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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Corruption and Bribery

Chen Siyuan, Sui Yi Siong

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 31 March 2020

Subject(s):
Corruption and bribery — Criminal penalties

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition

1.  In popular expression, and even in a number of scholarly works, the terms ‘corruption’ and ‘bribery’ have been treated as synonyms with little difference in meaning (Boersma). However, as explained below, the two terms do have distinct meanings.

1.  Popular and Legal Definitions

2.  The word ‘corruption’ traces its roots to the Latin word corruptus, which means ‘to break’ (Nicholls). As explained by the UK Law Commission’s consultation paper ‘Legislating the Criminal Code: Corruption’ (15 January 1997), the verb ‘to corrupt’ means ‘to destroy or pervert the integrity or fidelity of (a person) in his discharge of duty; to induce to act dishonestly or unfaithfully; to make venal; to bribe’. According to the same paper, the adjective ‘corrupt’ means ‘perverted from uprightness and fidelity in the discharge of duty; influenced by bribery or the like; venal’.

3.  Bribery, on the other hand, has been defined in more particular terms as ‘the receiving or offering of any undue reward by or to any person whatsoever ... in order to influence his behaviour in office and incline him to act contrary to the known rules of honesty and integrity’ (Turner).

4.  Hence, taking the aforementioned definitions together, it can be said that bribery is a subset of corruption; in fact, bribery is essentially a simple form of corrupt transaction. As explained by the UK Law Commission in the said paper, the paradigmatic situation of bribery involves three parties: A, the donor of a bribe (the briber); B, the agent of C and recipient of the bribe (the bribee); and C, the principal of B. The purpose of a bribe by A is to cause B to act contrary to the interests of C, and in the interests of A. A does this, not by requiring B to act in the interests of A rather than C, but by tempting B to act in self-interest, the result of which will coincide with a result desired by A, also acting in self-interest.

5.  This example by the UK Law Commission illustrates the mischief which the law of corruption is concerned with: the fundamental mischief (B’s breach of duty), and the mischief of temptation (A’s temptation of B, by bribery, to breach his or her duty). Corruption is an offence because not only is it a fraud on the principal by improperly putting the principal’s private interests at risk, it is contrary to the public interest because of the damaging consequences if such conduct becomes widespread. It is in the public interest that people should refrain from conduct which might encourage agents to act in breach of their duty—whether or not anyone is defrauded by such conduct.

6.  In any case, there is clear evidence that corruption is detrimental to a society’s development and growth, with the World Bank estimating the annual global cost of corruption as at least US$1 trillion (Wouters, Ryngaert and Cloots). Municipally, a climate of corruption particularly disadvantages societal sectors such as public healthcare and education, where rent-seeking opportunities are smaller and which consequently receives less government support. Over time, pervasive corruption undermines a country’s rule of law as its political institutions weaken and lose credibility internally and externally. When that happens, national wealth is depleted, international standing is reduced, and left unchecked a country can become deeply trapped in a cycle of poverty and great income inequality (Uslaner).

7.  It therefore stands to reason that the duty to combat corruption is enshrined in certain constitutions, though such entrenchment is in and of itself only a small step in the battle against corruption, as much depends on the strength of other critical rule of law institutions in the country in question. Moreover, whereas it is not unusual for constitutions to contain references to individual rights, the limits of state intervention, and the division of governmental powers, it is rare to include specific positive duties on states, not least a specific duty pertaining to corruption. According to a Transparency International article entitled ‘Anti-Corruption Clauses in Constitutions’ (30 September 2013) (see Chêne), however, there is a

broad consensus that the constitutional design of a country can either promote or hinder anti-corruption reforms ... Corruption can be addressed implicitly in the Constitution by setting up a well-functioning governance framework (entrenching concepts such as separation of powers and granting immunities and privileges to ensure independence) ... corruption can also be addressed explicitly by including corruption specific clauses in the constitution.

8.  The guarantee of related fundamental rights, such as the freedom of the press, freedom of expression, freedom of association, and even newer rights such as the right to access to information, are also helpful in combating corruption and can be achieved through constitutional design or interpretation. The citizenry, empowered by such rights, act as an additional check against government excess in such a set-up.

