Tuesday, November 21, 2017
http://dailyasianage.com/news/96007/classification-of-corruption
Classification of corruption M. S. Siddiqui
Bangladesh is one of the most corrupt countries in the world but interestingly, the nation very shy about the word 'bribe'. The much talked TICFA agreement with USA delayed by bureaucrats with the consent of political level for a clause of 'elimination bribery'. It is understood the word has been replaced by corruption to satisfy the bureaucrats. The society and media has a careful selfcensorship and replace the word bribe with speed money or entertainment etc. British had introduced bureaucracy and limited corruption in our country to prolong their rule. The limited corruption was 'bonus' for additional loyalty to British rulers. UK has promulgated 'The Bribery Act 2010' elaborating the definition of bribe. British legal theme is that Bribery or extortion presumed to occur "under color of office," a condition that need not involve an outright threat but is rather associated with the bargaining power that comes from one's official position. Thus, in many cases the official can be guilty both of accepting a bribe and of extortion.
In Australia the criminal code includes an offense called "unwarranted demand with menaces" by or of a public official. Such demands are not limits to violent threats but are defined as direct or implied threats of detrimental or unpleasant conduct meant to induce an individual or an organization to act "unwillingly" (Criminal Code Act of 1995 as amended, part 7.5). Botswana states that a "detriment of any kind" can qualify as a threat (Corruption & Economic Crime Act, chapter 8:5), French law, in contrast, emphasizes a threat of violence or constraint as a key feature of extortion (French Penal Code 312-1. Similarly, in Ethiopia, the standard is "uses violence or grave threats against a person, or in any other manner renders such person unable to resist" (Ethiopian Criminal Code, article 713). The Finnish statute includes an offense of aggravated extortion that includes the following criterion: "the offender takes unscrupulous advantage of the special weakness or other insecure state of another" (Finnish Criminal Code, chapter 31). The United States has no federal commercial bribery statute, but many states have such statutes, and commercial bribery is prosecuted at the federal level under statutes that deal with fraud, conspiracy, restraint of trade, or the denial of honest services and that cover certain specific areas, such as banks. In Bangladesh, the Penal Code 1860 (Chapter 9) stating the offences by and related to public servant stated that public servant taking gratification other than legal remuneration in respect of an official act. The law carefully avoided the word bribe. It is interesting to find that there is a sub-clause Section 9A -171b of offences relating to elections that bribery is an offence. Our law has given more emphasis on taking gratification, in order, by corrupt or illegal means to influence public servant (sub sec 162), taking gratification, for exercise of personal influence with public servant (Sub-sec 163), punishment for abetment by public servant of offences defined in section 162 or 163. These two sub-clauses crates an opportunity to shift responsibility of gratification (bribe) on others. This definition most probably encouraged the corruption in our country. The case of Railway bribe scam of a Minister SurunjitSen Gupta may be recalled how the agent official has been indicted in the case. The driver of the vehicle who was a whistleblower hero of this corrupt country was never recognized and untraceable. All the countries draw the line somewhere between illegal bribery and acceptable gifts of good will. Because any kind of gift can takes two to enter into a corrupt deal. Legal language frequently distinguishes between active and passive bribery where the former refers to the briber and the latter to the bribee. This language seems to imply that bribe paying is worse than bribe acceptance. In reality neither side is truly passive because both parties must agree before corruption can occur. Furthermore, in practice, public officials might actively organize a corrupt bureaucracy that presses citizens or firms to make payoffs. However, in some countries asymmetries do exist. For example, in Taiwan paying off an official is only a crime when the payment is made to obtain an illegal service. In all other cases, the payer is not subject to criminal sanction. Under Romanian law, making a payoff is not a crime if "the briber has been coerced in any way by the one who received the bribe," and, in addition, such a briber can claim restitution of his payments (Romanian Criminal Code, article 255-3- 5). In other countries the reverse is true. For example, in Chile in the 1990s payment of a bribe was a criminal offense, but accepting a bribe was not unless accompanied by other wrongdoing.
The law and economics literature recognizes the two-sided nature of corrupt deals and does not refer to active and passive bribery but rather refers to bribe payers and recipients. The transaction will not occur if the law can deter at least one of the parties. Some scholars distinguish between the payers who receives better than fair treatment, on the one hand, or someone who must pay to be treated fairly. This is a gentle form of extortion. On the other use of extortion as a bribe paid to avoid being framed by an official for a trumped-up offense. Some legal systems criminalize private-to-private bribery, but in many jurisdictions such transactions are not against the law unless they involve another illegal offense, such as extortion or operation of an illegal business. Bangladesh is yet to criminalize the bribe in private sector. Bangladesh must re-define the Bribery, Nepotism, Embezzlement, Fraud and Extortion in order to eliminate corruption. (Concluded)
The writer is a Legal Economist E-mail: mssiddiqui2035@gmail.com