only around 2005 (EC, 2006a).
138 Although other sources says that somebody else requested in 2002 the investigation of Nastase’s
assets, given that he did not prepare his declaration in 1996, when he was a minister, as requested by the 1996 law (EZ, 2002 Apr 20).
234
The public disclosure of asset declarations, as per Law 161/2003 and its subsequent strengthening in 2004/2005, did contribute to increased public scrutiny of the declarations (SIGMA, 2006) and thus to higher – “rather good” -‐ compliance with asset declaration provisions (FH, 2005b). In a 2006 study, Romania was the only country out of 14 in which public authorities answered information requests about minister’s assets (OSJI, 2006). Other studies show mixed compliance at all levels of the public administration and in different branches of government after 2003 (Nicolae, 2005; CRJ & IPP, 2006; Stan, Sorescu, Năstase, Moinescu, & Nicolae, 2007; Ristei, 2010; Stan, 2010139). However, a look at the websites of public institutions does suggest that online publication of assets and interest declarations has become routine. Data from international sources corroborates this. Thus, the Global Integrity Index (GII) scores for citizen’s access to public official’s asset declarations show very high compliance with the publication requirement, at least starting with 2006 (Table 6.6 below). It should be noted though, that the data cannot reflect the degree to which these declarations are filled out correctly and include all the relevant information. Table 6.6. Public access to asset declarations (GII)
2006
2007
2008
2010
Overall score
100
97
88
100
139 According to the report, L 161/2003 had a loophole because, while it forbade public officials to make decision that would benefit their immediate relatives, it did not require the declaration of the interests of these relatives. CRJ notified the High Court of Cassation of Justice of this legislative inconsistency, which ruled that the NGO had the right to request information on the ‘“interests” of their relatives from public officials (p. 9-‐10). However, only two out of twenty ministers gave complete answers to requests of information on their relatives’ interests. This was a lower compliance level than cabinet members had in a similar exercise of the same NGO in 2005. Even more surprising, given the President’s outspoken support of PAID legislation, was the refusal of the Presidential Office to communicate the asset and interest declaration files for its staff, as well as the name of the person in charge with ensuring PAID compliance, on the grounds that this represents personal information (Ibid.).
235
Executive
100
100
100
100
In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.
100
100
100
100
In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.
100
100
100
100
In practice, the asset disclosure records of the heads of state and government are of high quality.
na
na
na
50*
Legislature
100
100
100
100
In practice, citizens can access these records within a reasonable time period.
100
100
100
100
In practice, citizens can access these records at a reasonable cost.
100
100
100
100
In practice, the asset disclosure records of members of the national legislature are of high quality.
na
na
na
50*
Judiciary
na
100
50
100
In practice, citizens can access judicial asset disclosure records within a reasonable time period.
na
100
50
100
In practice, citizens can access judicial asset disclosure records at a reasonable cost.
na
100
50
100
In practice, the asset disclosure records of the national-‐ level judiciary are of high quality.
na
na
na
50*
Civil servants/bureaucracy
100
88
100
100
In practice, citizens can access the asset disclosure records of senior civil servants within a reasonable time 100 period.
75
100
100
In practice, citizens can access the asset disclosure records of senior civil servants at a reasonable cost.
100
100
100
100
In practice, the asset disclosure records of senior civil servants are of high quality.
na
na
na
50*
Source: Author based on data from the Global Integrity Index www.globalintegrity.org; 0 = lowest score (“never”), 100 = highest possible score (“always”). Values marked with* were not included in the calculation of the average score for the respective branch or in the overall score.
Use of Declarations by Non-‐State-‐Actors. In any case, the 2003 public disclosure requirement did focus the attention of the opposition, the media, and civil society on the declarations, who seized the opportunity to criticize the government for lack of compliance with its own legislation (EZ, 2003, Sept 24, 236
Oct 15). Starting with 2004, CSOs did engage in testing compliance with the public asset disclosure requirement at the central (Parliament) and the local level, and notified the asset verification commissions when the declarations were not publicly available (CRJ & IPP, 2006, Nicolae, 2005140, CRJ & APD, 2008). In some cases, a few of these notifications resulted in sanctions, mostly for local level officials (CRJ & APD, 2008141). In 2004, another set of NGOs, led by SAR, formed a “Coalition for a Clean Parliament” (CCP), which used asset and interest declarations, alongside other sources of information, to create a “black list” of local and national election candidates who, among other criteria, had large discrepancies between assets and income or had been in a situation of conflicts of interest (FH, 2005a142; Romanian Coalition for a Clean Parliament, 2005; Muntean & Gheorghita, 2005). The CCP identified over 220 “tainted” candidates. The parties withdrew a few of their candidates as a result of CCP pressure, and the final blacklist included 154 candidates, whose names were distributed via 1.6 million flyers by volunteers across the country (ibid.). This exercise was repeated in 2007 for the European Parliament elections,143 in 2008 140 For example, p. 1: CRJ sent 8 official notifications to prosecutors and other public authorities,
based on information from citizens and from investigative journalists, but received only three satisfactory answers. 141 P. 3-‐4: Since 2004, CRJ, together with APD, TI Romania and IPP sent results of investigations to public authorities, resulting in a number of asset investigations initiated by the AICs (for one former minister, three mayors and vice-‐mayors and eleven public officials). In one case the High Court of Cassation and Justice decided to confiscate 10.000 Euro from a vice-‐mayor – the first such case since 1990. 142 FH (2005a: 11): “The CCP first established the criteria for what makes a candidate unfit for a "cleaner Parliament": (1) having shifted repeatedly from one political party to another in search of personal profit; (2) having been accused of corruption on the basis of published verifiable evidence; (3) having been exposed as an agent of the former Securitate, Ceausescu's secret service; (4) owning private firms with tax arrears to the state; (5) being unable to explain the difference between officially stated assets and revenues; (6) profiting from conflicts of interest involving a public position” (emphasis added). See also: http://sar.org.ro/coalitia-‐pentru-‐parlament-‐curat-‐2004/. 143 http://sar.org.ro/coalitia-‐pentru-‐parlament-‐curat-‐–-‐2007-‐alegeri-‐europene/. Participating organizations that year were: Academia de Advocacy, Alianta Civica, Asociatia Pro Democratia, Centrul pentru Jurnalism Independent, Freedom House Romania, Grupul de Dialog Social, Societatea Academica Romana, Asociatia Timisoara. Funded by CEE Trust
237
for the local and national elections144 (Mungiu-‐Pippidi, 2009a), and in 2012 both for the local elections in May and the parliamentary elections in December.145 Anti-‐corruption CSOs and coalitions continue to this day to use asset declarations to report on different public figures and refer cases to ANI (e.g., Ionescu, 2012), as well as inform voters about candidates running for office.146 The press also did occasionally cover lack of compliance with public disclosure of asset and interests, as well as report on discrepancies between declared and observed assets, conflicts of interests and incompatibilities (SIGMA, 2006: 4, fn 6; EZ, 2003, Oct 15; EZ, 2004, April 21; EZ, 2005, Oct 22; EZ, 2006, Feb 7; EZ, 2007, Jan 4). Reporting focused more on ANI after it started functioning, due to its high profile and frequent press releases. According to one CSO interviewee, the interest of the press in PAD has decreased over time, due to increasing cynicism and disappointment with their effectiveness and with the persistence of corruption overall (CSO 4). The figure below confirms a (moderate) decline after 2005 in press coverage of asset declarations themselves. However, at the same time, press coverage of ANI started in 2005 and increased exponentially over the next years, perhaps compensating for the lower coverage of asset declarations per se (see Figure. 6.7 below). This shift in attention reflects a move away from independent press coverage and
144 http://sar.org.ro/coalitia-‐pentru-‐parlament-‐curat-‐2008/; CCP members that year: Academia de
Advocacy, Alianţa Civică, Asociaţia Profesională pentru Educaţie şi Cercetare, Asociaţia Revoluţionarilor fără Privilegii, Asociaţia Societatea pentru Justiţie (So-‐Just), Asociaţia 21 Decembrie, Blocul Naţional al Revoluţionarilor, Centrul pentru Jurnalism Independent, Centrul Euroregional pentru Democraţie, Freedom House România, Grupul pentru Dialog Social, Grupul pentru Reformă Universitară, Fundaţia Gheorghe Ursu, Iniţiativa pentru o Justiţie Curată, Societatea Academică din România, Societatea Timişoara. Funding not advertised. 145 All black lists can be found here: http://www.romaniacurata.ro/listelenegre.php (last accessed December 28, 2013) 146 http://verificaintegritatea.romaniacurata.ro/
238
monitoring of asset declarations, towards a coverage that is more driven by ANI’s actions – including the cases it initiates and the political battles surrounding the agency. Figure 6-‐7. EZ – number of articles mentioning asset declarations or ANI 80 70 60 50
Asset declarations (average for all declinations)
40 30
ANI (average for all declinations)
20
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
0
1998
10
Source: Author, based on data from www.evz.ro
Thus, the publication of asset declarations did open the door for civil society organizations and media outlets to test compliance with the disclosure requirement. This has contributed to increasing compliance with the publication of ADs. However, the number of declarations to be monitored is very large. ANI’s annual reports show that 185.114 declarations have been submitted in 2007 and 317.886 in 2008.147 The high number of declarations to be submitted yearly makes systematic and comprehensive monitoring of their submission – let alone their veracity -‐ by CSOs alone difficult. Even more, as described in section 6.1, there is no consensus among CSOs themselves about what role civil society should have in monitoring asset declarations, since these are primarily an anti-‐corruption rather than a transparency tool. Therefore, even if some CSOs have used PADs as a transparency and anti-‐ corruption tool, overall, CSOs have used PADs less than FOIA in their work.
147 2008 was an election year, which is probably why the number is so much higher.
239
The Evolution and Role of ANI Given the limits of civil society and media monitoring and verification of asset and interest declarations, as well as the failure of the original, decentralized, monitoring and enforcement of the law, the proposal for a dedicated monitoring and enforcement agency arose in 2005. As discussed in the previous section, adopting the enacting legislation for such an agency took a long time and faced significant resistance. This despite the fact that external funding for it existed since 2005 (EZ, 2008, January 15). Even after the adoption of the ANI law in 2007, there were substantial delays in endowing it with personnel and budget, among other reasons because of difficulties in finding a qualified candidate for president (EC, 2008c) and obtaining and maintaining an adequate budget (EZ, 2008, January 15; Mungiu-‐Pippidi, 2009a). ANI became operational in May 2008 (KAS, 2008) and sent its first case to the courts more than a year after the adoption of its founding legislation, in September 2008. In this case ANI charged an official who was already being investigated by the DNA with owning assets that he could not account for and with conflict of interest (EZ, 2008, September 15). Throughout its existence so far, opposition to ANI has manifested itself not just in attempts to severely restrict its attributes via changes in legislation, but also through attempts to limit its budget, which have been repeatedly criticized by the EU (Mungiu-‐Pippidi, 2009a; RL, 2011; Biro, 2011). Even worse, throughout the years, it has faced attempts at and accusations of political influence. For example, in one prominent case in 2010, two journalists tried to blackmail the head of ANI to obtain information about ongoing investigations against politicians (Stefan et al., 2010). ANI’s first high-‐level investigation prompted an unofficial intervention from an MP who was both a member of the CNI (supervisory council of the ANI) and the lawyer of the official who was being investigated (Vadan, 2008). This was the same MP who later raised the only successful 240
unconstitutionality challenge to the 2007 ANI law. The intervention prompted an outcry from the public and from international observers, fanned also by the fact that the Senate initially refused to relieve the MP from her position on the CNI, despite the obvious conflict of interest (EC, July 2009c; KAS, 2008; GIR, 2008). ANI itself and its leadership have also been affected by incriminations, for example about the appointment of ANI’s secretary general in 2008 (KAS, 2008). In 2009, two whistleblowers from within ANI accused the president and the secretary general of various questionable or illicit activities (Lacatus, 2009; EZ, 2009). ANI’s leadership was cleared of all the accusations by anti-‐corruption authorities, and the head of the NGO that supported the whistleblowers was charged by ANI with breaching incompatibility provisions and forging a signature on official documents (ANI, 2011b).148 ANI has also been criticized for not dealing well with criticism (CRJ, 2009a), and for lacking transparency with regard to how it selects and investigates cases (CSO 2, 4; TI-‐Ro, 2010). The courts rejected a FOIA request for ANI’s internal procedure manual, which should include the procedure for case selection and investigation, on the grounds that this represents a “secret of service” according to the Classified Information Law (ibid). ANI has cooperated with other CSOs, undertaking joint projects with international funding and issuing joint guidelines on asset and interest declarations, conflicts of interest and incompatibilities (SAR & ANI, 2010, 2011). The EU’s CVM reports have been systematically positive about ANI’s performance and critical of attempts to exercise political pressure on it, reduce its budget, or otherwise impair its activity (EC, 2009c; EC, 2011, February). Recent 148 The incompatibility charges were for being at the same time a public employee, the head of an
NGO and a private lawyer. They were upheld due to lack of contestation within the allowed time-‐ frame (ANI, 2012b) and impeded his nomination as a minister in the 2012 government (Nineoclock, 2012). However, other sources claim that he was cleared of all charges by the courts (V.M., 2012)
241
EC reports, however, have noted that few of the cases referred by ANI to the competent authorities (including AICs) have resulted in dissuasive sanctions (EC, 2011, July; EC 2012 February and July). The reports attribute this to weaknesses in Romania’s judicial and administrative systems – including “slow court proceedings, inconsistent jurisprudence and an insufficient cooperation between other administrative authorities, the judiciary and ANI” (EC, 2012b). One interviewee, however, pointed out that another reason could also be that the files put together by ANI do not have a very strong evidence base (CSO 2). While the data is not entirely consistent between ANI’s annual reports and EU country reports, overall, it paints a somewhat patchy picture for the years 2008 – 2011.149 For example, between September 2010 and March 2012 ANI applied around 798 fines for not submitting asset and interest declarations in time (ANI, 2012a: 8). Considering the very large number of declarations to be submitted, this signals either very high compliance or a low degree of coverage by ANI’s inspectors. Regarding the investigation of unjustified assets, as of December 2011 ANI had sent 35 cases to the relevant authorities,150 out of which three were upheld at the end of the full appeals process, four were rejected by the AICs, and the 149 While not the subject of this dissertation, the data on ANI’s activities regarding conflict of interest and incompatibilities paints a similarly mixed picture:
•
As of September 2013, ANI identified 583 cases of incompatibility, only 17 of which had been invalidated by the courts (269 were upheld and 241 were still being processed) (ANI, 2013: 11). However, overall, the disciplinary commissions applied lenient sanctions -‐ or even no sanctions all (EC, 2012, July). On the other hand, in some high-‐profile cases, intermediate or appellate courts not only rejected ANI’s charges (R.M., 2013), but also awarded moral damages to those charged by ANI (Petrovici, 2011).
•
As of September 2013, ANI identified 233 cases of conflict of interest. Out of 114 administrative conflicts of interest (CoIs), 27 were upheld and 65 were still being litigated in court. Out of 118 criminal CoIs, 48 were rejected by the prosecutors, 18 were sent to court and 53 were still being investigated by the prosecutors (ANI, 2013).
By September 2013, ANI had sent 370 cases to criminal prosecutors, on charges such as false statements or suspicion of corruption. However, out of these only 22 resulted in criminal cases. 238 were rejected by the prosecutors and 109 were still being processed by September 2012 (ANI, 2013: 12). 150 The courts before the 2010 change in legislation, the AICs after that. •
242
rest were still being processed by the AICs or the Courts (ANI, 2011a: 31). As of September 2013 ANI had referred 49 cases to the AICs or courts. In eight cases, the courts had issued a definitive asset confiscation decision. Twenty cases were still being processes by the AICs or the courts, while the rest had either been rejected by one of the competent institutions or lost in court (ANI, 2013: 9-‐10).151 International data also suggests that the verification of the declarations has been relatively weak even after ANI started functioning (see Table 6.7). Table 6.7. Verification of asset declarations (GII)
2006 2007 2008
2010
Existence of a legal requirement for auditing of asset declarations (0 = no legal provisions, 100 = comprehensive legal provisions)
0
100
100
100
"In practice" compliance with audit requirement (0 = asset declarations are never audited, 100 = declarations are always audited).
0
0
38
38
Executive
In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).
0
100
100
100
In practice, executive branch asset disclosures (defined here as ministers and above) are audited.
0
0
25
25
Legislature
In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national legislature.
0
100
100
100
In practice, national legislative branch asset disclosures are 0 audited.
0
50
50
Judiciary
In law, there are requirements for the independent auditing of the asset disclosure forms of members of the
na
100
100
100
151 See also http://www.integritate.eu/home/hotarari-‐instante-‐de-‐judecata/confiscari-‐avere.aspx
for a list of definitive court decisions on asset confiscations.
243
2006 2007 2008
2010
In practice, national-‐level judiciary asset disclosures are audited.
na
0
25
25
Civil servants/bureaucracy
In law, there are requirements for the independent auditing of the asset disclosure forms of senior members of na the civil service.
na
100
100
In practice, civil service asset disclosures are audited.
na
50
50
national-‐level judiciary.
na
Source: Author based on data from the Global Integrity Index www.globalintegrity.org.
In conclusion, while public disclosure seems to have increased compliance with the requirement of preparing asset declarations, its contribution to uncovering and especially on punishing acts of corruption has been lower. However, some progress has been made, and the evolution of PADs cannot be understood without considering the emergence and the functioning of the agency in charge of their monitoring and enforcement (ANI).
6.4
Conclusion: the History of FOIA and PAD in Romania
Overall, the history of FOIA and (P)AD illustrate well that, as expected, both domestic and external factors played a role in the adoption and evolution of transparency and anti-‐ corruption policies in Romania. Furthermore, also as expected, the process of policy adoption and evolution was different for the two policies studied here. FOIA has had a less dramatic policy evolution than PAD. Adopted in 2001, FOIA was supported by civil society and reformist political figures from across the political spectrum, did not encounter significant (overt) opposition and was adopted and strenghtened with cross-‐party support. Nobody openly questioned or opposed FOIA, despite doubts over it expressed behind closed doors. Nevertheless, despite it’s high symbolic power, from the beginning, FOIA did not reach a very prominent status (i.e., PM or president-‐level) on the political agenda. It was and is also not a particularly strong law, mostly due to weak enforecement provisions. Some
244
improvements to the law were made based on experience accumulated with its implementation and use. There were few significant attempts at policy reversal, and CSOs succeeded in mobilizing and preventing the weakening of the FOIA regime when threatened. More recently, overall attention to FOIA has subsided and it does not seem to appear anymore on the public or political agenda. Despite its moderate agenda status and enforcement mechanism, centralized monitoring of the law was set up from the beginning, and public agencies received some support for FOIA implementation from government and donors. The resources for training, awareness-‐ raising, etc., did help the law to become functional and to be used soon after its adoption. This was sufficient for it to produce some visible results, and thus benefits for stakeholders, as usage data shows. While the centralized funds for and monitoring of FOIA have declined over time, there is some institutionalization in its use by civil society and citizens. In other words, FOIA has not completely ”decayed,” but it has reached a ”low-‐level equilibrium,” where it is somewhat implemented and used, but without substantial attention to the issue from the public or the government and political elites. In contrast, (P)AD has been the object of intense political battles, being subject to numerous revisions and legislative changes even before it started to produce any effects. It started to become functional as an anti-‐corruption tool almost 12 years after its initial adoption, once an independent enforcement agency was set up. The requirement that public officials prepare asset declarations goes back significantly further in Romanian history than FOIA. The first post-‐communist law regarding (non-‐public) asset disclosure was adopted in 1996. There is not much information about its dynamics or drivers, but it looks like it was adopted both as a political tool and as a (weak) signal of anti-‐corruption efforts. The other two key moments in the evolution of (P)AD were the adoption of the public disclosure requirement,
245
as part of a big package of anti-‐corruption measures, in 2003, and the set-‐up of the monitoring and enforcement agency, in 2007. Civil society support for the public disclosure requirement was unanimous. However, civil society involvement with the development and adoption of the 2003 anti-‐corruption law and the public disclosure requirement specifically was lower than in the case of FOIA. There was also less specific support for civil society to engage in the development, implementation and monitoring of the law. Even so, some civil society organizations did engage in testing public officials’ compliance with the public disclosure requirement, while others used the public declarations for asessing the integrity of of election candidates. Also, unlike for FOIA, there was substantial resistance from political elites to the 2003 anti-‐ corruption bill and to the public disclosure requirement itself, especially from members of the ruling party at that time (PDSR/PSD). Thus, the 2003 bill was adopted with the help of the opposition and by using a legislative technique (assumption of responsibility) aimed to ”force the hand” of MPs of the ruling party. While representing an improvement over the 1996 version, the 2003 public disclosure requirement was still relatively weak and there was no improvement in its (weak) monitoring and enforcement mechanism. The (PDSR) government strenghtened the content of the asset declarations and expanded them to cover all candidates in elections in 2004, shortly before elections. It did so in the face of international and domestic criticism about the law and about its anti-‐corruption record, and (partially, though not admitedly) built on suggestions from opposition parties for strenghtening the law. The public disclosure requirement was further strenghtened and an independent agency (ANI) was set-‐up under the aegis of a reformist political leader (Minister of Justice Macovei) with presidential and external (EU) support. However, a strong centralized monitoring and 246
enforcement agency did not enjoy unanimous support even among CSOs, and faced even more resistance from political elites across the political spectrum, including from the parties in power (PNL-‐PDL-‐UDMR). Both the public disclosure requirement and the independent agency even faced resistance from the judiciary, i.e., a key accountability institution that should help enforce both laws. Unlike FOIA, for PAD both the public disclosure requirement and the setting up and maintenance of the monitoring agency (ANI) reached very high political and public agenda status, with direct involvement of the PM and the President. The set-‐up of the monitoring and enforcement agency was only possible with strong pressure from EU, the President and intense media coverage. Given the public and international outrage at attempts to weaken the PAD regime, none of the main political parties attacked PAD too strongly in public. Rather, the most open and vocal opposition to the PAD regime came from an ethnic party (the UDMR), which has a stable electoral base. Furthermore, opponents expanded their contestation to new venues through challenges of unconstitutionality. Key provisions of the PAD regime, including public disclosure, were declared unconstitutional, leading to a highly contested revision of the law governing ANI and public disclosure. The constitutionality of the revised law is still being challenged, and the outcome is uncertain. Implementation improved after the introduction of the public disclosure requirement, and again after the set up of the monitoring and enforcement agency. Support for implementation and monitoring, from government and donors, seems to have come more after the set up of the monitoring and enforcement agency, and was targeted primarily at ANI, rather than at civil society. ANI has also been the subject of political battles, including attempts at political capture, and charges of inefficiency and politicization. Thus, PAD has not reached a political equilibrium and continues to be contested and challenged
247
through political and other means. Both the public disclosure requirement and the monitoring and enforcement agency could still be facing risks of reversal. The next chapter analyzes the case study through the lens of the theoretical framework, summarizing how the policies evolved over time (outcomes), if and how different domestic actors supported them and benefitted from them (intervening variables), and how the structural, institutional, international and policy-‐specific factors conducive to their adoption and implementation contributed to shaping the incentives of domestic actors.
248
7
Chapter 7: Analysis
This chapter analyses how the findings of the case study relate to the theoretical framework and the propositions developed in section 3.6. It starts by describing the outcomes of the policy process (dependent variables) for FOIA and PAD (including ANI) in terms of emergence on the agenda, ease of adoption, strength of the policies adopted, implementation, compliance and use of the laws, as well as attempts at policy change (section 7.1). Section 7.2 then discusses how the intervening variables fared in both cases, i.e., how and why domestic actors supported or opposed the two policies throughout the years. Section 7.3 reviews the external influences on policy adoption and implementation, relating these back to the policy diffusion mechanisms identified in the literature review. Section 7.4 revisits the structural and institutional factors and re-‐assesses their impact on domestic incentives in light of the findings of the case study. Section 7.5 details the policy features which played a role in shaping domestic support and opposition, and thus policy dynamics, including the valence or rights-‐resonance of the policies, their global strength and the type and distribution of the costs and benefits they engendered. Section 7.6 relates the findings of the case study back to the original propositions developed in Section 3.6. Finally, section 7.7 summarizes again the main features of FOIA/PAD evolution over time, highlighting the main driving factors and explanations for the different policy dynamics. Figure 7.1 below represents again the elements of the theoretical framework, indicating the sections in which the “variables” are discussed.
