Transparency – Responses to representation

/// The 12th Annual Conference of
International Association of Prosecutors
16-20 September 2007, Hongkong

We are gathered here to discuss the relation of prosecutors with the Others.
Dear prosecutors, you have acknowledged in full that you do not exercise your
important function in vacuum. I am very honoured to be a representative of this
Other, as a directly elected parliamentarian.[:]

In the following, I will explain my view on transparency, because, indeed,
transparency has become a key requirement of democratic standards. Even if the
judiciary differs from public policymaking, the requirement of transparency is
a fact there as well.

Then I will identify some subjects in which I believe that a dialogue between
the prosecutors and legislators (as representing the general public) would bear
fruit, without sacrificing the independence of the judiciary.

Mr. Pekka Hallberg, President of the Supreme Administrative Court of Finland,
has described the nature of the modern legal system in its context to my mind
very well. His book “The Rule of Law” has also been translated into Chinese. In
it he writes:

“The (modern legal) system is complex and difficult to comprehend. Yet, there
is no functioning society without common rules, the laws. At the same time it
is essential to see the legal culture as a larger concept than a mere aggregate
of legal rules. Justice is an entity dependent on public sentiments. Hence, the
substance of justice is connected to the development of society as a whole.”

Pekka Hallberg has here given us an interface between the rule of law and
democracy, in fact in a global context.

Let us try to see what has happened to our democracies? People increasingly
demand the right to participate in decision-making processes, not only in
elections. This is certainly due to improved access to education and to
information in most countries. New rights have been established, and they allow
citizens to have a say in decision-making at an early stage. Often politicians
are embarrassed and feel that citizens “interfere” in their business.

The Århus Convention is a good embodiment of these new participatory rights,
although they are limited to environmental policymaking. The Århus Convention
gives the citizens three rights in the field of environment: 1) access to
information, 2) to participate in decision-making, and 3) access to justice. If
and when more countries sign and ratify this Convention, it will support
combating even transnational environmental crime.

The notion of democracy has also changed because of globalization. The world
has become more complex. Among other things, better education to our legal
systems, rights and duties is necessary. Dialogue, interaction and common
learning are the only survival methods.

The public in modern democracies have the right to criticize the outcomes in
courts. But how should politicians react? Parliaments, executives, and their
members must, of course, avoid every statement and decision which might even
just give the impression that prosecutors and courts would not be independent.
We are free to make proposals on how to improve the functioning of the courts,
and how to formulate a sound criminal policy and law. This is where a dialogue
between the worlds of politics and of judiciary is needed.

Politicians are acccountable to their constituents, but safeguards also to the
independence of politicians are needed. Such safeguards can be laws which
oblige politicians and parties to publish the sources of electoral financing
and interests which could compromise decisions. – This is probably the only
field where Finland still has to introduce new transparency legislation, and we
should also do so in order to defend our position as the winner from year to
year in the Transparency International Corruption Index.

The new Finnish government – with the leadership of the Minister of Justice –
is trying to achieve better quality of regulation. I am afraid that the
prevailing law everywhere is the Law of Unintended Consequences. This must be
avoided, as no parliament of government has the right to use public powers and
public money in a misguided and wasteful way. An important aspect of the work
towards such better regulation must be to become aware of the impact of the
laws and decisions.

It is essential that researchers participate in the interaction. Otherwise it
is impossible to forumulate a kind of criminal policy and criminal justice
which have any chance to meet objectives. In Finland we have been very lucky to
have a small but high quality government research institute on justice policy.
Together with the research done at universities, it is a great help in the
formulation of policy.

By far the most of the criminal cases in the Finnish courts deal with crime in
which the perpetrator is often more in need of social justice than of criminal
justice. Research shows that in our society violence in which the perpetrator
and victim do not know each other, the perpetrator very often suffers from
mental problems, and the crime could in many cases been prevented with the
means of good public mental health policy. As a legislator I cannot
overemphasize the need to interact with researchers. On the other hand, I have
seen on many occasions, that also researchers need such interaction with

Finland and other Nordic countries have a long tradition in justice cooperation
due to shared values and common history. The EU has put in place many useful
instruments in the field of criminal law, but Finland feels there is a limit to
how far we should move. Finland is a country in which the number of prisoners
is very low in relation to the size of the population, and we are not at all
happy to move towards the harmonization of the penal scales. This would often
mean more severe punishments and thus increased numbers of prisoners, which
again contradicts our chosen criminal policy. We favour the method of mutual
recognition instead of harmonization of criminal law.

