Bribery and Corruption, Report 13 [1988] PGLawRComm 1 (1 November 1988)

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The Law Reform Commission of Papua New Guinea was established by the Law Reform Comnission Act 1975 and began functioning in May, 1975.

Dr Tony Deklin, Deputy Chairman
Stephen Pokawin
Anne Kerepia
Ano Pala
Sam Kemaken
Fr Robert Lak

Sao Gabi
Christine Bradley
The Administrative Staff are:
Thomas Resena
Jack Uke-e
Ari Heai
Airi Oika
Raphael Marawa

Law Reform Commission
P O Box 3439
BOROKO
Papua New Guinea
Telephone: 258755/258941

In the Reference to the Commission dated 2nd January, 1982 we were asked to enquire into and report on bribery and corruption among other things. Many of the matters covered in the Reference are cases of theft, fraud and misappropriate of public funds by a variety of people. They are not cases of bribery and corruption in the narrow legal sense. This Report is strictly on bribery and corruption. In the Report we recommend creation of a number of new offences.

DR TONY DEKLIN, Deputy Chairman
STEPHEN POKAWIN
ANNE KEREPIA
ANO PALA
SAM KEMAKEN
FR ROBERT LAK

On 2nd January 1982 the then Minister for Justice the Hon. John Yaka, MP., called for the Law Reform Commission to enquire into the legislation governing corruption and bribery and in particular –

1. The Constitutional ramifications relating to corruption and bribery and misuse of positions and power.

2. The criminal law 'on corruption and bribery with a view to amending the existing legislation or proposing new legislation if they are deemed necessary; and

3. The extent of corruption and bribery in both national government and provincial governments and in both the public and private sectors of the economy; and

4. The best way or ways to stop or reduce the spread of corruption and bribery generally; and

5. The best way or ways to stop the spread of corruption and bribery amongst those leaders who are not subject to the Leadership Code, and who handle public funds or otherwise.

In October 1982 Working Paper No. 19 entitled "What Should be done about Corruption and Bribery?" was prepared and circulated for comments. In January 1983 Report No.13 on Bribery and Corruption was approved by the Commissioners for presentation to the Parliament at its June meeting later that year. As the Commission did not have a legislative draftsman at the time, it was agreed to send the drafting instructions for a Bill to the Office of the Legislative draftsman. Drafting Instructions were in fact sent but to date no Bill was drafted and sent to the Commission. Furthermore, when the Commission raised the matter with the Office, it was found that Drafting Instructions were also missing.

After January 1983 the file and the Report on Bribery and Corruption mysteriously disappeared from the office. A temporary file was created and later that year Mr Jim Ross continued work on the Reference by investigating loans to political parties for purposes of 1982 elections. This investigation was temporarily suspended as it was considered not a priority by the then Minister for Justice and all work on the Reference ceased. Again the temporary file disappeared in 1984.

Early this year (1988) the then Minister for Justice the Hon. Albert Kipalan, MP., requested the Commission to revive work on the reference. Without the files the task became some what difficult. In the process of putting together a work plan, it was discovered that in 1978 the Department of Justice proposed a draft Bill on corrupt practices to the Cabinet. After a series of discussion with the Public Prosecutor's Office, the Office of the Secretary for Justice and the Ombudsman Commission, the Law Reform Commission submitted the proposals to the new Minister for Justice the Hon. Bernard Narokobi, M.P. In addition to the proposals, the Law Reform Commission makes a number of recommendations in this report to indicate its view on the current debate on bribery and corruption.

The Criminal Code, the Organic Law on Duties and Responsibilities of Leadership, the Electoral laws 1 and the Customs Act use the terms "Bribery" and/or "Corruption" without defining them. In the ordinary legal sense "bribery and corruption", means giving or offering any reward to any person to influence 'his conduct; or the receipt of such reward. 2 A person is said to "act 'corruptly' if he offers a fee or reward deliberately and with the intention that the person to whom the offer is made should enter into a corrupt bargain even if the offer or himself has no intention of carrying out the transaction and accepting the favour which he has sought".3 Bribery is used in the Criminal Code only in relation to members of Parliament and electoral offences.

SS.61-62, 87-136 deal with a number of offences relating to bribery and corruption. Bribery 'of members of Parliament, official corruption and abuse of office, electoral corruption

1. The Criminal Code and the Electoral laws created a number of electoral offences. Elections are conducted under various laws:

(i) Local Governments under Local Government (Electoral Provision) Regulations Chapter No.57.

