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Keynote Speech by Dr. Miguel Angel Rodriguez, President of the Republic of Costa Rica 3 May 1999

Today as never before, the countries of the Americas enjoy the benefits of democratic political systems -with only one exception.

The political experience of freedom is the premise upon which the structure of equity and social justice is built. It is a necessary but not sufficient condition to build all other democratic values. Therefore, respect for the basic principles of democracy is basic to its continued development.

Our political system is based upon legitimacy. It is essential that the subjects of governmental action be convinced about the suitability and the benefits of such a system, and peacefully accept the exercise of power by their authorities. This legitimacy is nurtured continuously when the people believe and accept that government is genuinely interested in their problems and in trying to solve them, and that in this task it makes an adequate use of public resources, acting with transparency and objectivity in the exercise of its duties. To gain legitimacy, a code of ethics of the public function becomes necessary to guide the actions of government in the search for the common good as the ultimate goal of the State. The absence of a code of ethics results in the corruption of public officials and thus the political process loses legitimacy.

In order to carry out a proper analysis of public ethics in a democratic society, one must start from the premise that what is new is not corruption itself but the debate about it. Corruption is not a problem of the times, but of men, as Seneca wrote so brilliantly twenty centuries ago. This evil poses a serious threat to the functioning and credibility of the emerging democracies, and dangerously weakens the legitimacy of those presumably consolidated systems. To degrade in favor of a few the foundations of the decisions of governmental structures in a discriminatory fashion strikes at the very heart of the system, and leaves the citizen to doubt about the benefits of democracy, because the differences stem from reasons that are absolutely spurious.

The analysis of the relationship between politics and morals is not new. We must ask ourselves how he who acts politically must conduct himself. That is to say, are there rules of conduct that distinguish political action from other forms of conduct? The problem can be stated as follows: that which is illicit in politics, is it also illicit in morals? Chapter XVIII of Machiavelli's 7he Prince expounds on the question of whether the statesman is forced to respect pacts as one of the fundamental duties of morals. The answer is clear and direct: "great things achieved those princes who held in little account that principle." Thus, concludes Machiavelli, those who fail to achieve great things because they respect pacts cannot be thought of as great politicians: "may a prince - procure to aggrandize and preserve the State that the means will always be considered honorable and lauded by all." In other words, the end justifies the means.

Max Weber seized extraordinarily well the relationship between politics and morals with his famous distinction between the "ethics of conviction" and the "ethics of responsibility. " Whoever acts on the basis of the first, believes that he must respect principles of conduct valid and preeminent, without regard for the consequences derived from them. Whoever acts on the basis of the second, considers his duty fulfilled if he accomplishes the result sought. A famous French writer expressed this with enormous crudity by making one of his characters say that he who engages in politics cannot help but get his hands sullied, although without explaining if by mire or blood.

The crux of the problem regarding these conceptions is who justifies the means. Must we not ask ourselves rather if it is not evil means that corrupt good ends? In any case, what is an end and what a means? Every end can become a means to a higher end. It has been said that democracy is more a system of means than of ends. All political systems coincide on the defense of social justice, the common good, and the individual rights of people. The discussion arises when we compare the means that they intend to use. For this reason, instruments are important, and the end cannot justify the means.

Improper behavior among public officials gives rise to a legal and political problem with very particular characteristics: rulers have the sources of information and the ability to 4 influence others, all of which allows them to commit the said c - rimes as well as to prevent them from being investigated and prosecuted. Constant's vision of rulers is revealing: 44 government ministers will be often denounced, sometimes indicted, rarely convicted, and never punished."

We cannot forget that constitutionalism is based on a pessimistic anthropological vision of the human being: -

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on goverranent would be necessary. In organizing a government that is to be administered by men and for men, the great difficulty lies in this:You must first enable the government to have command over the governed, and then oblige it to regulate itself. Dependence on the people is, without a doubt, the primordial and indispensable source of control over the government; but experience has taught mankind the necessity of auxiliary precautions.James Madison, 77ze Federalist, N' 51

In the same sense we can quote Hume, whose warning was unequivocal: "when conceiving any system of government, it must be assumed that every man is a scoundrel, lacking in any other purpose but his own private interest. "

Curiously, citizens do not easily accept that those whom they elect to public office seek their own selfish objectives. In spite of criticizing them harshly and ruthlessly, citizens hold an instinctive hope that their politicians be part of a class of their own, independent from the rest of the common mortals, possessing an aura of sanctity and a statute of protection which isolate them from worldly temptations.

