This article are provided as information only and not intended for basing any decisions.
By Reema Ali
UPI Outside View Commentator
Distributed by United Press International (UPI), March 9, 2005
WASHINGTON, March 9 (UPI) -- There was a time when we were asked as lawyers to educate local agents in the Middle East on the U.S. Foreign Corrupt Practices Act (The U.S. law that prohibits the payment of bribes to foreign officials). In those days, the local agent used to think that the training session was a negotiating tactic to dilute the commissions the U.S. companies promised them if and when they deliver what they promised they are capable of delivering. Today transparency and anti-corruption are household brand names in the Middle East.
In the aftermath of 9/11 and the U.S. call for reform everyone speaks of it and about it.
In reality very little true reform has been achieved.
What exists in the Middle East is a serious call for reform and the uprooting of corruption but this call did not yet translate itself into action.
The U.S., the sole superpower and the significant player in the region is asking for it; the general public is asking for true improvement, and even the public officials who practice corruption on a daily basis have joined the chorus and are asking for reform.
One would think that this is the perfect recipe for achieving reform. However not much has happened. The main obvious reasons are:
1) The U.S. call for reform has been seriously watered down by the policies the U.S. chose to pursue in its war on terror.
2) The corrupt officials in the regional regimes will not surrender more than they have to. They are the main benefactors of the status quo.
3) The average citizens have experienced a negative growth in their standard of living, and therefore are busy making ends meet.
The fact that not much has been achieved does not mean change is unlikely to happen. A serious shift in the tectonic plates of the system in the region has occurred.
First it is useful to dispose of the legalities. The adoption of international conventions and their ratification by a country is not an accurate indicator whatsoever of the progress achieved in that jurisdiction. For example, Libya is one of the countries that have signed and ratified the U.N. Convention on Anticorruption and anyone who is familiar with the Libyan laws can attest that Libya has very strict and overreaching anti-corruption laws. Yet, Libya ranks at the bottom of the list in the region according to Transparency International score board.
The countries in the region have always had broad anticorruption laws. There has always been a huge gap between the law and practice.
The current situation however, is much more complex. A close analysis of many factors is needed in order to build a strong and coherent legal reform strategy. Spending money on NGOs and training sessions on women's rights does not achieve that.
In the Middle East, and this is true of all jurisdictions, there exist a dichotomy between the people and the government. There is the government on the one side, and then there are the people on the other, completely detached of one another in an "us" and "them" sort of situation. There is no true and meaningful administrative law, substantive or procedural, to bridge this vast gap. This has devastating consequences.
People in the Middle East believe they can affect global politics but cannot bring about a decision to install a traffic light in their neighborhood.
To gain access to information, a private citizen actually must do what Joe Pesci thought he needed to do in the movie "My cousin Vinny," schmooze the prosecutor by inviting him to a hunting trip to learn more about the prosecutors case against his client. When all he needed to do is ask because the law says so.
In the Middle East citizens actually need to dine and spoil the officials to gain access to what would otherwise be a 'right to know.'
This informal and corrupt process of access has the following consequences:
a. It feeds corruption and transforms it into a prevalent and acceptable practice and establishes it as part of the culture and moral fabric of society.
b. It prevents the emergence of civil society and institutional access.
c. It prevents cohesion and consistency in rule making and adjudication by the bureaucracy.
d. It creates a general sense of frustration at all levels of society and hence feeds into extremism.
e. It maintains and furthers bureaucratic barriers to free trade.
f. It alienates the average citizen from the process of governance and any potential process of reform.
g. And most importantly is a formidable impediment to economic growth.
It is therefore not an issue of people or their culture or their faith that is inherently corrupt or incorrupt. It is an issue of systems that are inherently deficient and that do not provide the vehicle for uncorrupt access.
Public servants, who function without administrative law and no external controls of any meaningful nature (In Egypt alone there are 5.2 million of them), have privatized the government. There is the door man of the ministry who requires you to pay a parking fee for parking in front of the ministry when the law requires none; and the public school teacher who does not do a good job so as to benefit from the intricate network of private lessons; and the civil servant who asks for a fee to issue a document he must issue as part of his job. There are all of those who are trying to make ends meet, and then there are the "10 per centers". These are, of course, very distinct. They are the ones who keep the corrupt culture alive and well. The 10 per centers watch over each other, and keep track of who is benefiting, and whose turn it is, and have their internal alliances and politics that outsiders are not privy to. They are the ones U.S. companies meet disguised a local agents.
Imagine there is a runway where everyone is de facto allowed to speed as they please. One day traffic lights are installed (Laws and International anti-corruption conventions) but no one pays attention to them and there is no enforcement by anyone. They are left there changing colors on their own. Sure some may slow as they approach a red light but nonetheless will cross while it is red. Imagine that one day one car stops for whatever reason external or internal or even a realignment amongst the 10 per centers! The pile up is inevitable.
A half pregnant situation cannot be maintained forever. It's either true reform or nothing. Pouring money into NGOs will not cut it! The system must provide means for uncorrupt access. This must be the starting point for the US and local reform initiatives.
Reema Ali, managing partner of AP Consulting is an expert on Middle Eastern law. She represented American and European companies doing business in the Middle East for the past 22 years.
We have compiled a few articles to help in understanding the complex position of many middle eastern countries.
The following articles are for information only:
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Outside View: Libya's oil prospects
The Middle East and the WTO
Lebanon's Copyright Law
Telecommunications in the Middle East
Kuwait Oil Sector