2.  Corruption and Bribery in Constitutions and International and Regional Treaties

9.  But there are important issues that stand in the way of using constitutional design to combat corruption. For a start, despite, or perhaps because of the rather wide definition of corruption, none of the constitutions surveyed in this entry define the meaning of corruption. Some constitutions do refer to corruption or impose a positive duty on public officials to root it out, but none of them expressly define it. For example, Art. 17(1)(i) of the Constitution of the Republic of Uganda: 8 October 1995 (Uganda) provides that ‘it is the duty of every citizen of Uganda to combat corruption and misuse or wastage of public property’, but says nothing about what constitutes corruption. Similarly, Art. 9(1)(b) of the Constitution of Zimbabwe: 22 May 2013 (Zim) provides that the state is to take measures to ‘expose, combat and eradicate all forms of corruption and abuse of power by those holding political and public offices’, and Art. 15(5) of the Constitution of the Federal Republic of Nigeria: 29 May 1999 (Nigeria) states that the state ‘shall abolish all corrupt practices and abuse of power’, but neither Constitution defines what constitutes corruption.

10.  To be clear, the aversion to defining corruption has not been confined to the municipal sphere. The major international and regional treaties that seek to establish a framework to combat corruption also do not provide a definition of corruption, general or otherwise. Instead, they concentrate on the illustration of certain common forms of corrupt practices, and set out the essential elements of such practices (Bello). The exception to this is the Council of Europe’s Civil Law Convention on Corruption ((done 4 November 1999, entered into force 1 November 2003) CETS No 174), which defines corruption in its Art. 2. Perhaps the most notable example of an international anti-corruption treaty without a definition of corruption is the UN Convention against Corruption (‘UNCAC’) ((adopted 31 October 2003, entered into force 14 December 2005) 2349 UNTS 41). With 178 states parties and therefore constituting international custom by default, the treaty does not define corruption, but only provides for acts and practices constituting corruption, such as: bribery of national public officials (Art. 15); bribery of foreign public officials (Art. 16); embezzlement by a public official (Art. 17); embezzlement of property in the private sector (Art. 22); trading in influence (Art. 18); abuse of functions (Art. 19); illicit enrichment (Art. 20); bribery in the private sector (Art. 21); laundering the proceeds of crime (Art. 23); and concealment (Art. 24).

11.  Likewise, Art. VI of the Inter-American Convention against Corruption ((done 29 March 1996, entered into force 6 March 1997) (1996) 35 ILM 724) as well as Art. 4 of the African Union Convention on Preventing and Combating Corruption ((adopted 11 July 2003, entered into force 5 August 2006) (2004) 43 ILM 5) only provide that they are applicable to certain acts of corruption, without providing any general definition of corruption. In the same vein, the Council of Europe’s Criminal Law Convention on Corruption ((done 27 January 1999, entered into force 1 July 2002) CETS No 173) does not define corruption though it does define bribery. Interestingly, however, the Inter-American Convention against Corruption focuses on the acts of government officials or persons performing public functions (see paragraphs 1a–13 of Art. VI), whereas the African Union Convention on Preventing and Combating Corruption provides for acts of private sector corruption as well (see paragraphs 1e–1f of Art. 4), as does the Council of Europe Civil Law Convention on Corruption (see Arts 2–8).

3.  The Difference between Public and Private Corruption

12.  As can be seen from the UNCAC and African Union Convention on Preventing and Combating Corruption, a distinction can be drawn between public corruption (that is, acts committed by public officials or persons who perform a public function) and private corruption (that is, acts committed by non-public officials, typically in a business setting). Some regional conventions focus solely on one over the other, such as the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (adopted 21 November 1997, entered into force 15 February 1999) (1998) 37 ILM 1), otherwise known as the OECD Anti-Bribery Convention.

