Aggressive Criminal Law Enforcement Is Insufficient to Combat Systemic Corruption. But That Doesn’t Mean It’s Not Necessary.

This will be a super-short blog post that makes a super-short point. Here goes:

Let me start by stating the following proposition: Effective enforcement of anticorruption rules, including criminal law enforcement, against individual wrongdoers is necessary but not sufficient to combat systemic corruption.

Both parts of that proposition are important, and I believe correct:

  • Punishing individual wrongdoers is necessary to combat systemic corruption because without individual accountability, it’s not possible to deter those who might be tempted to abuse their entrusted power for private gain, and the absence of individual accountability will likely perpetuate the belief that powerful elites are above the law, feeding the sense of hopelessness or resignation or cynicism that contributes to the vicious cycle that perpetuates systemic corruption.
  • Punishing individual wrongdoers is not sufficient to combat systemic corruption because widespread corruption is generally the product of systems, institutions, and cultures that create the incentives and opportunities to behave corruptly, and without addressing these root causes of corruption, even the most aggressive anticorruption enforcement efforts will be ineffective.

I don’t think either of those claims should be controversial. But I’ve noticed that in debates over anticorruption efforts in various countries, people sometimes commit the logical fallacy—usually by implication rather than expressly—of treating the second claim (that criminal law enforcement is not sufficient to combat systemic corruption) as if it negated the first claim (that criminal law enforcement is necessary to combat systemic corruption). The argument is usually phrased something like this: “Country X is cracking down on corruption and aggressively enforcing its anticorruption laws and putting people in jail. But this is a mistake, because combating systemic corruption actually requires broad-based institutional reforms. The focus should therefore be on institutional reform, not on aggressive criminal law enforcement.”

I agree that criminal prosecutions alone can’t solve the corruption problem, and recent history is littered with examples of anticorruption “crackdowns” that failed to produce lasting change. And there’s certainly an important question as to where the emphasis should be—it’s entirely possible that in many countries there’s too much focus on criminal prosecutions and too little attention to other types of reform. But it’s not an either/or tradeoff, and it troubles me that the (correct) observation that criminal prosecutions are insufficient is so often deployed rhetorically to imply that aggressive criminal law enforcement is not necessary or appropriate. (I noted something like this argument in a previous exchange concerning Ukraine, and more recently encountered it in a discussion of the Car Wash Operation in Brazil, but I’ve heard basically the same line in conversations about many other countries.) Recognizing the importance of structural reform shouldn’t obscure the fact that effective enforcement of anticorruption laws, and the imposition of individual accountability, is also a vital part of the anticorruption agenda. After all, while there are plenty of punishment-focused anticorruption crackdowns that failed to produce systemic change, I can’t think of any successful efforts to get rampant corruption under control that didn’t involve a hefty dose of aggressive enforcement of the laws against corruption, including prosecution and punishment.

A Cultural Defense to Bribery? The Solomon Islands’ Approach

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: Continue reading