Public authorities refer to any body that is in the public sector (i.e. bodies which are part of or controlled by the State). This includes:
Police and law enforcement bodies;
Public service providers, such as public hospitals or schools;
Governmental regulatory and licensing bodies;
Private bodies that exercise any public authority; and
Officials within these bodies.
People deal with public authorities and officials all the time, and decisions of public authorities affect all aspects of public life. Corruption could occur anytime people deal with public authorities or a public official has power to make a decision.
Public law governs the actions of public authorities and officials. This is a broad area of law that includes (1) administrative law, (2) constitutional law, and (3) human rights law.
If a public authority or an official has been involved in corrupt activity, there will likely be a breach of public law. If there is a breach of public law, you may be able to challenge the action or decision of a public authority of the official in one or both of the following ways:
Using an administrative procedure; and/or
Starting a case in an administrative, constitutional or other court.
In general, these type of cases have the following advantages and disadvantages:
|Public law cases have in some cases a lower standard of proof than criminal cases. This can mean that less evidence has to be gathered to bring a successful case, although the evidence still has to be compelling.||Cost. As actions are generally brought by private individuals, in many countries actions can be expensive for the person who is bringing the case.|
|Impact on good governance. Legal action can hold public authorities accountable, providing for better regulation of corruption and good governance in future. Where constitutional or human rights law is involved, it is more probable that a successful case could lead to law reform.||Time and effort. The person bringing the case has to gather evidence throughout the different stages of the administrative and the litigation process.|
|Rapid response. Administrative authorities can react very quickly to prevent impending harms, by issuing interim injunctions before something irreversible happens.||Lack of financial remedies. Financial compensation is rarely available via a challenge in an administrative court or is in lower amounts than in civil claims.|
|Complexity. These cases can be difficult and a lawyer will usually be required.|
What options are available will depend on your country’s legal system and what law is involved.
In some countries, there are administrative procedures that can be used to challenge the action/decision of a public authority or official before going to court.
These are procedures before an administrative body that reviews the actions/decision of a lower level administrative body.
In many countries there are also alternative forms of remedies for maladministration by a public authority/official and these are independent external bodies such as an ombudsman, that can investigate, issue recommendations, statements, engage in mediation, report to the public and to the parliament, but cannot overturn administrative decisions or issue any binding decision.
In the anti-corruption context, the usual scenario is that there is an administrative decision (or inaction) that may be influenced by corruption and you would like to challenge this administrative decision (or inaction). In some countries, administrative procedures are taken against the public authority that is in charge of the decision or is responsible for the actions of a particular public official.
A textile factory is granted an environmental permit in questionable circumstances. There are close links between the factory owners and the director of the local environmental agency that grants the permit. The factory then starts letting toxic waste into the river and the local environmental authority does not react for unknown reasons.
Affected citizens can challenge the factory’s environmental permits at the national environmental agency through an administrative procedure. They request an immediate injunction to stop the harmful waste disposal and ask the agency to impose a fine on the factory.
If an administrative authority finds in your favour, it could lead to one of the following outcomes:
The administrative authorities’ decisions can be enforced.
In some countries, administrative procedures are taken directly against individual public officials. In these countries, administrative sanctions can be imposed upon public officials through what is called “corporate administrative liability”.
This means that if a public official has been involved in a corrupt activity, this person can be held liable for administrative offenses. For example, if a public servant asks you to pay a petty bribe in order to get public services, an action could be brought against this person.
Mexico’s General Law of Administrative Responsibility establishes a legal framework for public servants to follow. This applies to all public officials in the country.
It contains administrative penalties for those public officials who commit “non-serious” (no graves) and “serious” (graves) administrative violations.
- Non-serious violations are those related to the day-to-day activities of public servants and they are generally investigated by internal control bodies (órganos internos de control) within the public entity. These kind of offences include actions and omissions such as refusing to sign a document or not submitting a declaration of assets;
- Serious violations are the ones that are related to acts such as bribery, influence peddling, and fraud. The enforcement body responsible for imposing administrative liability on public servants and private entities in such cases is the Federal Court of Administrative Justice (Tribunal Federal de Justicia Administrativa).
The expected administrative sanctions to both types of violations consist in preclusion from participating in future public offices, economic sanctions, bans for misconduct and dismissal of the public official.
In addition to overturning or cancelling a decision, a successful administrative procedure against a public official could also lead to the following outcomes:
These are highly specialised procedures. The rules they apply and the process they follow depend on the country’s legal system, the public authority involved, and/or the types of action/decision being challenged.