249
Figure 7-‐1. Theoretical Framework
Source: Author
7.1
Policy Evolution: Pattern of Outcomes
(i) Emergence on the agenda Non-‐public asset disclosure has a long history in Romania. FOIA and public asset disclosure (PAD) emerged around the same time on the agenda, while setting up an independent monitoring and enforcement agency for PAD (ANI) emerged substantially later. In Romania, the requirement for officials to declare assets owned goes back to the pre-‐ WWII era. A similar law about illicit enrichment, applicable to all citizens, existed also during communism. After the collapse of the communist regime, asset disclosure first
250
emerged onto the agenda in 1993, when the government issued a decision requiring civil servants to prepare asset declarations, and then in 1996, when a law on the same subject was adopted. However, in all these cases, the declarations were not public. Suggestions by politicians to make these declarations public appeared in the press around the same time as suggestions to adopt a FOIA, i.e., 1998-‐1999. Suggestions to set up an agency in charge of monitoring and verifying asset declarations (ANI) came much later, in 2005. FOIA, PAD, and ANI were all part of the respective government’s anti-‐corruption strategies, which were issued in the first year after the government took office. FOIA and public disclosure emerged on the agenda in 2001, and ANI in 2005. Thus, while control-‐oriented aspects of asset disclosure have a long history in Romania, the transparency-‐oriented aspects have emerged at the same time as FOIA (i.e., 1999-‐2001). (ii) Ease of adoption PAD encountered significantly more resistance than FOIA. The independent monitoring and enforcement agency for PAD152 (ANI) engendered the most resistance. A number of ”indicators” illustrate the difficulties faced by both PAD and ANI: a. Consensus around FOIA vs. controversy around PAD/ANI: There were hardly any public arguments against FOIA, though some high-‐level politicians voiced concern behind closed doors. FOIA was adopted almost unanimously. Government and opposition both claimed credit for FOIA, and engaged in a blame-‐game for why the law was not adopted earlier. Debates surrounding PAD-‐related bills, and especially ANI, 152 As well as for conflict interest and incompatibilities.
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were much more extensive and intensive than those surrounding FOIA, as illustrated by the length and tone of both parliamentary debates and media coverage. Arguments against PAD and ANI were clearly and repeatedly articulated. Critique and resistance against the PAD and ANI bills came not only from high-‐level officials, but also from parts of civil society (for ANI) and from the judiciary. b. Shorter time from emergence on the agenda to adoption as a law for FOIA than for PAD/ANI: As visible in Table 7.1 below, transition time from the public or media agenda to the government agenda did not differ between FOIA and PAD. ANI emerged almost at the same time on both. Time from the inclusion of the policy in the anti-‐corruption strategy to the introduction of a bill in Parliament by the Government was significantly longer for both PAD and ANI than for FOIA. Time from the introduction of the first relevant bill in Parliament by the Government or an MP to the adoption of a final law was longer for PAD and ANI than for FOIA, albeit only marginally longer for PAD compared to FOIA. Table 7.1. FOIA, PAD and ANI progression from agenda to adoption
From public to government agenda
From government agenda to first government bill in parliament
From introduction of first bill in parliament (regardless by whom) to adoption of relevant law (even if different bill)
FOIA
Ca. 2 years: 1999-‐2001
Less than a year (2001)
9 months: January 18, 2001 (opposition MP)-‐October 2001 (joint gvt-‐opposition bill)
PAD
Ca. 2 years: 1998/9-‐2001
Over 1 year: 2001-‐ October 30, 2002
10 months: May 21st, 2002 (opposition MP) -‐ March 31, 2003 (gvt. bill – assumption of responsibility)
ANI
Same year
Over 1 year: 2005-‐ July 27, 2006
14 months: March 1st 2006 (ruling coalition MP) – May 21 2007 (gvt. bill)
Source: Author
c.
More intrusive legislative procedures employed by the government to ensure adoption of PAD compared to FOIA. One insight from the case study is that the 252
legislative procedures that the government employs to pass its bills through parliament are a good sign or indicator of the resistance those bills face. These procedures can be ranked as follows, from the least to the most intrusive and executive-‐dominated: 1
Regular legislative procedure.
2
Legislative emergency procedure: Shortens, but does not eliminate the time for debate in parliament. Ammendments are possible. In reality, bills considered under emergency procedure are not necessarily voted upon faster than those considered under regular procedure. For example, the 2007 revision of FOIA took four months to reach a vote under regular procedure, while the 2007 ANI law took ten months under emergency procedure.
3
GEO (government emergency ordinance): The government issues an emergency ordinance, which has the effect of a law before parliament gives its assent. This makes it a more intrusive procedure than a regular legislative emergency procedure. However, parliament can still reject the GEO or change its provisions.
4
Assumption of responsibility: the passage of the law is coupled to a vote of no-‐ confidence in the government. This procedure eliminates debate in parliament completely, limits the possibility of ammendments to the government’s bill, and essentially forces MPs of the ruling party to choose between voting for a law or toppling their own party’s government.
FOIA and its subsequent modifications were adopted primarily through regular legislative procedures. PAD was adopted through the assumption of responsibility by the government, and subsequent revisions strengthening the law were adopted through GEOs. Only for ANI was the simple legislative emergency procedure used. For the 2007 ANI law, the lack of a GEO or of assumption of responsibility could have been due to lack of internal government support for the ANI in the context of a fragile government 253
coalition. In 2010 the CC expressly forbade the use of GEO to change the ANI law. Thus, also by this criterion, clearly, FOIA was adopted much more easily than PAD or ANI. (iii) Strength of the law FOIA is a moderately strong law, while (P)AD started out as a weak law in 1996 but is currently one of the strongest in the world. FOIA was from the beginning a moderately strong (or moderately weak) law, with some loopholes and limits imposed by other laws, such as the Classified Information Law. It was not accompanied by a strong and independent enforcement agency, but responsibilities for supporting and monitoring implementation were assigned to the MoPI. The 2006 and 2007 revisions of FOIA didn’t fundamentally change its strength. On the other hand, (P)AD started out in 1996 as a weak law, but it was successively strengthened over time, until it became one of the strongest asset and interest disclosure regime in the world. 2003, 2004 and 2005 saw the introduction and strengthening of the public disclosure requirement. However, it wasn’t until 2007 that a monitoring and enforcement agency was set up. (iv) Implementation, compliance and use of the laws FOIA compliance improved substantially quickly after adoption, but (most likely) weakened more recently. (P)AD implementation and compliance improved over a longer period of time, as the declarations were made public and the overall regime was strengthened. FOIA use by citizens, NGOs, journalists, private sector companies picked up very soon after adoption. CSOs, and, to a lesser degree, journalists, did use PADs in their work once they became public. But neither media nor CSOs could systematically monitor
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the veracity of the declarations and use them as an anti-‐corruption tool by themselves. Unfortunately, the data on implementation, compliance and use is spotty for both policies. However, some basic patterns can be discerned. For FOIA, initial investments in awareness-‐ raising and training paid off, leading to a rapid increase in use after 2002 and in compliance after 2003/4. Both use and compliance were fairly high in international comparison, at least until 2007. The main FOIA users are citizens and NGOs, but also – albeit to a lesser degree -‐ journalists and private sector companies. Media attention to FOIA has clearly declined after 2007/8. Government and donor attention to and support for FOIA has similarly declined. The ministry in charge of monitoring FOIA was downgraded to a government agency and then to a department within the General Secretariat of the Government. It has stopped centralizing FOIA data from public institutions and issuing an annual report. Therefore, data on FOIA use and implementation after 2009 is missing. Despite improvements in the independence of the judiciary, the number of FOIA rulings favorable to citizens has not increased.153 Donor funds for independent FOIA monitoring by CSOs have also declined. However, even though attention and support for FOIA have declined, NGOs still routinely use it in their work to obtain government information on a variety of topics. Thus, FOIA has to some degree become routine in the work of both public sector agencies and NGOs, even if it has lost some of its “glamour,” having fallen off the donor, political and media agenda. For (P)AD, initially (1996 and 2003) there was little support for awareness-‐raising or training from the government or from donors. Once they were made public, CSOs started using PADs for shining light on electoral candidates and public officials and continue to do 153 Some CSO interviewees even saw FOIA enforcement through the judiciary as weakening in the
recent years (CSO 8).
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so today. Some NGOs also engaged in testing compliance with the publication requirement for ADs. However, NGOs were less involved in investigating the veracity of the declarations. The media also started to use ADs as a source for stories once they were made public. However, they most often conveyed directly the contents of the declarations, rather than using them for investigative journalism about potential corruption. Once ANI was set-‐up, the media focused more on ANI itself and its press releases, and less on reporting directly on the content of the declarations, let alone their veracity. Nevertheless, increased CSO and media attention, along with the successive strengthening of the disclosure requirements, have contributed to increased compliance with the PAD requirement after 2004/5. Judging by the websites of the main public institutions (presidency, ministries, parliament), asset and interest declarations are now published routinely. However, it is not possible to judge whether the contents of the declarations have improved over the years in terms of completeness and accuracy. While CSOs and media did use PADs as a tool to increase transparency in public life, their use as anti-‐corruption tools has been much weaker over time. Successive governments made few efforts to enforce L115/1996 and L161/2003, beyond a few weak and inconclusive attempts to use the law against officials of former administrations. The AICs that were in charge of investigating potential discrepancies and unjustified assets were not functional for a long period of time, especially for high-‐level corruption. Therefore, an independent monitoring and enforcement agency was set up (ANI) more than 12 years after the adoption of the first post-‐communist law requiring public officials to prepare asset declarations.
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(v) Attempts at policy change (weakening or strengthening of the laws) PAD/ANI were subject to more attempts at both weakening and strengthening the laws than FOIA. Overall, the (P)AD regime has been subject to a much larger number of changes and proposed changes than FOIA (29 vs. 13 bills tabled in parliament between 1996-‐2012, see Table 7.2 below and Annex 1). These changes have, for the most part, strengthened the legal framework for PAD. There were also significantly more attempts to weaken or overturn PAD than FOIA. However, the most serious attempts to weaken FOIA or PAD were not done through introducing bills in Parliament.154 For FOIA, the only visible attempt at weakening it came through its proposed inclusion in a revised Administrative Procedures Code. However, civil society protest succeeded in preventing this. For PAD and ANI, there were two strategies employed to weaken the laws. The first one was during the passage of the bills through Parliament, when Parliamentary commissions weakened the government’s bills.155 This led to the passage of the 2003 AC bill through assumption of responsibility by the government, and to a very high-‐profile public battle between the President and the MPs involved in weakening the government’s ANI bill in 2007 and 2010. The second strategy consisted of challenges of unconstitutionality of the PAD/ANI law, often raised by the lawyers of those charged and threatened with asset seizure under the law. While the CC initially rejected many of these challenges, the one that 154 Not only were there few bills aimed at weakening either policy (one out of 13 for FOIA, and three out of 33 for (P)AID), but these bills dealt either with comparatively marginal issues (i.e., whether PAID should apply also to leaders of labor unions), or did not have enough support to stand a chance of passing parliament. Therefore, a formal count of the number of bills aimed at weakening the laws as share of total bills is not a good indicator of attempts at policy reversal. 155 Mostly the Judicial Commission and occasionally also the Human Rights Commission.
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was upheld, in 2010, threatened to significantly weaken the PAD regime, by rescinding the publication requirement and leaving the ANI without powers to conduct even basic investigations. Nevertheless, the revised law adopted after the CC decision maintained most of the original provisions, including the publication requirement, and weakened only marginally most of ANI’s competencies. Table 7.2 below summarizes the main features of FOIA and PAD evolution over time -‐ the pattern of outcomes -‐ described in this section. Table 7.2. Key features of FOIA and (P)AD evolution over time Bills introduced and laws adopted, 1996-‐ 2012156 (key laws in bold)
FOIA
(Public) Asset Disclosure
13 bills (see Table A.2 in Annex 1)
29 bills (see Table A.3 in Annex 1)
4 laws – subsequent changes extended the reach of the law 2001 – FOIA adopted 2006 –extends FOIA to cover explicitly commercial companies fully or majority-‐owned by the state 2006 – extends FOIA to cover explicitly public procurement contratcs 2007 – extends FOIA to cover explicitly (future) privatization contracts
9 laws -‐ subsequent changes strengthened the law 1996 – asset declarations required from public officials 2003 – public disclosure of asset declarations required, although the new forms contained less information than the old ones; introduction of conflict of interest and incompatibility provisions 2004 – (minor) strengthening of asset declaration content 2004 – extension of public asset disclosure requirment to candidates in elections; strenghtening of the content of PADs 2005 – strenghtening of the content of PADs 2007 – set-‐up of centralized AD monitoring and enforcement agency (ANI) 2008 – strengthen ANI 2008 – allow ANI to function without a president 2010 – align ANI law with requirements of Constitutional Court
156 The number of bills for 1996-‐2000 could be underestimated, as the online database of the
Chamber of Deputies does not seem to be complete for that period.
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FOIA
(Public) Asset Disclosure
(i) Emergence on the public/govern ment agenda
FOIA: 1999/2001
PAD: 1998-‐9/2001
(ii) Ease of adoption
High (see below)
Low (difficult adoption – see below)
Cross-‐party consensus
Yes, credit-‐claiming competition, and blame game for why the law was not adopted earlier
Rhetorical commitment and credit-‐ claiming for anti-‐corruption, but no consensus on public asset declarations or institution arrangements for monitoring/enforcing them.
Controversy
None or very little. Exception: some -‐ though not substantive or intensive – opposition to public access to procument contracts , given that they contain commercial information. Controversies more surrounding other laws restricting access to information (such as Classified Information Law)
Lengthy and heated debates in Parliament and in the media. Substantive arguments invoked:
ANI: 2005
•
Against public dislosure: o
•
Against monitoring and sanctioning agency: o
”communist law” reminiscence
o
lack of similar agencies in other, especially European, countries political capture or bias lack of professionalism and inefficiency (esp. in context of budget constraints).
o o
Time from emergence on the agenda to adoption
right to privacy
FOIA adoption: • • •
AD adoption: asset declaration laws have existed in Romania for a long time (both in the inter-‐war and the communist eras). After communism, asset disclosure of same year as government AC public officials was included in a 1993 strategy in which it was proposed. government decision and a 1996 law. 9 months from the introduction of PAD adoption: the first bill in parliament (by • ca. 4 years from first press mention opposition MP) (in EZ) ca. 2 years from first press mention (in EZ)
•
ca. 2 years from gvt. AC strategy in which it was proposed
8 months from introduction of first related bill in parliament (by opposition MPs) ANI adoption: •
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•
ca. 2 years from first press mention (in EZ)
•
ca. 2 years from government AC strategy where it is proposed.
FOIA
(Public) Asset Disclosure •
Legislative procedures employed and initiators
2001-‐ FOIA: Unsual joint consideration and merging of government and opposition proposal. Opposition law was introduced in regular procedure, government proposal was in emergency procedure. Subsequent changes (2006-‐2007) followed regular parliamentary procedures, and all three were initiated by MPs. 2007 bill was proposed together with oppositional MPs.
(iii) Strength of Medium -‐ lack of public interest the law override clause and weak provisions for promotion, sanctioning and enforcement of FOIA. Improvements of the law have targeted its coverage, thus not changing much of the underlying problem.
14 months from introduction of first related bill in parliament (by MP of the ruling alliance)
1996 – AD: Emergency procedure 2003 -‐ PAD: Assumption of responsibility by the government 2004 – 2005 – PAD: GEOs 2007 – ANI: Emergency procedure 2008 – ANI: GEO; Emergency Procedure 2010 – ANI: Emergency Procedure All succesful AD-‐related bills were initiated by the government.
Weak initially but substantially strenghtened over time 1996 – very weak, no public disclosure, no enforcement mechanism 2003 – weak, but public disclosure 2004/2005 – strong public disclosure requirement 2007 – monitoring and enforcement agency 2010 – some (marginal) weakening of monitoring and enforcement agency
(iv) Implementatio n and use of the laws
FOIA started being used as a tool for increased transparency in the first two years after adoption.
PADs started being used by CSOs and the media as a tool for transparency soon (ca. 1 year) after adoption. However, the declarations started being used as an anti-‐ corruption tool (by a specialized agency) only in 2008, almost 12 years after the first post-‐communist asset declaration law, and 4 years after the public disclosure requirement.
Use of the laws
Used especially by citizens and NGOs, some use by journalists and (less) by private companies. Romania has a comparatively high FOIA use rate.
Some use by journalists (though possibly less direct reporting on the declarations themselves after set up of ANI). Some use by NGOs (though less than FOIA), e.g., to ”vet” electoral candidates, report on high-‐level officials, test compliance with the public disclosure requirement, or even to report potential assets-‐income discrepancies to the authorities. Use of the declarations to investigate potential corruption or unjustified enrichment increased (somewhat) after
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FOIA
(Public) Asset Disclosure the set up of a specialized agency.
Implementatio n and compliance
Compliance improved in the years after adoption, at least in part due to dedicated funding and to CSO pressure, but might have decreased in the last couple of years. The peak seems to have been in the period 2004-‐2007. Data is missing after 2009.
Compliance improved after the public dislosure requirement was introduced and strenghtened. There was little support for awareness-‐raising or helping public agencies set up their own decentralized implementation and compliance units.
(v) Attempts at weakening or strenghtening the laws
3 (comparatively) minor measures for legislative strenghtening (2006-‐ 2007). 1 potentially signficant, but failed, attempt at weakening FOIA through its inclusion in the Administrative Procedure Code.
3 major (2003, 2004/5, 2007) and 4 (comparatively) minor legislative changes strengthening the original law. Attempts at weakening the law during its passage through parliament, in the parliamentary commissions in charge of endorsing the bills. Attempts at weakening the law through challenges of unconstitutionality, out of which one was successful, leading to a law with (somewhat) weaker publicity requirements and compentecies of ANI.
Source: Author
7.2
Intervening Variables: Support from Domestic Actors
As expected, based on the analysis of the structural and institutional factors in Chapter 5, on the demand side, CSOs/NGOs were the main advocates of the two policies – albeit more for FOIA than for PAD and ANI. They benefitted from the existence of reformist policy entrepreneurs within political parties or governments, some of whom had roots in civil society (like the 2005-‐2007 Justice Minister Macovei). These in turn benefitted from external pressure (see next section) and the general political climate in Romania in which corruption, but to a lesser degree transparency, was a very salient public concern. Table 7.3 below summarizes the behavior of key domestic actors in the FOIA/PAD/ANI policy process. Demand-‐side and supply-‐side reactions are further discussed below. Table 7.3. Key actors’ support for FOIA and PAD/ANI Actors
Support for FOIA
Support for PAD (and ANI) Demand side
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Actors
Support for FOIA
Support for PAD (and ANI)
Citizens/ the public
FOIA enjoys public support, but is not very salient on the public agenda. Despite high FOIA use, awareness of the law is moderate.
No use or little use of asset declarations by citizens, but general perception that politicians and high-‐level officials should disclose their assets.
The private sector
Private sector companies do use FOIA, but this does not translate into advocacy or other policy support.
No demand for or use of AD.
Media
Low direct participation in FOIA advocacy and development.
No direct participation in PAD/ANI advocacy.
Some coverage of debates surrounding FOIA adoption. Covered critically (but not very intensely) lack of FOIA compliance, mostly based on NGO reports. Attention peaks in 2003-‐2004, and again (at a lower level) in 2007. FOIA has fallen off the media agenda since 2008/9. Civil society
High mobilization for initial adoption (Coalition for Transparency etc.) Unanimous support. Main source of demand and support for FOIA– both at adoption and during implementation. Participation in crafting the law. Constant demands for more transparency from CSOs. FOIA and OML seen and advocated as fundamental citizenship rights.
Intense (and increasing over time) coverage of (P)AD legislative debates – especially around ANI. Coverage generally supportive of more stringent disclosure and enforcement requirements. Some use of and reporting on asset declarations after their public release, but coverage shifted to ANI after the agency was set up and started issuing press releases, giving interviews, etc.
Source of demand and support for PAD and ANI, but less visible and strong than for FOIA. Also less involved in the development of the bills. Consensus on public disclosure of ADs, but no consensus about having a dedicated, centralized monitoring and enforcement agency. The set up of ANI split civil society, but support for ANI from (some) CSOs remains significant.
Supply Side Legislato rs (MPs)
Oppositional (PNL) MP crucial in adoption of FOIA. All successful bills strengthening FOIA were initiated by MPs.
MPs of parties in power generally opposed PAD and ANI, while (some) opposition MPs (particularly from the PD/PDL) supported them. Most outspoken opponents came from an ethnic party with a stable electoral base.
Presiden t(s)
FOIA has never climbed high enough on the political agenda to receive presidential attention.
Iliescu did support public disclosure of ADs (both while in opposition and as president after 2000), but not very loudly, i.e., he did not apply much pressure. Basescu made his support for PAD and especially ANI a major public and political agenda item, including through intense criticism of opponents of a strong ANI.
Prime Minister
Generally supported FOIA, but no active involvement.
High PM involvement in adoption of PAD and ANI – necessary to overcome resistance from legislators
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Actors
Support for FOIA
Support for PAD (and ANI)
(s)
within their own party. However, most of them were reacting to external pressure, rather than domestic demand or own values. The one (possible) exception is PM Boc (PDL, 2010), who was the main advocate of stronger PAD requirements also while in opposition.
(Key) minister (s)
FOIA was adopted under the leadership of the Minister of Public Information (PSD, generally considered reformist) After 2003, as MoPI was demoted to ASG, there was no high-‐level ministerial support for FOIA.
2005-‐2007 Minister of Justice (Macovei -‐ independent, later PDL – 2005-‐2006), at whose initiative ANI was set up, widely considered most reformist Minister of Justice, supported PAD/ANI based on intrinsic motivation (value actor). Other Minister of Justices (T. Chiuariu, PNL -‐ 2007, Predoiu, PNL/independent/later PDL -‐ 2010) supported PAD/ANI, but only under pressure from other key actors (EU, public, presidential).
Judiciary
Level of support unclear, but mixed record on FOIA enforcement (though positive examples exist).
(Partial) Opposition to PAD and ANI At least one CC decision against public disclosure and ANI.
Source: Author
Support from Interest Groups (Demand Side) Despite being among the users of FOIA, neither private sector organizations nor media organizations seem to have mobilized in support of FOIA. As expected, based on the analysis of structural and institutional factors, the main advocates and supporters of FOIA came from civil society. Leading NGOs almost unanimously supported FOIA, and banded together in a high-‐profile civil society campaign for its adoption. For PAD, no NGO openly opposed public disclosure, and some NGOs critiqued attempts to classify the declarations or restrict the information to be made public. However, participation in the development of the PAD law and the broader 2003 anti-‐corruption law by NGOs was less intense and broad-‐based, possibly also because government was less open to civil society involvement in developing the AC law. The set up of ANI effectively split civil society, with some civil society representatives criticizing the proposed agency on the grounds that it opens the door to abuse, and others contending that the law does not go far enough in investing the agency with sufficient powers to carry out its mandate. 263
While some independent journalists and media-‐themed NGOs did participate in the FOIA coalition, mainstream media outlets and organizations did not play a significant role in advocating for either of the two policies. Nevertheless, the media did cover the debates surrounding the FOIA, PAD and ANI and was in general supportive of the laws. It also covered to some degree issues such as compliance (or lack thereof) with the laws, especially for FOIA. The coverage was reactive, based on NGO reports and public statements of prominent domestic and international political figures. Thus, the media did offer a platform for advocates of the laws to articulate themselves and advocate for the policies. Support from Decision-‐Makers (Supply-‐Side) No decision-‐makers publicly opposed FOIA, albeit some voiced doubts behind closed doors. In 2001, both the government and the opposition proposed similar FOIA bills, which were integrated with the help of CSOs. Thus, FOIA was a rare example of a comparatively harmonious collaboration between government, opposition, and CSOs. In 2006-‐2007, MPs, mostly from the ruling coalition between PDL-‐PNL, rather than the government, initiated the three laws strengthening FOIA. This somewhat unusual lower involvement of the executive indicates at least some genuine MP interest in FOIA. It could also indicate that the executive sees FOIA as less threatening and therefore less in need of government control. In contrast, the government initiated all successful PAD/ANI bills. Between 2000-‐2004, oppositional MPs introduced PAD bills that were stronger than those of the government, and criticized the governments’ lack of enforcement of existing anti-‐corruption laws. All major PAD/ANI laws faced resistance from MPs aligned with the government. Thus, despite the overall weak capacity of the legislature, some legislators did act as policy entrepreneurs for the adoption and/or strengthening the laws. During 2000-‐2004, these legislators came from opposition parties (PNL MP Musca for FOIA, PD MP Boc for PAD). MPs 264
from the party in power (PDSR/PSD) were either less pro-‐active, relying on the government’s proposal (for FOIA), or actively opposed and tried to weaken the law (for PAD). Even while in opposition (2005-‐2007, 2010-‐2011157), PSD MPs did not support strengthening the PAD regime or pressure for its better implementation – on the contrary. Thus, overall, regardless of who was in power, the most outspoken advocates of PAD/ANI among decision-‐makers, along with other anti-‐corruption policies and institutions, came from the PD/PDL – most notably PM Boc and president Basescu.158 It is difficult to establish whether they supported PAD/ANI/AC for intrinsic reasons (as some analysts argue for Basescu – see, for example, Pridham, 2007b: 541, fn 42) or out of political calculation. Both of them have been fairly consistent supporters of PAD/anti-‐corruption in general over the years, both while in opposition and while in office. However, both of them have also been tied to public figures accused of or condemned for corruption. Both of them also had political incentives to take up the anti-‐corruption flag. The 2000-‐2004 PSD/PDSR government was perceived as highly corrupt both by external actors and by the public. Thus, corruption was a tempting issue to raise, especially while in opposition and during
157 In 2007-‐2008 the PSD was not formally part of the government coalition, but it was supporting
the government via an informal agreement. Thus, I do not count those years as oppositional for the PSD. 158 Beyond the initial FOIA-‐proposal, PNL has been more contained when it comes to transparency and (especially) to anti-‐corruption policies like PAD and ANI. PRM, while in parliament, has in general been fairly active regarding PAD, but its proposals have generally been weak. UDMR has been most openly opposed to PAD and ANI. PD/PDL has been the party most supportive of PAD/ANI and broader anti-‐corruption reforms. However, while a few members of the PD/PDL were supportive of PAD and ANI policies, most PDL members (MPs or members of government) were not. One common explanation is that the PDSR/ PSD, being more or less the successor of the former communist party, was by definition composed of conservative political figures, who had no interest in increasing transparency or combating corruption. However, as discussed, the PD/PDL also emerged from the same post-‐communist successor party (FSN) and has also been tied to its own or to cross-‐party clientelistic networks.