(ii) Provincial Governments. Nearly all Provincial Governments have their own provincial laws relating to elections. They are based on Provincial Governments (Electoral Provisions) Regulations Chapter 56.

2. Osborne, a Concise Law Dictionary, 5th edition London, Sweet and Maxwell, 1964, page 56.

and corruption in the administration of justice are included in the Code. These categories may be useful in their respective fields, but they do not cover all the cases of bribery and corruption that give rise to concern at present. The provisions of the criminal code relating to theft, misappropriation of public funds and fraud seem more relevant. At present the code has very narrow application in that it covers only public servants and members of the National Parliament. It does not, however, cover such persons as the members of provincial governments, employees of statutory bodies, employees of the business arms of provincial governments or the private sector employees.

A common problem with many of the offences related to bribery and corruption under the Criminal Code is one of proof. The illegal bargains are usually done secretly. The proof of corruption is a detailed process that requires meticulous investigation by the police and professional prosecution by the Public Prosecutor. It is usually a slow process.

In addition to the Criminal Code, the Customs Act (Chapter No.10) and the Public Services (Management) Act deal with bribery and corruption. The Customs Act contains provisions regarding the bribery of customs officers (s.154). The Public Services (Management) Act does not use the word "bribery" or "corruption"; however, it makes it a disciplinary offence for a public servant to solicit or accept a fee, reward, gratuity or gift other than his official remuneration (s.45(h)).

The Constitution (Leadership Code SS.26-31) defines a class of person called Leaders who are subject to the Leadership Code and the Organic Law on Duties and Responsibilities of Leadership. The Organic Law does not deal directly with bribery and corruption, although, it creates a number of offences arising out of misconduct in office, which include use of office for personal gain (S.5); acceptance of bribes (S.11) acceptance of loans (S.12) and disclosure of official information for personal gain (S.14).

Prosecutions for misconduct in office are carried out before a Leadership Tribunal and not a court of law. The proceedings before a Tribunal are not judicial proceedings and therefore, although they are subject to the principles of natural justice, the strict evidentiary rules relating to criminal law do not apply. No proceedings before a tribunal are a bar to any other proceedings provided by law (Constitution, S.28(5), Organic Law on the Duties and Responsibilities of Leadership, S.30(1) and (2)) . A leader therefore can be prosecuted for the same act under the Criminal Code as well as under the Organic Law on the Duties and Responsibilities of Leadership.

A leader can avoid the jurisdiction of the Tribunal by tendering his/her resignation from office before the decision of the Tribunal is given: Joseph Auna (1980) PNGLR 500 and Opai Kunangel (Unreported Supreme Court Judgment S.C.231 of 6th August, 1982). Mr Opai Kunangel, a Minister of the State was charged for breaches of the Organic Law on Duties and Responsibilities of Leadership. He resigned as a Member of Parliament under S.l04(2)(c) of the Constitution. The Court held that where a Member resigns, he is no longer a Leader and the Tribunal has no jurisdiction to deal with him. Mr Justice Andrew observed in the same case: 4

"Clearly the Organic Law requires urgent amendment to ensure that its aims and intentions are given full effect so that any Tribunal appointed be able to reach its conclusions in these matters of national importance without being thwarted by the resignation of the leader."

The case not only shows the need to amend the Organic Law, but also the need to prosecute leaders under the Criminal Code as well as under the Organic Law.

4. Opai Kunangel, Unreported Supreme Court Judgement S.C.231 of 6th August, 1982 p.ll.

The Bill extends the provisions of the Criminal Code to cover such persons as public servants, constitutional office holders, employees of constitutional offices, politicians,
Ministerial staff and employees of business arms of provincial governments.

A new division entitled "secret commissions" is proposed. It is the same as the "secret commissions" provisions of the Queensland Criminal Code (Chapter XLIIA, ss.442A-442M). This group of offences are similar to the kind of offences found under the anti-corruption laws of singapore5 and Hong Kong6.

Under the Singapore legislation and the proposed Bill possession of unexplained property or pecuniary resources may be taken as evidence of bribery and corruption. In the Hong Kong legislation possession of unexplained property or pecuniary resources is an offence (s.10) .

Under the proposed Bill evidence is inadmissible to show that gratification is customary in a trade, vocation or calling (Clause 97D). In addition to fine and imprisonment a convicted person may be ordered by court to repay the amount or value of consideration received or given by him (Clause 97M).

