What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
Bribery & Corruption
The Indian legislative framework governing bribery and corruption in India is largely codified in the Indian Penal Code, 1860 (‘IPC’) and the Prevention of Corruption Act, 1988 (‘PCA’).
The PCA is a special legislation enacted to combat bribery and corruption amongst public servants. The said Act penalizes offences committed by public servants in relation to acceptance or attempted acceptance of any form of illegal gratification (i.e., anything of value other than a legal entitlement) as a reward for doing or forbearing to do an official act.
Under the PCA, a person or a corporate body who facilitates payment of illegal gratification can also be prosecuted for abetment of a punishable offence committed by a public servant.
The IPC on the other hand, governs offences such as criminal conspiracy, criminal misappropriation, criminal breach of trust, cheating and fraud, which can be interpreted to cover offences of bribery and corruption, including those committed in the private sector. Chapter IX of IPC specifically detail offences by or relating to public servants.
In addition to the IPC and PCA, the following Acts also govern / stipulate offences of corruption and bribery in India:
Prohibition of Benami Transactions Act, 1988
A ‘benami transaction’ is construed to mean any transaction in which property is transferred to one person for a consideration paid or provided by another. Such benami transactions have often been used to camouflage proceeds of corruption This Act seeks to prohibit benami transactions and provides for imprisonment or fine (or both) for any person found to have entered into such a transaction. The Act also carves out certain exceptions, listing transactions which do not qualify as benami and details the procedure adopted by the Competent Authority (under the Act) for attaching and confiscating benami property which is the subject matter of a benami transaction.
Prevention of Money – Laundering Act, 2002
This Act seeks to prevent money laundering, including laundering of property derived from ‘proceeds of crime’. It makes money laundering a criminal offence inter alia leading to confiscation of property acquired from corrupt means. Under this Act, whosever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money – laundering.
The term ‘proceeds of crime’ has been defined to mean any property derived or obtained, directly or indirectly, by any person as a result of certain identified crimes which are specified under Part A of the Schedule to the Act. A person can be charged with the offence of money laundering only if he has been charged with committing a scheduled offence. For purposes of checking or preventing money laundering, the Act imposes obligations on banking companies, financial institutions, intermediaries, etc., to maintain a record of all transactions in such manner as to enable them to (1) reconstruct individual transactions, and (2) ascertain the identity of their clients or beneficial owners.
The Central Vigilance Commission Act, 2003
The Central Vigilance Commission constituted under the Central Vigilance Commission Act, is conferred with the powers of exercising general superintendence and control over vigilance matters in administration and probity in public life. The Commission is governed by the Central Vigilance Commission Act, 2003, which provides for the constitution of a Central Vigilance Commission to inquire or initiate inquiries into offences alleged to have been committed under the PCA by certain categories of public servants of the Central Government, corporations established by or under any Central Act; government companies; societies and local authorities owned or controlled by the Central Government and for matters connected therewith or incidental thereto.
The Foreign Contribution Regulation Act, 2010
The Foreign Contribution Regulation Act regulates the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals, associations or companies and prohibits acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest.
Under the Act, receipt of foreign contributions requires prior registration with or approval of the Ministry of Home Affairs. In the absence of such registration or approval, receipt of foreign contributions may be considered illegal and punishable.
The Lokpal and Lokayuktas Act, 2013
The Lokpal and Lokayuktas Act set up nodal ombudsman for the Central Government (Lokpal) and State Governments (Lokayuktas). The Lokpal and Lokayuktas have been accorded relevant powers under the Act to receive complaints and investigate cases of corruption in the public sector involving public servants.
The Companies Act, 2013
Under the Companies Act, express provisions for punishment of fraud and giving false statements have been codified. The said provisions have been enacted with a view to prevent corruption and fraud in the corporate sector. The Act also stipulates a duty on statutory auditors of a company to disclose any instances of fraud (which cover instances of corruption and bribery) committed by company employees.