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political campaigns. Styling himself and the PDL as the anti-‐corruption party most likely helped Basescu win the presidency twice. Increasing EU pressure to fight corruption could also have strengthened the incentives for vocally supporting PAD/ANI/AC measures (see next section) for the President and PM. The desire to demonstrate AC commitment to the EU in the run up to accession can also explain the inclusion in the 2005-‐2007 PNL-‐PD/PDL government, at the behest of President Basescu,159 of key reformist figures with a good international reputation, in particular Minister of Justice Macovei. During her tenure, Macovei substantially strengthened anti-‐ corruption policies, including by strengthening the content of asset declarations and developing the ANI law. Among decision-‐makers, she seems the most likely value actor, for two reasons. First, she has consistently advocated for anti-‐corruption measures while working as a civil society activist with APADOR-‐CH, a leading Romanian human rights NGO, as an independent Minister of Justice, as a member of the European Parliament, and as a member of the PDL.160 Second, she has no known associations with other political or economic figures accused of corruption. As mentioned, one of key differences between FOIA and PAD/ANI was that the latter encountered massive opposition from members of government and parliament across the political spectrum. The most visible public opposition came from an ethnic party (UDMR), i.e., the party with the most stable electoral base. Even some members of the judiciary openly criticized PAD, and especially ANI. Whatever the motivation, neither PAD nor ANI
159 President Basescu has also backed other prominent “corruption fighters,” such as Chief Prosecutor Kovesi and the Chief Anti-‐Corruption Prosecutor Morar. 160 She joined the PDL after leaving office. As a party member, she advocated the use of integrity
criteria and ethics commissions to prevent and sanction corruption among party members.
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could have been adopted and maintained without strong PM and/or presidential support at critical junctures (2003, 2007, and 2010).
7.3
External Influences: Channels of Diffusion
The case study shows that multiple diffusion channels were active at once, partially in ways that are not easy to define or trace precisely. Overall, there seems to have been a remarkable degree of consensus among external actors (EU, NATO, US, WB, international NGOs and foundations, etc.) about (i) the need for Romanian governments to increase transparency and intensify the fight against corruption, and (ii) ways to do so – including the adoption and implementation of the policies studied here (especially for FOIA). Table 7.4 below summarizes the main diffusion mechanisms at play in the adoption (and evolution) of FOI and PAD in Romania. Table 7.4. International influences
FOIA
PAD
Key points
Indirect pressure: gvt needed to illustrate democratic credentials. Positive reception of FOIA by key external partners. Support to government and NGOs for implementation of FOIA in the aftermath of adoption, but declining over time. Recommendations to improve implementation of the law, but no outright conditionality. FOIA dissapeared from agenda of key external partners after 2006.
Indirect pressure: gvt needed to illustrate anti-‐corruption credentials. Positive reception of public asset disclosure by key external partners. Direct and strong pressure (EU conditionality) for monitoring and enforcement agency. Support mostly to government for implementation and monitoring, but mostly after the set-‐up of the monitoring and enforcement agency.
Diffusion channels observed
Persuasion – norm adoption (right-‐to-‐ know/access to public information as a citizenship right) among a few actors (mostly CSOs and a few reform-‐ oriented public officials and party members). Policy learning – training and exchanges of experience surrounding FOIA, learning from other countries by
Persuasion -‐ There was some spillover of the discourse of transparency from FOIA (and OML) into justifying the public disclosure of ADs. Policy learning – less training and exchanges of experience surrounding PAD, none for ANI, though some domestic policy entrepreneurs might have been inspired by models from other countries.
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FOIA
PAD
domestic policy entrepreneurs. Mimicry – yes, among most high-‐level public and party or political officials.
Mimicry – somewhat, among high-‐level officials when it comes to the norm of transparency and to the desire to show their commitment to the fight against Conditionality – was not the case, at corruption through public disclosure of least not in the narrow or ”proper” their asset declarations. However, more sense of the word. The impetus was muted than for FOIA since countered by the broad political conditionality rather right-‐to-‐privacy argument and since there than narrow policy conditionality. were fewer examples of strong PAD However, informal suggestions might regimes in (Western) European countries. have been made from NATO (and possibly EU). The adoption of FOIA was Conditionality – was not the case for the adoption of the initial asset declaration universally received positively and Romanian decision-‐makers anticipated requirement (1996), or the public disclosure requirement (2003). Public this positive reaction. disclosure was adopted to demonstrate the Competition – not observed. government’s commitment to fighting corruption to the EU. The set-‐up of ANI is, prima facie, the only direct, de facto conditionality. However, the idea for setting up ANI seems to have domestic origins (see respective sections). Competition – not observed. Summary conclusion
The government wanted to demonstrate its democratic credentials, primarily abroad, but also domestically. FOIA was one of the main ways of achieving this. The fact that both CSOs and government officials had contact with or knowledge of FOIA in other countries (mainly the US) helped its adoption.
Government wanted to demonstrate its anti-‐corruption credentials, primarily abroad, but also domestically. Public asset and interest disclosure was one of the main ways of achieving this. Once adopted, EU calls for better enforcement, together with domestic policy entrepreneurship, led to the set up of ANI as an explicit EU conditionality.
Source: Author
Neither FOIA nor PAD were explicit or direct conditionalities, in the sense that government risked punishment if it did not adopt these laws. Rather, in both cases, the government was required to show “progress” in increasing transparency and fighting corruption, but what progress meant was negotiated between domestic and international stakeholders. Thus, the government was looking for ways to send signals of its democratic and anti-‐corruption commitment to international actors, and was aware that both laws would be received positively by key international stakeholders (NATO/US, EU, and to a lesser degree, the World Bank). In interviews and in other data sources it was suggested that NATO/US asked “unofficially” for a FOIA, however, it is difficult to verify this claim. 268
Arguably, an unofficial condition can be considered less powerful than an official one, i.e., one specifically recorded in a contractual document between the Government of Romania and an international organization. Thus, I do not count informal suggestions as conditionality. Thus, for FOIA and PAD conditionality was indirect and diffuse. It was reinforced by mimicry as an essential incentive for decision-‐makers to support FOIA and PAD. Successive governments were seeking to demonstrate their transparency/anti-‐corruption credentials in order to gain accession to NATO and then EU – without actual internalization of the norms. Mimicry also made it difficult for MPs to oppose the laws since transparency and anti-‐corruption were seen as values that every “civilized country” should respect. This was the case especially for FOIA, given its high global popularity. Even in the case of PAD, transparency was invoked as international good practice, and thus as something to emulate. However, the perceived conflict with the right to privacy, coupled with the fact that few European countries had strong public disclosure regimes, weakened the incentives for mimicry in the case of PAD. Mimicry was also not a main incentive for the adoption of ANI. In this case, the lack of similar models in other European countries even backfired, being frequently invoked as an argument against the adoption of ANI (see also section 7.5 on the global strength of the policies). Thus, only the law on the National Integrity Agency was a conditionality in the narrow sense, i.e., a clear condition articulated in an official document, alongside sanctions to be applied in case of non-‐compliance: in 2006, the EU threatened to enact the safeguard clause, effectively postponing Romania’s accession by a year, if the ANI law was not adopted. None of the other laws studied here gained similar prominence and external backing. But even in this case, the original proposal of ANI as one of four CVM benchmarks does not seem to have
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originated from the EU itself. Rather, the EU was looking for ways to codify and “measure” progress in fighting corruption, via the CVM. Domestic policy entrepreneurs used EU negotiations as a way to commit future governments to continue to support ANI in the face of domestic resistance. Policy learning and persuasion played a significant role especially in the uptake of transparency and anti-‐corruption in Romania by CSOs and reformist members of government (i.e., value actors). Civil society activists were, by their own admission, socialized through “Western,” and in particular US, programs for civil society. As one interviewee put it, “we are all George’s [Soros] people” (CSO 3). Key civil society activists, along with a few government officials, learned about both the norms of transparency and specific transparency policies through trainings, conferences, exchanges of experience, etc., or what Finnemore (2001) calls seminar diplomacy. This was the case especially for FOIA, but less so for PAD and even less for ANI, for which there were comparatively fewer examples and best practice from other countries to learn from (see also section on global strength), and less international training, advocacy and support. Nevertheless, even for PAD/ANI domestic policy entrepreneurs tried to use models from other countries, where these were available (e.g., the British model for PAD, American model for ANI). In general, NGOs and reformist political actors also sought by themselves policy models from which to learn, either from similar countries (CEE/new EU member states, like Slovakia for FOIA), or from aspirational countries (e.g., UK, US, etc.) One argument that can be made is that support for FOIA, and maybe PAD and ANI, carried rewards for NGOs that came not so much from their increased access to information, or the intrinsic reward of realizing a right deemed essential, but from the international funding directed at these policies. However, as argued, CSO activities regarding FOIA and PAD came
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for the most part from broader funding lines aimed at strengthening civil society or public accountability more generally. The international backing of these policies also means there are potential image rewards for CSO activists from advocating these policies, opening the possibility that CSO support for them was also more a case of mimicry than persuasion or policy learning. However, the degree to which this is the case cannot be clearly established. The only diffusion mechanism that was not visible in the case of Romania was international market pressure (competition). While statements of US ambassadors to Romania often highlighted government corruption and lack of transparency as main obstacles to US investment in Romania, neither domestic political debates, as reflected in transcripts of parliamentary debates and explications of motives for the laws, nor CSO statements and analysis, nor the interviews, nor other existing secondary literature reveal any substantial international competitiveness considerations in the adoption and subsequent evolution of the laws. This can be for a number reasons. First, stakeholders could assume that EU accession, with its combination of market access and financial assistance, would result in increased investment and external financial flows for Romania, making additional measures to increase competitiveness unnecessary. Second, it is possible that international investors, while concerned about issues of corruption, were driven more by other incentives, such as access to new markets or the existence of cheap and educated labor force. Third, judging by the experience of other countries in the region adopting FOIA and PAD, there is no indication that these policies contributed to attracting a higher level of foreign investment. Rather it is the overall image of the government and country that can make a difference in terms of foreign investment.
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External influence and support were also helpful in improving implementation of the policies. External funds for independent NGO monitoring for FOIA, as well as for training and awareness-‐raising were essential in ensuring FOIA use and compliance soon after its adoption. There were less external funds for independent monitoring, training and awareness-‐raising surrounding PAD. The EU criticized lack of or insufficient implementation both for FOIA and for PAD. The lack of enforcement of PAD and use for anti-‐ corruption investigations eventually contributed to the CVM requirement of setting up an independent monitoring and enforcement agency. In conclusion, external influence did shape domestic support for the policies, although the mechanisms of influence were different for FOIA than for PAD. FOIA benefitted from more “soft” support and was a more direct result of international diffusion per se, through emulation (persuasion as well as mimicry) and policy learning. PAD was an in-‐between case, where there was not as much policy learning via direct international support, but where mimicry – or the desire to increase international legitimacy or recognition -‐ still played a role in incentivizing decision-‐makers to support it. Only ANI was a conditionality in the narrow sense. However, besides ANI, interviews and documents paint a picture of the EU as reacting more to domestic policy proposals than actively leading them. This was especially the case for transparency – partially because the EU’s own lack of transparency, partially because the topic was not a very salient one for the EU. Even for anti-‐corruption policies, the EU might have played less of a role than what is typically assumed. As one interviewee put it, the EU was used more as a “scarecrow” in pushing for the adoption of transparency and anti-‐corruption policies, with arguments along the lines of “we have to have this law, otherwise we will look ridiculous” (CSO 2). Thus, the EU played more an indirect, catalytic, role than a direct one in the adoption and evolution of the policies, and domestic explanations are also necessary to understand the dynamics of the two policies. 272
7.4
Structural and Institutional Factors
The case study narrative broadly confirms the expectations formulated based on the analysis of the structural and institutional factors (see Table 7.5 below). There are, however, a few somewhat unexpected findings. First, on the demand side, while, as expected, neither media nor private sector organizations were advocates or visible supporters of FOIA and PAD, both did use FOIA to request access to information, and the press also covered (supportively) FOIA, PAD and ANI negotiations. Second, on the supply side, as expected, given the short time-‐horizons of decision-‐makers and the limited independence of implementation and accountability institutions, increasing present and or future bureaucratic and political accountability was not a motivation for most decision-‐makers to support FOIA/PAD. However, political competition and uncertainty did play a role in shaping the incentives for supporting PAD/ANI/AC policies, albeit unexpected ones. Political competition strengthened the incentives of presidents and some opposition parties to criticize government (ineffectiveness in fighting) corruption. Political uncertainty lowered resistance to the policies due to expectations that these would not be (fully) implemented. Third, there was some implementation and enforcement of FOIA despite capacity weaknesses and lack of independence of the bureaucracy and the judiciary. Finally, while not unexpected, the case study narrative confirms the crucial role external actors in the adoption and (partially) in the implementation of the policies – in particular the EU, and (to a lesser degree and at an earlier point in time) NATO.
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Table 7.5. Structural and institutional factors, original expectations and observed behavior Actors
Main structural or institutional issue (Ch. 5)
Media
High political Low demand for FOIA from influence on the media the press. Low demand for PAD.
Implications for FOIA/PAD support and opposition
Observed behavior (Ch. 6)
Low involvement in FOIA advocacy and adoption; no involvement for PAD BUT use of FOIA/PAD; coverage of FOIA/PAD/ANI
The private sector
High patronage, clientelism and state-‐ capture.
No demand for FOIA from the private sector. No demand for PAI.
Low involvement in FOIA advocacy and adoption; PAD has no relevance BUT use of FOIA
Civil society
Key actor in the good governance arena.
Potentially high demand from CSOs for both.
Main source of advocacy, demand for and use of FOIA, some advocacy for and use of PAD, divided over ANI
1. Weak separation of powers, executive dominance 2. High stakes and short time-‐horizons. 3. Low trust in government, and high salience of corruption on the public agenda. 4. Potential (though few) policy entrepreneurs exist.
No incentives to adopt FOIA to increase bureaucratic accountability or “tie the hands” of future governments.
Policy entrepreneurs came mainly from civil society and reformist MPs or members or government. There was substantial resistance to PAD from [most] decision-‐makers (MPs and members of government).
Broad and increasing external pressure to address corruption. Transparency has been a less prominent issue on the international and EU agenda. CSOs and reformist officials have been socialized through Western support. Very high leverage and potential influence of international actors (in particular NATO
Low incentives for FOIA adoption via conditionality if tied to transparency, potentially high incentives via persuasion, policy learning and mimicry.
Decision-‐ makers
External actors
Some incentives for adopting FOIA/PAD as a way of re-‐legitimization (domestically and internationally). Decision-‐makers (members of the executive or legislators) have incentives to oppose PAD.
Potentially incentives for (P)AD adoption via conditionality if tied to anti-‐ corruption.
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BUT PAD/ANI enjoyed high-‐ level political support from President and/or PM.
Mimicry, persuasion and policy learning played an important role in FOIA adoption, along with indirect and diffuse democratic conditionality. PAD adoption was driven initially more by mimicry and indirect and diffuse anti-‐ corruption/rule-‐of-‐law conditionality. ANI was a direct conditionality.
Actors
Main structural or institutional issue (Ch. 5)
Implications for FOIA/PAD support and opposition
Observed behavior (Ch. 6)
Low incentives and capacity for FOIA implementation and enforcement.
Some FOIA implementation and compliance by the bureaucracy and enforcement through the judiciary (more than expected).
Low incentives for (P)AD enforcement.
and the EU). Implemen tation and oversight agencies
Bureaucracy and Judiciary: weak to medium capacity, lack of professionalism and political independence.
Source: Author
Demand-‐Side Actors and Incentives As expected, there was no FOIA-‐advocacy from representative media organizations or mainstream publications, and FOIA or PAD were not used systematically for investigative journalism. However, the media did cover supportively the policy debates surrounding FOIA, PAD and especially ANI, as well as, to a lesser degree, FOIA implementation. The most intense coverage was around the political battles surrounding ANI. This can reflect the fact that corruption ranked high as a concern on the public agenda and public opinion was supportive of FOIA and PAD. It can also reflect the fact that corruption is a particularly scandal-‐prone topic, even more so when tied to high-‐profile political battles around the adoption of anti-‐corruption policies. The conclusion is that in settings where the media is partially free, i.e., captured but not completely controlled, media representatives and organizations will most likely not lead advocacy for government transparency or anti-‐ corruption. However, under certain conditions, such as public concern with corruption and high-‐level political involvement, the media can serve as a transmission belt through which other actors can make themselves heard and advocate for such policies. The explanation is somewhat similar for private companies. The lack of private sector involvement in FOIA advocacy and support is not explained by the fact that FOIA does not generate benefits for the private sector. It is (most likely) explained by the close alignment 275
of the economic and political power, and the fact that privatization and public procurement contracts are some of the main channels of political patronage. This contributes to low demand and support for FOIA, since well-‐connected firms do not need it to obtain the information they need, while less well connected firms are insufficiently organized and articulated to demand it. It also contributes to low supply of FOIA information, as privatization and procurement are sensitive areas, for which information is often not released even in the case of a FOIA request. Supply-‐Side Actors and Incentives The role of political competition and divided government In Romania’s semi-‐presidential system, the president is elected directly by popular vote, but has limited powers. This gives the president incentives to be critical of the government, to elevate himself above the political fray and show himself as a representing the interests of all the citizens (Marian & King, 2011 – as they put it to be a “transcendent unifier” or a “transcendent moralizer”). Criticizing corruption and lack of government action against it is one of the most obvious and high-‐impact ways to do that, especially when corruption is a prominent domestic and international concern. Presidents have criticized lack of progress in the fight against corruption even when the president and the PM belonged to the same party and were on comparatively good terms, such as Iliescu-‐Nastase (2000-‐2004) and Basescu-‐Boc (2008-‐2012). These critiques have been louder and more acerbic in cases of divided government, when the president and the PM stemmed from different parties. Thus, when the president is directly elected and highly visible, but does not control the government, political competition generates incentives for him to make and keep corruption a public and political agenda item. These incentives are even stronger in the context of divided semi-‐presidential government, as criticizing government leadership can 276
help increase the re-‐election prospects of both the president and of his party of origin. This explanation of presidential support for TAC policies is somewhat similar to the argument that weak presidents will support FOIA as a way to increase their legitimacy, if there is strong popular mobilization for it, proposed by Michener (2011). The findings of the case study show that this explanation can be extrapolated to AC policies (PAD/ANI). Political competition also offered incentives for opposition parties and politicians (in particular from the PDL) to make and maintain government corruption (and to a lesser degree lack of transparency) as a major political and public agenda item, capitalizing on the fact that corruption was a major international and public concern. Thus, once proposals for FOIA and PAD were included in a government document (the 2001 anti-‐corruption strategy) not just civil society activists, but also opposition politicians, seized the opportunity to demand their adoption. They did so through the introduction of bills in parliament translating these policies into law, but also through drawing international attention to the lack of follow-‐up of the government. This made it difficult for the government to delay the adoption or weaken the laws. The role of political uncertainty The PDSR government adopted both FOIA and PAD, along with many other anti-‐corruption measures, primarily to signal its democratic and anti-‐corruption credentials. Still, once adopted, these policies could potentially have negative consequences for political elites. Here, political uncertainty also played a role in facilitating the adoption of the policies, although it was the opposite one from the one originally assumed. Thus, rather then adopting TAC policies as a way of “tying the hands of future governments” (out of fear of losing power in the future), the 2000-‐2004 government and ruling party adopted TAC policies at least in part because they did not expect the policies to be systematically
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enforced. This is indeed what happened between 1996 and 2004, when governments only half-‐heartedly and inconsistently pursued the enforcement of the 1996 AD law. This expectation could be explained in three ways. First, it is possible that the PDSR did not expect to lose power in the future, thus being able to control or subvert the implementation of the laws and avoid their negative effects. As discussed, the loss of both the presidency and the control of parliament by the PDSR in 2004 were somewhat unexpected. Second, given that clientelistic networks and corruption spanned all parties, it is also possible that leading elites assumed that no party will be seriously interested in enforcing anti-‐corruption laws, given that they had their own interests to protect. In other words, they believed in a tacit agreement among Romanian political elites not to go after high-‐level corruption (i.e., after each other). Regardless of whether the first or the second explanation applies, in both cases the lack of independence of horizontal accountability mechanisms (like the judiciary) reinforced the expectation that the policies would not be enforced. Third, given the short time-‐frames of Romanian politicians in general, it is also possible that longer-‐term effects and thus costs of the policies on decision-‐makers were simply discounted. As the AC policies started being enforced more stringently, opposition to them intensified. Whatever the reason for the miscalculation, the role of political uncertainty is somewhat similar to Hirschman’s (1967) “hiding hand,” in the sense that the policies were adopted because their consequences were underestimated. This turns the original explanation on its head: the short time-‐frames of Romanian political elites and the (presumed) lack of independence of implementation and accountability institutions helped the laws get adopted because they mitigated fears about their potential impact on elites. This role of
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political uncertainty seems to have been so far under-‐theorized in the literature on the adoption of transparency and anti-‐corruption policy, and merits further exploration. Implementation Despite their limited political independence, the bureaucracy and the judiciary did nevertheless contribute to some degree to the implementation and enforcement of FOIA. One explanation is that the capacity, professionalism and political independence of the bureaucracy and the judiciary are not as bad as the review of the literature on key Romanian institutions would lead us to believe. Especially for routine, low-‐salience, and/or non-‐sensitive issues, formalism can actually help ensure compliance: even if the spirit of the law (the underlying norm) is not necessarily internalized, if the letter of the law is followed, the result is the same. Under these conditions, both the bureaucracy and the judiciary fulfill routine tasks relatively well, as long as there are no significant political or other costs attached to them. This is the case for most simple or non-‐sensitive FOIA requests. However, where requests come in conflict with other – stronger – interests, the existence of loopholes, room for interpretation and even outright denial to comply are still options for the bureaucracy to avoid disclosing sensitive information. In the case of PAD, the limited judicial independence does seem to have influenced the lack of serious investigations and convictions for “unjustified enrichment,” especially in the early years. The reforms undertaken to strengthen judicial independence and professionalism in the late 2000s have borne some fruits, as the increasing number of convictions for high-‐ level corruption illustrate. However, whether this trend is sustainable and will translate into an increased use of asset declarations for convictions for “unjustified wealth” remains to be seen.
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External Actors Finally, international influences were able to shape domestic incentives in Romania because international actors and organizations were being held in high regard, “feared” or seen as “saviors” by the Romanian public and elites. The main sources of external pressure – NATO/US and EU – systematically had, and still have, a very positive image in Romania, and are significantly more trusted than domestic actors and institutions. In addition, joining both “clubs” was and is seen as a fundamental and basically uncontested “national interest.” This is not just because of geo-‐political concerns, but also because of an aspiration of Romania to be seen as part of the “civilized world” (the “West”). The combination of perceived material and symbolic or intrinsic rewards of accession to both NATO and EU, together with what some analysts characterized as “a culture of dependence” (Pridham, 2007a, 2007b), magnified (perceived) external influence. This increased the leverage of international actors, which could thus influence domestic politics not just through the sticks and carrots of accession or the promise of financial support, but also through shaming domestic elites when they did not behave in appropriate ways. This explains why, even if EU lost some leverage after accession (the biggest “carrot” was gone), it still exerted substantial influence on domestic politics, as the case of ANI illustrates. As one interviewee put it for NATO, “people are scared of NATO, as if NATO makes the law in Romania” (CSO 4). Or, even more tellingly, to paraphrase another interviewee: “we need somebody from the outside to tell us what to do – it doesn’t matter who, whether it’s NATO or UN, it doesn’t matter what standards are actually held up by them, they are national projections” (CSO 2161).