13.  However, the utility of maintaining the distinction between public corruption and private corruption has been questioned. In the aforementioned consultation paper, the UK Law Commission commented that

the main objection to having a separate offence is that it is very difficult to define with sufficient clarity the distinction between public sector and private sector functions. Increasingly, what were formerly public sector functions are sub-contracted out to private companies while public bodies now frequently form joint ventures with private companies.

14.  The gradual blurring of lines between public and private corruption has also been judicially noted. Recently, the Singapore High Court in Public Prosecutor v Syed Mostofa Romel (2015) (Sing) commented that since the ability of private actors to influence the public interest has increased significantly as compared to the past, there is a compelling need to ensure that they are held accountable for the public services that they are responsible for delivering and the manner in which public money is spent. This position was echoed in another High Court decision in Soon Meng Choon Andrew v Public Prosecutor (2015) (Sing).

15.  Furthermore, in terms of sentencing, it has been observed that courts do not distinguish between public and private corruption (Nicholls). There is no rule that only public corruption attracts custodial sentences. The Court of Appeal of Hong Kong in R v Wong Tat-Sang (1985) (HK), for example, declared that it could not ‘for a moment accept the suggestion that bribery in the private sector is in any way to be regarded as less culpable than bribery in the public sector’. The Singapore High Court in Public Prosecutor v Ang Seng Thor (2011) (Sing) also observed that there is ‘clearly a public interest’ in the private sector maintaining a reputation for being corruption free—since a climate of commercial even-handedness and market efficiency are key factors in attracting and keeping domestic and foreign investment, the health and stability of the wider economy would be harmed if a culture of corruption was allowed to take root (in this regard see also TeyTsun Hang v Public Prosecutor (2014) (Sing). Hence, in most jurisdictions, an offender guilty of private sector corruption will not always be able to escape with only a fine—if the sum of money involved is significant or if he was in a senior position, a lengthy custodial sentence may be imposed.

16.  All things considered, there appears to be little reason to continue to uphold the dichotomy between private sector and public sector corruption, though conceptually and by the nature of their differences the elements that give rise to the respective offences will of course not be the same.

B.  Analysed Constitutions

17.  For this entry, the following constitutions will be analysed in greater detail and compared for the following reasons.

18.  First, we will look at the Constitution of the Republic of Kenya: 6 May 2010 (Kenya), which had replaced its 1969 predecessor after a referendum. As is the case with most African nations, the Kenyan Constitution contains various provisions that directly refer to corruption and a duty to combat it. More importantly, several recent cases heard by the Kenyan High Court and Court of Appeal have tested the outer limits of such provisions, providing some indication as to how these clauses can be interpreted. From a wider perspective, Kenya is of course together with much of Africa at the stage of accelerating its economy, and the fight against corruption is indispensable to that end. In this sense, the Kenyan constitutional experience with respect to corruption has particular representativeness.

19.  Secondly, we will look at the Constitution of the United States of America: 21 June 1788 (US). This Constitution is interesting in the sense that, though it may not be immediately apparent given the absence of clear references to anti-corruption, commentators have claimed that it was designed for the very purpose of combating corruption (Teachout (2014)) and that anti-corruption is a central theme. This claim is built on an analysis of the history surrounding the creation of the Constitution, the jurisprudence of the Supreme Court, and the notion that the anti-corruption principle is as freestanding and inherent in the Constitution as the principles of separation of powers and federalism (Teachout (2009)). This claim also presupposes a much broader view of corruption and bribery—that of a weak-willed government falling prey to abuse of power.

20.  Thirdly, we will look at the Constitution of the Republic of Singapore: 9 August 1965 (Sing). Singapore, as a significant trading and financial hub, has one of the world’s highest GDPs (Gross Domestic Product) (per capita) and consistently ranks as one of the world’s least corrupt nations. This is so even though its Constitution makes no express reference to corruption or corrupt behaviour. What Singapore lacks in constitutional provisions, however, it makes up for with robust domestic legislation that imposes a presumption of corruption in certain cases. The jurisprudence that has interpreted the legislation has also been uniformly anti-corruption in their approach, and constitutional challenges made against such legislation have failed, without exception.