6. Hong Kong, Prevention of Bribery Ordinance, Chapter 201 (Revised Edition of 1980).

Below are additional proposals of the Law Reform Commission on the subject of bribery and corruption:

1. The Commission is of the view that in order for the public to appreciate and give greater recognition to the seriousness of bribery and corruption in the Community a separate legislation on bribery and corruption be enacted. Enforcement of the Act be vested with a Special Squad within the Police Force. Perhaps the Fraud Squad be given the task and be equipped with the necessary manpower and money. We are in agreement with the government's proposal for the establishment of an anti-corruption Squad within the Police Force. We do not believe that the establishment of a separate institution of enforcement is advisable at present.

2. A leader must be prosecuted under the Criminal Code as well as the Organic Law on Duties and Responsibilities of Leadership so as to avoid a situation like that of Opai Kunangel.

3. Clause 97C of the Proposed Bill imposes a duty on persons employed in the public service to report bribery. We believe that the duty to report bribery should be placed on everyone as it is a serious matter.

4. Under Clause 97A offering or soliciting gratification as an inducement or reward for withdrawing or altering a tender is an offence. We believe that refraining from making a tender should also be made an offence. In other words, offering or soliciting gratification so as to influence a person to refrain from making a tender should be an offence just like withdrawing or altering a tender.

"97P CUSTOM OF ITSELF NO DEFENCE". BURDEN OF PROOF THAT GIFT IS NOT A SECRET COMMISSION".

MADE by the National Parliament to come into operation in accordance with a notice published in the National Gazette by the Head of State, acting with, and in accordance with, the advice of the Minister.

(h) an offer or promise of any kind of gratification as described in Paragraphs (a) to (g) inclusive"; and

(b) by repealing the definition of "person employed in the Public Service" and replacing it with the following:-

Part III of the Criminal Code is amended by inserting before Division 1 the following new division:-

of Section 188 (Establishment of the State Services) of the Constitution; and

(b) a constitutional office-holder as defined in Section 221 (Definitions) of the Constitution; and

(c) a member of or person employed by a constitutional institution, being any office or institution established or provided for by the Constitution including the Head of State, a Minister or the National Executive Council; and

(e) a person employed under the Official Personal Staff Act (Chapter 383); and

(d) a State Service established under or by authority of Section 188 (Establishment of State Services) of the Constitution; or

(e) a constitutional institution, being any office or institution established or provided for by the Constitution including the Head of State, a Minister or the National Executive Council; or

Definitions of "gratification" and "public body" are new inclusions. The definition of "persons employed in the public service" is altered to cover a wide range of people including National and provincial politicians.

Division III.2 of the Criminal Code is amended by inserting after Section 97 the following new section:-

(a) with intent to obtain a contract from, or provide a service to, a public body, offers a gratification to a person who has made a tender for the contract, to induce that person to withdraw or alter the tender; or

(b) solicits or accepts a gratification as an inducement or reward for withdrawing or altering a tender made for such contract,

Penalty: A fine at the discretion of the Court or imprisonment for a term not exceeding seven years, or both".

Offering or soliciting gratification as an inducement or reward to influence a person to refrain from making a tender is not an offence. It may be wise to do so.
4. NEW SECTION 97B.

Division III.2 of the Criminal Code is amended by inserting after Section 97A the following new section:-

(1) A person who offers to a person employed in the Public Service, or being a person employed in the Public Service, solicits or accepts a gratification as an inducement or reward for –

(a) the person employed in the Public Service voting or abstaining from voting at any meeting in favour of or against any measure; or

(b) the person employed in the Public Service performing or abstaining from performing or aiding in procuring or hindering the performance of an official act; or

(c) the person employed in the Public Service aiding in procuring or preventing the passing of any vote or granting of any contract in favour of

(d) the person employed in the Public Service showing or refraining from showing any favour or disfavour in his capacity as a person employed in the Public Service,

Penalty: A fine at the discretion of the Court or imprisonment for a term not exceeding seven years, or both.

(2) An offence under Subsection (1) is committed notwithstanding that the person employed in the Public Service had no right or opportunity to show or refrain from showing favour or that the inducement was not in relation to the affairs of the public body.

Division III.2 of the Criminal Code is amended by inserting after Section 97C the following new section:-

(1) A person employed in the Public Service who is corruptly offered or given a gratification shall report the offer or gift at the earliest opportunity to a commissioned police officer.

(2) A person who, without reasonable excuse, fails to comply with the provisions of Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months, or both".

The Duty to report bribery or corrupt practices is imposed on the employees of the Public Service, not employees of the private sector.