But it is not so. Professor Buchanan has summarized the fundamentals of his teachings in just a few lines:

"It is very important that we recover the prudence of the eighteenth century by means of a system of checks and balances designed to limit government, and that we rid ourselves of the romantically stupid notion that, in dealing with democratic processes, everything is fair play.

One of the most harmful effects of public corruption is the so-called Gresham Law of social interaction, according to which, evil behavior prevails over good, and all people are induced to adopt selfish or self-interested behaviors by the acts of a few. Hobbes said it already in the seventeenth century:

"Even if the evil were fewer in number than the just, since we cannot tell them apart, it is necessary to suspect, to be cautious, to anticipate, to conquer, and to always defend ourselves even from the most honest and just of all."

In this regard, Brennan and Buchanan state that "institutions must be designed in a way such that altruism or solidarity, as is good education, be appreciated in all their value, but not taken for granted."

It cannot be taken for granted that the exercise of the discretionary powers of political agents will respond to the interests of the others, unless there are institutional restrictions to ensure this effect. Without the existence of this institutional design, human kindness is of little value. Our peasants put it very graphically: "en arca abierta hasta el justo peca", that is to say, even the most honest will sin when the object of temptation is openly tendered.

One of the most important analysts of the phenomenon of public corruption is Robert Klitgaard. In his already classical works, Controlling Corruption, and Adjusting to Reality, he presents interesting propositions on the matter. According to him, corruption grows wherever there are public monopolies, more discretionary rules for public officials, and less transparency in their acts before the citizens. Klitgaard has developed a theory about a plan of incentives for reducing corruption. It stems from the critique of a fundamental and sadly common fallacy: it is all-to-often assumed that governments are corrupt because people are immoral, and it is then inferred that the solution is only to educate people generation after generation. In fact, an organization is composed of an information system, decision rules and a set of incentives that amount to more than the simple sum of the persons who make it up. Its performance as a system is different from that of the individuals who are part of it.

The importance of this topic must not make us surrender to the temptation of a new form of McCarthyism and to denounce as corrupt those who think different from us. The problem is already serious enough as to compounded using it as a weapon for a debate. Hiding the truth, lying knowingly, deceiving an entire people, are some of the worst forms of corruption.

In the last few years, the thesis of the codification of rules has gained strength. In this sense, the already classic Nolan Committee Report (Great Britain, 1995) on the norms of public life should be a source of inspiration for our countries. There is also in the Latin American Program of Joint Research on crime policy a program on the corruption of public officials. In the context of international organizations, it is absolutely necessary to underscore the approval by the Organization of American States of the Inter-American Convention Against Corruption, signed in Caracas in March, 1996, and ratified in our country by Law NO 7670 of April 17', 1997.

In summary, a public policy that is adequate to fight corruption must take into consideration at least the following aspects:

  1. Preventive policies that tend to reduce the discretionary areas of behavior for public officials and to create incentives so that individuals can behave normally in the exercise of their activities without wasting their time, efforts, or resources in currying the favor of the rulers. At the same time, it is necessary to encourage a process of streamlining and rationalization of the juridical tangle that hampers both public and private activities, and which leads to the type of perverse behaviors that procure to utilize the public apparatus for private gain.
  2. Repressive policies: Despite the efforts that can be made in the field of prevention, repressive activity always serves to discourage inadequate behaviors in this matter. Because of this, the revision of the harmful consequences of acts of corruption is an important instrument of public policy. Good repressive policies and the absence of impunity add important strength to the preventive policies. One hundred percent prevention will never be achieved, but the institutional design must seek the least corruption and the maximum penal correction that is possible.
  3. Educational policies: Every program designed to rescue and promote values like decency, honesty, and public service has an effect, doubtlessly important and basic, in the struggle for decency and transparency against corruption. The inculcation of values through education makes society less tolerant towards corruption, and thus stimulates an institutional design that is never too lax before the unacceptable behaviors of public officials.

One cannot fail to mention the fundamental role played by public opinion in this process, especially through journalists and the media. In this sense, we must facilitate every process that permits the denunciation of acts of corruption, in adherence to the journalistic ethics, without the fear of penal sanctions which could serve as an instrument of censorship highly inconvenient to the public interest.