21.  Finally, we will briefly look at the Constitution of the Kingdom of Denmark: 5 June 1953 (Den). Like Singapore, Denmark, has historically had very low levels of corruption, and usually ranks as one of the top three least corrupt nations under Transparency International’s Corruption Perception Index (see Transparency International Corruption Perception Index). Also like Singapore, Denmark’s Constitution contains no reference to corruption or corrupt behaviour.

22.  Before analysing the said constitutions, however, it is important to first understand the historical development of the law against corruption so as to situate its importance amidst competing sovereign goals.

C.  Historical Evolution

23.  Notwithstanding its obvious detriments to society and the economy, the development of an international consensus against corruption was only formed over a gradual period of time in the last few decades. During the Cold War, parties on both sides of the Iron Curtain were eager to support potential allies, with virtually no concern for the level of corruption within those states (Wouters, Ryngaert and Cloots). In addition, some economists in the 1970s were claiming that certain types of corruption could actually be beneficial to society (Gathii).

24.  But once the Cold War ended and communism and its variant ideologies were widely thought to be antithetical to true economic sustainability, there was no longer any need to support corrupt regimes for security reasons. In fact, post-Cold War conditions facilitated corrupt practices in certain respects. Some examples would include: the fall of communist regimes without an immediate replacement by fully democratic and accountable institutions; the wave of privatization; and technological evolution facilitating quick communication and money transfers (Wouters, Ryngaert and Cloots).

25.  It was only a couple of decades later that international law attempted to provide a response to the rise of corruption and its implications in the trans-border context, and this, in turn, compelled many states to look at the issue of corruption more closely. The precursor to the UNCAC was the UN Convention against Transnational Organized Crime (‘UNCTOC’) (2225 UNTS 209). The UNCTOC arose out of the UN General Assembly’s determination (see Resolution 55/25 of 2000) that only an international convention could effectively combat transnational organized crime. While the UNCTOC’s main focus was on the activities of organized criminal groups such as money-laundering, corruption was also recognized as an instrument or effect of organized crime. Arts 8 and 9 of the UNCTOC therefore called upon each state party to criminalize corruption and take measures to prevent it, although it defined corruption in the context of public sector corruption. Subsequently, the UN General Assembly decided that an effective international legal instrument against corruption was desirable, and on 31 October 2003 the UNCAC was adopted via Resolution 58/4. It bears mention that unlike the UNCTOC, the UNCAC explicitly applied to private sector corruption as well, thereby further strengthening the global fight against corruption.

26.  Interestingly, some regional anti-corruption treaties have arisen for domestic reasons. For instance, the OECD Anti-Bribery Convention came about because the US was concerned that its domestic companies would lose their competitiveness overseas. In 1977, amid public outcry over the revelation that major US corporations had bribed foreign companies and public officials, the government enacted the Foreign Corrupt Practices Act (US), or the ‘FCPA’ for short. However, an unintended side effect was that the US private sector became handicapped in their overseas business dealings, because their foreign competitors had no such restrictions imposed on them (Kaiafa-Gbandi). The private sector thus lobbied the government to level the international playing field, which led to the US using the OECD Anti-Bribery Convention to extend the principles of the FCPA to the international business community (Webb).

27.  With the backdrop to the global forces that shaped the development of anti-corruption laws on both the local and international planes, we turn to examine the specific laws of the surveyed jurisdictions.

D.  Comparative Description

1.  Kenya

28.  Pursuant to Art. 73(2)(b) of the Kenyan Constitution, public officials are required to be objective and impartial in their decision making, and to refrain from being influenced by nepotism or other corrupt practices. This is the key provision in the Kenyan Constitution that pertains to corruption. There have been a number of cases that have confirmed that the Kenyan High Court can declare that an appointee or nominee to a state or public office lacks integrity pursuant to Art. 73, and on that basis set the appointment aside.

29.  One such case was Trusted Society of Human Rights Alliance v Attorney General (Petition 229 of 2012) (Kenya), which involved a challenge to the appointment of the chairperson of the Ethics and Anti-Corruption Commission. The applicant’s case was that the relevant appointing authorities failed to resolve serious allegations linking him to financial improprieties whilst he was a senior officer at a public institution, and therefore the appointment was unconstitutional.