161 Full quote: “we need somebody from the outside, […], this somebody can be a king who came from
somewhere else than Romania, it can be called NATO, it can be called UN, it doesn’t matter what it’s called, as long as it is from outside. [….] My impression is that these things are projected both were
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7.5
Policy Characteristics
Valence or Rights-‐Resonance of the Policies Valence issues are issues where only one side of the debate is seen as valid. Both transparency and integrity were valence issues in Romania. Government transparency as a fundamental democratic value has become a mainstay of NGO discourse and advocacy activity.162 However, this valence transferred more easily from the “problem” of (lack of) transparency to the “solution” of FOIA or to other transparency policies, such as OML, than from the “problem” of corruption to PAD, and even less to ANI. This, despite the fact that transparency as a norm was also invoked in advocating public disclosure of asset declarations, which emerged on the agenda around the same time as FOIA, although laws requiring public officials had been around for a much longer time. In other words, transparency and integrity are good illustrations of how difficult it is to translate abstract valence issues into policy proposals of similar valence– i.e., to operationalize the values and balance them against other values. FOIA was such a valence issue, given its direct to link to the right to information -‐ a fundamental right enshrined in the Romanian constitution. However, despite also being tied to increasing transparency, as well as integrity, PAD was a less strong or less clear valence issue. This is primarily because public disclosure of asset declarations can be and was presented by its opponents as being in conflict with the right to privacy. This conflict has not necessarily affected support from value actors, but it has provided arguments for opponents and opened the door for they should be and where they shouldn’t be projected […]. It doesn’t matter what standards these are, what matters is that there are standards and if we can extend the presumption that we do not fulfill these standards, and this is why we also have to do something, it is good for using.” 162 See, for example, the NGO Declaration in the wake of the January 2012 protests.
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contestation. The right-‐to-‐privacy argument was even invoked by the CC in its decision against public disclosure. The most controversial policy measure was however the set up of ANI. Unlike FOIA and even PAD, ANI could not be tied to any fundamental rights, i.e., it did not have any intrinsic normative value per se. Even more, the fact that it centralizes power and potentially opens the door for political abuse, coupled with reminiscence and fear of communist-‐era practices has possibly contributed to opposition even from potential value actors (such as some NGOs) who support increased transparency in principle, including public disclosure of asset declarations. This illustrates that while fighting corruption itself is a valence issue, the means through which it can be pursued are not. This is partly because many anti-‐corruption measures involve an increase in government control, thus tending to increase the power of the ruling party and carrying a higher risk of politicization or abuse. In contrast, transparency policies “democratize” information and carry less risk of abuse – therefore the normative resonance of transparency translates easier to specific policies than that of anti-‐ corruption. Global Strength FOIA was a stronger global policy than PAD, let alone ANI: it has been adopted by more countries (including Western European ones), was backed by more global advocacy and support, and is more strongly connected to a global rights discourse. This trickled down and influenced domestic policy debates, as evidenced by the repeatedly made argument that Romania needs FOIA because “every civilized and democratic country has it.” The global rights discourse to which FOIA was connected and the perception of consensus at the international level reinforced FOIAs status as a valence issue and deprived potential opponents of arguments against it. Greater global advocacy for FOIA also influenced 282
domestic dynamics by having more international actors interact with more domestic actors in advancing FOIA, thus enlarging the pool of supporters. Public disclosure of asset declarations was a weaker global policy than FOIA. Two weaknesses were particularly influential in the Romanian context, dominating domestic policy debates and empowering opponents of the law. First, the lower international advocacy and mobilization surrounding PAD limited both the external support available for domestic policy entrepreneurs and the opportunities for policy learning. Second, and perhaps more importantly, was the weakness of public disclosure requirements in Western-‐ European (EU) countries. There were experiences with strong PAD regimes in developed countries, like the US, that could have been used in policy debates. At least one CSO representative named the US Government Office of Ethics as a source of inspiration for the Romanian ANI (FH, 2007). However, even supporters of a stronger PAD regime did not reference the US model in public debates. They invoked almost exclusively EU conditionality and the need to signal commitment to fighting corruption, rather than arguments about effectiveness of a strong PAD regime and international good practice. This suggests that in terms of global strength, what influences domestic uptake is the range of international actors advocating the laws/policies, and the identity, rather than the number of adopting countries. Which countries are relevant depends on the underlying diffusion mechanism at work or the motivation of domestic actors in advancing the policies. For example, adoption in similar countries matters especially for those advancing the policy as a solution to a problem (policy learning), which are generally the policy entrepreneurs. Adoption in powerful or aspirational peer-‐group countries matters especially for actors engaging in mimicry, who are often decision-‐makers with otherwise weak incentives to support the laws or policies. In the case of conditionality, the standards employed by the
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organization requiring the policy it or its (core) members will play a dominant role in domestic policy debates. This is why the lack of strong PAD regimes in Western European countries, i.e., those countries perceived as demanding strong PAD/ANI, was so relevant in the case of Romania. The global strength of a policy matters because it empowers decision-‐ makers to use international references (to values, countries, organizations, conventions, etc.) strategically and selectively to advance their interests. Costs and Benefits Identifying the costs and benefits that key actors expect and ultimately incur from the policies is challenging, especially since the expected costs and benefits are not necessarily objective and independently observable. The case study narrative and the behavior of the main domestic actors suggest that the costs and benefits of the policies can be classified into four different types: 1. Material costs and benefits, consisting mostly of increased access to information for citizens and demand-‐side actors (benefits), and the costs for decision-‐makers and the public administration resulting from increased public (and other) scrutiny. The distribution of actual benefits was aligned with the expectations formulated in the literature review. Citizens, CSOs, media, and – to a lesser degree – the private sector, did indeed use and are still using FOIA to obtain government information. PAD is of no relevance to the private sector, but the media and some CSOs did use the public declarations in their work. The benefits from PAD for NGOs are more limited than those from using FOIA, being only relevant for targeted anti-‐corruption initiatives, such as those identifying and signaling out potentially tainted public officials or electoral candidates. Thus, PADs generate benefits for a narrower group of more specialized anti-‐corruption NGOs, rather than for the broader spectrum of democracy, human rights and governance NGOs.
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As expected, FOIA did not impose significant costs on decision-‐makers. The public disclosure of asset declarations did result in image costs for some politicians, whose declarations were reported upon in the media. However, neither FOIA nor PAD generated substantial costs for a significant number of decision-‐makers in terms of acts of corruption that were uncovered and punished based on information obtained through them. There were few actual corruption convictions even based on ANI’s investigations. Finally, while FOIA and (P)AD implementation, monitoring and enforcement do carry financial costs for the public budget, these do not seem to have influenced the motivations of domestic actors. They were not raised as an issue in any of the relevant sources of data: neither interviews, nor media reports, nor parliamentary debates indicate that these affected the attitudes towards the policies. The costs of funding ANI did come up, along with attempts to de-‐fund the agency. However, this does not seem to be a driving factor for resistance to the agency. 2. Intrinsic costs and benefits, or normative rewards of the policies. Intrinsic benefits reflect the value of the policy in itself, for example whether it represents a realization of a right or is expected to contribute to the greater public good. The higher the valence or rights-‐resonance of a policy, the higher will the intrinsic benefits of its adoption be, and the more likely it is that a significant number of actors supporting the policy can be mobilized. As argued above, FOIA was such a policy with high intrinsic benefits, which elicited high civil society mobilization. Given its lower rights-‐resonance, PAD had less intrinsic benefits, and ANI even less. However, intrinsic benefits count only for those value actors for whom such rewards carry a certain currency.
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3. External costs and benefits of adopting or opposing the policies, i.e., costs and benefits generated by international actors. For FOIA and – even more – for PAD the externally-‐induced benefits from adopting the laws (or the costs of not adopting them) were substantial. As discussed in section 6.3., decision-‐ makers were motivated to adopt the laws by a mix of mimicry and (perceived or real) conditionality. This was the case even when the laws themselves and the underlying problem they were trying to address were not necessarily the most salient issue on the agenda of the relevant international organizations (as for FOIA and PAD). As ANI was the most clear and salient conditionality, the externally-‐induced costs of opposing it were highest, as that could be most easily construed as undermining Romania’s fundamental national interest of EU accession. But even in this case, the external threat (or “stick”) mattered to the degree to which it was framed as such by domestic actors. Furthermore, both conditionality and mimicry generated powerful incentives for decision-‐ makers because the international actors or organizations towards which they were targeted were highly popular among domestic constituencies. Being perceived as running afoul of these international actors and organizations could carry significant political costs. 4. Political costs and benefits, consisting of the impact of policy adoption and implementation on the political image of key political actors. Perhaps the most important type of costs are political costs, i.e., the impact on decision-‐ makers’ re-‐election prospects of (i) supporting or opposing the policies, and (ii) the (potential) information revealed through FOIA and PAD. Policy entrepreneurs, both from government and from civil society, succeeded in using the valence or rights resonance of the policies or of the underlying problem, as well as external support or pressure, to generate substantial image costs for decision-‐makers opposing FOIA, PAD and especially ANI. They presented FOIA as a fundamental democratic right and as a law that every “civilized”
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country has. They framed opposition to PAD and ANI as (i) attempts to hide gains from corruption, and (ii) as undermining Romania’s bid to join the EU (before accession) or its status within the EU (after accession). This made public opposition to the laws very difficult and potentially electorally costly. Therefore, the only party who openly and prominently opposed PAD/ANI was an ethnic party, i.e., a party with the most stable or loyal electoral base. Furthermore, the main attempts at weakening PAD/ANI, and the only ones successful so far, were through challenges of unconstitutionality rather than through the introduction of new bills in Parliament. The image costs of opposing the laws were influenced by the normative strength of the policies, amplified by their salience on the public agenda. A law based on a valence issue effectively deprives opponents of arguments against it, but if the law is not very salient on the public agenda, changes to it can be done quietly. However, if that issue is also highly salient for the public, opposing the policy can carry very high political costs. Salience of the laws on the international agenda, especially on the agenda of those international organizations or actors which are very popular or perceived as powerful domestically, can amplify both the normative strength and domestic salience of the policies. Among the three main laws studied here, FOIA had the highest valence (or rights resonance) and the lowest domestic and international salience, whereas ANI had the highest domestic and international salience and the lowest valence. The fact that FOIA did not reach a similarly high agenda status as PAD and ANI is most likely because neither the political costs of FOIA nor its political benefits are as high as for the other two policies. On the other hand, the intrinsic and material benefits of FOIA for CSOs are high enough to prevent backdoor changes when these are attempted (see Civil/Administrative Procedure case).
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Beyond the political costs of adopting or opposing the policies, transparency policies can also produce image costs for public officials through the information they reveal. The resistance to public disclosure of asset declarations, including to disclosing specific items such as jewelry and art collections, indicates that the potential image costs were perceived as high. Resistance intensified once the public disclosure requirement was strengthened, and especially once ANI started functioning, despite the lack of actual corruption convictions based on its investigations. However, through its high [media] profile and through its frequent issuing of reports on high-‐level politicians, including many MPs and ministers, ANI succeeded in imposing political costs on those it investigated. This illustrates once again that merely publicizing investigations in the press could carry significant image costs for public officials. Summing up, the distribution of costs and benefits is largely in line with the expectations articulated in the literature review, with FOIA having broader benefits and lower direct costs on decision-‐makers, and PAD having somewhat narrower benefits and higher direct costs on decision-‐makers. Considering the narrower benefits and higher costs of PAD/ANI, the main explanation for their adoptions lies in the high political costs of opposing them. These were so high due to their prominence on the EU accession and post-‐accession agenda (external costs). They were only secondarily due to the salience of corruption for the Romanian electorate. Table 7.6 below summarizes the nature, degree, and distribution of costs and benefits. Despite the fact that FOIA did produce some benefits for citizens, CSOs and – to some degree – the media, the political dynamics driving it still can be classified primarily as a majoritarian politics. This is because the constituencies benefitting from it are either not organized in its support (citizens, media), or they are by themselves too weak to count as an
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influential interest group transforming the political dynamics into client politics (NGOs). A similar argument can be made for PAD/ANI being driven mainly by entrepreneurial politics – despite the fact that it did enjoy support from a few key political figures and demand-‐side actors, these are more accurately characterized as policy entrepreneurs rather than an organized interest group. At best, FOIA can be said to have potential tendencies towards client politics, and PAD/ANI towards interest group politics. Table 7.6. Costs and benefits for FOIA, PAD and ANI
FOIA: majoritarian politics
PAD/ANI: entrepreneurial politics
Low Low potential image costs from information about decision-‐makers obtained through FOIA.
High High image costs from public access to information about assets of public officials, high costs from publicity around ANI investigations. Potentially high costs from convictions for “illicit enrichment/unjustified wealth,” but these have not materialized so far.
High (but decreasing) Increased access to information for CSOs, media, citizens, and businesses. Realization of a fundamental citizenship right (for CSOs). Domestic and international image or political benefits of supporting FOIA for decision-‐makers (and high costs of opposing it), albeit decreasing over time.
High Some benefits for CSOs and media from having access to asset declarations, though fewer than from FOIA. Domestic and international image or political benefits of supporting PAD/ANI for decision-‐makers and high costs of opposing it. The latter increased after 2007, with the establishment of the CVM.
Costs
Benefits
Source: Author
7.6
Propositions
The various relationships between the explanatory factors and outcomes have already been touched upon in the previous sections. This section thus briefly summarizes how the observed relationships between the variables compare to the case study propositions articulated in section 3.6. 289
Proposition I. Incentives There was a mix of incentives for the adoption of all three key laws (FOIA, PAD, ANI) which reinforced each other. The desire for international and domestic (re-‐)legitimization was the main incentive for most decision-‐makers. However, the intrinsic benefits of the laws did motivate some value actors to act as policy entrepreneurs, political competition strengthened incentives for others to keep corruption an agenda item, while political uncertainty eased the adoption of certain laws by contributing to underestimating their consequences. External influences generated this need for (re-‐)legitimization through (mostly diffuse) conditionality and through also making and keeping corruption an agenda item. Policy entrepreneurs benefitted from international norm diffusion and policy learning. While FOIA or PAD were occasionally used by civil society and citizens to increase bottom-‐ up bureaucratic accountability or political accountability, there are no signs that most decision-‐makers supported FOIA (or PAD) in order to increase bureaucratic and/or executive accountability. Thus, while FOIA may have increased to some degree bureaucratic responsiveness to citizens and civil society organizations, this was of little relevance to most decision-‐makers, and in particular to legislators. Rather, the main reason was the desire for (re-‐)legitimization in the face of domestic and international constituencies. (Diffuse) external pressure to “do something” against corruption, and, to a lesser degree, for greater government transparency, was the main driver for the development and adoption of the policies. However, domestic legitimacy also played a role in two ways. First, accession first to NATO and then to the EU was a goal with high support from the electorate. Therefore, obtaining recognition or praise from these organizations was itself a way to increase domestic legitimacy of decision-‐makers. Second,
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the policies could be used to signal also domestically more openness and democratic commitment (FOIA), as well as show-‐case anti-‐corruption efforts (PAD, ANI). High corruption in particular was a perennial source of dissatisfaction with government in Romania. However, the high domestic salience of corruption might not, by itself, have led to the emergence and adoption of the policies – given the alternative framing of corruption as a failing of individual politicians (“the politics of scandal”) or as systemic issue against which little can be done (“fatalism”). External pressure essentially forced the government to articulate policy solutions to the problems of corruption and lack of transparency, i.e., to transition from a personalized or fatalistic framing to a policy-‐oriented one. Once articulated, i.e., once advanced through government strategies and bills in parliament, it became very hard for decision-‐makers to oppose these policies or laws openly, since their political rivals could present this as attempts to hide corrupt dealings or as reneging on the promises made to NATO or EU, which would seriously harm “the national interest.” As discussed in the section on external influences, direct and indirect or diffuse conditionality were reinforced by persuasion, policy learning, mimicry and external empowerment of reformist domestic actors. Diffuse external pressures for more government transparency, participation, and anti-‐corruption efforts opened a window of opportunity for domestic actors or policy entrepreneurs, who seized it to advance their own policy proposals. For the most part, these policy entrepreneurs were value actors, who learned about policy options for increasing transparency and fighting corruption through international trainings, exchanges of experience, etc. (norm diffusion and policy learning). Such value actors included mostly civil society activists, and reformist legislators and members of government. Some of the latter, like the PNL MP who initiated the FOIA law, and the 2005-‐2007 Minister of Justice, also had roots in civil society. External pressure for
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more participatory decision-‐making and the availability of financial support were also essential in making CSOs active players in policy debates and advocacy. Policy entrepreneurs also used external actors and pressure not only to keep lack of transparency and – especially – corruption on the agenda, but also to “tie the hands of future governments” by committing them to continue certain reforms through their inclusion as benchmarks in the main vehicle for EU conditionality (ANI as a CVM benchmark). Leaving aside norm diffusion and policy learning, which affected only a small number of value actors, the main impact of external influence was that of changing cost-‐benefit calculations of domestic decision-‐makers, by increasing the perceived rewards for the adoption of the policies or the costs of opposing them. However, these perceived rewards and sanctions (or political costs and benefits) did not flow directly from the actions of international organizations or actors. Rather, they were “national projections” that skilled domestic policy entrepreneurs helped build, and then capitalized upon to advance their preferred policies. These policy entrepreneurs were either value actors, pursuing the policies for intrinsic reasons, or were motivated by political competition and the (expected) electoral and political rewards. While it is difficult to differentiate between intrinsic and political motivations, given the high domestic and international salience of corruption, it is unlikely that the potential electoral benefits from supporting anti-‐corruption measures did not play a role in generating at least some support for PAD/ANI. Finally, uncertainty about who will hold power in the future, and whether and how the policies would be enforced, also contributed to their adoption, especially in the earlier phases (for PAD), albeit it could have also increased resistance to ANI in the later phases of strengthening the asset disclosure regime.
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Proposition II. Structural and Institutional Factors This proposition has been largely covered in Chapter 5 and section 7.4. To recapitulate: 1.
Given the dominance of the executive over the legislature, and the clientelistic and patronage-‐driven nature of the Romanian political system and public administration, increasing the accountability of the executive and the bureaucracy to legislators and/or to the public was not a main reason for adoption. However, political competition, especially in cases of divided government, did play a role by affecting the incentives of key actors (in this case the president) to advocate for and support the policies.
2.
Given short time horizons of decision-‐makers and insufficient independence of horizontal accountability institutions, “tying the hand of future governments” was not a significant reason for decision-‐makers to support laws. On the contrary, political uncertainty about who would hold power in the future and how that power would be exercised reduced opposition to the more costly policies (like PAD), due to the expectation that these will not be enforced. However, “tying the hands of future governments” was an incentive for a few policy entrepreneurs to use EU conditionality as a vehicle to ensure adoption of the law in the face of domestic resistance.
3.
The need for re-‐legitimization was the main (if not the only) reason for the adoption of the policies. The main targets for re-‐legitimization were international actors (especially NATO and the EU). However, the adoption of the policies itself, as well as the international praise the government received for it, also contributed to increasing domestic legitimacy. This, because corruption was a public concern domestically too, and international organizations were very well regarded (see
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point 5 below). Policy entrepreneurs used external pressure and domestic dissatisfaction to introduce TAC policies (i.e., couple solutions to problems) and press for their adoption and implementation. 4.
The main demand-‐side sources of policy support and advocacy for FOIA and (less) for PAD came from civil society, which is also where the main policy entrepreneurs came from or had roots in. Nevertheless, the media did also use both FOIA and PAD, and reported on the policy battles surrounding them, including on criticism of decision-‐makers who opposed the policies. The media in general also covered corruption extensively, albeit primarily from a “politics of scandal” perspective. In this sense, even a partially free or politically captured media can be essential in shaping public support for TAC policies.
5.
The conditions for external influence were particularly favorable in Romania, given the unanimous support for NATO and EU integration. “Western” integration also helped consolidate democracy in Romania, thus helping create the environment for the adoption of TAC policies.
Thus, some of the incentives of decision-‐makers that were considered unlikely based on the structural and institutional analysis did play a role, albeit an unexpected one, but only for a few key actors. This indicates that while individual incentives vary and can deviate from expectations, systemic incentives are largely dependent on the underlying structures and institutions. Proposition III. Policy Adoption The differences between the policies did lead to different patterns and outcomes of policy adoption.
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As expected, FOIA was adopted more easily than PAD: less time elapsed from its emergence on the government agenda to its adoption by the legislature, and it was adopted with unanimous support. PAD could only be adopted with the help of a very intrusive legislative technique. Adopting the law for setting up an independent monitoring and enforcement agency for PAD (ANI) was the most controversial and difficult. Access to information and public asset disclosure emerged on the political agenda around the same time, mostly because both of them were tied to the issue of transparency, which became fashionable internationally around the same time (mid to late 1990s). This coincided with an increase in international concern about corruption in Romania, leading to the inclusion of the policies in the first Romanian anti-‐corruption strategy. The idea for a centralized agency for monitoring and enforcing PADs emerged later on the agenda. It is possible that ANI emerged later on the agenda because, unlike the other two policies/laws, it represents a domestic policy innovation (i.e., there are few countries which have such an agency or had one in the early 2000s) and is not tied to transparency per se, and thus did not diffuse along with the two other policies. Thus, in the case of FOIA and PAD (and transparency more generally), international policy diffusion had a stronger impact on the emergence on the domestic agenda than in the case of ANI. FOIA (2001) was also originally a substantially stronger law than (P)AD (1996, 2003) in global comparison. The initial weakness of (P)AD can be explained through the potentially higher costs it would have imposed as decision-‐makers. Additionally, there were more international good practices and recommendations for a strong FOIA regime at the moment of its adoption than for (P)AD (different global strength). However, with time, as pressure to fight corruption increased, there was an ever stronger need for re-‐ legitimization. This led to a substantial strengthening of PAD over time, including through
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the set up of a centralized monitoring and enforcement agency. The result was one of the strongest asset disclosure regimes in the world, i.e., Romania could almost be seen as a policy innovator when it comes to public asset and interest disclosure. Given, among other weaknesses, the lack of a centralized monitoring and enforcement agency for FOIA, currently, PAD policy is substantially stronger than the FOIA policy in Romania. The global strength of FOIA, i.e., its near unanimous adoption in the relevant peer groups, served to reinforce the valence aspect of FOIA as the realization of the (constitutional) right to information, which helped galvanize support and deprived opponents of arguments against it. However, while the valence dimension of FOIA made public opposition to it politically costly, the political costs of opposing PAD or ANI were also very high, given their higher salience on the political, public, and international agenda. Yet resistance from decision-‐makers – and in particular MPs – was higher for PAD than for FOIA, and much higher for ANI. This suggests that the main reason for the easier adoption of FOIA compared to PAD/ANI did lie in the costs PAD/ANI was expected to inflict on political elites in terms of revealing potentially publicly damaging information. Thus, both FOIA and PAD (and ANI) emerged on the agenda and were adopted because decision-‐makers wanted to signal their democratic or anti-‐corruption credentials to international constituencies. But PAD was a more costly signal to send – thus it came later in the governing cycle, when it corruption scandals and external pressure to do something against corruption intensified. ANI was the most costly signal among all three and it had the lowest rights-‐resonance and global strength. Thus, it emerged last and was resisted most, being adopted only due to strong and explicit external conditionality.
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Proposition IV. Implementation For FOIA, compliance was highest when there was a combination of demand-‐side pressure and support for both demand-‐side actors and the public administration to use and implement FOIA. For PAD, compliance with the publication requirement increased as both the strength of the law/regime and its media and political salience increased. Demand-‐side pressure also contributed to increased compliance. However, the monitoring and auditing of the content of the declarations picked up (somewhat) only after the ANI was set up, and even then, it resulted in few corruption cases and convictions. For FOIA, the evidence about the importance of a strong law is mixed. The original law wasn’t exactly weak. Nevertheless, it had some serious shortcomings that could have undermined its implementation, such as lack of a strong enforcement mechanism. However, despite its shortcomings, and despite the relatively limited capacity, professionalism and independence of both the bureaucracy and of horizontal accountability institutions, compliance with FOIA has been fairly high. There are two explanations for this. The first one is that, especially in the early years, there was a combination of significant demand-‐side pressure, through civil society monitoring, advocacy, etc., and of support for training, awareness-‐raising, etc., among public officials. The fact that FOIA still had a domestic champion in MoPI/ASG, even one with weak powers, which supported and monitored implementation might have also helped mobilize and channel domestic and international funding. Civil society activism also contributed to strengthening FOIA compliance by gaining a number of favorable rulings from the courts in contentious cases.