Division III.2 of the Criminal Code is amended by inserting after Section 97C the following new section:-

(1) In proceedings for an offence under this Division evidence is not admissible to show that a gratification is customary in any trade, vocation or calling.

an agent from a person having business relations with the principal of such agent, is deemed to have been received or solicited by the agent, unless the agent proves that the gratification was received without his consent or knowledge.

an agent with the consent or knowledge of the agent, or given or offered at the request of the agent to a person having business relations with the principal of the agent, is deemed to have been offered or given to the agent.

(a) is in possession of property or pecuniary resources disproportionate to his known sources of income, for which he cannot satisfactorily account; or

(b) at or about the time of the alleged offence obtained an accretion to his property or pecuniary resources for which he cannot satisfactorily account,

(d) considered as corroboration of the evidence of a witness that the accused person accepted or obtained gratification as an inducement or reward.

(5) Where the resources or property referred to in Subsection (4)(a) or an accretion thereto referred to in Section (4) (b) are held by a person whose relationship to the accused gives reasonable cause for believing that he is holding the resources, property or accretion thereto in trust or as a gift from the accused, then the accused shall be deemed to be in possession of those resources or that property or that accretion thereto.

(6) Where, in any proceedings under this Act, it is proved that a gratification has been paid to or received by a person employed in the Public Service, that gratification is deemed to have been paid and received corruptly, as an inducement or reward, unless the contrary is proved".

Part III.2A of the Criminal Code is amended by inserting after Division 2 the following new division:-

'advice given',	or words to the like effect includes every report, certificate, statement and suggestion intended to influence the person to whom the same is made or given and every influence deliberately or expressly exercised by one person over another;

'agent'	includes a person (whether natural or corporate) acting or having been acting, or desirous or intending to act, for or on behalf of a person (whether natural or corporate) whether as agent, partner, co-owner, clerk, servant, employee, banker, broker, auctioneer, architect, clerk of works, charterer, master mariner, purser or any crew of a vessel, engineer, lawyer, surveyor, buyer, salesman, foreman, trustee, official assignee, executor, administrator, liquidator, trustee in bankruptcy or of a deed of assignment, receiver, director, manager, or other officer or member of the committee or governing body of a corporation, club, partnership or association, or in any other capacity, either alone or jointly with any other person (whether natural or corporate) and whether in his own name or in the name of his principal or otherwise, a Minister and a person employed in the Public Service;

'contract'	includes a contract of sale or employment or any other contract whatsoever, including an order for any commodity;

'in relation to the affairs or business of his principal' implies the additional words 'whether within the scope of his authority or course of his employment as agent or not';

'person having business relations with the principal' includes – (a) the State, a Minister, a corporation representing the State, a local authority, public body or any Board or authority established under an Act of Parliament; and (b) a person whether natural or corporate), whether as principal or agent, carrying on or having carried on or desirous of carrying on or intending to carry on any negotiation or business with a principal, or engaged or interested or having been engaged or interested in the performance of a contract with or in the execution of any work for or business in the supply of any goods or chattels to a principal; and (c) an agent or employee of any person or body referred to in Paragraph (a);

'principal'	includes a person (whether natural or corporate) for or on behalf of whom the agent acts, has acted, or is desirous or intending to act, and includes the State, a Minister or corporation representing the State, or any local authority or other public body constituted by or under Act for or on behalf of whom the agent acts, has acted or is desirous or intending to act;

'solicit a valuable consideration' and 'valuable consideration solicited'
	and words to the like effect shall be construed with the following directions, namely, that an agent who diverts, obstructs, gives untruthful reports or interferes with the proper course of business or manufacture or impedes or obstructs, or fails to use due diligence in the prosecution of any negotiation or business with the intent to obtain the gift of a valuable consideration from any other person interested in that negotiation or business, or with intent to injuire any such person, is deemed to have solicited a valuable consideration from a person having business relations with the principal of such agent;

'trustee'	includes the public curator, an executor, administrator, liquidator, official assignee, trustee in bankruptcy, receiver, committee of the estate of an insane person, person having power to appoint a trustee, person entitled to obtain probate of the will or letters of administration to the estate of a deceased person, or any other person occupying a fiduciary position;

'valuable consideration' includes any real or personal property, money, loan, office,
	place, employment, agreement to give employment, benefit or advantage whatsoever, commission or rebate, payment in excess of the actual value of the goods or service, deduction or percentage, bonus or discount, forbearance to demand money or money's worth or valuable thing, detriment, loss or responsibility given, suffered or taken, the refraining from carrying out or doing something which lawfully should be carried out or done and the acceptance of any of the foregoing which shall be deemed the receipt of valuable consideration;

An act or thing prohibited by this Division is prohibited whether done directly or indirectly by the person mentioned or by or through any other person.

