3. Corruption of Public Servants

a person to give a thing, as for instance, by issuing a warrant or causing a seizure to be made and so on, than in such cases "nequiter utitur permissa sibi potestate", he abuses of his power, because he turns to a wrongful use a means which the law provides to him for legal purposes.

"Questo abuso adunque o' precisamente quello che la legge comprende sotto il nome di abuso di potere e basta osso solo a carattorizzare l’estorsione”. With reference to the two crimes above dealt with, sec. 113 lays down that: "Where such crimes are accompanied with circumstances which render them liable also to other punishments, the higher punishment shall be applied with an increase of one degree"

3. Corruption of Public Servants169

Sections 114 and 118 deal with the crimes of bribery and corruption of public officers. The crime is committed by any public officer or person employed under the Government who in connection with his office or employment receives for himself or for any other person any regard in money or other consideration to which he is not entitled or accepts the promise or offer of such reward. The crime is completed by the mere acceptance of the reward or even of the promise or offer thereof. But the gravity of the crime and consequently the punishment varies.

(i) according to whether the purpose was to induce the public officer to, do his duty or to fail in such duty;

(ii) in the latter case, according to whether the public officer has or has not in fact failed in his duty;

(iii) in the case of failure of duty, according as to whether this consists in an unjust condemnation of a person accused or in an unjust discharge or acquittal.

It will be thus seen that this crime subsists, at any rate in its simple form, irrespective of the inherent justice or injustice of the act which the reward was intended to induce

169 Confer also Sections 52 et seq of Chapter 163 (Corrupt practices at elections); Section 11 (i) (d) of Chapter 179 (Bribing officers or members of Legislative Assembly); and Act No. XXV of 1946 (Corruption in sport).

the public officer to do. The justice or injustice of what the public officer does or engages to do in view of the reward or promise or offer of reward, is not an essential ingredient of the crime but only serves as a criterion to distinguish one form of the crime from another for the purpose of punishment:

“II concetto che in questa parte deve dominare la Regge” - it was said in the ministerial report on the corresponding provisions of the Italian Draft Code of 1887 "è di colpire severamente la venalità del pubblico l'ufficiale che accetta, per atti del suo officio, retribuzioni non dovute. E la venalità è colpita indipendentemente dalla giustizia o ingiustizia degli atti stessi, imperocché è di universale interesse che non si faccia cadere in discredito od in sospetto a pubblica potesta" col rendere venali uffici i quali per la legge devonsi prestare gratuitamente."

This crime which may produce the most dangerous consequence to the public service itself as well as to the interest of the individual over which public servants have necessarily so great an influence, was at all times very severely punished especially when committed to Judicial functionaries. In fact, as Chevau et Holie remark, it constitutes one of the greatest perversions which a public officer could commit, by selling for money the exercise of authority entrusted to him, he betrays not only the special duties of his office but also the interests of the community entrusted to him probity and justice itself which does not admit any motive force for its acts except their own righteousness. The crime acquires a still graver character when a judicial officer trades on his judgements and barters away his sacred office and his conscience.

“Non flagitiosum tantum”, said Cicero, “sed omnium etiam turpissimum maxime quo nefarium mi hi videtur ob rem judicandam pocuniam accipere, praetio habere addictam fidam et religionem”170 .

Old legislations punished corrupt judicial officers with the greatest severity and the Law of the Twelve Tables implied in all cases the punishment of death:

“Si judex aud arbiter Jure datus ob rem judicandam pecuniam acceperit, capite” Our law, as we have said, proportions the punishment to the gravity of the crime in the particular case: but in all cases the punishment is adequately severe for, as Jameson

170 In Verrem, Book II, Cap. XXII

pointed out, such crime had better not be included in a Code at all, than be visited with a slight and inadequate penalty. The punishment attached to an offence so dangerous, so easily perpetrated, so hard to be discovered ought to be such as rigorously to exclude the temptation to sacrifice duty to gain.

Now the elements of this crime are: -

(a) The public character of the offender.

(b) The acceptance of a reward or promise or offer of a reward not due according to law.

(c) In connection with his office,

(d) The purpose to do or to fail in his duty.

The character of public officer or person employed under the Government is the first essential of this crime. The wording is very wide and embraces all officers or employees under the Government as we had already occasion to notice in connection with the crime of unlawful exaction. It includes all public officers or employees whether their duties are judicial, ministerial or executive or mixed. A private person who has not this character, cannot therefore become guilty of this crime: His act may, in appropriate circumstances, amount to fraud. It has been held by our Courts that persons belonging to, or employed with His Majesty’s Forces are included in the expression “public officers or persons employed under the Government”171 .