30.  The court observed that Art. 73 was a manifestation of the people’s desire to clean up domestic politics by insisting on high standards of personal integrity in those seeking to hold public office. The requirements of objectivity and impartiality were not intended to be ‘lofty aspirations’; they are meant to have ‘substantive bite’ and be enforced and implemented. Hence, state organs and officials in charge of appointing other officials must ensure that the persons selected for these positions meet these constitutional criteria, and if they do not, the court is obligated to step in. The court went on to hold that a person is said to lack integrity when there are ‘serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution’. Because the chairperson faced such substantial unresolved questions, the High Court set aside his appointment.

31.  On appeal to the Court of Appeal (see Mumo Matemu v Trusted Society of Human Rights Alliance (Civil Appeal 209 of 2012) (Kenya)), the High Court’s decision was reversed. However, the Court of Appeal did this on the basis that there was insufficient evidence before the High Court to support its finding that the chairperson lacked the necessary integrity as required by the Constitution. It did not disturb the High Court’s holding that a court can review the appointment of a person to state or public office. The legal principle espoused by the High Court was thus left intact.

32.  Trusted Society was later successfully applied in Benson Riitho Mureithi v JW Wakhungu (Cabinet Secretary, Ministry of Environment) (Petition 19 of 2014) (Kenya) where the High Court set aside the appointment of the Chairman of the Athi Water Services Board because the respondent had failed to consider his integrity in appointing him. Specifically, the respondent had failed to consider the fact that the Chairman had been previously charged for incitement to violence and hate speech (which led to the deaths of members of an ethnic group) and was involved in litigation regarding the fraudulent transfer of property.

33.  Unfortunately, notwithstanding these judicial developments, Kenya consistently ranks low on Transparency International’s Corruption Perceptions Index. In 2015, it was ranked 139th out of 167 countries, while its ranking in 2013 and 2014 were 136th out of 175 countries and 145th out of 174 countries respectively. It should be noted too that other pieces of legislation exist in Kenya to combat corruption, such as the Anti-Corruption and Economic Crimes Act (2003), Ethics and Anti-Corruption Commission Act (2011), and Leadership and Integrity Act (2012). The Kenya Anti-Corruption Commission was also established in 2003 to investigate corruption cases before forwarding them to the Attorney-General for prosecution. This was succeeded by the Ethics and Anti-Corruption Commission in 2011, which has been constitutionally mandated to investigate and recommend prosecutions for acts of corruption. In 2013, it succeeded in opposing a constitutional challenge by government officials to have a prosecution for corruption stayed (see Thuita M wangi v The Ethics and Anti-Corruption Commission (Petitions 153 of 2013 and 369 of 2013) (Kenya)).

34.  All things considered, however, prohibiting corruption under the Constitution is only one of the steps in the multi-pronged battle against the malaise.

2.  The US

35.  The word ‘corruption’ does appear in the US Constitution but not in the same context with which we have approached the term here (Art. 3 Section 3 ‘corruption of blood’, one of the consequences of attainder). How, then, does one arrive at the conclusion that the guarding against corruption is one that recurs throughout the Constitution, and that the Constitution was consciously designed to combat corruption? The analysis lending support to this conclusion is both based on history and relatively contemporary jurisprudence pertaining to political financing and expenditure (public finance).

36.  Beginning with the historical aspect, it has been observed that when the Framers were designing the Constitution, they considered political corruption to be the key threat to the new state. Across the spectrum, from federalist proponents to anti-federalists and from monarchists to classical republics, there was, due to the influence of Montesquieu, a widespread obsession with corruption (Teachout (2009)). This was evident during the constitutional convention as well. The result was a Constitution that included a litany of checks against corruption. For instance, in Art. 1 US Constitution, notions of limiting the size of the houses, the mode of election (elections), term limits, access to funds, and restrictions on the acceptance of foreign gifts were all motivated by an anti-corruption impulse (Teachout (2009)). As another example, Art. 2, which sets out the interplay between the different branches of government as regards certain veto and appointment powers, is inherently predicated on the supposition that any given branch of the government could collude and corrupt each other (Teachout (2009)).