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The second explanation was discussed in section 7.4 – namely that there is enough capacity in the Romanian public administration to implement FOIA, and that the formalism of Romanian public administration can also be helpful for inducing FOIA compliance, especially in the case of non-‐sensitive or simple requests. Even uneven compliance by the bureaucracy and some favorable judicial decisions can be beneficial for implementation. To paraphrase one of the interviewees, “once you feed something into the system, it gains its own dynamic, which is difficult to stop” (CSO 4). Therefore, due to a combination of FOIA routinization in the public administration and continued use by CSOs, it seems that compliance has not declined as much as could have been expected given the decline in attention and support for FOIA. Similarly, despite [arguably] limited or questionable respect of high-‐level officials for the rule of law (witness for example EU critique of spring-‐summer 2012 events), there was relatively high compliance with the public disclosure requirement as early as 2005 -‐ before the set-‐up of the independent monitoring and enforcement agency. As compliance increased after the law was strengthened in 2004/2005, this seems to offer some evidence for the proposition that weak laws result in weak implementation. However, the same factors that contributed to strengthening the PAD regime could also have contributed to improving compliance. Thus, increased compliance seems to be due to a combination between civil society activism, media coverage, high-‐level political support, external pressure, and the resulting high salience of public asset and interest disclosure. The set up of a dedicated agency for PAD monitoring and enforcement could have further contributed to the institutionalization of the practice, even though the limited data available does not show a significant increase in compliance with the publication requirement after the agency was set up. However, the verification of the veracity of the declarations, and investigation of discrepancies between declarations and actual income and assets, started only after the set 298
up of ANI. This indicates that for the enforcement of most anti-‐corruption-‐relevant provisions, demand side pressure is not enough by itself. The conclusion is that for transparency laws (but less for anti-‐corruption laws), the most critical element for implementation is the existence of demand-‐side constituencies who not only use the laws, but are able to independently monitor and advocate their implementation. In other words, even imperfect laws, with comparatively weak enforcement mechanisms, in an imperfect setting, i.e., with limited bureaucratic and judicial capacity and autonomy, can be implemented and produce benefits as long as there is an active demand-‐side constituency advocating their implementation. Political competition can also help by incentivizing the opposition to critique lack of policy implementation, especially when the respective policy is reasonably high on the public [and international] agenda. Proposition V. Policy Change Policy evolution over time was driven by the political costs and benefits of the policies. FOIA experienced a period of incrementalism after adoption (2001-‐2007), followed by a low-‐level equilibrium. Non-‐public asset disclosure stayed in a low-‐level equilibrium from 1996 to 2003, followed by a period of incrementalism (2004-‐2005) and culminating in sustained battles over the law 2006-‐2010. As discussed, FOIA was a moderately strong policy, with comparatively weak enforcement provisions. Nevertheless, FOIA use and compliance was fairly high 3-‐4 years after adoption. As discussed, FOIA did not inflict significant costs on decision-‐makers. Thus, there was no significant (public) opposition to it. FOIA was strengthened in 2006-‐2007, by expanding and/or clarifying its scope. This was partly as a result of CSOs learning about key loopholes
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that helped avoid disclosure of sensitive information, partly as part of a continued anti-‐ corruption drive in Romania in the process of EU accession. Thus, for FOIA, the period of 2002-‐2007 was one of incrementalism, i.e., of small improvements in policy based on lessons learned during implementation. However, FOIA receded on the public, external and political agenda starting in 2008 and attention to it subsided. This decreased salience meant that the political benefits of supporting FOIA decreased. Nevertheless, NGOs still use it in their work (i.e., FOIA still produces some tangible benefits for some constituencies), so FOIA has remained in a low level equilibrium since 2008/2009. In contrast, the initial (non-‐public) asset disclosure law was weak and weakly implemented, being stuck in a low-‐level equilibrium from 1996 to ca. 2002. During this time – especially after 1999 – the idea of government transparency gained strength and expanded to include asset declarations, leading to the emergence of proposals to make these public. At the same time the salience of corruption increased on the domestic and the international agenda (especially the EU’s). This increased the political benefits of strengthening anti-‐corruption legislation, including public asset disclosure, and the political costs of opposing such strengthening. Nevertheless, decision-‐makers (and especially legislators) feared the political/image consequences of publicly disclosing their assets and income. Therefore, there was substantial resistance to the adoption of the 2003 PAD and larger anti-‐corruption law. Given increasing EU pressure to show progress in the fight against corruption, the PAD regime was successively strengthened in 2005-‐2006, under the aegis of an activist Minister of Justice who enjoyed presidential support. The period 2004-‐2006 can thus be characterized as one of incrementalism. During this time, NGOs started using asset and interest declarations to shine a light on office holders and political candidates, which increased the costs of publishing asset declarations on
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decision-‐makers and started generating more resistance to public asset disclosure. The most intense resistance – both before and after adoption – was however towards the set up of an independent (P)AD monitoring and enforcement agency (ANI). It is difficult to discern whether this was due to fears of increased corruption convictions and asset confiscation, or due to fears of political abuse of such an agency -‐ probably both. As discussed, once it started functioning, ANI did not necessarily generate many successful corruption or asset seizure cases. However, its media presence, including the coverage of the cases it initiated, did lead to some significant image/political costs for a number of decision-‐makers. Thus, the set up and functioning of ANI represents the clearest high costs – high benefits scenario, resulting in sustained battles over the law and the overall PAD regime in the period 2006-‐2011. During these battles, both supporters and opponents of the PAD regime managed to mobilize additional support. The former by increasing the salience of the issue on the EU agenda, and deepening EU involvement in monitoring the implementation and the further strengthening of the Romanian PAD regime, including through outright conditionality. The latter through expanding the battles against the PAD/ANI law to new venues via challenges of unconstitutionality. Today, there is a precarious equilibrium, as the 2010 ANI law is still seen by some as unconstitutional and could be reversed again, while ANI remains a high-‐ profile issue in EC CVM reports.
7.7
Conclusion: Domestic and International Drivers of TAC Policy Evolution
For Romania, there seemed to be a simple answer to the question on why political elites adopted transparency and anti-‐corruption policies. To paraphrase one of the interviewees,
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“they wanted to join ‘Western’ clubs and they didn’t know what they were doing” (CSO 3163). However, a more detailed look at the dynamics of policy diffusion and domestic policy-‐ making paints a richer picture. External influences were indeed crucial in Romania because they changed the political costs and benefits of supporting or opposing TAC laws. However, they could only do that because the main international actors involved – primarily the EU, but also NATO and the vaguely defined “civilized world” – enjoyed substantial domestic support both from the general population and from elites. This amplified their influence substantially. External actors also increased the salience of corruption and transparency on the domestic agenda, opened windows of opportunity, directly or indirectly provided ideas or models for policies to increase transparency and fight corruption, and socialized and empowered domestic policy entrepreneurs who coupled these policy solutions to the problems of lack of transparency and corruption when the windows of opportunity opened. But the policy dynamics of FOIA and PAD differed not primarily because of different international diffusion mechanisms, but because the domestic costs and benefits differed. Both policies had a similar starting point: the need of the Romanian government to demonstrate its democratic and anti-‐corruption credentials to external partners, and – to a more limited degree -‐ also to voters. The 2000-‐2004 PDSR/PSD government, drawing on recommendations from IOs and CSOs, adopted a wide reaching anti-‐corruption strategy, which included a substantial number of transparency measures, including the two policies studied here. Once adopted, TAC strategies and policies triggered further domestic reactions, by giving civil society and (some) opposition members something to hold the government to account for. 163 Exact quote: “I think we didn’t know what we were doing. The effects came much later. There was
a certain context in which the idea of the law was accepted and voted upon, namely that, in order to enter some clubs, we had to wash our hands, get a haircut, shave, because we were ugly.”
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But from their inclusion in the 2001 anti-‐corruption strategy onwards, the policies took different paths. FOIA was adopted comparatively fast (2001) because it prompted more civil society mobilization, encountered less resistance and garnered easier support among decision-‐makers in government and parliament. Its rights-‐resonance and global strength helped in this process. Despite its limitation, implementation also took off comparatively fast, due to a mix of domestic and international support. PAD had a more difficult and lengthy path. Opposition legislators introduced bills to enact some measures proposed in 2001 AC strategy, including PAD, while accusing the government of breaking its promises both to the electorate and to external partners. This served to highlight government inaction in the face of existing AC proposals. The transparency and anti-‐corruption measures adopted in the first part of the PDSR/PSD governance period were not enough to counterbalance the corruption scandals engulfing the government. Its image with key international partners (EU, US) failed to improve sufficiently or even got worse. Therefore calls to “do something” persisted, prompting the government to engage in ever more extensive and ambitious legislative reforms to showcase its anti-‐corruption credentials. The result was the adoption of more wide-‐ reaching AC policies, among which PAD, despite strong resistance from the government’s own party. In other words, increasing external pressure to fight corruption made it necessary to send more costly signals about the commitment to anti-‐corruption reforms. Domestic media also covered the legislative battles surrounding PAD and the broader 2003 AC law, thus further increasing its salience. NGOs and opposition politicians seized the opportunity of increased media attention to further criticize the government for leaving strategic loopholes in the legislation and lack of implementation. In turn, external partners
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(especially the EU) took up these NGO and opposition critiques, generating further pressures and suggestions for improvements in legislation and implementation. These dynamics continued even after the change in government in 2004, although with some fundamental changes. First, the new president and at least one party in the new government (PD/PDL) had made anti-‐corruption a political and then a campaign issue. Many suggestions on how to strengthen PAD came from the PDL while in opposition. Second, as EU accession drew nearer and more and more negotiation chapters were closed, the problem of corruption increased in salience on the EU’s Romania agenda. Threatened with a one-‐year delay if there was no satisfactory progress in the fight against corruption, the perceived punishment for non-‐compliance with EU demands increased. Thus, 2005-‐ 2006 were the years where both salience of corruption and EU leverage were highest. This explains not just the naming of a reformist Minister of Justice, but also the fact that she was ultimately able to further strengthen the PAD regime and introduce the domestically very controversial ANI law. Once introduced in parliament and transformed into a de facto EU conditionality via the CVM, it became very difficult for decision-‐makers (legislators and the semi-‐new government) to not pass the law immediately after accession, despite – or even because of -‐ the dismissal of the reformist Minister of Justice. Again, once set up, ANI itself played a role in changing the policy dynamics. Attempts to hamper its work surfaced quickly, from underfunding to attempts at direct political influence and intimidation. These were for the most part thwarted with support from the EU, the president and the public. ANI itself pursued an activist media strategy, which maintained the high salience of asset disclosure, alongside conflicts of interest and incompatibility. ANI and its supporters framed opposition and critiques as attempts to hide gains from corruption and as undermining Romania’s national interest by reneging on
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promises made to the EU. This helped ANI overcome the most serious challenge to its enacting legislation, the unconstitutionality verdict from 2010. One distinguishing feature of ANI is that, while, among the policies studied here, it was adopted under the strongest external pressure, it is also the policy measure that was least influenced by international policy diffusion per se. Thus, if FOIA can be considered a global norm and if public asset disclosure, while less common internationally, is being practiced in a number of countries, there are comparatively fewer countries which have institutions similar to ANI – i.e., centralized agencies for asset and interest verification. Thus, ANI was more of a domestic policy innovation than FOIA and PAD.164 Thus, the full story of PAD adoption and evolution relies on an interplay between domestic and external explanatory factors, which combined into a feed-‐back spiral that resulted in ever more stringent policies being adopted and the start of their actual implementation. The initial adoption, which was meant as a signal (mostly) for international constituencies, triggered domestic critiques for loopholes and lack of implementation. This increased pressure on the government to comply with its own legislation, and signaled to outside 164 One interesting question is why this particular type of enforcement mechanism for PAD, as well as
for CoI and incompatibilities, was chosen. In principle, the implementation of these laws could have been possible through the existing institutional structures. The creation of ANI itself can be seen as continued reliance on creating new strategies, laws, and institutions rather than enforcing existing legislation. One explanation both for ANI and for the reliance of legislative reforms to advance anti-‐ corruption in Romania is the risk of political capture and the related difficulty of implementing existing anti-‐corruption policies. Expectations about political control and weak implementation of AC policies shaped the support both of decision-‐makers who wanted to send a signal about their anti-‐ corruption credentials, and of those value actors who genuinely wanted to advance the fight against corruption. The former [presumably] hoped that their party would maintain control over the relevant institutions and thus the legislation would not be systematically applied – as happened indeed with the 1996 AD legislation. The latter [presumably] hoped to strengthen enforcement by removing loopholes and creating a centralized agency that could be [presumably] more easily insulated from political interference, while also having wider-‐reaching power and more resources than the myriad of decentralized offices and units hitherto in charge of ensuring PAD compliance and verification. This is how Romania ended up being somewhat of an innovator regarding PAD/ANI.
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observers what weaknesses needed to be addressed and thus also contributed to increasing external pressure. Reformist domestic actors used international pressure – direct and indirect, actual and projected – to advance their preferred policy proposals. These generated domestic resistance, further increasing the salience of the policies and the underlying problems domestically and internationally. This kept feeding the cycle of revisions and critiques, leading to Romania ending up with a strong but contested PAD regime. Essentially, successive governments were trapped in their own rhetoric and legislation under dual international and domestic pressure. This upward spiral stands in contrast with FOI evolution, where the interplay between domestic and international factors resulted in something more similar to a downward spiral of decreasing attention. This decline in attention happened despite the tangible benefits that FOI produces for some constituencies (like CSOs) and citizens. It was primarily due to the decreasing salience of FOI and transparency in general on the external (mostly EU) and the domestic agenda, and thus the decreasing political benefits of supporting or advocating FOI. The low costs FOI imposes on decision-‐makers, coupled with its status as a valence issue, resulted in much fewer debates surrounding FOI – and thus also much less attention to it. In other words, FOI fell off the agenda, in part because it is less controversial, and it was less controversial in large part because it is less threatening. Essentially – to overstate the case a bit -‐ if properly enforced or complied with, FOI can be a nuisance to decision-‐ makers, but (public) asset disclosure and verification can be an existential threat. This can perhaps also explain the broader global diffusion of FOIAs, i.e., their adoption in a larger number of countries compared to public asset disclosure.
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8
8.1
Chapter 8: Conclusions and Implications
Conclusions: Summary
The original puzzle of this dissertation was why decision-‐makers in high-‐corruption (democratic) countries adopt TAC policies, if these could result in their public exposure and/or punishment for corrupt acts. One answer is that adoption is solely due to external pressures. The case study has shown that even in the case of Romania – a country with high corruption and very strong external influence – domestic actors and incentives played the decisive role in the adoption of the selected policies. Thus, accounts that attribute the adoption – let alone evolution -‐ of transparency and anti-‐corruption policies exclusively to external pressure or external influence are incomplete. To understand TAC policy-‐making in high-‐corruption countries – or any countries – we have to understand the domestic costs and benefits of their adoption and implementation. External actors can influence these via various international policy diffusion mechanisms. However, this influence is not one-‐directional. Rather, domestic actors shape the way in which these influences play out and use them strategically to pursue their own policy goals. The first main conclusion of this dissertation is that what matters most for the adoption and evolution of transparency and anti-‐corruption policies are the political (image-‐related) costs and benefits. The need for (re)legitimization is the main incentive for most decision-‐makers to support TAC policies. The valence aspect of transparency and anti-‐corruption makes TAC policies useful for such attempts at (re)legitimization and difficult to oppose openly. However, this valence dimension does not transfer automatically to any or all TAC policies, as the different rights-‐resonance and degree of public consensus surrounding FOIA and PAD illustrates. Furthermore, political costs and benefits are not determined just by the valence of a policy, but also by its salience on the public and political 307
agenda. Finally, political costs and benefits of supporting or opposing a policy do not arise naturally or automatically from the policy characteristics. Rather, they are constructed by policy entrepreneurs, supporters and opponents of the policies. These political costs and benefits can be heightened in democratic high corruption countries because opposition politicians have an incentive to keep government corruption and, to a lesser degree, lack of transparency high on the public agenda, in the hope of reaping electoral benefits. Furthermore, if the perception of corruption or excessive government secrecy in a country is high, it is very difficult for decision-‐makers to publicly oppose transparency and anti-‐corruption policies, because that can be easily construed as a sign of guilt or of having something to hide. Thus, even if specific policy measures, like public disclosure or centralized enforcement agencies, might not be valence issues themselves, if policy entrepreneurs manage to shift the debate from the weaknesses of the policy to the broader problem of corruption or transparency, public opposition to the policy can become very costly. The expected impacts of TAC policies on corruption or on access to government information (the material costs and benefits) do also play a role in generating support and – especially -‐ opposition among decision-‐makers. In countries where corruption is widespread, we expect such costs to be especially threatening to decision-‐makers. However, uncertainty about whether these costs will actually materialize can lessen this threat. Even when consistently and impartially implemented, transparency and anti-‐corruption measures rarely lead to uncovering and punishing all possible cases of corruption. Thus, even in the best-‐case implementation scenario, actual costs for individual decision-‐makers are far from certain. Even more, in high corruption countries, implementation and enforcement institutions are weak and/or politically controlled. Therefore, decision-‐makers have a reason to expect that
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these policies will not be sufficiently enforced – or that they will not target decision-‐makers aligned with the “right side.” On the other hand, the lack of political independence of implementation and enforcement agencies can also backfire, reducing support for the policies if decision-‐makers fear they will be used selectively to target political opponents. This is especially the case for anti-‐corruption policies, where the government has more control over implementation, and where the consequences of enforcement can be very high, such as asset seizure or imprisonment. It is less the case for transparency policies, whose potential costs are lower and whose implementation and use of information depend more on demand-‐side actors, making them less strongly controlled by the government. The second main conclusion is that external influences – i.e., the different channels of policy diffusion – affect TAC policy-‐making by changing domestic incentives, i.e., cost-‐ benefit calculations of domestic actors, to different degrees and in different ways. Even pure policy learning, when decision-‐makers simply adapt policy solutions from other countries to solve domestically defined problems, changes cost-‐benefits calculations by reducing search costs for policy solutions to a domestically-‐defined problem. Conditionality, competition and mimicry strengthen incentives for policy adoption by offering external benefits to policy-‐makers supporting the policies. Persuasion has perhaps the most profound effect on domestic cost-‐benefit calculations, by changing the intrinsic benefits that decision-‐makers derive from the adoption and implementation of a policy. The ability of external actors to change domestic cost-‐benefit calculations depends on their leverage, which stems from the material and the symbolic rewards or punishments that they have to offer. But even in cases of very high leverage, as the EU had in Romania, there are limits on how much they can influence policy design and implementation. For example, external actors can help put a topic on the domestic political agenda, but the specification of
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the policy is done domestically. In Romania, this was the case even for FOIA, a policy where there is ample material on international best practices, guidelines, minimum requirements, etc. More importantly, external actors can marginally change cost-‐benefit calculations of decision-‐makers, but they cannot alter fundamentally the domestic structural and institutional factors that generate the main incentives, at least not in the short-‐term. The most effective forms of policy diffusion are thus those that react to and/or are most aligned with domestic incentives. The third main conclusion is that domestic and international drivers of the policy process will feed off each other – i.e., they are mutually interdependent rather than one-‐directional in their influence. The best example is conditionality, which is theoretically the most one-‐directional and coercive channel of policy diffusion. However, as the case of Romania illustrates, conditions are often defined through some form of negotiation between domestic and international actors. Thus some key domestic stakeholders do have the opportunity to influence which policy measures become conditions and which do not. Furthermore, international organizations ultimately have to base their judgments about the fulfillment of conditionality, and/or about the main problems and policy priorities of the country, on assessments of domestic actors. Thus, the problems, priorities, solutions for the country as perceived by IOs and INGOs will be shaped by the domestic actors with which these organizations interact. Finally, even in cases of “pure” conditionality, once adopted, the policies feed into the domestic policy process and generate domestic reactions. Whether adoption results in further development and implementation of the policies depends on how their domestic supporters mobilize and influence the policy process. These supporters can themselves draw international actors into domestic policy-‐making as a way of strengthening their
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position. This is only possible if the topic of transparency and anti-‐corruption remains a sufficiently prominent issue on the agenda of external actors. External actors further influence the policy process only if international engagement is sustained, for example by continuing to empower domestic actors or help keep the issues of transparency and anti-‐ corruption on the domestic public and political agenda. Thus, in the best-‐case scenario, for international policy diffusion to be sustainable, different diffusion mechanisms have to reinforce each other and – especially -‐ be reinforced by domestic incentives.
8.2
Theoretical Contributions
The main theoretical contribution of this dissertation is to identify the domestic and international incentives that determine TAC policy adoption and evolution in high-‐ corruption, democratic countries, including their structural and institutional roots. Thus, this dissertation expands our understanding of political economy analysis by illustrating and unpacking how political economy – structure, institutions and actors -‐ affects policy design, implementation, and outcomes. The dissertation goes beyond Fritz et al.’s (2009) framework by linking the incentives that shape the behavior of domestic actors not only to the underlying institutional structure, but also to the different policy characteristics (Wilson, 1980, 1989), to external influences, and to theories of the policy process (Kingdon, 2003; Baumgartner & Jones, 2009). In this sense it also illustrates and reinforces Grindle’s (2007: 569) admonition that “good political economy combines analysis of both context and content and seeks ways of bringing that analysis to bear on the process of reform.” In doing so, this dissertation also illustrates the value added of, and the need to further explore and deepen, the integration of different streams of literature from different social science fields to understand policy making in developing countries for TAC policies and beyond. These streams of literature include: 311
1. International relations – policy diffusion literature, to explain and better understand the potential for international influence on domestic policy-‐making; 2. Comparative political science and development theory, to understand how the structural and institutional context in developing countries shapes incentives of political and social actors, and thus the policy process; and 3. Public administration and policy literature, to understand how policy-‐specific factors affect decision-‐making and implementation, including if and how these factors work similarly or differently across countries. The rest of this sub-‐chapter discusses the theoretical contributions to each of these literatures in turn. Policy Diffusion Literature165 This dissertation adds to literature on the diffusion of non-‐economic, rights-‐ or value-‐ based policies and their underlying norms. As touched upon in Chapter 2, a traditional stream of literature in this area is the literature on the international diffusion of human rights discourses and policies. As the case of FOIA in Romania illustrates, tying a policy to the (global) human rights discourse (in this case framing it as “the right to know”) can both help mobilize more easily domestic constituencies from among value actors and deprive opponents of legitimate arguments against the policy. The same is not the case for policies, such as PAD, whose normative valence is weaker – either because the norm-‐policy connection is weaker (in this case from integrity to public asset disclosure) or because they conflict with other norms, such as the right to privacy. 165 As one of the main arguments of this dissertation is that external influences cannot be treated
separately from domestic policy processes, the impact of international diffusion on domestic policy is also discussed in the next-‐subsection.
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Furthermore, even if domestic elites invoke the norm only rhetorically, but try to avoid actual compliance (e.g., when they are driven by mimicry), the evolution of FOIA and PAD in Romania illustrates how they can be trapped in a dual domestic and international pressure for compliance. This is similar to the “boomerang model” of human rights (HR) diffusion identified by Keck & Sikkink (1998) and the mechanism of HR adoption described by Risse and Ropp (1999) and Risse and Sikkink (1999), where governments, once they admit the validity of a norm and engage in tactical concessions, are trapped in pressures to comply with the norms both “from above” from the international community and “from below” from domestic actors. However, how successful this “argumentative ‘self-‐entrapment’” (Risse & Ropp, 1999: 254) is, depends on domestic incentives, which are discussed in the next subsections. The key differences between the diffusion of TAC policies and norms – and good governance more generally – and traditional HR are twofold. First, while transnational NGO advocacy networks do play a role also in the diffusion of TAC/good governance policies, good governance is also institutionalized in the bilateral and multilateral donor agenda, and advanced by global policy networks of experts and professionals working on these topics (see Chapter 2). Therefore, the influence of transnational NGO advocacy networks in the diffusion of TAC policies is complemented or augmented by the “financial might” of international donors as well as by the more technocratic transnational policy networks which help shape and develop TAC policies. Second, classic HR (political and civil rights) are mostly “freedom from”– type rights, requiring governments to refrain from certain actions such as torture, unlawful imprisonment, etc. TAC policies and good governance more broadly are more similar to “positive” duties, requiring governments to fulfill certain
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obligations towards citizens.166 Even FOIA, which is most clearly tied to a classic civil and political right (the right to information as part of the right to freedom of expression), requires government to provide information to citizens, rather then simply refrain from impeding the free flow of information among citizens. More complex AC policies require governments to put constraints on themselves. Thus, TAC/good governance policies more generally require more complex institutional structures and domestic capacities, and the transition from pro-‐forma institutionalization to prescriptive status (automatic compliance)167 is likely to depend on a different set of factors that affect policy implementation and effectiveness – such as administrative capacity -‐ than in the case of classic HR (see also next sub-‐sections). Another key contribution of this dissertation is to illustrate that relying on a single mechanism to explain international policy diffusion is insufficient. Rather, policies diffuse through a multiplicity of mechanisms at once, and these mechanisms can reinforce each other – especially for those policies that diffuse faster and further (like FOIA). More broadly, the dissertation confirms and illustrates a number of arguments made in (parts of) the policy diffusion literature, such as that understanding how diffusion affects policy choices requires understanding “the capacity of policy makers, political circumstances surrounding policy change, and the characteristics of the policies themselves” (Shipan & Volden, 2012: 6). It also follows the call of Dobbin et al. (2007: 462) to overcome the “isolation in different camps” of policy diffusion literature and “begin to sort out which of 166 In this sense, they are (paradoxically) more similar to economic and social rights. 167 Even for classic HR, Risse and Ropp (1999) find that the transition from institutionalization to
prescriptive status was more gradual than expected. Full compliance with transparency and integrity norms is unlikely in any country. While not investigated here, even in developed countries TAC policies and regulations do not reach the status of full compliance. Lack of transparency and integrity is a source of citizen discontent even in countries with comparatively low levels of corruption and high government transparency.