My government has proposed to Costa Rican people, through the National Consensus Building Forum, a set of fundamental and concrete issues to be analyzed and eventually recommended as instruments of public policy for the fight against corruption. The following are the main issues that were submitted:

  1. We shall promote a bill of reform of the Penal Code for it to include new public official crimes in full adherence to the Inter-American Convention against Corruption, such as, among other new legal concepts, the trafficking of influence.
  2. A "Code of Duties and Norms of Conduct of the Public Servant" has been sent to the Legislative Assembly. It constitutes an important normative instrument that pursues the goal of defining ethics in the public function, whose demarcation is indispensable in the fight against corruption.
  3. We expect the prompt approval of the Financial Administration and Public Budget Law, which establishes a novel system of internal control and accountability by means of the rendering of accounts in the financial and budgetary management of public administration.
  4. We have proposed several specific Constitutional reforms that seek to increase the period of time in which the citizens can demand responsibility from the President of the Republic and Cabinet Ministers after the conclusion of their terms. Several constitutional reform bills will be presented as well to limit the immunity of the officials of the different branches of Government to the privation of freedom. Once approved, officials of all branches of Government will be liable to prosecution without the need for the Legislative Assembly to remove their privilege of immunity.
  5. Within the next few days we will present a constitutional reform bill to eliminate the Executive pardon. I believe that this power is a remnant from medieval times, which mocks the Judicial Branch and could be used to render ineffectual condemnatory criminal sentences against high-ranking public authorities.
  6. In cooperation with the Comptroller-General's Office, we are reviewing the existing mechanisms of control of the increment of the patrimony of public officials, to make it more transparent and accessible to the common citizen.
  7. I shall insist on the promulgation of three laws which I believe are of the utmost importance to the issue of corruption:
    A) The creation of a specialized jurisdiction within the Judicial Power to instruct and resolve the cases related to public ethics, which are presently dealt with by justices who have under their jurisdiction the prosecution of common offenses.
    B) The creation of a prosecutor's office specialized in public ethics, in charge of investigating and prosecuting such type of offenses.
    C) The creation of a special procurator's office on public ethics as an entity of the Executive Power in charge of this matter and which will work in tandem with the prosecutor's office in the prosecution of public ethics offenders.
  8. I am committed to the promotion of mechanisms of citizens' participation in the control of public ethics, especially in all procedures of public procurement, opening of state monopolies to competition, and similar instruments.
  9. Convinced as I am of the importance of the media in this issue, I have proposed a cluster of legal reforms to eliminate the objective responsibility of media directors with respect to offenses committed by third parties. They also seek to limit the responsibility of offenders of the reputation of others, when the victim is a public figure, to those cases in which the offender has acted without due diligence, adapting the American jurisprudence derived from 7he New York Times v. Sullivan.
  10. One of the first acts of my government was to adopt a decision establishing norms of public ethics for political appointees of the President's trust, the violation of which entails immediate termination. On the same date, I issued a decree banning the display of the portrait of the President of the Republic in public offices, as well as the use of quasi-aristocratic forms of address on his behalf. The use or display of the names of public officials in public works built with public funds has also been banned. These measures seek to curb the cult of personality that is so harmful to democracy.
  11. This government has continued with a permanent process of deregulation and of elimination of unnecessary requirements and procedures aimed at reducing the discretional powers of public officials, and to make public administration friendlier to the citizen.

I am sure that these ideas do not exhaust the topic of the necessary measures that must be adopted for the defense of transparency in public ethics. We must all -citizens and public officials alike- work hands-on on this task.

In closing, to honor a man who served as President of the Constitutional Tribunal of Spain, and is a martyr of the struggle for democracy, freedom, and human dignity, I quote the inspired words of the late Francisco Tomds y Valiente:

The gravest effect of corruption, understood as a perverse symbiosis between illicit private benefit and the exercise of public power, is that -when tolerated for a long time- it produces the decay of the system, setting off a process of entropy capable of ending the existence of the democratic State. That final stage is reached when neither elected politicians nor the citizens who elected them believe any more in democracy.

To defend the legitimacy of the democratic system, to defend equality for all under the rule of law, to avoid waste of human and material resources, to assure efficiency in the use of public means, transparency is required in government. Thus, to fight for ethics in public activities is also to fight for economic growth.

With democratization in Latin America it is even more important to confront corruption. I express my sincere recognition to the leadership and vision of President Carter and to the efforts of the Carter Center to organize this International Conference for transparency and ethics in government. This conference is thus for democracy and growth, and hence for human development.