Combating corruption

It was at a conference meeting in Malta in 1994 that the European Ministers of Justice launched an important initiative against corruption. In line with its multidisciplinary approach, encompassing the criminal, civil and administrative law points of view, the Council of Europe decided in Malta to tackle this thorny issue.

This is what led to the drawing up of the Civil Law Convention on Corruption in order that civil law may take into account the need to fight corruption and ensure that it provides for effective remedies for those whose rights and interests are affected by corruption. The convention addresses both the issue of providing civil law remedies against corruption as well as the need of combating corruption through an international legal instrument.

One of the aims of the convention is to ensure that the definition of `corruption` will be far-reaching enough to encompass any form of untoward behaviour. It is defined as bribery and any other behaviour in relation to persons entrusted with responsibilities in the public or private sector, which violates the duties that follow from their status as a public official, private employee, independent agent or other relationship of that kind and which is aimed at obtaining undue advantages of any kind for themselves or for others.

The convention requires countries that become parties to it to provide in their internal law for effective remedies for persons who have suffered as a result of corruption, to enable them to defend their rights and interests, including the possibility of obtaining compensation for damages.

Malta, along with other EU candidate countries, intends to become a party to this convention. In anticipation of that step, Parliament has over the past week been debating a bill to amend the Civil Code through which we provide for the effective remedies required in terms of this convention.

It appears from the debate that both sides of the House agree to Malta`s becoming a party to this convention and to enacting this legislation. Malta will be signing and ratifying this convention.

While the government is moving ahead with this law, it is worth recalling that we had also taken the initiative to amend the Criminal Code to remove the anomaly whereby only public officers could be found guilty of corruption. Hence if the manager of a private bank receives a bribe to authorise a loan, it was not considered as a criminal offence. The recent amendments to the Criminal Code have removed this distinction between the public and private sectors.

The new bill that is being discussed in Parliament provides for the civil consequences of corruption. The bill amending the Civil Code provides that a person who claims to have suffered damages as a result of corruption shall have a right of action to obtain compensation for the damage caused to him by the act of corruption against the persons who have committed or authorised the act of corruption or who have failed to take reasonable steps to prevent the act of corruption.

The same law will establish that the persons who have committed or authorised the act of corruption and the persons who have failed to take reasonable steps to prevent the act of corruption shall be jointly and severally liable for damages.

The law is then catering for a revolutionary remedy whereby if the act of corruption has been committed by an officer or employee of the government or of a body corporate established by law, the government or as the case may be, the body corporate established by law, shall itself be liable to make payment for the damage caused by the act of corruption provided that the person claiming to have suffered the damage has on becoming aware of the improper behaviour of the officer or employee given such notice to the government or the body corporate, as the case may be, to take such preventive measures as are reasonable in the circumstances to prevent the commission of the act of corruption.

In such situations the person claiming to be the victim of corruption would not be entitled to such a remedy if he has himself induced the officer or employee against whom he is lodging his complaint to commit the act of corruption, or in any manner has been party to it.

In any case, Government and bodies corporate are not meant to become insurers of wrong doers since the person allegedly suffering damage must take all action that is competent to him against the actual wrongdoer and the liability of Government and bodies corporate is limited to such part of the damages as are not recovered from the actual wrongdoers.

Another interesting provision is that even where a complainant has himself been a party to an act of corruption, he can recover any payment made or thing given or its value, where such payment or `gift` has been made for an unlawful consideration.

One more provision is to the effect that entire contracts, or such clauses thereof as may be relevant, can be annulled where it is established that the contract has been entered into by any person (including the government or any body corporate established by law) as a result of an act of corruption.

Finally the new law protects officers or employees, whether in the public or private sector, who having reasonable grounds to suspect corruption report it in good faith to responsible persons or authorities. Persons lodging such reports are protected against any discriminatory action or sanction and if they do suffer such kind of treatment, they would be entitled to compensation for any damages suffered in this process.

There will always be accusations of wrongdoing and corruption, irrespective of the degree of safeguards that any government opts to have in place. Some persons who fail to win a particular contract or award often enough resort to making allegations rather than making an objective examination of whether they were really making the best offer.

What is crucial is that Government will offer adequate remedies and means of redress to encourage persons making such a claim and who are in good faith to have their case examined independently and fairly.

Providing for civil law remedies is of utmost advantage to victims of corruption since it would be easier for them to make their case, to prove it (if and when it has really happened) and to receive back any payment that they may have made for an unlawful consideration, apart from being compensated for whatever damages they would have suffered.

Government`s and other entities` assuming liability, in the appropriate circumstances, is the ultimate guarantee in favour of an open and accountable system where complainants know that authorities are there to defend their genuine and legitimate interests rather than to protect any wrongdoer.

Any serious democratic government would want to distinguish between those who are able to carry out their duties with the dignity and seriousness that their position of trust demands of them, and those who are simply trying to make a quick buck by abusing of their positions of trust and responsibility.

Such a democratic government will be equally zealous of weeding out and bringing to justice wrongdoers as it would of protecting those who precisely because of the fact that they carry out their work conscientiously are occasionally subjected to unfounded accusations, not least as a means of pressuring them to commit any wrongdoing.

Unless such principles are kept in mind, there would be wrongdoing that emanates not so much from corruption as from the fear of threats, unjustified vilification and irresponsible pressures.

As long as we look upon positions of trust, in the public and private sectors, as positions through which we can be of service to others, we will never fear objective examinations that are as thorough as possible. Equally we shall encourage the provision of additional and more effective remedies to let any potential wrongdoer know that he will not be able to rely on Government or other authorities for any comfort or support. Equally persons who have accusations thrown at them will always rest assured of a fair and impartial hearing.

The present government has repeatedly provided for new initiatives and measures to combat corruption. The bill now being debated in Parliament provides for further effective remedies. There will be no compromise with combating corruption.