Prosecutors should feel free to explain to politicians what kind of trends in
society they observe in their office. Alternative dispute resolution mechanisms
is one area where legal professionals, social scientists and politicians could
profit from a common learning process.

But serious transnational organized crime is what really calls for
transnational cooperation of all stakeholder groups. To mention one example,
just now it would be important to understand the impact of the record high
opium production in Afghanistan to crime.

To develop confidence between the national jurisdictions is of utmost
importance with the view to increasing globalization. Countries need to feel
that they share common values before they are willing to make agreements on e.g.
extradition on suspects of crime. Probably the need for such agreements between
countries are also strong incentives to improve standards in procedural

Not only states and intergovernmental organizations but also the civil society,
its voluntary and professional networks can make valuable contributions in
transnational cooperation. One example, I am learning, are the IAP Standards.
Because of such a high degree of acceptance these standards should have the
chance to finally become norms.

Peer reviews and evaluation missions should be extremely useful., So would be
benchmarks and common indicators. Countries in which malpractices prevail,
could be “named and shamed”. The IAP awards are a great way to name those who
deserve fame instead of shame. This all is no doubt helpful for legislators and
governments which try to create good standards of governance and justice.

I would like to mention corruption as an issue which is a reality both in
political and judicial spheres. It is now realized that corruption is not at
all limited to countries and governments in the South. International companies
originating from the richest countries are a major actor in corruption. UN
Convention Against Corruption (UNCAC) is a major strategic achievement.

Politicians are starting to understand that the elimination of corruption from
the judiciary provides the kind of legal certainty which attracts foreign
investment and is good for the economy. In China, anti-corruption is now also
seen as a way to social harmony. The International Association of
Anti-Corruption Authorities (IAACA) was established last October in China, and
its chairman Mr. Feng Ye is a speaker in this conference.

Transparency International’s Global Corruption Report for 2007 concentrates on
corruption in judicial systems and also makes many suggestions for the cure. An
internal firewall against malpractices must be set up within the judicial
system. An external firewall must be raised against any interference from
politicians and legal or illegal lobbies. Courtrooms should be opened to the
public. Personal safety of prosecutors and judges must be guaranteed.

Whistleblowers are people who in good faith reveal information about crime or
corruption. It is a good advice against corruption to protect them by law from
sanctions. The Financial Times wrote (14 September) that “the failure to
protect those who expose malpractice is at the heart of the safety problem for
Chinese products”, and that “whistleblowers in China are a rare and endangered

One of the best ways to prevent and combat crime related to the abuse of power
and public money, i.e. corruption, are Freedom of Information laws. An Indian
judge said in one of his Decisions that “daylight is the best disinfectant”.
Freedom of Information is a prequisite for the participation in decision-making
in modern democracies and is based on several international treaties.

I have some personal experience through a case in the EC court named “Hautala
vs. Council”. On the grounds of the EU rules on access to documents, I managed
to increase transparency in the sensitive area of Common Foreign and Security
Policy, and became a footnote in legal literature.

But I wanted to explain that the number of countries which have a law on
Freedom of Information has grown from 12 in 1990 to the present 75 countries.
(I was surprised to hear that Hongkong does not have one.) Yet, this is
astonishingly few, bearing in mind that Freedom of Information does not cost
anything (apart from some petty administrative costs). It is probably the most
cost-efficient instrument of public scrutiny of government. It is also
prevention of corruption. (It means of course, that prosecutors get less cases
to prepare.)

The United States has one of the best Freedom of information laws. The European
Union institutions have followed the Nordic tradition of openness (which
originates from 1766 in the Swedish Constitution). In fact, to my knowledge,
some former socialist EU Member States have better standards than old EU
Members. The Council of Europe is now drafting the first international treaty
on access to information.

Freedom of Information can be understood as a way to implement Freedom of
Expression. But there are new limits to freedom of expression. Defamation laws
are misused by those in power in order to attack the political opposition. Some
governments are using the camouflage of the fight against international
terrorism as means to eliminate their political opponents or minorities, and
many governments look away. To continue the list, quite normal political
opinions and activities are now labeled as “extremist” e.g. in the Russian
Federation. The notion of “national security” is a powerful weapon in the
hands of authoritarian governments. Independent journalists and writers are as
much in need of protection as are independent prosecutors and judges.

It can only be regretted that stable democracies such as the United States and
the EU through their counter-terrorism laws and practices are giving very bad
examples to countries in which citizens’ rights do not enjoy much protection
from the state.

Ladies and gentlemen,

as I see it, the task is to promote a legal culture in which the civil society
is free to express its opinions without fear. In such societies the prosecutors
can also perform their functions without fear. The rule of law is inseparable
from democracy.