Public Interest Litigation

a) Vested interests

Is possible for citizens to combat corruption to individual and systematic levels. Actually is very difficult, including exposing oneself to personal and serious risks. The main reason for this seems to be that the widespread incidence of corruption over the years has led to the development of intensely entrenched vested interests. Any attempt at reducing this corruption, therefore, hurts, and hurts seriously and monetarily, those vested interests which evoke sharp reactions. It is also clear however that the incidence of corruption in the society as a whole cannot be reduced, contained, or eliminated unless citizens decided to do so and get involved such efforts in growing numbers, with commitment, integrity, and intensity.

Because of all these difficulties the conclusion that it has to be considered as “Public interest the litigation – imposing the State rule, order and legal ways, the individual action must lay in a cooperation and confidence with the Judicial system as part of “Public” interest.

b) The power

The conception of Power – “Latin origin potere” can be applied to a person or group having great influence, force or authority, this last meaning the power or right to give commands, enforce obedience, take action or make final decisions meaning also a jurisdiction.
In a “bad way “a constant striving for power or authority in politics is a desire to find a source of a superior power upon one relies.

The link between Power – and Public Integrity in the Public Interest following the distortions of its concept and functions in an democratic society where the exercise of the Power is legitimated by the People that elects someone to rule in their collective benefit and use the influence and authority to give welfare, development. A fair exercise of authority is the motivation of the electors.

Distortions of power are believed to conduct to a distortions of peoples rule and government making the legal framework of “abuse of power” an inconsistent and with obvious useless.

In this reflections we will try to demonstrate with real facts that a Democracy can assume a authoritarianism shape and the “Public” can turn victims of their own choice.

c) Civil society vested rule

The sovereign Nation is organized and implemented by the Constitution that is the guarantee of the effectiveness of civil rights and liberties in order to achieve the full democratic State through the economically, socially, cultural promoting peoples participation. The State has functions and duties subordinated to the public rights and duties. No restrain of the main rights is possible unless it offends this main pillar of public organization.

The citizens are protected by the State in several ways:

- The guaranty of access to Justice through the Courts;

- The right to resist to any order that offends the public rights, liberties and constitutional guarantees;

- The protection of the citizens by the responsibility of the public servants or political leaders of the State;

- The instruments to assure their liberties – freedom – privacy of their home and mail – access to informatics databases where a person has a file – to have a family – to be able to express their opinions – about to be or not religious – to learn, to teach and the access to culture - to move around the territory and go out of it – to have public meetings and make legal associations – to choose their work -

- The rights that emerge from these liberties become effective as – to have a work – to have quality in services and goods – to have their own property – to have protection in health – to have a home – to have a good quality way of life ecologically protected - to have protection for the family, young , elderly and handicapped people – to learn, to access to culture, sports practice :

To act there is the political power that belongs to the people – the Public interest – and is exercised accordingly the Constitution of the Country.

Mainly and accordingly with the political democratic system of a Country we can define, in General Four main sovereign entities: The President of the Republic – Parliament – the Govern and the Courts, each one independent from the others in a question of balance to assure the Democratic balance and avoid the takeover of power.
These entities have a Constitutional control and are organized in order to prevent malfunctions.

d) Role Citizens Can Play in Combating Corruption

When a political elected leader is after elections to become President of Republic, Member of Parliament or to organize a government there is several decisions factors at the time:

- The public commitment of the political party to the electors;
- The nominations or invitations inside the party accordingly the internal tendency;
- The personal commitments with the sponsors of the public campaigns;
- The negotiations with other party in the case of a coalition or just a simple voting majority in Parliament.

The decisions are entitled to reach the satisfaction of private commitments and appear as satisfaction of Public commitments.
And the Power that comes up side down in several partial delegations becomes centralized at one undetermined point that can be for instance in the chief of cabinet of the Minister – in the secretary of State, in the General Director – in the vice Director – in the department chief or in extreme and strict cases just in the simple inspector.

Laws are enough good and theoretically perfect.

