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

Golden Visa/Passport Programs Have High Corruption Risk and No Demonstrated Economic Benefit. So Let’s Abolish Them.

We’ve had a couple of posts recently (from regular contributor Natalie Ritchie and guest poster Anton Moiseienko) about the corruption-related problem associated with so-called “golden visa” and “golden passport” programs (GV/GP programs), which grant either residency (golden visas) or citizenship (golden passports) in exchange for “investments” (or sometimes simply direct payments to the government) that exceed a certain threshold. Both Natalie and Anton reference recent reports by Transparency International-Global Witness and the European Commission, both of which focus in particular on the EU, and which are both very useful in documenting the risks associated with these residence/citizenship programs—including though not limited to corruption and money laundering risks. That said, the solutions proposed, while certainly helpful, feel a bit thin, in part because both the TI-GW and EC reports assume that these programs have at least some legitimate uses, or at the very least that it would be overstepping for outsiders (be they international bodies, other countries, or NGOs) to try to coerce states into abandoning these programs altogether.

My inclinations are somewhat different, and a bit more radical: I’d push for abolishing these programs entirely—certainly the golden passport programs, but probably the golden visa programs too. The risks associated with GV/GP programs are well-documented in Natalie and Anton’s posts, as well as the TI-GW and EC reports (and other sources), so I won’t dwell on them here. In short, as these and other sources convincingly demonstrate, GV/GP programs may provide safe havens for wealthy criminals and their money, often produce corruption in the programs themselves, and may also have more diffuse pernicious effects associated with the commodification and marketization of membership in a political community. I acknowledge that the risks associated with well-run programs may not be huge, but they’re not trivial, either. And I can’t for the life of me figure out what benefits these programs could have (to society, not to the governments that run them) that could possibly justify those risks.

The usual story is that these programs attract necessary foreign investment, stimulate the economy, and create jobs and raise government revenue. I’m no macroeconomist, and so I may be about to reveal my ignorance in embarrassing fashion, but I have yet to hear a convincing argument, let alone see a persuasive study, that establishes that these programs indeed have substantial economic benefits. Let me explain my puzzlement, and if I’m obviously misunderstanding some crucial point, either about how the programs work or about the economics, I hope some readers out there will correct me. Continue reading

Proposed Changes in Brazil’s Anticorruption Legislation: A Summary and Critique

Early last month, Brazilian Minister of Justice Sergio Moro (a former judge best known for his role in the so-called Car Wash corruption cases) introduced an extensive anti-crime legislation package. The package includes many measures, including some related to things like violent crime, but it notably includes five measures that are especially relevant to Brazil’s fight against corruption. What are these proposed changes, and what would their implications be?

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The Romanian Government Opposes the Appointment of Laura Codruta Kovesi as European Public Prosecutor. That’s Why She Should Get the Job.

There’s so much bad news in the anticorruption world these days that it’s hard to keep up. But I’ve recently been reading up on the ongoing debates in Europe over the selection of the first European Public Prosecutor, and I think this issue deserves some discussion, and even more attention from the anticorruption community in Europe and around the world.

Here’s the quick background for those who aren’t familiar with this issue: Back in 2017, 20 EU Member States agreed to create a new institution called the European Public Prosecutor’s Office (EPPO), headed by a European Public Prosecutor, with authority to investigate and prosecute (in national courts) offenses connected to the EU’s financial interests, such as fraud or embezzlement involving EU funds. (22 EU countries have now agreed to participate in the EPPO system.) The EPPO is scheduled to begin operations in late 2020 or early 2021, and the EU is in the process of selecting the first EPPO head. The three finalists are a Jean-Francois Bohnert of France, Andres Ritter of Germany, and Laura Corduta Kovesi from Romania. Ms. Kovesi had been considered a frontrunner, and still might secure the post, but her candidacy is under attack from her own government. Indeed, it seems that intense lobbying against her by the Romanian government is what led the Committee of Permanent Representatives in the European Union to back Bohnert for the job, though the European Parliament’s Committee on Civil Liberties, Justice, and Home Affairs voted to support Kovesi. The selection process is still ongoing, and it’s not clear when a final decision will be made. For those getting cold feet about Kovesi, though, it seems that the opposition of her home government is a significant reason.