The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax, 2015
This Act covers within its ambit ‘undisclosed foreign income and assets’ and lays down the procedure for imposition of tax and penalties on the said undisclosed foreign assets and income held outside India. The Act defines ‘undisclosed foreign income and asset’ as the total amount of undisclosed income of an assesse in his name or in respect of which he is a beneficial owner, and has no explanation about the source of investment in such asset or the explanation given by him is in the opinion of the Assessing Officer unsatisfactory. An assesse has also been defined under the Act.
The applicable Angolan legal framework is the following:
- Penal Code (Código Penal),approved by Decree of September 16th 1886;
- Law of the Crimes Committed by People who hold Positions of Responsibility (Lei dos crimes cometidos por titulares de cargos de responsabilidade) approved by Law no. 21/90, December 22nd 1990;
- Law that creates the High Authority against Corruption (Lei da Alta Autoridade contra a Corrupção), approved by Law no. 3/96, April 5th 1996;
- Law of Public Integrity (Lei da Probidade Pública), approved by Law no. 3/10, March 29th 2010;
- Order that regulates the terms for the execution of the obligations provided in the Fight Against Money-Laundering and Financing of Terrorism Law(Aviso que regulamenta as condições de exercício das obrigações previstas na Lei do Combate ao Branqueamento de Capitais e do Financiamento do Terrorismo), approved by Order no. 22/12, August 14th 2012);
- Law on the Fight Against Money-Laundering and Financing of Terrorism (Lei de Combate ao Branqueamento de Capitais e do Financiamento do Terrorismo), approved by Law no. 34/11, December 12th 2011, as amended by Law no. 3/14, February 10th 2014 and partially revoked by Law no. 19/17, August 25th 2017;
- The Law on the Criminalization of the Money Laundering Underlying Offences (Lei sobre a Criminalização de Infracções Subjacentes ao Branqueamento de Capitais) approved by Law no. 3/14, February 10th 2014;
- Regulation on the Duties of Preventive and Repressive Measures in the Fight Against Money-Laundering, Advantages of Illegal Origin, and the Financing of Terrorism in the Real Estate Sector (Regulamento dos Deveres de Medidas Preventivas e Repressivas de Combate ao Branqueamento de Capitais, Vantagens de Proveniência Ilícita e ao Financiamento do Terrorismo no sector do Imobiliário), approved by Order no. 713/14, March 27th 2014;
- General Tax Code (Código Geral Tributário), approved by Law no. 21/14, October 22nd 2014, as amended by Law no. 18/17, August 17th 2017;
- Code of Conduct for the Officials and Administrative Agents of the Ministry of Justice and Human Rights (Código de Conduta dos Funcionários e Agentes Administrativos do Ministério da Justiça e dos Direitos Humanos), approved by Executive Decree no. 258/15, May 13th 2015;
- Regulation for the compliance of the Law on the Fight Against Money-Laundering and Financing of Terrorism (Regulamento para o cumprimento da Lei do Combate ao Branqueamento de Capitais e do Financiamento do Terrorismo), approved by Regulation no. 4/16, June 2nd 2016;
- Law of Public Procurement (Lei dos Contratos Públicos), approved by Law no. 9/2016, June 16th 2016;
- Law on the Prevention and Fight against Terrorism (Lei sobre a Prevenção e o Combate ao Terrorismo), approved by Law no. 19/17, August 25th 2017;
Criminal Procedural laws applicable to the fight against corruption:
- Criminal Procedure Code (Código de Processo Penal), approved by Decree no. 16489, March 19th 1931;
- Law of Searches, Searches of Premises and Seizures (Lei Reguladora das Revistas, Buscas e Apreensões), approved by Law no. 2/14, February 10th 2014;
- Law of Precautionary Measures under Criminal Procedure, (Lei das Medidas Cautelares em Processo Penal), approved by Law no. 25/15, September 18th 2015.
Bribery and corruption are covered by five distinct laws, namely:
- Articles 372 through 374 of the Penal Code, which relate to civil servants;
- Articles 16 through 18 of Law no. 34/87, which relate to political office holders and high public office holders;
- Articles 36 and 37 of the Military Justice Code, which relate to military personnel;
- Articles 7 through 9 of Law no. 20/2008, which relate to corruption in international trade and in the private sector;
- Articles 8 and 9 of Law no. 50/2007, which relate to sports agents;