37.  However, the experience of the courts in interpreting the Constitution when it comes to corruption issues has been quite varied. Instead of looking at the Constitution as a whole and the irreducible values it embodies, the tendency has been to analyse corruption in terms of how it interacts with specific fundamental human rights, or to define it narrowly as the illegal procurement of political favours. The reference to the historical development of the Constitution is inconsistent at best.

38.  The start of the modern phase of case law can be traced to Buckley v Valeo (1976) (US), in which two main issues confronting the court were whether Congress could legislate the amount of money candidates received for political campaigns (political candidates and campaigns) and whether Congress could limit the amount these candidates spent. What was noteworthy was that the discourse ultimately revolved around how First Amendment rights should be balanced, with the court eventually finding that restricting large campaign contributions served a legitimate public interest in the prevention of corruption—but corruption in the sense of the purchase of political favours for the purposes of undermining of the electoral process. Such a view was also adopted in subsequent cases such as Citizens against Rent Control/Coalition for Fair Housing v City of Berkeley (1981) (US).

39.  Then there are cases that go beyond First Amendment concerns and engage another constitutional protection: equality, which is part of the Fourteenth Amendment. In cases such as Federal Election Commission v Massachusetts Citizens for Life, Inc (1986) (US), the court characterized corruption as an unfair deployment of wealth for political purposes and the denial of equal access to political life and power. In Austin v Michigan State Chamber of Commerce (1990) (US), the court described corruption as immense aggregations of wealth accumulated with the help of corporations that have corrosive and distorting effects on the public’s support for political ideas (this decision has since of course been famously criticized by the majority in Citizens United v Federal Election Commission (2010) (US)).

40.  However, in the final analysis, does it matter whether corruption is conceptualized as a foundation stone of a constitution, or just another type of crime (albeit a serious one) that is detrimental to democracy? The irrefutable fact, of course, is that the Constitution as a source of law trumps any other source of law, and if properly designed, can assist greatly the judiciary in combating corruption. But as will be seen, there are other viable legal (and political) options apart from constitutional design.

3.  Singapore

41.  Unlike Kenya, the Constitution of Singapore does not contain any express provisions dealing with corruption, nor has there been any attempt to read into the Constitution any recurring principle of anti-corruption (in the specific sense). Nonetheless, Singapore is well-known for being one of the least corrupt countries in the world, regularly ranking in the top 2–3 per cent in Transparency International’s Corruption Perceptions Index. Corruption and bribery are policed via domestic criminal legislation, chief of which is the Prevention of Corruption Act (1993) (Sing) or ‘PCA’ for short. The PCA replaced the Prevention of Corruption Ordinance, which had prohibited corruption in a very limited way by illustrating only three types of corrupt behaviour and making none of the offences seizable ones (which meant warrants were always needed for arrests). Coupled with a lack of resources given to the then Anti-Corruption Branch, investigation and enforcement were ineffective even in the tiny island-state.

42.  The PCA brought about a sea-change as the newly formed Corrupt Practices Investigation Bureau (more commonly referred to as the ‘CPIB’) was given a specific mandate to be independent from political influence and also vast resources to investigate offences and enforce the new anti-corruption laws that carried much heavier sentences than before (CPIB 2012). To ensure its independence, the CPIB has ‘two masters’ (as described by Singapore’s late founding Prime Minister, Lee Kuan Yew): as an investigating agency, it falls under the purview of the Prime Minister’s Office, and its Director reports directly to the Prime Minister. However, the President has veto powers over the Prime Minister’s appointment of the director pursuant to Art. 22(1) of the Constitution of Singapore, and moreover, should the Prime Minister ever refuse to allow the Director to carry out an investigation, the President can overrule the Prime Minister’s decision per Art. 22G of the Constitution of Singapore.

