Gift-giving usually has positive connotations as an expression of love, respect, friendship, gratitude, or celebration. However, when the recipient is a public official, there is always the concern that the “gift” is nothing but a thinly-veiled bribe. For this reason, countries around the world have placed restrictions on the character and value of gifts that public officials are allowed to accept. But in societies where giving gifts – including, perhaps especially, to powerful or influential figures – is an important part of the culture, treating all (sufficiently large) gifts as unlawful bribes is more than usually challenging. Indeed, a recurring question for anticorruption reformers is whether or how anti-bribery law should make allowances for local cultural norms and practices, especially those related to gift-giving. This question – often framed as one of “cultural relativism” – frequently comes up in the context of developing countries (such as Indonesia or various Pacific islands), though it is not exclusive to such countries (see, for example, discussion of this same issue in South Korea).
One country that has recently faced the challenge of regulating cultural gift-giving to and by public officials is the Solomon Islands – a small state in the Pacific Ocean consisting of over nine hundred islands, a population of about 600,000, and a rich and fascinating history. For years, the Solomon Islands has been dealing with pervasive corruption at all levels of government, most notably in natural resources management, which has had disastrous ramifications for the country’s economic development (see here, here, and here). Like other Pacific islands, the Solomon Islands is home to a practice of traditional gift-giving to and by public officials, which in many other jurisdictions could be viewed as legally problematic. According to a local custom (as explained in an official government document), public officials, as members of their community, are “expected to contribute to community events such as weddings, funerals, feasts or church gatherings” and are “obligated to reciprocate with gifts if and when they visit communities and are presented with gifts.”
In July 2018, as part of a comprehensive national anticorruption scheme, the Solomon Islands’ Parliament enacted the much anticipated Anti-Corruption Act (ACA). The ACA is especially notable, and unusual, in its approach towards customary gifts and bribery. Instead of capping the monetary value or limiting the type of gifts which public officials are allowed to accept, the ACA introduced a new cultural defense to the offence of bribery of public officials. According to this defense, a public official who accepts or solicits something of value, as well as the individual who offers or gives it, is not guilty of bribery if the defendants can prove that their respective acts were conducted: (1) “in accordance with custom,” (2) “openly, in the course of a traditional exchange of gifts,” and (3) “for the benefit of a community or group of people and not for an individual.” According to Prime Minister Rick Houenipwela, the ACA’s cultural defense is required as part of the government’s obligation “to respect our customs and traditional cultures” as “a multi-ethnic post conflict country.” However, the cultural defense has been criticized by many, including the Parliament’s Bills and Legislation Committee (see here and here) and Transparency Solomon Islands, which referred to this defense as “a good example of bad law.”
In this post, I do not attempt to answer the question whether the Solomon Islands’ customary gift giving should be criminalized. I do wish to argue, however, that even if we assume that local gift-giving customs are worth protecting, the ACA’s cultural defense to bribery in its current form is highly susceptible to misuse and may undermine the government’s anticorruption efforts. Both the Solomon Islands and other jurisdictions that might be considering a similar cultural defense should take heed of four significant problems with the defense as currently written:
- First, the ACA’s cultural defense is unnecessary to protect legitimate customary gift-acceptance or gift-giving. According to the Solomon Islands Penal Code (as amended by the ACA), the offence of bribery of public officials requires, as one of its elements, that the benefit solicited by or offered to a public official be made with the intention to affect the way the public official carries out her duties. If the local tradition is that public officials are “expected to contribute to community events” and “obligated to reciprocate with gifts if and when they visit communities and are presented with gifts,” then accepting or giving such gifts might not constitute bribery, as those acts are not made with the intention of influencing officials’ performance of their duties. In fact, the only public officials whom this cultural defense serves to protect are those who accept gifts with the intention that they will carry out their duties according to the wishes of the benefactor. Therefore, while I am no expert on Solomon Islands’ traditions, I am concerned that the ACA’s cultural defense might be misused by corrupt public officials, without actually bolstering the preservation of local customs.
- Second, the text of the cultural defense is overinclusive. The goal of the ACA is to defer to traditions of gift exchange unique to the Solomon Islands, but as written it would have a much wider application, suggesting that the cultural defense would apply to any traditional exchange of gifts (such as Christmas gifts). It is one thing to exempt certain local gift-giving customs from the application of criminal law, where there is a genuine risk that those customs could become extinct because they fall under the definition of bribery. But it is another thing to protect public officials from corruption charges while deferring to a wide variety of customs whose existence is not actually threatened by criminalization of bribery. The legislators, who did not intend such wide (and easily abused) application of the ACA’s cultural defense, should therefore be more specific about the customs and traditions to which the defense would apply.
- Third, the ACA’s cultural defense is too vague. In particular, for the cultural defense to apply, the exchanged gifts must be “for the benefit of a community or group of people and not for an individual,” a restriction that reflects the sensible view that bribes that are given in exchange for unfair advantage for the community (e.g. improving community’s schools and infrastructure) are not as inherently immoral as bribes which are given in exchange for undue personal advantage (e.g. overlooking illegal building of one’s home). But the key terms “community” and “group of people” are left undefined, which may undermine the ACA’s purpose by leaving it unclear, for example, whether a “group of people” could include the bribe supplier’s family members or business partners who would benefit from the bribery.
- Fourth, the availability of the cultural defense under the ACA is not conditioned upon meaningful transparency. The ACA does restrict the application of the cultural defense to cases in which the giving or accepting of the benefit was made “openly, in the course of a traditional exchange of gifts,” but this is not sufficient. The Bills and Legislation Committee of the Solomon Islands Parliament recommended in 2017, before the enactment of the ACA, that “[i]f the defence of custom is retained… further provisions [should] be enacted to ensure that such gifts… are declared and recorded in a public register.” That’s the right approach: defendants should only be able to invoke the cultural defense if they made a public declaration and record of any gifts within a defined period following their receipt. Such a requirement would not only promote a more just application of the cultural defense, but also would encourage more meaningful transparency in the sensitive area of the relationship between public officials and communities.
The Solomon Islands’ culture is unique, and many of its customs go back many generations. The ACA’s attempts to protect aspects of this culture might not be universally accepted, but they are certainly understandable. Nevertheless, the ACA’s cultural defense to bribery charges is poorly designed and susceptible to abuse. These shortcomings should be taken into account and addressed by the Solomon Islands, and also by any other jurisdictions considering adopting a similar cultural defense to bribery.