Corruption, or the use of entrusted power for private gain, has remained a cause of complaint pervasive across all forms of governance throughout human history. Indeed, this omnipresence underpins Dr. Donna Greschner's presentation on how contemporary forms of "petty" and "grand" corruption have unfolded and been complemented by the rapid onset of technological innovation and globalization. In particular, the scale of grand corruption—or corruption at the highest levels of government—has increased exponentially over the past 15 years and left with it global kleptocracies where "government[s] of thieves" have increasingly exploited their constitutional democracies for personal gains. In response, Greschner highlights the considerable effort to tailor human rights law against corruption in response to this trend; however, she finds this effort problematic as it diverts attention away from more effective anti-corruption strategies within constitutional law.

To understand this distinction, it is important to recognize how the abuse of entrusted powers constitutes corruption. For public officials, the essence of their position is to leverage their entrusted powers along a fundamental duty towards public good. However, when senior officials become increasingly willing to exploit their position for personal gains, it represents a structural challenge to the democratic institution itself. Historically, authoritarian regimes have provided the archetype for this exploitation with corrupt officials using their influence to maintain unchallenged power. In constitutional democracies, this lure to unchecked power has developed along a similar track. As officials seize opportunities for personal gains, they have subsequently followed similar patterns to withhold their power through mechanisms that include stifling free press, undermining political opponents, and (at times) reverting to violence.

This devolution into kleptocracy not only challenges the foundation of constitutional democracies, but the very fiber underpinning the rule of law. Democratic constitutions establish a predetermined criteria and legal structure for public officials to utilize their power. Grand corruption makes a mockery of this idea as the most entrusted, senior-most officials abandon their civil duties to maximize personal wealth and power. In the past, cases of grand corruption and its components—e.g. cash smuggling, money laundering, and illicit purchasing—were constrained geographically. However, the advent of globalization and the tech age changed this dynamic. Capital flows became international as secret bank accounts, international tax havens, and shell companies allowed vast sums of money to be stolen and moved globally at the "click of the keyboard." Meanwhile, law enforcement has remained geographically confined in its task of targeting the theft, laundering, and spending of illicit financial flows.

The application of human rights laws to anti-corruption efforts became a logical byproduct of this trend, according to Greschner. By shifting the focus away from the criminals to the human rights holders victimized by grand corruption, she argues that a global narrative has emerged in to bolster anti-corruption efforts. By bypassing constraints with the criminal burden of proof, human rights lawyers can analyze the conditions of exploited citizens as a means of encouraging investigations into corruption and its perpetrators. Additionally, framing corruption as a human rights issue presents an opportunity to boost public support and provide a figurative bridge between anti-corruption and human rights groups globally.

Yet, Greschner argues that these opportunities are more optimistic than practical, with existing mechanisms of constitutional law yielding stronger results. Extending human rights laws into the purview of anti-corruption requires a "stretching" of the legal framework that ultimately undermines its effectiveness. Moreover, attributing human rights violations to kleptocrats remains extremely challenging in the absence of damning empirical evidence. Criminal law, on the other hand, explicitly frames grand corruption as theft and with the capabilities to "name, shame, and punish" violators in a way that human rights law cannot. While there remains long-term potential for human rights law to create a global enforcement body, its current anti-corruption capabilities remain limited.

Instead, Western democracies can initiative the necessary steps against corruption by addressing the factors enabling the flow of illegal capital into their countries. Kleptocratic criminals predominantly "hide and spend" their illicit wealth in the West, so combatting internal tax havens, shell companies, and intermediary money laundering operations needs to remain a central focus. Iterations of the Global Magnitsky Act in the U.S., Canada, and U.K. have likewise provided a framework to target confirmed kleptocrats by blacklisting them from entering their countries, owning property, or accessing their financial systems. While corruption remains truly global in scale, the West must recognize its unique role in its continuity and take steps to stop the "illicit fruits" of corruption at their doorstep.

Full Audio:

Constitutionalism in Illiberal Democracies Series

hosted by Professor Justin O. Frosini


Donna Greschner is Professor of Comparative Constitutional Law at the University of Victoria, Canada, where she was Dean from 2008-2013.

A member of the California and Saskatchewan bars, she has extensive experience with human rights law and practise, including appointments as a commissioner on the Canadian Human Rights Commission and as Chief Commissioner of the Saskatchewan Human Rights Commission. She has been a consultant on constitutional issues to governments and non-governmental organizations, in Canada and abroad. She has also actively participated in many professional associations.

Professor Greschner's awards include the Master Teacher Award from the University of Saskatchewan in 2002, and the Community Leadership Award from the University of Victoria in 2013. Recently she has been a visiting professor at the University of Padova, where she delivered lectures in the MA program on Human Rights and Multi-Level Governance, and at Bocconi University, where she lectured on issues in comparative public law.

Professor Greschner's wide-ranging experience around the world has convinced her that corruption presents a critical threat to democratic constitutionalism. She believes that comparative constitutional lawyers must improve their understanding of corruption, and focus more attention on designing constitutional mechanisms and domestic laws that prevent corruption and mitigate its harmful consequences.