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the various mechanisms operates for what kinds of policies and what kinds of countries” (p. 463). In detailing causal mechanisms of the impact of policy diffusion on domestic policy-‐ making, the dissertation also demonstrates that understanding the underlying causal mechanisms of policy diffusion is not possible without understanding domestic incentives and policy dynamics. Thus, given their current global popularity, the diffusion of TAC policies will be driven to a substantial degree by incentives for mimicry that this popularity creates for domestic decision-‐makers. Conditionality can be an added incentive, especially for policies where resistance from domestic elites is likely to be higher (such as AC policies). However, these policies are more likely not only to be adopted, but also implemented and maintained over time if other diffusion channels – such as persuasion and policy learning – empower domestic policy entrepreneurs who can generate and maintain domestic demand for the policies. Thus, the dissertation shows not only that different diffusion mechanisms will be active at the same time for a given policy, but also that these mechanisms will differ by domestic actor. Finally, by investigating in depth the domestic factors that make the adoption of certain internationally advocated or promoted policies more likely, the dissertation also adds to the literature about when, why and how international norms and policies affect domestic policy-‐making (as asked for, e.g., by Finnemore and Sikkink, 2001; Cortell and Davis, 2000), by offering a rich, detailed description of the causal mechanisms at work. In particular, this dissertation confirms or emphasizes the importance of policy (and norm) alignment with domestic interests and incentives, as well as the importance of state identity in shaping the receptivity of a country to global policies and norms. The differences in domestic incentives for FOIA vs. PAD can explain why the former has diffused more easily
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than the latter: not only because of its stronger normative resonance, but also because it is less threatening to powerful domestic interests. Literature on the Role of Structural and Institutional Factors Structural and institutional factors represent the often-‐invoked “context” (e.g., Andrews, 2013) that affects both policy dynamics and reform effectiveness. While the dissertation touches upon macro-‐structural factors, its contribution lies more in detailing how meso-‐ structural and institutional factors affect incentives and thus policy dynamics. On the former, the case study confirms the arguments reviewed in section 3.1, that neither democracy nor the level of economic development are sufficient conditions for the adoption of TAC policies. In other words, it adds to the literature that states that some level of democracy and economic development can be conducive to the adoption of TAC policies, but the crucial determinant of policy adoption and evolution is domestic agency (Ackerman & Sandoval-‐Ballasteros, 2006; Bennett, 1997). At the same time, the case study illustrates that institutional structures matter in shaping the incentives and leverage of both decision-‐makers and demand-‐side constituencies. In this respect it adds to research conducted, e.g., by Michener (2010, 2011a,b), who focuses mostly on presidential countries in Latin America, or McClean (2010, 2011), who focuses mostly on developed countries with presidential or presidential and parliamentary systems, by extending the analysis to a semi-‐presidential country in Eastern Europe. The dissertation also adds to quantitative studies of FOIA diffusion (such as Berliner 2010, 2011a,b; and Relly & Cuillier, 2010), by describing more in detail how structural and institutional factors generate incentives for TAC policy adoption and evolution over time. In doing so it looks mainly at five features of the structural and institutional context: (i) the prevailing patterns of accountability; the nature and degree of (ii) political competition and (iii) political 316
uncertainty; (iv) the existence of value actors and potential policy entrepreneurs; and (v) the opportunities and leverage of civil society organizations, especially public interest organizations in areas such as human rights, democracy, governance, and anti-‐corruption. Regarding patters of accountability, this dissertation shows the limits of extrapolating US-‐focused scholarship that explains the adoption of TAC policies based on principal-‐agency theory (McCubbins et al., 1987) to countries with clientelistic political systems and weak or captured legislatures, where neither citizens nor legislatures exercise strong accountability through traditional channels. This is not to say that information asymmetry does not play a role in generating support for such policies – especially from civil society. Rather, the desire to increase public access to government information is an incentive for a relatively small number of activists. Broader support from both citizens and legislators is based more on the symbolic value of the policies – the much-‐discussed valence or rights-‐resonance, which makes it difficult to oppose the policies once they come onto the agenda. The dissertation also showcases the importance of political competition and political uncertainty in facilitating the adoption of TAC policies. Political competition did not heighten incentives for legislators to strengthen bureaucratic accountability in cases of divided government, as posited by principal-‐agent theories discussed above. However, it did generate incentives for opposition politicians and for presidents to make and to maintain corruption as a public and political agenda item, as suggested by policy-‐making and agenda-‐ setting theorists such as Baumgartner and Jones (2009; see also next sub-‐section). Except for a few value-‐actors or policy entrepreneurs, political uncertainty also did not play the role expected based on theories positing the desire of a party to mitigate the future loss of power by setting up accountability institutions to “bind the hands of future governments.”
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Rather, the short time horizons of decision-‐makers and political elites, coupled with the perceived lack of independence of accountability institutions, had the unexpected effect of lowering resistance to (T)AC policies because their consequences were underestimated – at least initially. This seems to be a causal mechanism or potential explanation that is so far under-‐theorized in the literature and merits further exploration. Another issue on which this dissertation expands our understanding is the structural and institutional conditions conducive to policy entrepreneurship and demand-‐side support for TAC policies. The existence of value actors and reformist or technocratic members of government is a necessary condition for such policy entrepreneurship. However, these need a broader network of social mobilization from which to draw support. Small and politically captured media markets as well as a private sector dominated by clientelistic and patronage relationships with political power will not be conducive to the emergence of demands for TAC policies from the media or private sector organizations. However, even a relatively small and urban-‐based civil society can play a powerful role as advocate and watchdog of the policies and their implementation. Even in a partially free media environment, such vocal organizations can still draw public attention to government attempts to undermine or reverse TAC policies once these are on the agenda. Again, in such contexts, CSOs benefit greatly from (i) the normative resonance of the policies, which gives them the ability to frame opposition to the policies as embracing corruption or lack of transparency; (ii) from high-‐level support of elites or decision-‐makers motivated by intrinsic or political incentives; and (iii) from external support – even if this is only symbolic or rhetorical (as argued in the previous sub-‐section). Regarding the latter, the dissertation also highlights the conditions under which external actors are likely to be particularly influential, namely when substantial (expected) material rewards from compliance with
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external demands are reinforced by a desire to belong to the aspirational peer-‐group from which these demands stem or are perceived to stem from (state identity). Policy-‐Making Literature The dissertation draws on Kingdon’s (2003) multiple streams framework, including relying on some its key concepts, such as policy entrepreneurs, problems vs. policies (solutions), policy windows and coupling. While testing the multiple streams model was not the primary focus of the dissertation, the case study illustrates not only the usefulness of the framework for explaining policy-‐making in developing countries and/or qualified democracies, but also the fact that external influences can (and should) be integrated into the framework (see also Zahariadis, 2003). External actors can exert influence at any stage in the policy process, from agenda setting to policy implementation. By simply putting an issue on the domestic political agenda, they empower domestic actors who have a stake in that issue. By asking for actions to demonstrate commitment to transparency, anti-‐ corruption, or democracy, they open policy windows. By offering international examples and best practices they transform a general “condition” into a “problem” to be addressed through specific policy “solutions”. By allocating funds to specific policy areas they increase the incentives and the ability of domestic actors to become active in those policy areas. Future research on policy-‐making in developing countries can use this framework to identify when and how external actors (can) influence domestic policy-‐making, through: i.
influencing how the “problem” is articulated (problem stream), through defining transparency and corruption as problems to be solved in a given country;
ii.
directly or indirectly suggesting policies that can be “coupled” to the problem (policy stream), for example through developing a global policy menu anchored in
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international conventions, developing and offering best practices through global policy networks, or supporting exchanges of experience on TAC policies; iii.
supporting domestic policy entrepreneurs through traditional capacity-‐building, training, and funding, as well as through supporting their participation in policy making via dialogue with the government; and
iv.
opening domestic windows of opportunity via dialogue and negotiations with national governments, including through direct or indirect conditionality.
Donors and international actors wishing to support TAC or other policies can also use this framework to identify entry points into the policy-‐making process (see also section 8.3). By illustrating and explaining the different dynamics of the two policies, this dissertation also makes a contribution to the literature on policy typologies and their impact on policy-‐making patterns (“policy determines politics” – Lowi, 1972; Wilson, 1980). In particular, Wilson’s cost-‐benefit based policy typology proved useful for explaining sources of support and opposition for the two policies. The case study analyzes not only the distribution of costs and benefits for different TAC policies, but also their magnitude and their type. As discussed in the previous section (8.1) and in section 7.5, for non-‐economic, value-‐based policies, such as TAC policies, what matters most are the political/image-‐related costs and benefits. These do not arise naturally, but are socially constructed by policy entrepreneurs driven either by the intrinsic or by the political rewards they expect to obtain from policy adoption and implementation. The dissertation also illustrates the importance of policy entrepreneurs, and the fact that policy entrepreneurs can arise and be successful in somewhat difficult environments, as was the case in Romania (see discussion of structural and institutional conditions). For TAC policies, policy entrepreneurs in difficult environments benefit not 320
only from the valence or rights-‐resonance of the policies and from the salience of the underlying problem on the public agenda, but also – crucially – from external support through the variety of mechanisms and entry points detailed above. The dissertation also illustrates that there is rarely a single, isolated policy entrepreneur. Rather, there are a series of actors on the demand and supply side, who can exit and enter the policy process at various stages, or who can take on different roles throughout the (long) policy cycle. The case study also confirms some of Wilson’s (1980) core arguments about policy evolution. As a majoritarian policy, the challenge for FOIA was indeed to get it and keep it on the agenda. However, the case study also illustrates that, once on the agenda, it is very difficult to oppose majoritarian policies, especially when they are tied to global norms that are sufficiently strong to deprive opponents of ideological arguments against them (such as the norm of transparency or “the right to know” in the case of FOIA). On the other hand, for PAD, as a policy with entrepreneurial politics, the challenge was not simply getting it on the agenda, but passing the law and maintaining it in the face of intense opposition. This, not only or primarily because of its weaker connection to an established global norm, but because it threatened powerful interests to a larger degree than FOIA did. The dissertation also offers partial evidence for Baumgartner and Jones’s (2009) argument that: (i) valence issues are tempting for politicians to raise but difficult to solve, and that (ii) once adopted, policies with high normative resonance are difficult to reverse. On the first point, the dissertation illustrates that in high-‐corruption countries, there are conflicting tendencies that can help or hinder the emergence of TAC policies on the agenda. On the one hand, elites have incentives to prevent their emergence, precisely because they are policies that are difficult to oppose once present in the public debate. On the other hand, especially in the face of widespread public discontent, opposition politicians
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do have incentives to raise at least the problems of lack of transparency and corruption, if not necessarily propose specific solutions for them. It is here that international influences become crucial in high-‐corruption countries – not only by helping to put and keep issues such as TAC on the agenda, but also by tying them to specific policy solutions (see also discussion on multiple streams framework and external influences above). On the second point, the dissertation illustrates that not all valence issues are alike. Even though “value stickiness” (in Abbott & Snidal’s, 2002, terms) does make it (more) difficult to reverse such policies once adopted, subsequent policy evolution depends on the distribution and degree of costs and benefits. This can differ also for valence issues, resulting in different patterns of policy-‐making over time. Majoritarian policies (such as FOIA) that do not directly threaten important interests will tend to follow a pattern of incrementalism, if they still have some constituencies supporting them; or they will fall off the agenda (atrophy), if they lose political support and/or relevance for their (small) core constituencies and supporters. Entrepreneurial policies (such as PAD), which conflict with the interests of influential groups, will be the object of sustained battles, thus following a punctuated equilibrium pattern. Thus, the case study also illustrates that policy typologies can be linked to theories of policy making such as incrementalism (Lindblom, 1959) and punctuated equilibrium (Baumgartner and Jones, 2009). While policy implementation was not the primary focus of the analysis, the dissertation illustrates that policy-‐making cannot be understood separately from policy implementation, and vice-‐versa. First, legal provisions (the strength of the law) affect implementation. Laws with more stringent provisions, such as sanctions for non-‐ compliance and/or a strong and independent monitoring and implementation agency, are more likely to be implemented and complied with. Second, implementation affects
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subsequent policy evolution, both through learning from experience with implementation, and through the actual costs and benefits the policies generate, which shape further support or opposition to the law. Therefore, the dissertation also adds to the literature on policy implementation in developing countries. By describing the ups and downs of FOIA and PAD, it offers further evidence for the non-‐linear model of policy implementation of Thomas and Grindle (1990) (see also Brinkerhoff & Crosby, 2002; Brinkerhoff & Brinkerhoff, 2013). Furthermore, the dissertation links policy implementation not just to policy characteristics, but also to contextual factors, such as bureaucratic capacity and accountability. It shows that even in cases of moderate capacity and professionalism, TAC policies can still be implemented, albeit imperfectly, as long as there are constituencies that obtain some benefits from implementation. Returning to the Wilsonian policy typology discussed above, implementation for majoritarian policies like FOIA is likely to suffer if public attention declines. However, if a modicum of institutionalization is achieved after policy adoption and roll-‐out, implementation will still continue, albeit perhaps at a lower level of compliance. In contrast, for entrepreneurial policies, like PAD, declining public attention can be fatal, as it makes policy reversal easier for the opponents of the policy. Paradoxically, the conflictive nature of some entrepreneurial policies might help maintain them on the public agenda. This is the case especially for AC policies, where policy entrepreneurs can mobilize public opinion when the policies are under threat of reversal, by invoking highly emotive issues such as corruption and integrity. The effectiveness of the two policies in actually increasing transparency and reducing corruption was not under the purview of this dissertation. However, the case study shows the potential of FOIA and PAD to actually contribute to greater transparency,
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less corruption, more public participation and good governance more broadly, as promised by their advocates. It also shows the limits of FOIA and PAD, and (some of) the contextual factors which are necessary for these policies to be effective. Among the main – indispensable – factors is the existence of an active civil society, which has the space and the means to hold the government to account. The case of Romania could be considered an intermediate case from this perspective: even though civil society is “thin” and has weak roots in society, a few urban NGOs can be relatively effective in maintaining pressure on government to implement the laws and fulfill its own promises. Attention and support from international actors is crucial in empowering them to play this watchdog role. Under these conditions, FOIA can be a valuable, albeit imperfect, tool for holding government to account. The dissertation also illustrates the importance of making asset declarations public (see also Djankov et al., 2010) and elucidates some of the channels through which this can contribute to anti-‐corruption efforts. First, the public nature of asset declarations not only empowers civil society, media and citizens to play a watchdog role, but also strengthens the position of the public institutions in charge of ensuring compliance with the laws by both identifying potential cases of non-‐compliance and by keeping public attention on the issue. Second, as documented also elsewhere (e.g., RCCP, 2005), the dissertation illustrates the potential for CSOs to use public asset declarations to vet political candidates. If such an initiative succeeds in influencing the popular vote, it can have a powerful preventive and transformative impact in the longer term, by defeating corrupt politicians in elections and/or discouraging tainted candidates to run in the first place. Such a causal chain is very long and fraught with conditions that have not been investigated in this dissertation.168 168 Such as whether corruption is a sufficient reason for a significant number of citizens to vote against a candidate. For Romania, there is some evidence that even convictions of corruption do not
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However, the case study illustrates that corruption allegations do carry reputational costs, even in highly corrupt countries: accusations of corruption are feared by some Romanian politicians and can lead to the demise of otherwise relatively successful governments (as in 2004). Finally, it is worth emphasizing that this dissertation does not intend to assess the potential for specific TAC policies to “solve” the problem of corruption and “bad” governance in high-‐ corruption countries. As argued in section 1.2, wide-‐spread corruption in developing countries is one sign or symptom of a system of governance which operates based on personalistic patron-‐client relations, rather than on universalistic rule of law principles (see discussion of relation-‐based vs. rule-‐based governance). To expect that individual TAC policies can shift an entire governance system from one equilibrium to another would be unrealistic. As argued in sections 1.2 and 3.1, there are few examples in history of such transitions. What the case study of Romania illustrates is that, at best, taking a persistent, medium-‐ to long-‐term approach to advancing TAC policies can pay off in terms of small, punctual, incremental improvements in some policy areas. However, whether these are enough to change fundamental power structures in society remains an open question, which goes beyond the scope of this dissertation.
8.3
International Policy Implications
The findings of the case study about the specific policy dynamics in Romania can most easily be extrapolated to other middle-‐income post-‐communist EU accession countries or new necessarily reduce support for some candidates in some areas (Odobescu, 2013). The evidence from other countries is mixed (Ferraz & Finan, 2008; Konstantinidis & Xezonakis, 2013). The bottom line is that corruption will be weighed against other factors deciding the vote, and can count only at the margin in swaying the electorate. The circumstances under which this is likely to happen are beyond the scope of this dissertation.
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member states. Indeed, similar dynamics have been observed in these countries, as they set up anti-‐corruption institutions under EU pressure (even without the CVM), in the face of intense domestic political resistance and attempts at policy reversal (Batory, 2012). Yet, so far these agencies have survived, despite the EU’s (partial) loss of leverage, due to a mix of institutional activism (leadership), domestic public support, persisting external concern with corruption, and value stickiness. Few donors have the time-‐horizons or the leverage of the EU, whose involvement in the anti-‐corruption area in Romania stretches over more than 15 years, whose favorability ratings among Romanian citizens are very high, and accession to which has been an uncontested political goal for all political parties and governments. Given Romania’s strong “Western” orientation, the EU, the US and other Western embassies were able to adopt an openly political approach and intervene fairly deep in domestic affairs. The EU formulated explicit, and sometimes very detailed, conditionality, and got involved in monitoring the implementation of laws and the functioning of institutions over long periods of time. It even went as far as to support specific individuals.169 Such an openly political approach is only possible when the actors pursuing it enjoy high domestic support – otherwise there is a risk of backlash among the citizens of the recipient country. In many ways, the EU in Romania represents a best-‐case scenario in terms of the influence that an outside actor can have over domestic politics and policy. Such an explicit and strong influence might be difficult to replicate outside Romania or outside EU-‐accession countries. The general findings and theoretical implications outlined in the previous section can also apply to other democratic middle-‐income countries with a high level of corruption. Given 169 For example, MoJ Macovei in 2005-‐2007; the Chief Prosecutor (Kovesi) and the Chief Anti-‐
Corruption Prosecutor (Dan Morar).
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the importance of political competition and the public agenda for explaining why TAC policies were adopted in this case, some of the explanations are less suitable to explain TAC policy evolution in autocratic countries. Yet, the findings still generate insights that donors and other international actors should take into account when promoting TAC policies anywhere. The three main insights for donors are: 1. The need to understand how structural and institutional conditions affect policy making, what the main domestic incentives for TAC policies are, and how to build on them; 2. The need for a longer-‐term engagement that supports not just policy adoption, but its implementation and strengthening along the policy cycle, as well as its embedding in a larger policy and institutional structure for increasing transparency and fighting corruption; and 3. The need to use a broader toolkit of international support for TAC policy-‐making, leveraging different channels of policy diffusion to affect domestic policy change. Understanding Domestic Incentives and Policy-‐Making Promoting transparency and integrity in public life is fundamentally about strengthening the state-‐society interface. One-‐sided international support –only to NGOs (the demand-‐ side), or only to state institutions (the supply side), is likely to be ineffective. External actors should base their support on understanding the fundamental incentives of both sides, the structural and institutional conditions that shape these incentives, how these incentives are likely to change (or not) in the future, and what donors and other international actors can (or cannot) do to change them. In other words, a purely normative, rights-‐based advocacy-‐ based approach for promoting TAC policies is inherently limited. Rather, donors and other international actors need to deepen their understanding of how more pragmatic incentives, 327
such as political competition and political uncertainty, influence the adoption and sustainability of transparency and anti-‐corruption policies. In terms of supply-‐side actors/decision-‐makers, this means relying not only on value actors – and sometimes critically questioning whether value actors are indeed driven by intrinsic benefits or not – but strengthening the incentives of other decision-‐makers to support TAC policies. This can be challenging. Conditionality and incentives for mimicry can help incentivize somewhat decision-‐makers who would otherwise potentially oppose the policies – at least at the adoption stage, but even longer if persistently employed. But the incentives generated by conditionality and mimicry will not be sustainable over time by themselves. Capacity-‐building, training, exchanges of experience, and similar measures aimed not only at the executive and/or CSOs, but also at the legislative and judiciary can help socialize a larger number of actors in TAC norms and policies, thus expanding the potential for policy learning and persuasion among a broader pool of actors, and potentially garnering broader and more sustainable support for the policies. This is in line with Andrews’s (2013) argument that donors need to go beyond focusing narrowly on individual “reform champions” to engage with a broader range of (potential) institutional and policy entrepreneurs and “distributed agents” who have to implement the policy. In “qualified” democracies in which donors and other international actors have sufficient leverage they can also help maintain adherence to democratic and rule-‐of-‐law principles, via broad conditionality or other external pressure, and thus limit political uncertainty and help lower the stakes of losing power. Depending on their leverage, donors can also help make or maintain TAC prominent issues on the public and political agenda, and/or support key policy entrepreneurs who advance TAC policies.
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On the demand-‐side, donors can expand their support beyond NGOs to include media organizations, or representative organizations of the private sector. However, such support is most likely to work only if such organizations already exist and function well. This is more likely to happen if the underlying structural conditions are in place. For example, if the media market is small and alternative sources of revenue are lacking, then donor support to alternative media organizations or NGOs can help strengthen independent voice of the sector, but it will most likely not change the fundamental incentives that mainstream media organizations have, including possible political capture. In such cases, in the absence of representative, inclusive and independent media and private sector interest groups organization, NGOs/CSOs will remain the main source of demand for transparency and anti-‐corruption policies. Thus, in environments with narrow elites and low levels of other kind of social organizations, longer-‐term external support for CSOs may be essential for ensuring a minimum of independent policy advocacy and government accountability, i.e., strengthen the demand-‐side for TAC policies. Transitioning to sustainable domestic funding and deepening CSO roots in society is a long-‐term process driven by broader social, economic and political developments. Since this process has not been the subject of this dissertation, when and how this is likely to happen, and what role the international community can plays in this, is not discussed here. Understanding domestic incentives also implies more careful attention to potential political economy risks of supporting some approaches or some institutions over others. The fear of political capture of anti-‐corruption institutions is not unfounded. The lack of independence of implementation and enforcement agencies, or the ease with which they can be politically captured, makes it possible that anti-‐corruption policies might be selectively implemented to target political opponents. The danger is less acute for “purer” transparency policies, as
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the public plays a greater role in what information is requested from the government and how that information is used. When supporting anti-‐corruption policies in developing countries, donors need to be aware of these risks, and design their support carefully, to avoid undermining rather than strengthening democracy and the rule of law. This means that donor support to AC policies and institutions should be based on careful, in-‐depth political economy analysis, which also looks at the degree of independence from political influence of key accountability institutions (including the judiciary) and of the public administration in general. Finally, understanding the domestic incentives that drive (TAC) policy adoption and implementation shows the potentials and limits of currently suggested approaches to increasing the success of institutional reforms in developing countries. For example, the proposed solution to avoiding reform failure due to isomorphic mimicry is for donors to support more Problem Driven Iterative Adaptation (Andrews et al. 2012; Andrews, 2013). However, even in such a scenario, governments or political elites still have incentives to engage in mimicry that go beyond specific donor programs and that have to do with the international recognition or legitimacy. Furthermore, the existence of space for experimentation and positive deviance depends on broader structural and institutional factors, and especially on the incentives and capacity of political and administrative elites to allow such experimentation and engage in policy learning. This could be missing in many countries when it comes to TAC policies – especially in high-‐corruption ones. Nevertheless, this dissertation illustrates that even if mimicry is an incentive for policy adoption, policy failure is not inevitable as long as other incentives exist, including incentives generated by other channels of diffusion. As argued in the previous section (8.2), even if decision-‐makers adopt a certain policy due to conditionality or mimicry, they can be
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trapped in a dual pressure from domestic and international actors to maintain and comply with the policy. Therefore, if the adoption, implementation and effectiveness of TAC policies are goals donors want to support, they need not only to engage with various actors along the full policy cycle (see next sub-‐section), but also employ a broader array of instruments from development and foreign policy toolkits (see last sub-‐section). Taking a Long Term Approach: Following Policy Cycles and Strengthening Institutions The findings of this dissertation reinforce the conclusion that it can take a long time until TAC policies become effective (as in the case of PAD in Romania); or, alternatively, their effectiveness can decline over time if attention and support for the policy subsides (as in the case of FOIA). Thus, if the goal is to help countries increase actual government transparency or -‐ even more challenging –reduce corruption, longer-‐term engagement is necessary. Such longer-‐term engagement should also offer support for the policies along the policy cycle, rather than declare victory after the adoption of a single policy. As illustrated by the case study, policy-‐making and implementation is not a linear forward-‐moving process, but rather a battlefield between opponents and supporters, where policy weakening or reversal is always possible. As argued in the previous section (8.2) there are various entry points into the policy process that international actors can use, from supporting policy entrepreneurs, to shaping domestic perceptions and salience of transparency and corruption, offering policy solutions, or opening windows of opportunity. Moreover, such a longer-‐term approach should include support for policy roll-‐out and implementation, including for awareness-‐raising within and outside the public sector, training, staffing, monitoring, continued civil society involvement, etc. Clearly enshrining responsibilities for monitoring and enforcement in enacting or related legislation – including through setting up a dedicated agency -‐ can also help ensure better 331
implementation over time. Having a dedicated agency, or at least a sufficiently empowered unit at the center of government, is helpful for the implementation of transparency policies, as such an agency can not only monitor and centralize data, but also engage in further policy development and advocacy, and offer a centralized interface between the government and demand-‐side actors (CSOs). Such an agency170 is even more important for the implementation of anti-‐corruption provisions and policies, as many of its functions are either too complex for civil society to fulfill (like assessing veracity for a significant number of ADs) or are not considered to belong in the realm of civil society responsibilities or prerogatives. However, as also argued in the previous sub-‐section, there is a danger that such an agency could be politically captured – reinforcing the conclusion that donor support for it should be informed by careful analysis and understanding of domestic incentives. Finally, donor support for TAC policies can be more effective if it moves beyond supporting the adoption of a single policy (like FOIA) to support the development or strengthening of a broader network of TAC policies and institutions. Without a consistent and consistently enforced TAC regime, which includes a broader set of laws and regulations embedded in the administrative procedures of a large number of public sector organizations, one or two isolated transparency laws are unlikely to be effective. To be sustainable, such a regime also needs an institutional infrastructure able to steer it and update it over time, rather than focus only on monitoring the application of a single law. Dedicated agencies or units within existing agencies or ministries can be one part of such an institutional infrastructure. 170 The alternative to a centralized agency is a decentralized and/or multi-‐agency monitoring,
implementation and/or enforcement mechanism. Given that the primary focus of this dissertation is policy adoption and evolution over time, I do not investigate the advantages and disadvantages of centralized vs. decentralized implementation and enforcement of asset disclosure, or its bundling with other functions, such as monitoring and enforcement of conflicts of interest and incompatibilities.