Practical Tip: Steps for Using Administrative Procedures
1. The first step you need to take is to identify the relevant administrative procedure for the public authority you think has been involved in the corrupt activity (if there is one).
2. Identify the relevant procedural rules you have to follow to make a claim. This could be linked to on the website of the public authority or in your country’s administrative code.
3. Identify the substantive administrative law or regulation you think the corrupt activity has breached.
4. You will generally have to submit a written complaint to the administrative body that will review the complaint. This should outline the facts, your arguments and evidence (for more information see What Evidence do I Need? and How do I Prove Corruption?).
In some countries, there is a requirement that you exhaust the remedies in the administrative system before you are allowed to challenge an action/decision in court. This means you must use an administrative procedure before you start an administrative case in court.
Use of administrative procedures is often only the first step in challenging the action/decision of a public authority. If you are unsuccessful, it is possible to challenge the decision of the administrative authority in court. This will be discussed below.
Depending on the type of law involved and your country’s legal system, you may have the following options to enforce public law in court:
These cases are generally either brought against (1) the administrative authority whose decision you are challenging, or (2) the public authority that made the decision/action in the first place. Where systemic corruption is involved, it may also be possible to bring the claim against a government department or the state as a whole.
Areas of public law are outlined below that could be used to challenge the corrupt actions and decisions of public authorities. See which most closely relates to your situation. Then check your national law to see what the law is in your country.
There are a variety of specific laws and rules that regulate the activity of public officials and bodies.
In some countries, actions, policies or omissions of public bodies that are contrary to statutes/regulations can be challenged for being ultra vires or breaching the principle of legality. These actions will be considered unlawful and set aside in a process sometimes called “judicial review”.
In many countries, there are general constitutional duties or principles which make an action or omission of a public body unlawful if it is tainted by corruption. In some countries, these principles are expressly outlined in the constitution:
Article 33 on “Just Administrative Action” states:
1. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair.
2. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.
3. National legislation must be enacted to give effect to these rights, and must:
a. Provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal;
b. Impose a duty on the state to give effect to the rights in subsections (1) and (2); and
c. Promote an efficient administration.
In other countries, there are generally unwritten principles that can be relied on in court. These duties and principles will often be violated where there’s evidence of petty or grand corruption. For example, decisions of governments and public bodies in some countries can be challenged in judicial review on the basis of procedural unfairness or bias.
If there is a specific law that prohibits a public body from committing a corrupt act you are complaining about, this will usually be the law you should base your case on. However, human rights or constitutional law could be used to hold the State accountable for corruption in the following situations:
1. Where the State as a whole has not taken enough action to combat corruption in your country.
This could be where the State has not created laws which make corrupt practices illegal, or has not taken action to investigate and punish corrupt activities.
In South Africa, the government decided to abolish an independent anti-corruption body and replace it with a body that wasn’t independent from the government. This was challenged for being unconstitutional. The South African Constitutional ruled that the decision to abolish an independent anti-corruption body undermined the effective investigation into corruption and violated the government’s duty to respect, protect and fulfil human rights in the Constitution.
2. Where widespread corruption of the State has had a clear and direct impact on human rights in your country.
The impact on human rights could be that:
Example: SERAP v Nigeria
SERAP, a human rights organisation, brought a case against the Nigerian Government and Nigeria’s Universal Basic Education Commission to The Economic Community of West African States (ECOWAS) Court of Justice. A key part of the complaint was that the Universal Basic Education Commission, which was responsible for funding basic education in Nigeria, had mismanaged the national education fund through corrupt practices. This was supported by a report by a national corruption watchdog.
The Court ruled that the corrupt practices of the Commission had led to less money being invested in education and the government had not taken enough steps to recover or compensate the lost funding to education, and that this violated the right to education protected in the African Charter of Human and Peoples’ Rights. As a remedy, the court ordered the State to provide funds to cover the shortfall in education funding caused by corruption.
Example: Legal and Human Rights Centre and Others v Attorney General (Tanzania)
In Tanzania, a civil society organisation challenged an electoral law that allowed political candidates to give gifts to voters (“takrima”). This was challenged because it facilitated corruption, leading candidates to start buying votes.
The Tanzanian High Court found that the electoral law violated the rights to equal treatment and non-discrimination regarding political participation in the Tanzanian Constitution as they discriminated against political candidates with lower incomes. They also found that the electoral law violated the right to free and fair elections in the constitution by undermining the democratic process.
