Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
Bribery & Corruption
Concept of bribing a private person not discharging public functions/duty is unknown to Indian Law. Dealings between private individuals having a flavour of criminality can be covered under IPC depending upon the nature of the transaction. While the term ‘bribery’ has been defined in Section 171B IPC, there is no separate definition of bribery of a public official and bribery of a private person.
The term ‘public servant’ has been defined in Section 2(c) of the PCA as:
“2(c) “public servant” means—
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1.—Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.”
Moreover, the Supreme Court of India also expanded the ambit of the definition of ‘public servant’ (under the PCA) to include all officials of private banks, as their duties are public in nature.
Under the Angolan jurisdiction, only bribery of public officials is punishable, under Articles 37 and 38 of the LCMLO. Bribery in the private sector is not criminalized.
However, the agents of the crime of active corruption may, naturally, be entities of the private sector.
The law defines ‘public official’ as:
a) Civil servant;
b) Administrative agent;
c) Arbitrators, jury members and experts;
d) Holders of political office, elected or nominated; and
e) Whoever, even if provisionally or temporarily, against payment or for free, voluntarily or mandatorily, has been called upon to perform or to participate in the performance of an activity within civil, administrative or jurisdictional service or, under the same circumstances, undertakes a position or participates in public-benefit organisations.
Paragraph 2 compares the concept of civil servants to managers, officers of supervisory bodies and workers of public companies, nationalised public companies, publicly held companies or companies with the majority of capital publicly held, and also companies that are concessionaires of public services.
Article 59 (3) further extends the treatment as civil servants to the following offices:
a) Anyone who performs identical functions to those described in paragraph 1 within the scope of any public international law organization of which Angola is a member of, whenever the infringement has been fully or partially committed on Angolan territory; and
b) Anyone who performs functions within the scope of out-of-court dispute settlement procedures.
Yes, different laws and different sanctions are applicable depending on whether the bribed party is a public official or not and also depending on bribed party’s position within the State.
Public officials can be distinguished between civil servants, military personnel and political office holders or high public office holders.
For the purposes of criminal law, the definition of civil servant includes:
- Civil servants;
- Administrative officials;
- Arbitrators, jurors and experts;
- Whoever, even where provisionally or temporarily, against consideration or without charge, voluntarily or mandatorily, has been called to perform or to participate in the performance of an activity falling under the administrative or jurisdictional civil service, or to perform functions in public-benefit bodies or to participate in them, under the same circumstances;
- Managers, officers of supervisory bodies and employees of nationalized public companies, publicly held companies or companies with a majority public capital holding and companies that are concessionaires of public services;
- Magistrates, officers, agents and others treated as such of public international law organizations, irrespective of their nationality and residence;
- Officers who are nationals of other States when the infringement has been fully or partially committed on Portuguese territory;
- Anyone who performs identical functions to those falling under the definition of civil servant within the scope of any public international law organization which Portugal is a member of, whenever the infringement has been fully or partially committed on Portuguese territory;
- Magistrates and officers of international courts provided that Portugal has declared to accept the jurisdiction of such courts;
- Anyone who performs functions within the scope of out-of-court dispute settlement procedures, irrespective of their nationality and residence, whenever the infringement has been fully or partially committed on Portuguese territory; and
- Jurors and arbitrators who are nationals of other States whenever the infringement has been fully or partially committed on Portuguese territory.
For the purpose of criminal law, the definition of military personnel includes:
- Officers, sergeants and privates in the permanent staff of the Armed Forces or the Republican National Guard, under any circumstance;
- Officers, sergeants and privates not in the permanent staff in effective service; and
- Students of officer and sergeant schools.
For the purposes of criminal law, political office holders are:
- The President of the Republic;
- The President of the Assembly of the Republic;
- Members of the Assembly of the Republic;
- Members of Government;
- Members of the European Parliament;
- Representatives of the Republic in the Autonomous Regions;
- Members an Autonomous Region’s Government;
- Members of the representative body of a local authority;
- Political office holders of international organizations and of other States whenever the infringement has been fully or partially committed on Portuguese territory.
For the purposes of criminal law, the definition of high public office holders includes:
- Public managers;
- Holders of management positions in companies which have been designated by the State;
- Members of executive bodies in companies which are part of the local public sector;
- Members of the directive bodies of public institutes;
- Members of independent public entities established in the Constitution or in the law;
- Holders of superior directive offices of 1st rank and equivalent.