In my view that’s not only wrong, but backwards. The Romanian government’s no-holds-barred, all-out attack on Kovesi is one of the best arguments for appointing her. I don’t know enough about the candidates to have a considered view of which of them, all else equal, would do the best job heading the EPPO, but assuming that they are all basically well-qualified, the Romanian ruling party’s panic over the prospect that Kovesi might get the job is exactly why she should be appointed, for two reasons:

  • First, the fact that government of one of the most corrupt countries in the EU—one with the greatest theft and misappropriation of EU funds—is terrified that Kovesi might get the job, but apparently fine with either of the other two choices, is strong evidence that she’ll be more effective. After all, if we were selecting the city police chief, and we found out that the local mafia boss strongly objected to candidate A, but was fine with candidates B and C, that seems like a point in candidate A’s favor, not a strike against her. (And if you think it’s unfair to compare the government of an EU member state to an organized crime family, well, read on.)
  • Second, the Romanian government is conducting a fairly blatant attempt to misuse its justice system in order to interfere with an EU decision process, in the context of a corrupt and increasingly illiberal ruling party. The EU is already struggling to deal with backsliding in Hungary and Poland, and it needs to show that it won’t be bullied or manipulated, and that if Member States want to be treated as good EU citizens, they need to comport with basic norms.

Now, given that I just made those statements with what sounds like great confidence, and the rest of this post may adopt a similarly confident tone, I should immediately add the caveat that I am not an expert on Romania, I’ve never been there, I don’t speak the language, and all I know about the situation, as the old saying goes, is what I read in the papers. So if you want to say I don’t know what I’m talking about, fair enough, you have a point. But I’ve been reading a lot about this, and what I’ve read seems both sufficiently scary, and sufficiently clear, to merit comment. Moreover, I think the Romanian government’s strategy relies in part on non-experts feeling like they don’t really understand what’s going on, so that it starts to feel like that, in the face of conflicting narratives (a sort of he said/she said), it’s best just to avoid controversy by supporting a “safe” choice for EPPO head. We’ve got to resist that impulse. Appointing someone other than Kovesi may seem like the safe choice, but that’s exactly why Kovesi is the right choice. Continue reading

The Bolsonaro Administration is Quietly Reducing Transparency in Brazil

Right-wing populist Jair Bolsonaro was inaugurated President of Brazil on January 1, 2019. As a candidate, Bolsonaro promised that his regime would break with the large-scale graft of Brazil’s former leaders and would ruthlessly pursue the corrupt and bring them to justice. At the end of January, Justice Minister Sergio Moro released, with much fanfare and press attention, a sweeping anti-crime legislation package that addresses both white collar crime and violent organized crime, and that incorporates some, though not all, of the anticorruption measures proposed by Transparency International. So does this mean that the Bolsonaro Administration is following through on its promise to make the fight against corruption a major priority, and to end the culture of impunity that has shielded Brazilian political elites?

Alas, no. While the anti-crime package (and other high-profile pieces of legislation, like tax reform) have been highlighted by the administration and attracted most of the media attention, less prominent yet equally consequential pieces of legislation related to corruption are being passed with little to no warning or public debate. Here are two examples of major events that have occurred within the first month of the regime that should give anticorruption scholars and the international community pause in their evaluation of the Bolsonaro government’s fight against corruption:

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Some Good News and Bad News About Transparency International’s Interpretation of its Latest Corruption Perceptions Index

In my post last week, I fired off a knee-jerk reaction to Transparency International’s latest Corruption Perceptions Index (CPI). My message of that post was simple and straightforward: We shouldn’t attach much (or perhaps any) importance to short-term changes in any individual country or region’s CPI score, and the bad habit of journalists—and to some extent TI itself—of focusing on such changes is both misleading and counterproductive.

Since I was trying to get that post out quickly, so as to coincide with the release of the CPI, I published it before I’d had a chance to read carefully all of the material TI published along with the new CPI, and I promised that once I’d had a chance to look at those other materials, I would follow up if I had anything else to say. I’ve now had that chance, and I do have a few additional thoughts. The short version is that the way TI itself chose to present and discuss the implications of the 2018 CPI, in the accompanying materials, is both better and worse than I’d originally thought.

So, first, the bad news: Continue reading

A Reminder: Year-to-Year CPI Comparisons for Individual Countries are Meaningless, Misleading, and Should Be Avoided

Today, Transparency International released its new Corruption Perceptions Index (CPI) for 2018. At some point, hopefully soon, I’ll have time to look closely at the new data and accompanying materials, and if I have something to say about it, I’ll post it here. But that will probably take a while, and since the media coverage of the CPI is usually pretty intense in the first few days after the release, and dissipates in a week or two, I wanted to get out at least one post right now, on the day of the release, with a plea to everyone out there–especially journalists, but civil society activists and others as well:

DO NOT COMPARE ANY GIVEN COUNTRY’S CPI SCORE TO LAST YEAR’S SCORE TO MAKE CLAIMS ABOUT WHAT’S HAPPENING IN THE FIGHT AGAINST CORRUPTION.

Just don’t do it. Don’t. I know the temptation can seem overwhelming. Who’s up? Who’s down? Things are getting better! Things are getting worse! Nothing is changing! So many stories can be written based on these changes (or non-changes).

But these sorts of comparisons are virtually all completely useless, and probably counterproductive. Continue reading