There will often be more direct ways to challenge corruption by public authorities, but it may be worth including human rights arguments as an additional ground to argue a public authority’s actions have been unlawful.
How to bring a public law case before a court varies in each country.
Focus Point: Amparo Proceedings
In many Latin American countries, the amparo trial (or tutela) is one of the most effective ways to defend oneself from corrupt government acts when constitutional rights are violated.
- The amparo trial can be invoked by any person to whom his or her rights have been violated.
- Amparo trial and its procedural venue can vary according to the procedural law of each country.
Remember, in some countries you must first exhaust relevant administrative non-judicial procedures before starting an administrative public law case in court. However, once you are able to bring a case to court, the procedure often follows the general steps below:
Write a formal letter to the proposed defendant setting out the proposed claim and what you wish to achieve. A response is usually requested from the defendant.
Submit your "claim form" to court within the required "time period" (there is usually a number of months of years after the incident within which you must file your claim).
Present your grounds for the claim to the court, which will be shared with the defendants. This document can be referred to as a "statement of claim", "statement of case", "particulars of claim" and "complaint". This then have to be shared with or "served" on the defendant.
In some countries, you have to apply for permission to bring a public law claim. This is a process where your claim is vetted to see if it's credible or has reasonable prospects of success before the defendant has to respond. The defendant can present arguments at this stage. In other countries, the claimant does not have to apply for permission but the defendant can make an application to dismiss the case or apply for summary judgment. The court will then decide whether the case is sufficiently credible or has reasonable prospects of success in order to decide whether to allow it to continue.
Defendants will then have a chance to explain their position. They can either accept all or part of your claim, or deny your version of events in full. This document is known as the "defence".
You and the defendant may be asked to share the evidence you are relying with each other. If you are using witnesses, you will usually need to include what they are going to say in a "witness statement" or "affidavit".
At the hearing, you will present your arguments, including a review of the key evidence already likely filed with the court, witnesses may give oral evidence and can be questioned by the lawyers. The court then makes its decision.
The losing party generally will have the right to appeal this judgement before a higher court.
The above steps most accurately reflect the judicial review process in common law countries. Civil law countries will often have different steps, but some of the steps above will still apply.
A successful case in an administrative or constitutional court could potentially lead to one of the following options:
The person bringing a claim is often called the “claimant”, “plaintiff” or “petitioner”.
The person bringing the case (and his or her lawyers) are responsible for:
The following groups can often bring administrative cases:
Actions under public/administrative law are generally brought by the individual on whose interests an administrative decision (tainted by corruption) has an impact.
This case (see above) was taken directly to the South African Constitution Court by a concerned citizen. He did not have to show he was personally impacted by corruption as it was an issue of public interest.
Also, in many countries, groups of people who have been affected by an action or inaction of public authority can bring a case together. This is often called a “class action” and can help spread the costs of bringing a court case.
In some countries, claims can be brought by NGOs and civil society organisations with an interest in challenging corruption. Often NGOs active in other fields such as anti-discrimination, environmental protection, consumer rights have the procedural rights to represent diffuse groups (where each individual affected cannot be identified) and bring an actio popularis before administrative bodies and courts. By challenging the administrative decision under the law of a particular sector often the harms resulting from corrupt acts can be remedied too.
For more information on organisations that could help you, see Where Can I Find More Information and Support?
In other countries, anti-corruption agencies and state prosecutors can bring actions under public, administrative, civil and human rights law.
Example: Brazilian Prosecution Service
The Brazilian prosecution service is independent of the government under the Brazilian constitution and has the power to bring civil, administrative and constitutional cases to defend public interests of society as a whole, of particular groups and individuals. This includes taking cases to challenge corruption in public authorities.
In public law cases, the claimant or petitioner has the “burden of proof”. In many countries, you have to prove your case to a standard of proof known as the balance of probabilities (i.e. there is more than a 50% chance what you are saying happened).
In administrative cases, you will generally need evidence to:
It will be necessary for you to obtain detailed and precise information on each of these points, so that the court can understand the situation fully.
You may also be able to compare one decision of a public body with other similar decisions which were taken apparently without corrupt motives. This could help you show that the decision you are seeking to challenge may have been motivated by improper considerations such as corrupt payments.
Finally, if you find that you do not have all the evidence of corruption in relation to the original decision, you may nonetheless be able to pursue an administrative appeal or challenge if you can show that the decision was based on irrational or improper grounds, or that it was reached by following an inappropriate procedure.
For more information on gathering evidence of corruption, see How Can I Prove Corruption?