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.
I suppose the problems associated with gift can be solved by following the formula embedded in word gift itself: G = genuine, I = Independent, F = free of attachments and T = Transparent
Thank you for your comment, Narayan. Not sure that would be enough in the context of gifts to public officials.
Very interesting post. Thanks for sharing.
Thank you for your comment!
Interesting post, Guy. Your first point –– that bribery’s intent requirement likely excludes customary gift-giving from bribery already –– makes sense to me. What, then, is the reason for enacting the defense? I suspect it was meant to be a clear statement to dispel any ambiguity regarding these customary gifts. But I suppose it could also be politically motivated, i.e. to show constituents that lawmakers care about preserving tradition. Or is it possible that the intent requirement is not strictly enforced (as it is in, say, the U.S.)? Interested in your thoughts.
Great question Blake. All of the potential reasons that you suggested for the cultural defense seem plausible to me. Related to your point about ambiguity, it could definitely be the case that the legislature does not believe in the ability of the fact-finder to decide whether or not an official actually accepted the gift with the intention that she will carry out her duties according to the wishes of the benefactor, therefore aiming to protect the official through the adoption of the cultural defense. However, it seems to me that the main concern is with making sure that the traditions themselves would not be harmed by the bribery prohibitions, therefore preventing (or at least diminishing) the discouragement of traditional gift giving and accepting, even at the cost of overlooking certain acts of corruption.
Blake, you raise a great question. In thinking about it, I had a similar instinct to you—that the defense might have been politically motivated—but in the opposite direction. Is it possible that lawmakers are trying to show constituents that they are serious about tackling corruption (by passing the ACA), while still ensuring they have a large and flexible loophole (the cultural defense) through which they can continue to engage in all the usual venal practices?
Interesting thought Jason. But if that were the case, I would expect the standard for application of the defense to be even more vague than it is now.
Thanks Guy! Fascinating thoughts, I agree so I will only add another point to the analysis, beyond the issues concerning the extent and nature of the overlap between the cultural gift-giving and the permitted gift-giving prescribed by the law (which is the common denominator of your three first points, as I understand them).
I wonder if it’s feasible to hold the stick at both ends – enable the custom while preventing the bribe? Your last point is consistent with this pattern of analysis, since transparency does not diminish the fulfillment of the custom but yet hinders (some types of) bribery. Two other suggestions along the same lines: 1) Some countries (e.g. Israel) allow gift-giving but require that gifts will subsequently be transferred to the state’s ownership, thus enabling the custom but eliminating the public official’s incentive to unlawfully reciprocate; 2) The law could set a monetary threshold, such that permitted gift-giving will be limited to items of value beneath that threshold. This could work in cases where symbolic gifts are sufficient for the custom to endure, without creating substantial economic incentives for unlawful reciprocation by the public official.
Thank you Haggai for this great comment! I definitely agree that rules that are similar to the Israeli rules concerning gift-acceptance by public servants could potentially be beneficial in the Solomon Islands’ situation. One problem though is that in the scenario of cultural gift-acceptance by a public official in the Solomon Islands – the official accepts the gift as a private person (or “as [a] member of [her] community”), and it is questionable whether such gifts could always be transferred to the state’s ownership. (Personally, I think they should.) But overall, I agree that the Israeli way may be helpful.
This is an extremely interesting post, you were right, I found it fascinating! I have had quite a few conversations with a number of politicians and public officials from different countries about how they feel that strict regulation on bribery leaves no space for completely normal practices of giving and receiving gifts. Frankly, I never truly bought those complaints and I still do not. My sense is that these particular amendments were a result of such complaints to some extent, and I agree with you – the selected wording can actually make it worse. I think your first point is probably also the most important one – if the penal code already had a clear definition of bribery with clearly defined elements, everything else would not be bribery.
Also, this reminded me of one particular situation in Lithuania. The Civil Code of the Republic of Lithuania used to have a special article that allowed doctors and other healthcare system employees to receive “symbolic” (whatever that means) gifts that were valued less than 1 minimal subsistence level – there was no other group of people were singled out in the Code in such a way. My sense had been that it existed because there was a prevalent practice of giving “gifts” to doctors and medical personnel that, most of the time, bordered bribery. In other words, there was such a strong social norm supporting this behavior that the legislator felt it needed that particular rule. Otherwise, the government might be held accountable for not putting in jail all the people who offered such “gifts” or all the doctors who received them (that would have made very little sense). As the social norm (very slowly) started eroding (in 2006), this article has been removed and now para. 5 of Art. 6.470 provides an expressed prohibition for politicians, civil and municipal servants and other public servants to accept gifts when these gifts are related to their official duties (doctors have been legally equated to public servants in most cases). It is interesting to think how it changed and why – and will it also change in the Solomon Islands in a similar manner.
Fascinating comment, Ruta! I am curious to know whether you have any sense as to why the social norm of gift-giving to doctors in Lithuania started to disappear in 2006. I find it interesting that the law was adapted (twice) to the social norm, instead of trying to change the norm. Anyway, I am sure that the blog could benefit from a post on this issue!
It is hard to dissect the exact reasons that determined the erosion of this social norm. There have been social campaigns initiated by the medical students organizations, NGOs, medical staff, the President’s Office, at some point – even the Ministry of Health (albeit briefly). There have also been personal initiatives by separate politicians. This resulted in creating a space for a discussion about the problem in the society, among the medical staff and in the media; all together, this kept moving the conversation further. At the same time, though, the time was passing and it may be that the general awareness in the society about the effects of what for a long time has been regarded “business as usual” started changing for cultural reasons as well. My post on one of those initiatives that (I think) contributed to the change is scheduled to be published here later.
And regarding the question of whether it was the erosion of the social norm that triggered changing the legal norm – or if it was the erosion of the legal norm that contributed to eroding the social norm… I do not know what came first. That is always an interesting question in jurisprudence, though.
Fascinating! Thank you Ruta. Looking forward to reading your forthcoming post.
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