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Conclusion: Engaging both Locally and Globally Finally, the findings of the case study suggest that the most effective approach to promoting TAC policies around the world is one that relies on various channels and mechanisms of policy diffusion. For donors, this means that if they want to support the adoption of TAC policies or any policy more broadly, they should use the broader toolbox of foreign and development policy strategically and consistently. This includes a strong link between bi-‐ lateral and multi-‐lateral aid and foreign policy, as well as between governments and INGOs, to increase the global strength of key policies by enshrining them in international conventions and supporting global advocacy, while supporting policy learning and strengthening reformist policy actors at the national level. Conditionality can be one instrument in such a global toolbox, but it can only be effective if it is reinforced by a larger process of policy diffusion that encourages persuasion, policy learning and even mimicry among domestic elites. Such diffusion can be encouraged, for example, via training and exchanges of experience, capacity-‐building, technical assistance, etc., for the broader range of institutions engaged in policy adoption and implementation, reinforced by targeted support for advocacy, monitoring and implementation of the policies. Global policy diffusion and domestic policy adoption and implementation can also be encouraged and strengthened through more donor, IO and INGO coordination and cooperation. As the case of Romania illustrates, diffusion channels reinforce each other best when a variety of international actors push in the same direction: while not necessarily planned, the convergence in policy advice, financial and technical support and diplomatic pressure between various bilateral donors (e.g., the US), international and regional organizations (e.g., EU, NATO, WB), and international NGOs (FH, Soros Foundation, Article
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19, etc.) was no doubt crucial not only for the adoption of TAC policies, but also for the general strengthening of democracy and rule-‐of-‐law in Romania. The main message of this dissertation is that if donors want to support the sustainable adoption and implementation of TAC policies around the world, they need to understand both the domestic incentives that drive these, and the scope of external influence on them, including the time-‐frames during which policy change happens. The main conclusion is that, overall, for both the demand-‐ and the supply-‐side of TAC policies, donors can do relatively little to change the fundamental institutional structures that shape domestic incentives, at least in the short-‐term. However, they can sometimes add to these incentives, and in doing so they can rely on different channels or mechanisms of global policy diffusion. Especially in democracies with a modicum of political competition, as well as some capacity and independence of the public sector and of accountability institutions, there are some entry points for supporting the adoption and implementation of TAC policies with a view to ensuring their sustainability over time. Table 8.1 below summarizes the factors to consider and the best entry points for doing so. Table 8.1. Summary of actors, structural and institutional factors and best entry points for supporting TAC policies. Actors
Interest groups/d emand side
Relevant structural and institutional factors to consider
Policy implications for the international community
Press freedom, political independence, sizeable and competitive media-‐market. Private sector interest group organization. Civil society space and resources.
Little influence on size and composition of media market, but international actors can support press freedom and independent media or journalists’ organizations. No influence on clientelistic or patrimonial nature of economic system (also not investigated in this dissertation) Best entry point: civil society support (training, funding, etc.).
Decision-‐ makers /supply side
Bureaucratic accountability and legislative control over the executive. Political competition.
Limited influence on overall structures of accountability and political uncertainty, especially in the short term. Some (though limited) scope for targeted reform projects
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Moderate political uncertainty. Need for re-‐legitimization and public pressure for TAC policies.
and training, and for broad democratic conditionality, under certain circumstances. Best entry points: elevating and maintaining TAC on the public agenda (if leverage exists); supporting policy entrepreneurs.
Policy entrepreneurs. Impleme ntation and oversigh t agencies
Institutional capacity and incentives, including independence, professionalism and resources.
As above: limited influence in the short term on overall structures and incentives, some scope for capacity-‐building and socialization (e.g., training) and broad democratic conditionality. Best entry points: training, capacity-‐building, technical assistance etc., on TAC issues.
Source: Author
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Romania under the Co-‐operation and Verification Mechanism {COM(2012) 410 final}. SWD(2012) 231 final. Retrieved from: http://ec.europa.eu/cvm/docs/swd_2012_231_en.pdf Evenimentul Zilei (EZ) (1999, November 22). Secretele zeilor la indemina alegatorilor. Retrieved from:http://www.evz.ro/detalii/stiri/secretele-‐zeilor-‐la-‐indemina-‐ alegatorilor-‐565620.html Evenimentul Zilei (EZ) (2002, April 5a). Mars fortat spre NATO. Retrieved from: http://www.evz.ro/detalii/stiri/mars-‐fortat-‐spre-‐nato-‐535967.html Evenimentul Zilei (EZ) (2002, April 5b). Macar acum! Retrieved from: http://www.evz.ro/detalii/stiri/macar-‐acum-‐535965.html Evenimentul Zilei (EZ) (2002, April, 30). Mugur Ciuvica cere controlul averii lui Adrian Nastase. Retrieved from: http://www.evz.ro/detalii/stiri/mugur-‐ciuvica-‐cere-‐ controlul-‐averii-‐lui-‐adrian-‐nastase-‐534110.html Evenimentul Zilei (EZ) (2002, December 19). Bila alba: Elevii Colegiului National “Spiru Haret” din Tirgu Jiu. Bila neagra: Comisia juridica a Senatului. Retrieved from: http://www.evz.ro/detalii/stiri/bila-‐alba-‐elevii-‐colegiului-‐national-‐spiru-‐ haret-‐din-‐tirgu-‐jiubrbila-‐neagra-‐comisia-‐juridica-‐a.html EVZ.ro Evenimentul Zilei (EZ) (2002, December 5). Lovitura de teatru la Camera Deputatilor: Averile demnitarilor, publicatein Monitorul Oficial. Retrieved from: http://www.evz.ro/detalii/stiri/lovitura-‐de-‐teatru-‐la-‐camera-‐deputatilor-‐averile-‐ demnitarilor-‐publicatein-‐monitorul-‐oficial-‐514278.html Evenimentul Zilei (EZ) (2002, February 20a). PSD ne-‐a mai pacalit o data: Averile demnitarilor ramin secrete. Retrieved from: http://www.evz.ro/detalii/stiri/psd-‐ne-‐ a-‐mai-‐pacalit-‐o-‐data-‐averile-‐demnitarilor-‐ramin-‐secrete-‐539185.html Evenimentul Zilei (EZ) (2002, February 20b). Bila alba: Parintii fetitei decedate din Baciu-‐ Cluj. Bila neagra: Comisia pentru drepturile omului a Senatului. Retrieved from: http://www.evz.ro/detalii/stiri/bila-‐alba-‐parintii-‐fetitei-‐decedate-‐din-‐baciu-‐ clujbrbila-‐neagra-‐comisia-‐pentru-‐drepturile-‐omului.html Evenimentul Zilei (EZ) (2002, November 14). Slova lui Dancu catre supusi. Retrieved from: http://www.evz.ro/detalii/stiri/slova-‐lui-‐dancu-‐catre-‐supusi-‐516225.html Evenimentul Zilei (EZ) (2002, October 11). PSD ii da cu tifla lui Iliescu. Retrieved from: http://www.evz.ro/detalii/stiri/psd-‐ii-‐da-‐cu-‐tifla-‐lui-‐iliescu-‐519617.html Evenimentul Zilei (EZ) (2002, September 16). Primarie strict secreta. Retrieved from: http://www.evz.ro/detalii/stiri/primarie-‐strict-‐secreta-‐522158.html Evenimentul Zilei (EZ) (2002, September 24). O lege moarta. Retrieved from: http://www.evz.ro/detalii/stiri/o-‐lege-‐moarta-‐521425.html Evenimentul Zilei (EZ) (2002, September 30). Boc: “PSD are multe guri de hranit”. Retrieved from: http://www.evz.ro/detalii/stiri/boc-‐psd-‐are-‐multe-‐guri-‐de-‐hranit-‐ 520750.html Evenimentul Zilei (EZ) (2003, February 11). “Modelul bulgaresc” -‐ aruncat la cos. Retrieved from: http://www.evz.ro/detalii/stiri/modelul-‐bulgaresc-‐aruncat-‐la-‐cos-‐ 508160.html 348
Evenimentul Zilei (EZ) (2003, March 13). Romania curat-‐murdara. Retrieved from: http://www.evz.ro/detalii/stiri/romania-‐curat-‐murdara-‐505433.html Evenimentul Zilei (EZ) (2003, March 14). PSD simuleaza si anticoruptia. Retrieved from: http://www.evz.ro/detalii/stiri/psd-‐simuleaza-‐si-‐anticoruptia-‐505271.html Evenimentul Zilei (EZ) (2003, May 27). Doua bile pentru guvernul Adrian Nastase. Retrieved from: http://www.evz.ro/detalii/stiri/doua-‐bile-‐pentru-‐guvernul-‐adrian-‐nastase-‐ 617585.html Evenimentul Zilei (EZ) (2003, May 28). Editorial: Comedia declaratiilor. Retrieved from: http://www.evz.ro/detalii/stiri/editorial-‐comedia-‐declaratiilor-‐617750.html Evenimentul Zilei (EZ) (2003, September 24). Daca transparenta nu, atunci demisie! Retrieved from: http://www.evz.ro/detalii/stiri/daca-‐transparenta-‐nu-‐atunci-‐ demisie-‐628570.html Evenimentul Zilei (EZ) (2004, April 21). “Dl. Bimbo”, mai presus de lege. Retrieved from: http://www.evz.ro/detalii/stiri/dl-‐bimbo-‐mai-‐presus-‐de-‐lege-‐648265.html Evenimentul Zilei (EZ) (2004, April 23). Marea gogoasa a declararii averilor. Retrieved from: http://www.evz.ro/detalii/stiri/marea-‐gogoasa-‐a-‐declararii-‐averilor-‐ 648400.html Evenimentul Zilei (EZ) (2005, April 1). Declaratii de avere periate de putere. Retrieved from: http://www.evz.ro/detalii/stiri/declaratii-‐de-‐avere-‐periate-‐de-‐putere-‐678348.html Evenimentul Zilei (EZ) (2005, April 22). Macovei: in cazul averilor, Senatul sfideaza opinia publica. Retrieved from: http://www.evz.ro/detalii/stiri/macovei-‐in-‐cazul-‐ averilor-‐senatul-‐sfideaza-‐opinia-‐publica-‐680059.html Evenimentul Zilei (EZ) (2005, December 29). Marile restante legislative. Retrieved from: http://www.evz.ro/detalii/stiri/marile-‐restante-‐legislative-‐702350.html Evenimentul Zilei (EZ) (2005, October 22). Transparenta parolata. Retrieved from: http://www.evz.ro/detalii/stiri/transparenta-‐parolata-‐696245.html Evenimentul Zilei (EZ) (2006, December 21). Integrarea in UE, pretext de platit polite. Retrieved from: http://www.evz.ro/detalii/stiri/integrarea-‐in-‐ue-‐pretext-‐de-‐platit-‐ polite-‐423754.html Evenimentul Zilei (EZ) (2006, December 30). UE, cu ochii pe justitia romana. Retrieved from: http://www.evz.ro/detalii/stiri/ue-‐cu-‐ochii-‐pe-‐justitia-‐romana-‐423569.html Evenimentul Zilei (EZ) (2006, February 7). Universitarii nu se inghesuie sa-‐si declare averile. Retrieved from: http://www.evz.ro/detalii/stiri/universitarii-‐nu-‐se-‐inghesuie-‐sa-‐ si-‐declare-‐averile-‐705964.html Evenimentul Zilei (EZ) (2006, June 16). Agentia de Integritate risca sa ajunga doar un ONG. Retrieved from: http://www.evz.ro/detalii/stiri/agentia-‐de-‐integritate-‐risca-‐sa-‐ ajunga-‐doar-‐un-‐ong-‐405163.html Evenimentul Zilei (EZ) (2006, June 7). Politie pentru politicieni. Retrieved from: http://www.evz.ro/detalii/stiri/politie-‐pentru-‐politicieni-‐404278.html Evenimentul Zilei (EZ) (2006, October 13). EDITORIALUL EVZ: Rezistenta la curatenie. Retrieved from: http://www.evz.ro/detalii/stiri/editorialul-‐evz-‐rezistenta-‐la-‐ curatenie-‐414787.html 349
Evenimentul Zilei (EZ) (2006, October 20). Legea averilor va fi reexaminata. Retrieved from: http://www.evz.ro/detalii/stiri/legea-‐averilor-‐va-‐fi-‐reexaminata-‐415691.html Evenimentul Zilei (EZ) (2006, October 24). Legea averilor ramane goala de continut. Retrieved from: http://www.evz.ro/detalii/stiri/legea-‐averilor-‐ramane-‐goala-‐de-‐ continut-‐416254.html Evenimentul Zilei (EZ) (2006, October 26). Ultimatum din Berlin. Retrieved from: http://www.evz.ro/detalii/stiri/ultimatum-‐din-‐berlin-‐416558.html Evenimentul Zilei (EZ) (2006, October 31). Deputatii au casapit averile pana la capat. Retrieved from: http://www.evz.ro/detalii/stiri/deputatii-‐au-‐casapit-‐averile-‐pana-‐ la-‐capat-‐417180.html Evenimentul Zilei (EZ) (2006, September 14). Coruptia politicienilor romani, o problema grava pentru UE. Retrieved from: http://www.evz.ro/detalii/stiri/coruptia-‐ politicienilor-‐romani-‐o-‐problema-‐grava-‐pentru-‐ue-‐412274.html Evenimentul Zilei (EZ) (2006, September 18). Justitia are nevoie de anticipate. Retrieved from: http://www.evz.ro/detalii/stiri/justitia-‐are-‐nevoie-‐de-‐anticipate-‐ 411360.html Evenimentul Zilei (EZ) (2006, September 20). Vasile Dincu: (dez)informarea publica. Retrieved from: http://www.evz.ro/detalii/stiri/vasile-‐dincu-‐dezinformarea-‐ publica-‐411691.html Evenimentul Zilei (EZ) (2006, September 26). Ministrii Transilvaniei. Retrieved from: http://www.evz.ro/detalii/stiri/ministrii-‐transilvaniei-‐412528.html Evenimentul Zilei (EZ) (2006, September 28). Basescu vrea sa colaboreze opt ani cu oficialii UE. Retrieved from: http://www.evz.ro/detalii/stiri/basescu-‐vrea-‐sa-‐colaboreze-‐ opt-‐ani-‐cu-‐oficialii-‐ue-‐412850.html Evenimentul Zilei (EZ) (2006, September 7). Deputatii au desfiintat legea averilor. Retrieved from: http://www.evz.ro/detalii/stiri/deputatii-‐au-‐desfiintat-‐legea-‐averilor-‐ 410169.html Evenimentul Zilei (EZ) (2007, April 4). EDITORIALUL EVZ: Antiteza Monicai Macovei. Retrieved from: http://www.evz.ro/detalii/stiri/editorialul-‐evz-‐antiteza-‐monicai-‐ macovei-‐437312.html Evenimentul Zilei (EZ) (2007, February 1). Demnitarii pot ascunde linistiti marimea averii. Retrieved from: http://www.evz.ro/detalii/stiri/demnitarii-‐pot-‐ascunde-‐linistiti-‐ marimea-‐averii-‐428594.html Evenimentul Zilei (EZ) (2007, January 27). Semne bune ANI are. Retrieved from: http://www.evz.ro/detalii/stiri/semne-‐bune-‐ani-‐are-‐427942.html Evenimentul Zilei (EZ) (2007, January 31). Basescu pregateste artileria grea anti-‐Tariceanu. Retrieved from: http://www.evz.ro/detalii/stiri/basescu-‐pregateste-‐artileria-‐grea-‐ anti-‐tariceanu-‐428441.html Evenimentul Zilei (EZ) (2007, January 4). Politicieni care au trait bine si in 2006. Retrieved from: http://www.evz.ro/detalii/stiri/politicieni-‐care-‐au-‐trait-‐bine-‐si-‐in-‐2006-‐ 424842.html Evenimentul Zilei (EZ) (2007, July, 2). Legea ANI, contestata din nou. Retrieved from: http://www.evz.ro/detalii/stiri/legea-‐ani-‐contestata-‐din-‐nou-‐449863.html 350
Evenimentul Zilei (EZ) (2007, March 18). Zece motive pentru care nu avem "fata de europeni". Retrieved from: http://www.evz.ro/detalii/stiri/zece-‐motive-‐pentru-‐ care-‐nu-‐avem-‐fata-‐de-‐europeni-‐434844.html Evenimentul Zilei (EZ) (2007, March 8). Femei care conduc Romania. Retrieved from: http://www.evz.ro/detalii/stiri/femei-‐care-‐conduc-‐romania-‐433408.html Evenimentul Zilei (EZ) (2007, May 17). Vacaroiu i-‐a dat drumul lui ANI. Retrieved from: http://www.evz.ro/detalii/stiri/vacaroiu-‐i-‐a-‐dat-‐drumul-‐lui-‐ani-‐443192.html Evenimentul Zilei (EZ) (2007, May 7). Frattini avertizeaza Romania! Retrieved from: http://www.evz.ro/detalii/stiri/frattini-‐avertizeaza-‐romania-‐445052.html Evenimentul Zilei (EZ) (2007, May 9). Senatul isi incheie conturile cu ANI. Retrieved from: http://www.evz.ro/detalii/stiri/senatul-‐isi-‐incheie-‐conturile-‐cu-‐ani-‐758188.html Evenimentul Zilei (EZ) (2007, November 22). Furnizarea informatiilor publice, la mana functionarilor. Retrieved from: http://www.evz.ro/detalii/stiri/furnizarea-‐ informatiilor-‐publice-‐la-‐mana-‐functionarilor-‐469115.html Evenimentul Zilei (EZ) (2008, August 7). Controlul averilor, un veac de eşecuri. Retrieved from: http://www.evz.ro/detalii/stiri/controlul-‐averilor-‐un-‐veac-‐de-‐esecuri-‐ 815433.html Evenimentul Zilei (EZ) (2008, February 27). Senatorii pun ANI pe roate. Retrieved from: http://www.evz.ro/detalii/stiri/senatorii-‐pun-‐ani-‐pe-‐roate-‐793538.html Evenimentul Zilei (EZ) (2008, January 15). Curtea de Apel, sesizată în cazul Şerban Brădişteanu. Retrieved from: http://www.evz.ro/detalii/stiri/curtea-‐de-‐apel-‐ sesizata-‐in-‐cazul-‐serban-‐bradisteanu-‐820789.html Evenimentul Zilei (EZ) (2008, January 15). Seriful averilor: "Facem taieturi din ziare si ne uitam la ele". Retrieved from: http://www.evz.ro/detalii/stiri/seriful-‐averilor-‐ facem-‐taieturi-‐din-‐ziare-‐si-‐ne-‐uitam-‐la-‐ele-‐791066.html Evenimentul Zilei (EZ) (2009, May 14). Conducerea ANI, în vizorul procurorilor. Retrieved from: http://www.evz.ro/detalii/stiri/conducerea-‐ani-‐in-‐vizorul-‐procurorilor-‐ 850930.html Evenimentul Zilei (EZ) (2010, July 1). Cum s-‐a ales praful de ANI. Retrieved from: http://www.evz.ro/detalii/stiri/cum-‐s-‐a-‐ales-‐praful-‐de-‐ani-‐899504.html Evenimentul Zilei (EZ) (2010, July 19). Declarată neconstituţională, Legea ANI se întoarce în Parlament. Retrieved from: http://www.evz.ro/detalii/stiri/legea-‐ani-‐retrimisa-‐la-‐ camera-‐deputatilor-‐901007.html Evenimentul Zilei (EZ) (2010, July 9). Frunda, despre reproşurile lui Băsescu: "Se încearcă intimidarea senatorilor". Retrieved from: http://www.evz.ro/detalii/stiri/frunda-‐ despre-‐reprosurile-‐lui-‐basescu-‐se-‐incearca-‐intimidarea-‐senatorilor-‐900224.html Evenimentul Zilei (EZ) (2010, June 2). Băsescu cere reexaminarea legii ANI. Retrieved from: http://www.evz.ro/detalii/stiri/traian-‐basescu-‐cere-‐reexaminarea-‐legii-‐ani-‐ 897134.html Evenimentul Zilei (EZ) (2010, May 12a). Senatul pune cruce cercetării averilor. Retrieved from: http://www.evz.ro/detalii/stiri/senatul-‐pune-‐cruce-‐cercetarii-‐averilor-‐ 894672.html 351
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372
Annexes
373
Annex 1: Tables of Key Legislation Table A.1. Key freedom of information and asset disclosure legislation Year – Title Mont h 1996 -‐ 10
Law 115/1996 on the declaring and control of the assets of dignitaries, magistrates (judges), of some persons with leadership and control functions, and of public functionaries
2001 – Law 544/2001 regarding 10 free access to information of public interest
2003 -‐ 04
2004 -‐ 04
Initiat or Gvt
2004 – Law 601/2004 approving 12 Government Emergency Ordinance no. 24/2004 on
Emergency procedure 06 – 10/1996 (4 months)
PNL MP; Gvt
Gvt Law 161/2003 regarding some measures for insuring transparency in the exercise of public dignities, of public functions, and in the business environment, prevention and sanctioning of corruption Law 114/2004 approving Government Emergency Ordinance no. 40 of May 2003 modifying and complementing law no. 161/2003
Method of adoption & Key provisions time171
Gvt
Regular 03/2001-‐ 10/2001 (7 months from governmen t proposal, 9 from opposition proposal) Assumption of responsibili ty 03-‐04/03 (1 month) GEO 05/03-‐ 04/04 (11 mo)
Gvt
GEO 04-‐12/04
Required public officials to prepare asset declarations. However, these were confidential (not public). Procedures for starting an investigation were restrictive. Asset investigation commissions (AICs) were to be set up if there was an investigation request. Main legislation pertaining to access to public information.
Made asset (and interest) declarations public (though simpler ones than in 1996). Other important provisions of the law referred to conflict of interests and incompatibility of public officials.
PAD strengthening -‐ requires declaration of value of bank deposits, rather than their mere existence.
PAD strengthening – introduces the PADs also for election candidates, reduces the threshold for declaring
171 Measures time passed from when the bill was first registered to when it became a law.
374
Year – Mont Title h
Initiat or
increasing transparency in the exercise of public dignities and functions, as well as the intensification of measures to prevent and fight corruption
Method of adoption & Key provisions time171 (8 mo)
financial assets and liabilities from 10000 to 5000 EUR, introduces more identifying information for various declaration items (like the name of the companies at which public officials own shares); allows also the AC prosecutor to initiate investigations.
GEO
PAD strengthening: e.g. requires also declaration of jewelry, art collections etc., as well as values and sources of income of the public official and family members.