The second ingredient of this crime is the acceptance for himself or for others of a remuneration or promise or offer of a remuneration which is not due to him. It is essential that the corruption should take the form of this acceptance of gifts or rewards or the promise or offer of gifts or rewards whatever their kind and whatever their value provided they represent some advantage to the grantee or promise. The law speaks of "remuneration in money or other advantage (old Italian test: “altra utilità)172 .

171 V. Harding, op. cit., para. 104 and judgments therein quoted 172 The present text in the Revised Edition which speaks of "money or other valuable consideration" might possibly restrict somewhat the proper application of the provision. Does it, for example, include an honour?

"Dicendo la legge denaro o altra utilità non v’ e’ bisogno che il privato interesse del pubblico ufficiale nella corruzione sia sempre pecuniario: basta l’ appagamento di un desiderio qualunque, di un bisogno, sia diretto e personale, sia indiretto. Ne si può fare distinzione se la utilità data o promessa sia grande o piccola"173 .

But a promise, at least, of money or some other advantage there must be: if the public officer succumbs to mere solicitation or prayers, without any such promise, his act may be illegal or may amount to some other offence, but will not constitute the crime of corruption.

But it is not necessary that the reward or the promise or offer be made to the public officer personally or be by him personally accepted. The crime subsists just the same if the public officer has acted through an intermediary, and whether the advantage was to be enjoyed by himself or by others, provided the intermediary has acted with the consent of the public officer and provided that the reward or promise made to a third party inconsideration of or in connection with the functions of the public officer, was made with the knowledge and connivance of such public officer174 .

It may be mentioned that the Colonial Regulations prohibit any public officer from receiving any gifts whatever; and hold the officer responsible for any breach of the prohibition committed by members of his family.

In the third place it is essential that the acceptance of the remuneration or promise or offer be made by the public officer in connection with his office or employment. The old Italian text said: "in occasiono del suo officio od impiego". This means that the act in respect of which the reward etc. is accepted must fall within the functions of the public officer concerned. An act which is foreign to the functions of such public officer and which he would not have the right to do by virtue of his office, will indeed be an act of that officer but not an act of his office. It does not matter, however, whether the act falls directly within the officer's own competence or whether it falls within his delegated functions. What is indispensable is that the act be one which the officer could do in the exercise of his duties. A magistrate, says Carrara, who has not the cognisance of a case, does a very wrong thing if he accepts a reward to recommend

173 Pessina, op. cit., Vol. III, p. 73; Maino, op. cit., 171 para. 924 174 Op. Carrara op. cit., paras. 25 46; Chauveau-Helie op. cit., Vol. I, No. 1846

the matter to his colleague; in fact, he may be guilty of fraud, but he cannot be guilty of the crime of corruption unless he is the secret agent of his colleague175. Nor is it sufficient that the public officer accepting the reward etc. or the person making the reward may have thought that the act was one within the duties of the office of that officer: it is necessary that the act should be such in the reality of things176 .

It seems, however sufficient if the act be one in respect of which the officer concerned could by reason of his office give any directions or make any arrangements whatever or in any manner influence the decision thereon.

Lastly, the purpose of the reward or promise or offer must be to induce the public officer to do or to fail to do that which it is his duty to do. In the former hypothesis the law wants to protect the dignity of the public service and the prestige of the judiciary which are harmed in the esteem which they should enjoy by any improper reward received even though it is not intended to injure materially the interests of the individuals or the interests of justice. Public officers are bound to discharge their duties with the most impartiality and without taking any private interest or remuneration other than that which the law allows for their services.

In the second hypothesis, that is when the reward is given or promised to induce the officer to fail in his duty, there is in addition to the injury to the good name of the service, also the danger of actual injury to the rights of individuals or of justice, and the law takes account of this for the purpose of aggravating the punishment. Even in this second hypothesis the crime is completed by the mere acceptance of the reward or promise or offer. Only, if besides accepting the reward etc. the public officer or functionary actually fails in his duty the punishment is higher, proportionately to the gravity of the failure of duty concerned.

In the elaboration of the Italian Code of 1889 the point was discussed whether the doctrine of corruption should apply only when the gift or promise is made and accepted in respect of an act which has yet to be done by the public officer, or also in respect of an act which he may have already done. For the view that it should only apply where the act has yet to be done it was urged that the acceptance of rewards or promises for

175 Prog. Parte Spec. Vol. V, para. 8533 176 Pessina, op. cit., loc. cit.