43.  The political will to stamp out corruption was strong the moment the dominant People’s Action Party took power in 1959. Since then, there has been a conscious political effort to perpetuate a culture of anti-corruption, manifested most prominently in the form of the PCA and its relentless enforcement (CPIB 2012). In a stark example of political intolerance of corruption, a minister committed suicide in the 1980s after the CPIB began investigating him for allegedly receiving a bribe. In recent years, the CPIB has also investigated several high-ranking public officials, such as the former director of Singapore’s Central Narcotics Bureau, and the former Commissioner of the Singapore Civil Defence Force. While not all the eventual prosecutions led to convictions, the fact that charges were even brought in the first place is a manifestation of what Singapore’s current Law Minister K Shanmugam has previously described as ‘a culture of respect for the law, and an expectation that the law will be impartially enforced, both in Government and in society at large’ (Shanmugam).

44.  In terms of substantive law, under the PCA, it is an offence to ‘corruptly’ solicit or receive, or give, promise or offer to any person any gratification to induce them to do anything in respect of any matter or transaction. In order to prove this offence of corruption, the Singapore High Court in Chan Wing Seng v Public Prosecutor (1997) (Sing) has explained that there must first be an objective corrupt element in the transaction, and that the recipient of the gratification must have accepted it with guilty knowledge.

45.  Section 8 of the PCA also includes a presumption of corruption in transactions involving persons in the employment of the government or a public body. This is a very wide definition which not only includes civil servants, but also professors in a publicly funded tertiary education institution such as the National University of Singapore, as was held in TeyTsun Hang. A person who falls under this definition who receives gratification is deemed to have received it corruptly as an inducement or reward, unless he can prove otherwise. Presumptions of such nature, particularly for offences deemed grave by society, have been held to be constitutional (see for instance Ong Ah Chuan v Public Prosecutor (1979–1980) (Sing), a decision concerning the Misuse of Drugs Act (2001)) (Sing)).

46.  Much like other domestic anti-corruption legislation in other countries (see for instance the United States’ Foreign Corrupt Practices Act (1977) (US)), the PCA has extraterritorial application (extraterritoriality). Section 37(1) states that

the provisions of this Act have effect, in relation to citizens of Singapore, outside as well as within Singapore; and where an offence under this Act is committed by a citizen of Singapore in any place outside Singapore, he may be dealt with in respect of that offence as if it had been committed within Singapore.

47.  Section 37(1) has since been subject to a constitutional challenge, in which it was argued that the provision violated the right to equal protection under Art. 12 of the Constitution of Singapore.

48.  Specifically, in Taw Cheng Kong v Public Prosecutor (1998) (Sing), the High Court narrowly defined the objective of the PCA as being meant to address acts of corruption within Singapore or acts of corruption outside of Singapore but affecting events within it. On this basis, the court concluded that the extraterritorial application of the PCA on the basis of citizenship was unfairly discriminatory in that it caught a class of persons not contemplated by the legislative objective (that is, Singapore citizens who lived and worked abroad and committed corrupt acts that did not impact Singapore). However, this decision was reversed by the Court of Appeal in Public Prosecutor v Taw Cheng Kong (1998) (Sing), which held that simply postulating examples of over- and under-inclusiveness was insufficient to rebut the presumption of constitutionality. In any case, the court defined the legislative intention behind the PCA more broadly as increasing the effectiveness of corruption prevention while observing rules of international comity; accordingly, differentiation on the basis of citizenship was rationally connected to the furtherance of this legislative aim.

4.  Denmark

49.  As mentioned, Denmark also does not have any provisions in its Constitution that relate to corruption. However, unlike Singapore, Denmark’s domestic anti-corruption legislation is subsumed under its Criminal Code or Straffeloven and does not exist as a separate piece of legislation with comprehensive provisions. Sections 122 and 144 of the Straffeloven prohibit any person—individual or legal person—from unduly giving or receiving a gift as an inducement to do or not do anything related to their official duties. The case law on these provisions, however, is limited, and this is a picture consistent with the widespread perception of the low level of corruption in the country.

