THE LEADING
INTERNATIONAL INSTRUMENTS ON BRIBERY AND CORRUPTION:
The UK is party to a number of international anti-corruption
instruments, some of which have entailed changes to legislation. The amount of
instruments covering corruption underlines the importance of the subject
internationally.
The most prominent instruments on corruption to which the UK is party
are below:
1. The
OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions and Revised Recommendation (1997):
The Convention obliges Parties to make it a crime to bribe foreign
public officials in international business transactions which should be
punishable by effective, proportionate and dissuasive criminal penalties. The Convention
commits Parties to interpret territorial jurisdiction in as broad a manner as
possible and to establish nationality jurisdiction if this is in accord with
their legal system. Parties are obliged to establish corporate liability and to
facilitate mutual legal assistance.
The Convention requires states to establish as criminal offences active
and passive bribery of domestic and foreign officials. It also covers private
sector corruption, trading in influence, money laundering and accounting
offences connected with corruption offences. The Convention includes provisions
on corporate liability, accounting offences and mutual legal assistance. The
Protocol covers bribery of domestic and foreign arbitrators and jurors.
In its eight Chapters and 71 Articles, the Convention obliges State
Parties to implement a wide and detailed range of anti-corruption measures affecting
their laws, institutions and practices. These measures aim to promote the
prevention, detection and punishing of corruption, as well as cooperation
between State Parties.
There are two EU instruments on corruption: A Convention on the Fight
against Corruption involving Officials of the Member States of the EU (1997),
and a Framework Decision on Corruption in the Private Sector (2003). The latter
requires the criminalization of both active and passive corruption (giving and
receiving a bribe), and stipulates that legal persons may be held accountable[1].
UNITED
STATES
As a result of U.S. Securities
and Exchange Commission investigations in
the mid-1970s, over 400 U.S. companies admitted making questionable or illegal
payments in excess of $300 million to foreign government officials,
politicians, and political parties. The abuses ran the gamut from bribery of high
foreign officials to secure some type of favorable action by a foreign
government to so-called facilitating payments that were made to ensure that government functionaries
discharged certain ministerial or clerical duties. One major example was the Lockheed bribery
scandals, in which officials of aerospace company Lockheed paid foreign
officials to favor their company's products. Congress enacted the Foreign
Corrupt Practice Act to bring a halt to the bribery of foreign officials
and to restore public confidence in the integrity of the American business
system.
The Act was signed into law by President Jimmy Carter on December 19, 1977, and amended in 1998 by the International Anti-Bribery Act of 1998 which was designed to implement the anti bribery
conventions of the Organization for Economic Co-operation and Development.
The anti bribery provisions of the FCPA make it unlawful
for a U.S. person, and certain foreign issuers of securities, to make a
payment to a foreign official for the purpose of obtaining or retaining
business for or with, or directing business to, any person. Since 1998, they
also apply to foreign firms and persons who take any act in furtherance of such
a corrupt payment while in the United States. The meaning of foreign official
is broad. There is no materiality to this act, making it illegal to offer
anything of value as a bribe, including cash or non-cash items. The government
focuses on the intent of the bribery rather than on the amount.
The FCPA also
requires companies whose securities are listed in the United States to meet its
accounting provisions. These accounting provisions, which were designed to
operate in tandem with the anti bribery provisions of the FCPA, require
corporations covered by the provisions to make and keep books and records that
accurately and fairly reflect the transactions of the corporation and to devise
and maintain an adequate system of internal accounting controls[2].
In the USA, Article 1(6) of the US Constitution which contains the
“Speech or Debate Clause”, provides that: “For any speech or debate in either
House they (Members of the Congress) shall not be questioned in any other
place.”
In 1863, the Congress by statute declared a Member liable to
indictment for a high crime and misdemeanor for accepting compensation intended
to influence a vote or decision. In
1862, the Congress by another statute penalized legislators for receiving money
for votes or influence in any matter pending before the Congress. In 1864, “Conflict of Interest Statutes”
barred Congressmen from receiving compensation for their services before any
agency. The Speech and Debate Clause
does not give any protection in respect of “that act which is in no sense
related to the due functioning of the legislative powers”.
In United States v. Johnson[3] the Speech and Debate
Clause was interpreted so as to disallow the motive for performing legislative
acts from being inquired into during criminal prosecutions. In United
States v. Brewster[4] it was held that the
taking of a bribe, given for the purpose of influencing one’s official conduct,
is not protected from criminal prosecution.
THE LEADING
AMERICAN CASE ON THIS POINT WAS DESCRIBED TO US IN THESE TERMS:
“In US v
Brewster a U S Senator was charged with accepting a bribe to be influenced
in his performance of official acts in respect to his action, vote and decision
on legislation. The Supreme Court decided that while a prosecution might not
inquire into legislative acts or their motivation, taking or agreeing to take
money to act in a certain way when participating in a legislative act cannot
itself be a legislative act. Taking a bribe is, obviously, no part of the
legislative process or function; it is not a legislative act. It is not, by any
conceivable interpretation, an act performed as part of or even incidental to
the role of a legislator. Nor is inquiry into a legislative act or the
motivation for a legislative act necessary to a prosecution … It is the taking
of the bribe, and not the performance of any illicit compact that is the
criminal act under the statute. The speech or debate Clause interposes no
obstacle to this type of prosecution. The guilty act is the acceptance of the
bribe, and that is complete without performance”[5].
In that case, one Hallet Kilbourn
had filed an action in trespass for false imprisonment against the Members of
House of Representatives, who had voted on a resolution by which Kilbourn was
punished by imprisonment for the contempt of the Jouse. The action was held as not maintainable[6].
USA Chief Justice Burger US v. Brewster[7]
observed:
“The Speech bate Clause has to be
read broadly to effectuate its purpose of protecting the independence of the
legislative branch. But its purpose was
not to make members ‘super-citizens’ immune from criminal liability. The purpose of the clause was to protect the
individual member not simply for his own sake, but to preserve the legislative
integrity of the legislative process, but the shield does not extend beyond
what is necessary to preserve the integrity of the legislative process. Financial abuses by way of bribes, perhaps
even more than ‘executive power’, would grossly undermine legislative integrity
and defeat the right of the public to honest representation.”
AUSTRALIA:
The Australian
Government recognises the destructive effects that corruption can have on a
society. Corruption undermines democracy and the rule of law, distorts market
forces and facilitates activities such as organised crime and terrorism. A
culture of bribery and corruption is often linked to a lack of respect for
human rights. Australia consistently performs well on international corruption
surveys. Australia is routinely placed among the top ten least corrupt
countries in the world by Transparency International’s Corruption Perceptions
Index.
