Mercy for the corrupt who come clean?
Justice by confession
The US and Tunisia are each testing whether leniency toward individuals or businesses that are open about their corruption might lead to less corruption. Confession can be a shorter path to reconciliation.
To expose and punish corruption, governments have long relied on tough tools, from wiretaps to time in prison. But what if a business volunteers that it committed bribery? Should the confession lead to mercy if the company also mends its ways and makes amends?
The issue is front-and-center for two countries, Tunisia and the United States, that are highly focused on curbing corruption. They are each in the midst of an experiment to find out if judicial leniency, granted in return for truth-telling, can be a major tool against corruption.
In April, the US Justice Department started a pilot program aimed at motivating companies to voluntarily disclose any violation of the Foreign Corrupt Practices Act, such as paying bribes to a foreign official. If a firm fesses up on its own, it may see up to a 50 percent reduction in penalties and be free of independent monitoring of their businesses. It would also need to fully cooperate with federal investigators and fix internal practices to prevent further corruption.
So far, the program has worked in two cases of US-based companies self-reporting their foreign bribery and quickly settling with the Department of Justice and the Securities and Exchange Commission. The program, however, does not prevent prosecution of individuals who committed bribery. Only a firm receives official mercy.
If this technique continues to work, it will not only save government resources but achieve the same results of deterrence and the rehabilitation of corrupt companies. Confession is a far better and quicker way to justice than the long process of a trial and a guilty verdict.
In Tunisia, where protests against the corruption of a dictatorship triggered the Arab Spring in 2011, a truth commission is expected to soon decide on how to mediate in cases in which individuals were harmed by corruption and economic crimes. The process is an attempt to encourage former officials to fully reveal past corruption in exchange for some leniency.
The government of President Beji Caid Essebsi, however, has sought to preempt this process by proposing a law that requires much less transparency for individuals about their ill-gotten wealth. Passage of the law has been delayed by large protests demanding the truth about corruption under the ousted dictator, Zine El Abidine Ben Ali. The protesters see the proposed law as a way to protect those still practicing corruption.
These experiments show the difficulty of finding the right balance between justice and mercy in cases when individuals or businesses come clean on past wrongdoing. Those who confess must first be totally open and honest and then be ready to make some amends in return for some forgiveness. If done right, the process can lead to reconciliation and renewal. For that end alone, these experiments bear watching.