50.  But it has been suggested that while the level of corruption is perceived to be low in Denmark, this does not mean that corruption does not occur. It merely means that corruption is perceived as unacceptable by the population in general, and that public officials in particular do not see themselves or their colleagues as accepting bribes. Bribery is thus neither an implied custom nor part of the relevant person’s self-perception (Bonsing and Langsted).

51.  In fact, it has been argued that there are several reactively peculiar aspects of Danish society that contribute to its successes at controlling corruption: its small scale and social homogeneity; its deep and extensive social capital; and its status as a market democracy (Johnston). Further, the various rule of law institutions in the country, such as the legislature, the judiciary, the police, and tax authorities, have a good reputation of being efficient and impartial (Ramirez). This means that the fight against corruption does not rest on just the strength of laws and their consistent enforcement, but is aided by wider systemic checks against corruptibility as well. One may even go further to argue that the presence of specific and strict laws—constitutionally mandated or otherwise—is not even an important factor, if this limited survey is anything to go by.

E.  Assessment

52.  As seen from what has been discussed above, ultimately, the effectiveness of constitutional safeguards against corruption and legislative criminalizing corruption very much depends on the institutions appointed to enforce them, though the societal perception of the cultural acceptability of corruption and democratization are generally important factors too, and the instrumentality of these factors are often under-estimated (Tanzler, Maras and Giannakopoulos). In other words, a successful battle against corruption depends on many factors, and laws, constitutional or otherwise, may not assume that great an importance until other rule of law and political institutions have stabilized (see also Shanmugam).But whichever approach one takes, a Constitution in and of itself is hardly a guarantee against anything if a country is constantly in the state of coups and revolutions and the Constitution can be rewritten with no (legal or practical) inhibition. This is so regardless of whether the Constitution is infused with specific anti-corruption provisions (such as Kenya) or extensively structured to protect rights and democratic processes (such as the US).

53.  At the same time, it has been noted that accountability (political accountability) and transparency measures have often not worked well for countries long steeped in a culture of corruption, mainly because ‘the legal safeguards to protect them from being abused or manipulated by the governments are either weak or more often absent ... institutions ... have ended up like a prize champion fighting with his hands tied behind his back’ (Fombad). Thus, the introduction of otherwise reliable and independent legal checks on power such as an ombudsman, a human rights commission, and an anti-corruption agency may not achieve much at all unless there is the political will to make them work and the necessary legal safeguards to protect them from political interference, though presumably providing such checks constitutionally strengthens the safeguards. Singapore and Kenya, as discussed above, provide a good illustration of this: Singapore has no express constitutional safeguard against corruption, and yet it consistently ranks highly on Transparency International’s Corruption Perceptions Index. Conversely, Kenya despite its constitutional exhortation to objectivity and impartiality, usually languishes near the bottom.

54.  Indeed, as noted by Transparency International in 2014 (see Transparency International Corruption Perception Index 2014), there have been an increasing number of developing countries that have sought to introduce constitutional provisions to combat corruption. These provisions may be divided into six broad categories: mechanisms to ensure the integrity and accountability of public officials (as has been done in Belize, Colombia, and Serbia); upholding the integrity of political life and the democratic process (as has been done in the Dominican Republic and Thailand); upholding the primacy of public interest as a governing principle of the state (as has been done in Angola, Argentina, and Colombia); creating institutions to monitor and investigate corruption (as we have seen in Kenya’s case, but has also been done in Algeria, Bhutan, Morocco, Nepal, Pakistan, and the Philippines); making acting with integrity a fundamental duty for all citizens (as has been done in Bolivia and Madagascar); and explicitly committing the state to combating corruption (as has been done in Ecuador, Egypt, Nigeria, and Sudan). Organizations such as Transparency International thus take the view that constitutional design can either promote or impede anti-corruption efforts, and that NGOs can also play a role in that process. But if indeed political will is the true difference maker, then the required change from within may need to be a radical one, where a government can be allowed to govern for a sustained period of time without being itself drawn to corruption. Law and the rule of law may be instrumental to development, but unless corruption is first greatly dampened, legal recourse lacks effectiveness.

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