(1) An agent who corruptly receives or solicits from any person for himself or for another person a valuable consideration –

(a) as an inducement or reward for or otherwise on account of doing or forbearing to do, or having done or forborne to do, any act in relation to the affairs or business of the principal of the agent; or

(b) the receipt or any expectation of which would in any way tend to influence him to show, or to forbear to show, favour or disfavour to a person in relation to the affairs or business of the principal of the agent,

(2) A person who corruptly gives or offers to an agent a valuable consideration –

(a) as an inducement or reward for or otherwise on account of the agent doing or forbearing to do, or having done or forborne to do, any act in relation to the affairs or business of the principal of the agent; or

(b) the receipt or any expectation of which would in any way tend to influence the agent to show, or to forbear to show, favour or disfavour to a person in relation to the affairs or business of the principal of the agent,

(b) a partner, clerk or employee, of an agent, from a person having business relations with the principal of such agent, is deemed to have been received or solicited by the agent, unless it is proved that the valuable consideration was so received or solicited without the consent, knowledge or privity of the agent.

of an agent and so given or offered without the consent, knowledge or privity of the agent; or

(b) given or offered, at the request of the agent, to a person by a person having business relations with the principal of such agent,

A person who, with intent to deceive or defraud the principal, gives to an agent, or an agent who receives or uses or gives to the principal, a receipt, invoice, account or document in respect of which, or in relation to a dealing, transaction or matter in which, the principal is interested and which –

(a) contains a statement which is false or erroneous or defective in any important particular, or contains an overcharge or is in any way likely to mislead the principal; or

(b) omits to state explicitly and fully the fact of a commission, percentage, bonus, discount, rebate, repayment, gratuity or deduction having been made, given, or allowed, or agreed to be made, given or allowed,

(1) Where advice is given by one person to another, and such advice is in any way intended or likely to induce or influence the person advised -

and a valuable consideration is, without the assent of the person advised, given by such third person to the person giving the advice, the gift or receipt of the valuable consideration is an offence.

(a) the person giving the advice was, to the knowledge of the person advised, the agent of such third person; or

(3) An offer or solicitation of a valuable consideration in respect of advice given, or to be given, by one person to another with a view to induce or influence the person advised –

and with the intent that the gift or receipt of such valuable consideration is not to be made known to the person advised, is an offence.

(4) Subsection (3) does not apply where the person first-mentioned in that subsection is the agent of the person offering or solicited.

(b) trustee who receives or solicits a valuable consideration for himself or for another person,

without the consent of the persons beneficially entitled to the estate or of a Judge, as an inducement or reward for –

a person to be appointed in his stead or instead of him and any other person as trustee, is guilty of an offence.

A director, manager or officer of a company, or an officer or member of the crew of a vessel, or a person acting for another, who -

an act or thing without authority, which if authorized, would be in contravention of a provision of this Division, is guilty of an offence.

(ii) if a natural person, to a fine not exceeding K2,000.00 and to imprisonment for a term not exceeding one year or to both such fine and imprisonment; and

(b) in addition, liable to be ordered to pay to such person and in such manner as the court directs the amount or value, according to the estimation of the court, of any valuable consideration received or given by him, or any part thereof, and such order shall be enforceable as an order of the court.

Where, in a prosecution under this Division it appears to the court that the offence charged is, in the particular case, of a trifling or merely technical nature, or that in the particular circumstances it is inexpedient to proceed to a conviction, the court may in its discretion and for reasons stated in the application of the accused, dismiss the case, but the court may, if it thinks fit, make an order under Section 97M(b).

In a prosecution under this Division it does not amount to a defence to show that the receiving, soliciting, giving or offering of a valuable consideration mentioned or referred to in the prosecution is customary in any trade, business or calling.

Where, in a prosecution under this Division, it is proved that a valuable consideration has been –

a person having business relations with the principal of that agent, without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given or offered in contravention of a provision of this Division is on the accused".

In this clause the burden of proof is placed on the accused to show that a valuable consideration received, given or solicited was not in contravention of the division. This provision would come under the exception to the general rule laid down in section 37(4)(a) of the Constitution.

Papua New Guinea Law Reform Commission

Bribery and Corruption, Report 13 [1988] PGLawRComm 1 (1 November 1988)