Published: 21:32, February 5, 2024 | Updated: 09:53, February 6, 2024
US may well use corruption fight to extend its jurisdictional reach
By Tony Kwok

Corruption exists in various forms in different countries, and no country is immune to it. The Republic of Singapore has been widely praised for its rigorous efforts in combating bribery and consistently ranked highly in the Corruption Perceptions Index (CPI).

In the 2023 CPI, which assesses the perceived levels of public sector corruption across 180 jurisdictions, Singapore secured fifth place and was the top-ranked country in Asia. 

Sadly, its hard-earned reputation was somewhat dented recently when its Transport Minister, S Iswaran, was accused of accepting gifts totaling tens of thousands of dollars from a Malaysian billionaire, bringing no minor embarrassment to the ruling party, the People’s Action Party of Singapore.

The United States ranks 24th in the 2023 CPI, compared with 14th for Hong Kong. 

Political corruption in the US has affected government efficiency at many levels as senior civil servants and elected officials become susceptible to influence peddling. It led to nepotism in government appointments and questionable public contract allocations due to pressure from various well-endowed lobbies representing different interests. It also led to inefficiency in public administration and significant waste. 

One such corruption scandal is the Sheldon Silver Case (2015): Sheldon Silver, the former speaker of the New York State Assembly, was convicted in a high-profile corruption case and found guilty of using his official position to obtain millions of dollars in kickbacks from law firms in exchange for political favors. The case dramatized the pervasiveness of corruption in public office. 

Just a year ago, a former Los Angeles City Councilman, José Huizar, pleaded guilty to a corruption charge, admitting that he took over $1.5 million in bribes during his tenure, using his office to shape the city’s urban development to favor the interests of corrupt real estate investors. Many US citizens believed such a case was just the tip of the iceberg.

Meanwhile, corrupt practices affect local law enforcement and the judicial process. For example, the gun license bribery scandal (2020) involved several high-ranking New York Police Department officers accused of accepting bribes in exchange for expediting gun license application approvals. It resulted in the arrest and indictment of officers, including the head of the NYPD License Division.

While ongoing debates exist about the effectiveness of US anti-corruption laws and measures and the need for further reforms to enhance transparency, integrity, and accountability in the public and private sectors, the US Congress should clean its own house. Instead, it’s creating new corruption laws that threaten to extend its reach to foreign jurisdictions, representing a blatant infringement of other countries’ sovereignty.  

The US Congress recently created two new pieces of legislation to advance the “US global fight against corruption”. The first is the Foreign Extortion Prevention Act (FEPA), which makes it a federal crime for a foreign public official to corruptly demand or receive a bribe from any person or entity subject to the Foreign Corrupt Practices Act (FCPA).

The second is the Combating Global Corruption Act, which requires the US secretary of state to publish an annual report ranking countries in a “three-tiered system concerning levels of corruption in their governments”.

The first new law is an extension of the FCPA. When the FCPA was enacted in 1977, it specifically targeted US nationals and institutions for bribing foreign government officials, bringing them within the US’ jurisdiction for enforcement, even though the corrupt deed might be committed overseas. At that time, Congress excluded foreign government officials from the reach of the FCPA. The new law now reverses that position. Now, Congress has decided that the US also has the right to prosecute foreign government officials. 

The hidden agenda of the new rules is to provide excuses for the US to interfere with other countries’ domestic affairs and impose sanctions on unfriendly nations

Foreign officials, including staff of United Nations agencies or other international organizations, can be convicted under the new law, even though they have never set foot in the US or transacted in US dollars. The new statute states that offenses “shall be subject to extraterritorial Federal jurisdiction”. The convicted foreign officials can face a prison sentence of up to 15 years, a fine of up to $250,000 or three times the value of a bribe, or both.

Such enforcement would encounter significant jurisdictional challenges. Foreign governments would undoubtedly perceive these actions as an intrusion into their internal affairs and infringing on their sovereignty. Charging those foreign officials working for international organizations, such as the UN, might create conflicts within multilateral organizations. These organizations may argue that their staff should be immune from prosecution by any country, as per their respective treaties or agreements. As legal experts pointed out, “From a political perspective, charging foreign officials may invite diplomatic repercussions and even spark international conflict”. Then the question is how the new law will be enforced. Does it provide authorization for the US military to conduct arrest operations overseas, such as in the case of the arrest of the Panamanian dictator and drug trafficker Manuel Noriega by the US military in Panama in 1989?

The second new law, the Combating Global Corruption Act (CGCA), originated as a stand-alone bill in 2021. As its sponsors explained in January 2023 when reintroducing it in the Congress, “The Combating Global Corruption Act would require the State Department to identify corruption in countries and rank them in a public, three-tiered system concerning levels of corruption in their governments, similar to the Department’s annual Trafficking in Persons Report. The bill would also establish minimum standards for combating corruption, evaluate foreign persons engaged in grand corruption in the lowest-tiered countries for consideration under the Global Magnitsky Human Rights Accountability Act, and designate an anti-corruption point of contact at US diplomatic posts in the two lowest-tiered countries.”

This is a mission impossible. Corruption is a secretive crime, making it difficult to obtain accurate and comprehensive data. How can one country be accurately evaluated to determine it is more or less corrupt than the others? The CPI, often cited as a corruption index, relies on perception surveys, which can be subjective and may not provide a complete picture of corruption in a country. Then, would it depend on the prosecution figures of the countries? If so, the more the government is vigilant in combating corruption, the more it will likely be ranked as corrupt.

The FEPA and the CGCA are unlikely to be viewed favorably by other countries. Many governments may view them as encroachments on their sovereignty and as examples of the US overstepping its legal jurisdiction.

These two new laws contradict the spirit of the United Nations Convention Against Corruption. Article 4 clearly states the need for protection of sovereignty, where all nations should respect the principles of sovereign equality and territorial integrity of states and that of nonintervention in the domestic affairs of other states. It categorically prohibits a state party from undertaking in the territory of another state the exercise of jurisdiction and performance of functions reserved exclusively for that state’s authorities by its domestic law.

The enforcement of these laws, perceived as heavy-handed or politically motivated, would undoubtedly damage the reputation of the US in the international community. 

The hidden agenda of the new rules is to provide excuses for the US to interfere with other countries’ domestic affairs and impose sanctions on unfriendly nations.

The author is a retired deputy commissioner of the Independent Commission Against Corruption and is currently an international anti-corruption consultant.

The views do not necessarily reflect those of China Daily.