2005 -‐ 05
Law 158/2005 approving Government Emergency Ordinance no.14/2005 for modifying the forms of the asset declaration and the interest declaration
Gvt
2006 -‐ 10
Law 371/2006 modifying Law 544/2001 regarding free access to information of public interest
PNL MP172
Regular
03-‐ 05/2005 (2 mo)
[Senat file]
03/06-‐ 10/06 (7 mo)
2006 -‐ 10
Law. 380/2006 modifying Law 544/2001 regarding free access to information of public interest [file Senat]
DA/P D MP
Regular
2007 -‐ 05
Law 144/2007 on the founding, organization and functioning of the National Integrity Agency
Gvt
Emergency Procedure (EP) 07/06-‐ 05/07
02/06-‐ 10/06 (8 mo)
Specifies explicitly that FOIA covers also state owned enterprises (SOEs), clarifies what type of commercial info is classified. Specifies explicitly that procurement contracts are public information, and thus covered by FOIA
Law setting up the Agency for National Integrity (ANI)
(10 mo) 2007 – Law 188/2007 06 complementing art. 5 of Law 544/2001 regarding free access to information of public interest [file Senat]
MPs (cross-‐ party: no group, PRM, PDL, PRM)
Regular
2008-‐ 04
Gvt
GEO + EP
Law 94/2008 approving Government Emergency Ordinance no. 49/2007 modifying and
02/07-‐ 06/07 (4 Months)
05/07-‐ 04/08 (11
FOIA strengthening – specifies that privatization contracts are public interest information, but applies only to future (not already existing) privatization contracts
Strengthen ANIs -‐ introduce deadlines for setting up the CNI, define discrepancy triggering investigation as 10.000 EURO rather
172 http://www.cdep.ro/pls/parlam/structura.mp?idm=228&leg=2004&cam=2
375
Year – Mont Title h
Initiat or
complementing Law144/2007 2010 -‐ 08
Law 176/2010 regarding integrity in the exercise of public functions and dignities, modifying and complementing Law no. nr. 144/2007 and other laws
Gvt
Method of adoption & Key provisions time171 Months)
than 10%
EP
Addresses CCR unconstitutionality findings regarding PAD and ANI, reintroduces Asset Investigation Commissions.
04/10-‐ 08/10 (4 months)
Source: Author, based on data from www.cdep.ro . Grey = FOIA-‐related laws, White = PAD related laws
Table A.2. FOIA-‐related bills introduced in Parliament Issue/contents of bill
Bill No.
Title
Resolution
Initiator
Propunere legislativă privind liberul acces la informaţiile de interes public.
Merged into the government ’s bill (below)
PNL (opposition): Muscă Monica Octavia
FOIA proposal
1.
Pl 36/18.01. 2001
03.04.2001 Proiect de Lege privind accesul la informaţiile de interes public.
Lege 544/2001 Adopted 12.10.2001
Government (Emergency procedure)
2.
PL 212/26.03 .2001
3.
PL-‐x 345/25.04 .2006
Proiect de Lege pentru completarea art.5 din Legea nr.544/2001 privind liberul acces la informaţiile de interes public
Lege 380/2006 05.10.2006
D.A. (government coalition): Marinescu Marius
Expands FOIA to cover public procurement contracts
Proiect de Lege privind modificarea Legii nr.544/2001 privind liberul acces la informaţiile de interes public
Lege 371/2006
4.
PL-‐x 529/07.06 .2006
PNL (PM’s party): Momanu Corne liu
Expands FOIA to cover commercial companies majority owned by the state (state-‐owned enterprises – SOEs)
Propunere legislativă pentru modificarea Legii 544/2001 privind liberul acces la informaţiile de interes public
Rejected
8 Independent MPs
5.
Pl-‐x 546/14.06 .2006
Expand FOIA to cover privatization, PPP etc contracts -‐ basically forbidding confidentiality clauses in such contracts
05.10.2006
17.10.2006
376
FOIA
Propunere legislativă pentru modificarea şi completarea Legii nr.544 din 12 octombrie 2001 privind liberul acces la informaţiile de interes public
Rejected
Propunere legislativă pentru modificarea şi completarea Legii nr. 544/2001 privind liberul acces la informaţiile de interes public
Rejected
7.
Pl-‐x 908/27.11 .2006
Propunere legislativă pentru completarea Legii 544 din 12 octombrie 2001 privind liberul acces la informaţiile de interes public
Rejected
8.
Pl-‐x 79/19.02. 2007
PL-‐x 279/23.04 .2007
Proiect de Lege pentru completarea art.5 din Legea nr.544/2001 privind liberul acces la informaţiile de interes public
Lege 188/2007
Propunere legislativă pentru completarea Legii nr. 544/2001 privind liberul acces la informaţiile de interes public
Rejected
10.
Pl-‐x 199/14.04 .2008
Proiect de Lege pentru modificarea art.9 alin.(1) din Legea nr.544/2001 privind liberul acces la informaţiile de interes public
Rejected
11.
PL-‐x 690/04.11 .2008
Propunere legislativă pentru completarea art.5 al Legii nr.544/2001 privind liberul acces la informaţiile de interes public
Rejected
12.
Pl-‐x 642/14.12 .2009
Pl-‐x 832/06.11 .2006 6.
9.
20.12.2006
08.03.2007
11.04.2007
Adopted 19.06.2007
4 PNL MPs (ruling party)
Shorten time-‐frame for response, increase penalties for non-‐compliance
D.A. (government coalition): Arion Viorel
Expanding definition of public institutions, declaring salaries of public employees as public interest information
D.A. (government coalition): Marinescu Mar ius
Increase sanctions for non-‐compliance: lack of response leads to firing of head of institution.
12 MPs: 2 independents; 1 PRM (opposition); 8 PD-‐L (gvt. coalition); 1 PNL (ruling party)
Expand FOIA to explicitly cover future include privatization contracts
5 independent MPs
Mandates automatic publication of procurement, privatization, PPP contracts
PD-‐L (opposition): Cantaragiu Bog dan
Mandates that costs for FOIA requests cannot surpass costs of actually putting together the materials
PSD: Vasile Aurelia
Proposal to let public institutions decide what other info they want to publish (besides the one required by initial law).
15.10.2008
03.03.2009
02.03.2010
377
Pl-‐x 479/27.06 .2011 13.
Propunere legislativă pentru modificarea şi completarea Legii nr.544/2001 privind liberul acces la informaţiile de interes public
Rejected 26.09.2011
PD-‐L (ruling party): Boldea Mihail
Forbids public release of information from ongoing criminal cases, introduces disciplinary sanctions for heads of institutions who reveal non-‐public information.
Source: Author, based on data from www.cdep.ro . Legend: Dark grey = laws adopted (Dates are in European format). Light grey = legislative proposals weakening the law
Table A.3. PAD-‐related bills introduced in Parliament No
1.
2.
3.
4.
Start Year
1996
Bill No.
Title
Resolution Initiator
Issue/contents of bill
Pl nr. L101/19 96 (Senate file)
Lege privind declararea şi controlul averilor demnitarilor, funcţionarilor publici şi ale unor persoane cu funcţii de conducere.
Adopted
Require public officials to prepare (confidential) asset declarations, introduces Asset Investigation Commissions (AICs)
Pl 73/27.0 3.1997
Propunere legislativă vizând modificarea şi completarea Legii nr.115/1996 privind declararea şi controlul averii demnitarilor, magistraţilor, funcţionarilor publici şi a unor persoane cu funcţii de conducere.
Rejected
Pl 13/29.0 1.2002
Propunere legislativă privind declaraţiile de avere şi controlul veridicităţii acestora.
Rejected
Pl 256/21. 05.2002
Propunere legislativă pentru modificarea Legii nr.115/1996 privind declararea şi controlul averii demnitarilor, magistraţilor, funcţionarilor publici şi a unor persoane cu
Rejected
1997
2002
2002
Gvt.
02.10. 1996
unspecifi 15.09. 1997 ed
14 PRM 27.04. 2004 MPs
PD MPs: 27.04. 2004 Boc Emil, Oltean Ioan
378
unspecified
Mostly about AICs -‐ e.g., requirement that they verify all declarations received. No public release of declarations. Make declarations public, strengthen AICs. Explanation of Motives references TI CPI, WB recommendations of public disclosure, as well as practices in the US and other EU countries.
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill
Makes declarations public and require more types of public officials to prepare them. Its provisions were adopted as part of the larger anti-‐ corruption bill below.
funcţii de conducere.
5.
6.
7.
PL 567/30. 10.2002
Proiect de Lege pentru modificarea Legii nr.115/1996 privind declararea şi controlul averii demnitarilor, magistraţilor, funcţionarilor publici şi a unor persoane cu funcţii de conducere
Rejected
PL 220/17. 03.2003
Proiect de Lege privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
Lege 161/2003
Pl 338/26. 05.2003
Propunere legislativă Rejected privind modificarea 28.09. 2004 şi completarea Legii nr.115/1996 privind declararea şi controlul averii demnitarilor, magistraţilor, funcţionarilor publici şi a unor persoane cu funcţii de conducere, modificată prin Legea nr.161/2003 privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
2002
2003
2003
Gvt
19.05. 2004
Gvt (assumpt ion of Adopted responsi 31.03. 2003 bility)
379
26 PD MPs (includin g Emil Boc)
Makes ADs public, introduces or expands conflict of interest and incompatibility legislation, introduces other transparency and anti-‐corruption measures.
Strengthen PAD content-‐ including: declaring entire sum in bank accounts; applying the law retroactively to everybody who had a high-‐level public office after 1989; declaration of preferential credits obtained from banks that had gone bankrupt, specifying the values of the shares held in a company etc. Strengthening verification and sanctioning mechanisms: enlarging the role of the AICs and extending the right to suggest asset verification to a larger category of people; eliminate the punishments to whistleblowers for ‘lying’ about the illicit nature of the assets; stricter sanctions for those that
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill didn’t submit their declarations in time, submitted false declarations, or couldn’t justify/explain the provenience of (some of) their assets.
8.
9.
Pl 339/27. 05.2003
Propunere legislativă pentru modificarea şi completarea art.III din Cartea II Titlul I "Asigurarea transparenţei în exercitarea funcţiilor publice, prevenirea şi combaterea corupţiei" din Legea nr.161/19.04.2003 publicată în Monitorul Oficial nr.279/21.04.2003
Rejected
PL 362/02. 06.2003
Proiect de Lege privind aprobarea Ordonanţei de urgenţă a Guvernului nr. 40/2003 pentru modificarea şi completarea Legii nr.161/2003 privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
Pl 385/11. 06.2003
Propunere legislativă Rejected 5 PRM pentru modificarea şi 16.03. 2004 MPs completarea Legii nr.115/1996 modificată şi completată prin legea privind unele măsuri pentru asigurarea transparenţei în exercitarea
2003
2003
10. 2003
17.02 2004
6 PRM MPs
Strengthen content of PAD -‐ name exact amounts owned, including where the money is held; including the value of arts etc. collections
Adopted
Gvt
Strengthen content of PAD -‐ requires declaration of value of bank deposits/monetary assets over 10000 Euro.
Lege 114/2004 07.04. 2004
380
Strengthening verification and sanctioning mechanisms: introduce automatic comparison of ADs with value of assets on which taxes were paid, impose 90% tax on undeclared assets.
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill
demnităţilor publice şi în mediul de afaceri şi prevenirea şi sancţionarea corupţiei Pl 393/16. 06.2003
Propunere legislativă pentru modificarea şi completarea unor prevederi din Cartea II, Titlul I din Legea nr.161/2003 privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
Rejected
5 PNL 28.09. 2004 MPs
Strengthen content of PAD – apply PAD requirement also to leaders of political parties and unions; add a more detailed non-‐public part to AD
Pl 394/16. 06.2003
Propunere legislativă pentru modificarea şi completarea Legii nr.161/2003 privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
Rejected
5 PNL 28.09. 2004 MPs
Strengthen verification mechanism – set up Central Ethics Commission in charge of monitoring PADs, as well as Ethics Commissions in each public institution. (Also addresses CoI Issues)
Pl-‐x 191/06. 04.2004
Propunere legislativă pentru modificarea şi completarea Legii nr.115/1996 privind declararea şi controlul averii demnitarilor, magistraţilor, funcţionarilor publici şi a unor persoane cu funcţii de conducere, modificată şi completată prin Legea nr.161/2003 privind unele măsuri
Rejected
Reintroduction of 393/2003: add a more detailed non-‐public part to AD; expand to cover leaders of political parties and labor unions.
11. 2003
12. 2003
13. 2004
PNL:Chili 28.09. 2004 man And rei Ioan
381
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill
Proiect de Lege pentru respingerea Ordonanţei de urgenţă a Guvernului nr.24/2004 privind creşterea transparenţei în exercitarea demnităţilor publice şi a funcţiilor publice, precum şi intensificarea măsurilor de prevenire şi combatere a corupţiei
Adopted
Gvt
Strengthen content of declarations and require also candidates in local and national elections to submit them –includes many of the opposition's proposals for strengthening ADs, such as reducing the threshold for declaring the value of financial assets and obligations from 10000 to 5000 EUR, specifying the name of the companies and the number of shares owned; allows also the AC prosecutor (PNA) to request the start of asset investigations; investigations of assets are automatically started if declarations are not submitted in time. Debates/disagreements focused more on PNA rather than PADs.
LEGE pentru aprobarea Ordonanţei de urgenţă a Guvernului nr.14/2005 privind modificarea formularelor pentru declaraţia de avere şi pentru declaraţia de interese
Adopted
Gvt -‐ GEO
Strengthens content of PADs: requires declaring jewelry, art etc.; expanding the types of financial assets to be declared; declaring also income of family members and gifts received. References EU requirements and GRECO country report. Explanation of Motives
pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei, cu modificările ulterioare PL-‐x 401/23. 06.2004
14. 2004
PL-‐x 150/25. 04.2005
15. 2005
Lege 601/2004 16.12. 2004
Lege 158/2005 25.05. 2005
382
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill notes also notes WB support for the development of the forms and WB conditionality.
PL-‐x 346/25. 04.2006
Proiect de Lege pentru completarea Legii nr.161/2003 privind unele măsuri pentru asigurarea transparenţei în exercitarea demnităţilor publice, a funcţiilor publice şi în mediul de afaceri, prevenirea şi sancţionarea corupţiei
Rejected
7 MPs: 29.06. 2006 PSD, independ ents
Extend law to cover secretaries of state (i.e., high-‐level political appointees)
Pl-‐x 110/01. 03.2006
Propunere legislativă pentru înfiinţarea , organizarea şi funcţionarea Autorităţii Naţionale pentru Integritate
Rejected
1 D.A. 14.09. 2006 MP
Founding ANI.
PL-‐x 616/27. 07.2006
Proiect de Lege privind înfiinţarea Agenţiei Naţionale de Integritate
Adopted
Founding ANI.
PL-‐x 424/04. 06.2007
Proiect de Lege privind aprobarea Ordonanţei de urgenţă a Guvernului nr.49/2007 pentru modificarea şi completarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Adopted
16. 2006
17. 2006
18.
2006
19. 2007
Gvt.
Lege 144/2007 21.05. 2007 Gvt. -‐ GEO Lege 94/2008 14.04. 2008
383
Strengthen ANI -‐ introduce deadlines for the implementation of the law, set discrepancy between assets and income that triggers investigation at 10.000 EUR rather than 10% of assets.
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill
PL-‐x 884/12. 12.2007
Proiect de Lege privind aprobarea Ordonanţei de urgenţă a Guvernului nr.138/2007 pentru modificarea şi completarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Adopted
Allow ANI to function despite the lack of an agency president.
Pl-‐x 469/03. 09.2008
Propunere legislativă pentru modificarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Rejected 2 PD-‐L based on MPs art.63 alin.5 of the Constitutio n
Weaken PAD regime: Eliminates asset declarations for electoral candidates (on the grounds that this limits their constitutional right to run for office). Government’s ‘Point of View’ rejects proposal, citing, among other, the citizens’ right to know as stipulated by the Constitution.
Pl-‐x 356/01. 09.2009
Propunere legislativă pentru modificarea şi completarea Legii privind organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Rejected 4 PD-‐L 13.04. 2010 MPs, 3 PSD MPs
Extend PAD coverage to leaders of labor unions.
20. 2007
21. 2008
22. 2009
Pl-‐x 470/05. 10.2009
23. 2009
Lege 105/2008 09.05.2008
Gvt. -‐ GEO
Propunere legislativă Rejected pentru modificarea 25.09. 2012 Legii nr.144(r1) din 21/05/2007 republicată în Monitorul Oficial, Partea I nr.535 din 03/08/2009 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
384
48 MPs (PD-‐L, PSD, Minoritie s)
Extend PAD to leaders of unions, employees of state-‐owned enterprises etc., require declaring the exact value of income rather than generally reference
No
Start Year
Bill No.
Title
Pl-‐x 490/14. 10.2009
Propunere legislativă Rejected 21 PNL pentru completarea 13.04. 2010 MPs şi modificarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Allow also public administration specialists to apply for top jobs at ANI (currently only economists or lawyers can apply).
Pl-‐x 117/07. 04.2010
Propunere legislativă Rejected 6 MPs privind modificarea 25.09. 2012 (PD-‐L, art.41 al Legii PSD) nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate
Excluding union leaders from people required to publish ADs
PL-‐x 207/27. 04.2010
LEGE privind integritatea în exercitarea funcţiilor şi demnităţilor publice, pentru modificarea şi completarea Legii nr. 144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate, precum şi pentru modificarea şi completarea altor acte normative
Adopted
Propunere legislativă pentru modificarea Legii nr.176/2010 privind integritatea funcţiilor şi demnitarilor publici, pentru modificarea şi completarea Legii nr.144/2007 privind înfiinţarea şi
Rejected
24. 2009
25. 2010
26.
2010
Pl-‐x 488/15. 09.2010 27. 2010
Resolution Initiator
Gvt.
Lege 176/2010 01.09. 2010
8 PSD 26.04. 2011 MPs
385
Issue/contents of bill
Changes to the ANI law in response to unconstitutionality finding: identifying information about assets is moved to a non-‐public section of the declaration (like the address of buildings owned etc.) ANI can only investigate, but not issue decisions about asset and income discrepancies, conflict of interests and incompatibilities. It communicates its findings to the AICs, prosecutors, disciplinary committees or units of public agencies, depending on the issue. Excluding union leaders from people required to publish AD
No
Start Year
Bill No.
Title
Resolution Initiator
Issue/contents of bill
Adopted April 2013
1 PNL MP
Minor change to the asset declaration form: Declaring shares only if they represent more than 3% of company ownership.
1 PNL MP
Adding educational credentials/diplomas to asset and interests declaration form.
funcţionarea ANI precum şi completarea altor acte normative Pl-‐x 446/21. 06.2011
Propunere legislativă pentru modificarea punctului 5 Anexa 2 din Legea nr.176/2010 privind integritatea în exercitarea funcţiilor şi demnităţilor publice, pentru modificarea şi completarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţie Naţionale de Integritate, precum şi pentru modificarea şi completarea altor acte normative
Pl-‐x 510/13. 09.2011
Propunere legislativă Recalled by pentru modificarea şi initiator completarea Legii nr.176/2010 privind integritatea în exercitarea funcţiilor şi demnităţilor publice, pentru modificarea şi completarea Legii nr.144/2007 privind înfiinţarea, organizarea şi funcţionarea Agenţiei Naţionale de Integritate, precum şi pentru modificarea şi completarea altor acte normative
28. 2011
29. 2011
Source: Author, based on data from www.cdep.ro . Legend: Dark grey = laws adopted; White = bills strengthening the law; Light grey = Bills weakening the law. (Dates are in European format). Pl-‐x 446/21.06.2011 was adopted and could be seen as ‘weakening’ the declaration requirements, but since it represents a minor, yet useful, adjustment of the law I do not count it as a legislative weakening of the original law.
386
Annex 2: Additional Figures and Tables Figure A-‐1. Government Emergency Ordinances (GEOs) by year
Source: http://www.romanialibera.ro/exclusiv-‐rl/documentar/stabilitatea-‐legislativa-‐si-‐ ordonantele-‐guvernului-‐292670-‐main_pic2.html
Figure A-‐2. GEOs by government
Source: http://www.romanialibera.ro/exclusiv-‐rl/documentar/stabilitatea-‐legislativa-‐si-‐ ordonantele-‐guvernului-‐292670-‐main_pic3.html
Figure A-‐3. Laws adopted in parliament, by legislature
Source: http://www.romanialibera.ro/exclusiv-‐rl/documentar/stabilitatea-‐legislativa-‐si-‐ ordonantele-‐guvernului-‐292670-‐main_pic4.html
387
Figure A-‐4. Confidence in key institutions (a great deal + quite a lot, %) (World Values Survey)
60% 50% 40% 30% 20%
1998
10%
2005
0%
Source: Author with data from World Values Survey, retrieved from: http://www.wvsevsdb.com/wvs/WVSAnalize.jsp?Idioma=I
Figure A-‐5. % of surveyed Romanians choosing corruption as the main problem facing the country 35% 30% 25% 20%
Second choice
15%
First choice
10% 5% 0% 2003/May
2006/May
2007/October
Source: Author, based on data from The Barometer of Public Opinion: http://www.soros.ro/?q=node/1303
388
Figure A-‐6. % of articles mentioning corruption in Romanian newswires
% of articles mentioning corruption (Newsbank) 12% 10% 8% 6% 4%
2012
2011
2010
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
0%
1997
2%
Source: Author, based on data from Newsbank
Figure A-‐7. % of articles mentioning transparency in Romanian newswires
% of articles mentioning transparency (Newsbank) 2.0% 1.8% 1.6% 1.4% 1.2% 1.0% 0.8% 0.6% 0.4% 0.2% 0.0%
Source: Author, based on data from Newsbank
Table A.4. Salience of transparency, corruption, FOIA, AD and ANI in EC country reports, 1998-‐2011
Year
Corruption/ corrupt
Transparency/t ransparent
FOI
AD
ANI
Mention s of corrupti Docume on per nt pages page
1998
18
6
0
0
na
59
389
0.31
Mentions of transparen cy per page 0.10
Year
Corruption/ corrupt
Transparency/t ransparent
FOI
AD
ANI
Mention s of corrupti Docume on per nt pages page
Mentions of transparen cy per page
1999
32
13
0
0
na
94
0.34
0.14
2000
44
22
1
0
na
103
0.43
0.21
2001
50
9
2
0
na
122
0.41
0.07
2002
66
24
2
0
na
153
0.43
0.16
2003
62
28
2
1
0
133
0.47
0.21
2004
70
44
4
1
0
162
0.43
0.27
2005
74
20
2
1
0
102
0.73
0.20
2006
46
6
0
3
1
41
1.12
0.15
2007
73
5
0
5
17
22
3.32
0.23
2008
104
11
0
0
19
22
4.73
0.50
2009
60
6
0
3
13
17
3.53
0.35
2010
62
8
0
5
30
18
3.44
0.44
2011
70
7
0
1
18
17
4.12
0.41
Source: Author, based on EC country reports Note: September 2006 EC report has not been included because it covers both Bulgaria and Romania. 1998-‐2006 are pre-‐accession reports, 2007-‐2011 are CVM reports. Data for 2008-‐2011 is the sum of both the spring and the summer CVM reports for that year.
Table A.5. FOIA strength – WB-‐PAM, 2010
Legal Frame work*
Covera ge of info.**
Procedu res for accessin g info. **
Exempt ions **
Appeals Enforceme mechan nt ism ** mechanis m **
Deadlines Sanctions for info. for non-‐ release ** disclosur e*
TOTA L ***
Romania
1.0
5.0
5.0
4.2
5.0
2.5
5.0
0.3
28.0
Average
0.9
3.1
2.9
2.4
3.2
3.2
2.6
0.3
18.6
Source: Author based on data from WB-‐PAM link https://agidata.org/Site/DataQuery.aspx.; * = unweighted average: 0=No, 1=Yes; **= score: 0=lowest, 5=highest; *** = author’s calculations, unweighted average
Table A.6. Strength of asset disclosure regime – WB-‐PAM, 2008
Legal Cover Frame age work * **
Declaratio n content***
Filing frequenc y ***
Sanctio ns***
Monitoring Public and access* Oversight *** **
TOTAL SCORE ****
Romania
0.5
5.0
5.0
4.2
5.0
3.8
4.0
27.4
Average score
0.6
4.2
3.2
2.5
3.0
3.0
1.4
17.9
Source: Author, based on data from WB-‐PAM: http://www.agidata.org/Pam/QuickLinksByEntireDataset.aspx ; * = unweighted average: 0=No,
390
1=Yes; **= score: 0=lowest, 5=highest; *** = averaged score across filers: 0=lowest, 5=highest; **** = author’s calculations
Figure A-‐8. Strength of asset disclosure regime (2008 – selected countries)
Source: Author based on data from WB-‐PAM: http://www.agidata.org/Pam/QuickLinksByEntireDataset.aspx
Figure A-‐9. Strength of public disclosure requirement (2008 – selected countries)
Source: Author based on data from WB-‐PAM: http://www.agidata.org/Pam/QuickLinksByEntireDataset.aspx
391
Figure A-‐10. Strength of monitoring and enforcement mechanism (2008 – selected countries)
Source: Author based on data from WB-‐PAM: http://www.agidata.org/Pam/QuickLinksByEntireDataset.aspx
392
