Though it may not be welcomed by everyone across the country,
the public can have high hopes for a new initiative being
introduced jointly by the Supreme People's Procuratorate, the
Ministry of Construction, the Ministry of Communications and the
Ministry of Water Resources.
It can be assured of a warm welcome by the general public for it
is the public who will be the winners. The losers who will face
public embarrassment and be unable to continue in business, will be
those who have sought unfair and illegal advantages for their
business interests for what is being introduced is a new bribery
Blacklist.
The system, which will operate first on a trial basis, is to
help deal with bribery in the country's construction sector. It
will provide a mechanism for the procuratorial organs to
investigate and follow up on construction bribery cases in the
light of court decisions and rulings.
Here's how it will work. During a construction project's
planning, feasibility studies, design, construction, supervision
and material and equipment procurement, the official departments
responsible will be able to find out if a contractor has a record
of bribery known to the local procuratorial organs.
The new measures prescribe different levels of response
commensurate with the seriousness of a case. An offender who has
been found guilty of a serious offence involving bribery will be
permanently banned from access to the constructional market. A
first offender may be released from the Blacklist by
complying fully with instructions within a given time limit.
In addition to three ministry-level units, the system will also
be tried out in Jiangxi,
Zhejiang
and Sichuan
provinces, in Chongqing
Municipality, and in Guangxi
Zhuang Autonomous Region.
Ren Jianming, head of the Office for Research on Corruption with
Tsinghua University
said, "The implementation of new system marks a turning point in
the fight against serious corruption in the construction
sector."
The first blacklist
The People's Procuratorate of Beilun District, Ningbo City of
Zhejiang Province was first to introduce the Blacklist
system. Its chief procurator, Xu Shangjin said, "In early 2002 the
procuratorate collected and catalogued files on more than 90
perpetrators in bribery cases into a database. From the database 17
particularly blatant offenders were selected to form a
Blacklist as the basis for providing a 'bribery advisory
service' rather like a 'credit advisory service' for the various
official units involved."
Xu said that satisfying any one of four criteria meant a place
on the Blacklist:
1.?offenders who had already been sentenced
for their crimes of bribery
2.?offenders who had not yet been sentenced
but where bribes exceeding 50,000 yuan (about US$6,000) were
involved
3.?offenders with more than two records
against them or having bribed more than three people
4.?unrepentant offenders who refuse to admit
their crimes when confronted with the facts.
"The new measures came as quite a shock to those involved in the
construction sector in the Beilun area," said Xu.
The Beilun experiment in Ningbo was watched closely by the
Supreme People's Procuratorate which invited experts to a seminar
to discuss the measures at the end of 2003.
Professor Wang Ping from the China University of Politics and
Law said that while the experts had a positive reaction to the new
system, they had put forward some useful suggestions. One of these
focused on the issue of whether suspects who had not yet been found
guilty by a court of law should be blacklisted.
"Those suspected of crimes of bribery should not be presumed
guilty without irrefutable evidence. There is a need to strike a
balance between the need to crack down on corruption and the need
to guarantee human rights," said Prof. Wang.
The feedback had come at the end of a year of careful
evaluation. The Supreme People's Procuratorate adopted the experts'
recommendations and introduced a trial 'Bribery Files Enquiry
System' which limited blacklisting to those who had been subject to
'court decisions and rulings'.
?
Deterrence rather than punishment
Professor Zhou Qihua of the State Procurator College said that
both offering and accepting bribes are violations of the criminal
law. However, the law penalizes them very differently.
The state cracks down much more heavily on those who take bribes
compared with those who offer them. This is especially the case
where government officials are involved.
Often those who offer the bribes do not end up in court
themselves. And penalties tend to be loaded against those who
accept bribes, for example accepting just 5,000 yuan (about US$600)
is a crime. But the amount involved has to be twice as much before
offering the bribe constitutes a criminal act. Here one party to a
clearly wrongful act can be a criminal while the other is not.
Besides there's a commonly held view that bribers often have no
option but to do as they do. If they come forward to own up and
give a proper account of what they have done rather than wait to be
exposed during the investigations, they are usually let off.
Bribers are generally only taken to court in serious cases, where
the amounts involved are particularly large, or where they have not
admitted their crime while the bribe-taker has.
Xu said, "It's difficult to investigate and deal with bribery,
since bribers won't usually admit what they have done if this would
lead them to being found guilty. What's more, when the briber and
the bribe-taker stick to a pact not to betray each other it's not
so easy to gather the evidence needed to break the case."
Professor Li Chengyan of Peking
University said, "The new system will need further refinement
if it is to make a real difference. It is aimed at frightening
bribers who haven't yet been put on the Blacklist by
letting them know that if they break the law they can expect to be
punished."
Corruption targeted in key sectors
Corruption in construction has become the focus of public
attention. During a mid-April seminar on credit and anti-corruption
in the construction sector, Liu Zhi, president of the Changan
Surety Co., Ltd, revealed that the construction sector was
responsible for 60 percent of China's bad debts. What's more, half
of all major corruption cases involving provincial-level officials
related to construction projects.
In a survey conducted by the Central Commission for Discipline
Inspection of the CPC earlier this year, the construction sector
was found to be thought of as the most corrupt sector in the
country. It was against this background that the Supreme People's
Procuratorate, the Ministry of Construction, the Ministry of
Communications and the Ministry of Water Resources have introduced
the new Blacklist.
Prof. Ren Jianmin described the three main strategic elements in
the implementation of the new system:
1.?the emphasis is on anti-corruption work in
the key ministries of construction, communications and water
resources which are considered to be breeding-grounds for
corruption
2.?experience will be accumulated and shared
nationwide
3.?there is a focus on preventative
measures.
Prof. Wang Ping points out that there are strict laws and
regulations for punishing bribers in other countries, and suggests
that China could draw on this experience. For example, in Singapore
it is not enough just to refuse an offer of a bribe, it must be
reported to the judicial authorities and it is an offence not to do
so. "This has been very effective in cracking down on corruption,"
Wang said.
Experts have pointed out that the implementation of the system
might even give a new lease of life to some existing preventative
measures. For example, measures to promote the use of "standard
contracts and clean government contracts" were introduced in some
places but suspended as ineffective due to the lack of a back-up
mechanism for censure. The experts say the new Blacklist
has the potential to add effective new teeth to these extant
provisions.
Call for a nationwide credit authentication
system
The famous global anti-corruption organization Transparency
International (TI) published an article on May 13 entitled
China moves against bribery in construction sector, highly
praising the measures taken by the Chinese government in cracking
down on corruption.
"Since its entry into the World Trade Organization (WTO) in
2001, China has stepped up its efforts to crack down on corruption.
The blacklisting measure is just one part of recent reforms in
public contracting, including the establishment of an open bidding
system and competitive construction markets at the local level,"
the article said.
The government's decision to debar corrupt contractors is a
positive sign of China's willingness to tackle corruption, said
Juanita Olaya, program manager for public contracting at the TI
Secretariat. This should send a message to other governments and
international organizations to introduce more effective and more
transparent blacklisting systems.
Despite the strong international approval, experts caution that
it is still too early to tell if the new system will bring quick
results. And they called for the early establishment of a
nationwide credit authentication system network involving all the
main areas such as the construction, medical and financial sectors,
so that anyone with a record of bribery could be debarred from
operating in all sectors.
Procurator Xu Shangjin said, "Bribers who have already been put
on local blacklists will be evaluated and the procuratorates at all
levels will decide whether they should be placed on city or
national lists according to the seriousness of their crimes."
(China.org.cn by Li Jingrong June 14, 2004)