Democratic systems are all well organized and the Peoples Liberties and Rights are in the Law.
However the dispersion of power having different factors and sources can lead to an authoritarianism kind of “new democracy” where the Law exist but is ineffective. The political will is very questionable because all the whole system exists but does not work because it serves the individual purposes and who has the power has legal impunity and the retaliation of any democratic group or person is fatal.

The watchdog of the civil society to act in the right moment to avoid political and financial distortions is essential.

Biographic references:

- The authoritarians can be found at any level of intelligence, socially agreeable and well- adjusted, hard working and reliable.( Horace B. English)

- Discretion is knowledge or understanding to discern between truth and falsehood, between right and wrong, between shadows and substance, between equity and colorable glosses and pretences, and not to do according to our private wills and affections, for talis discretio discretionem confundit.... (Michael
Dalton).

- A democratic state cannot long survive without a legitimate rule of law, enforced and protected by an independent and credible judiciary. In the United States, the judiciary also serves the function of creating a balance of powers between the legislative and the executive. However, too often in Latin America one of the branches is excessively strong, resulting in an unbalanced state where, usually the executive, imposes its will. The unfortunate result is inefficient accountability and the discretionary use of public goods, both of
which foster corruption.- José Miguel Fabbri - Corruption in Bolivia: Reforming the Judiciary System

- Empirical questions about the meaning of corruption are important for at least four reasons:
1) corruption is a serious issue that calls into question the efficacy of law and of social and economic systems;
2) changing international global regimes use shared meanings of corruption, which could result in the imposition of meanings of corruption on some cultures;
3) similarly, international financial organizations are attempting to deal with the issue of corruption in a systematic way, and
4) legal scholarship benefits from at least some level of empirical insight (Philip M. Nichols Corruption as a Pan-Cultural Phenomenon: An Empirical Study)

- Since 1996 when the World Bank dropped the taboos surrounding the problem of corruption, corruption control in development cooperation has become an ever-increasing field of action for donor organizations.

Misappropriation secured by kickback arrangements between public officials and contractors poses the most significant risk of corruption in development aid projects. Risks exist in the state sector as well as in the realm of non-governmental organizations. Donor organizations can help reform efforts in developing countries achieve greater transparency by integrating corruption control into their project work. Administrative control processes play an important role here. However, their effectiveness is restricted by institutional conditions in many recipient countries. First signs of limiting corruption are rooted in controls more strongly oriented toward project effectiveness, in overcoming barriers to gathering information, in overcoming institutional obstacles that prevent donor organizations from perceiving corruption-related evidence, and in conduct on the part of donor organizations that changes the belief among recipients and contractors that corrupt acts bear no consequences.( Georg Cremer in Development Aid: Limiting Corruption by Lowering Barriers to Information)

- Specific and identifiable patterns in the administrative organization of the courts, coupled with a tremendous degree of legal discretion and procedural complexities, allow judges and court personnel to extract additional illicit fees for services rendered. Buscaglia (1997) also finds that those characteristics fostering corrupt practices are compounded by the lack of alternative mechanisms to resolve disputes, thus giving the official court system a virtual monopoly. More specifically, according to Buscaglia (1998) and Buscaglia and Dakolias (1999), corrupt practices are enhanced by:

(1) internal organizational roles concentrated in the hands of a few decision makers within the court (e.g., judges concentrating a larger number of administrative and jurisdictional roles within their domain);

(2) the number and complexity of the procedural steps coupled with a lack of procedural transparency followed within the courts;

(3) great uncertainty related to the prevailing doctrines, laws, and regulations (e.g., increasing inconsistencies in the application of jurisprudence by the courts due to, among other factors, the lack of a legal data base and defective information systems within the courts);

(4) few alternative sources of dispute resolution; and, finally,

(5) the presence of organized crime groups (e.g., drug cartels), that, according to Gambetta (1993), demand corrupt practices from government officials.( Judicial Corruption in Developing Countries. EdgardoBuscaglia)

- My own understanding of discretion is that it is provided for when it is not possible to lay down what the right thing to do or what is not the right thing to do in an ambiguous situation, and where the decision or choice depends on the situation being faced. Therefore the decision-maker should have the freedom to make a decision based on the specifics of the situation being faced.