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Translations
BRIBING NEGOTIATORS OF INTERNATIONAL CONTRACTS --
EGYPTIAN CRIMINAL LAW RULES
by
Dr. Ahmed Refaat Khafagi
[Translated/Edited
by
Howard L. Stovall]
[TRANSLATOR'S NOTE: The Middle East has been the site for many of the well-publicized controversies in the mid-1970s that led to enactment of the United States Foreign Corrupt Practices Act. Perhaps as a result, some Westerners have concluded that bribery may be more prevalent in the Middle East than in the Western world, for reasons including culture, politics, and religion. This is vaguely reminiscent of the reportedly widespread prejudice in the Middle East, over 13 centuries ago, that Christians and Jews were particularly susceptible to bribes and therefore unsuitable for employment in government.
In light of recent bribery scandals in Europe and the United States, it is more constructive to recognize that bribery is an evil encountered, and generally condemned, in all legal systems. This point was emphasized in the following article by Dr. Khafagi, published in Al-Muhamah, in 1986. (At that time, Dr. Khafagi was Director General, Administrative Section of the Egyptian Public Prosecutor/Niyaba.) I translated the article in light of its continuing relevance, and to present an Egyptian lawyer's view on some of the legal and social dimensions of bribery.]
* * * *
In the course of concluding an international contract, the negotiator might exploit the authority of his government position and accept a bribe proffered to him. Such an act has been punishable in all legal systems, even in ancient times.
In Egypt, the punishment for such an act is a life sentence at hard labor and a fine, in addition to confiscation of the object proffered for the crime. The briber, being the party to offer the bribe, is subject to the same punishment. Moreover, the bribed official is subject to disciplinary punishment.
In spite of that, the international contract remains valid and effective. The bribery agreement, however, is invalid; it is not permissible to request its implementation. An issue debated by jurists is whether the briber has the right to claim reimbursement of the bribe.
In any case, bribery is a manifestation of human weakness. It has been correctly stated "He who enriches himself through wicked deeds, impoverishes his honor".
INTRODUCTION
1. In General
The word "bribery" is a term meaning corruption. In criminal legislation, the word refers to the act of anyone who exploits the power of his position or job. A bribed official is anyone who sells his authority for material reward.
Bribery is a loathsome act that, if prevalent in a civilized society, leads to that society's decay. As Counsellor Joss said "bribery clouds the minds of government officials, causing them to forget their duty". Bribery is a matter which cases shame, and which demands imposition of the severest penalty. This is certainly the case when a public official takes something proffered to him, ignoring his duty to society and his obligation of honesty to his government employer.
2. Outline of Discussion
I divide the following discussion into two parts. First, I discuss the elements of the crime of bribery, specifically bribing a government employee negotiating an international contract. Second, I discuss the penalty for such bribery.
BRIBING NEGOTIATORS OF INTERNATIONAL CONTRACTS
3. Historical Development
Bribery is neither a crime created by modern societies nor given birth by our contemporary social life. On the contrary, bribery has existed throughout the ages, known by even the most ancient of civilizations and legislation, which severely punished that crime. In the Republic of Plato the punishment for bribery was the death penalty. Greece also applied such punishment in all instances of bribery. Roman law also addressed the crime, in the Twelve Tables, imposing the death penalty on any judge accepting a bribe.
4. Islamic Law ("Sharia")
Islamic law divides punishable acts into three categories. First "huddud" crimes which are those committed against the "rights of God", punished by the most severe of penalties and which should not be compromised. Second, "qisas" crimes, involving wrongs against individuals, which are homicide and physical injury. Since the rights of the individual are involved, qisas was allowed and the rule of "diya" was established. Third, crimes call "ta'azir", which are crimes committed against public security, with punishment largely for the discretion of the judge. Such penalties may include reprimand, fines, jail and whipping, depending upon the enormity of the act attributed to the person convicted of the crime. The crime of bribery is a ta'azir crime.
Proof of the prohibition on bribery is taken from the Koran and the Sunna and the consensus of jurists. It has been related that the Prophet said "God curses the briber, the bribed and the intermediary between the two of them".
As mentioned in the book of Ibn Abdeen, the amount of the bribe must be returned to the payor, based upon the invalidity of the bribery agreement. Alternatively, the judge may decide to confiscate the bribe for the public treasury.
According to the book "Al-Mahal" by Ibn Hazim, a person may pay a bribe to protect himself from an injustice.
5. Egyptian Law
Article 103 through 111 of the Egyptian Criminal Law punishes bribery. These provisions appear in the third party of the book pertaining to felonies and misdemeanors harmful to the public interest.
6. Bribing Public Officials
Due to the special position in which government workers are placed among the citizenry, the legislator was obliged to describe certain acts which those workers might commit during the performance of their duties, acts which infringe the public order. The legislator arranged criminal punishment for such acts. Among the provisions established for this purpose are Articles 103 et seq. of the Egyptian Criminal Law, pertaining to bribery of public officials. Bribery is a crime which includes both acts taken by a public official, therefore benefitting from his position, as well as acquiring an illegal advantage simply by means of such government position.
Needless to say, the government negotiator in international contracts is a public official who paves the way for the state or public sector entity to execute the contract.
The section on bribery contains two separate crimes, the crime of the public official who accepts the bribe, and the crime of the person who offers the bribe. More precisely, these two crimes are described respectively as the "passive" and "active" crimes of bribery, which the Egyptian legislator considers as two separate and distinctive crimes.
7. The "Passive" Crime of Bribery
It is quite clear from the provisions of the Penal Law that there are three elements for the passive crime of bribery. All of these elements must be present for the perpetrator to be subject to punishment under the relevant rules of law.
First, bribery rules define the requisite characteristics of the bribed person. In other words, the crime of bribery must involve a public official or one considered of similar status at the time the crime was committed. A public official is any person who takes part in managing the public affairs of the state. As such, this includes cabinet ministers, judges, prosecutors, officers, mayors, customs officials, government engineers, professors, teachers and the like.
According to Article 111 of the Penal Law, pertaining to the crime of bribery, the following are considered to have the status of public officials:
(i) Employees in departments affiliated with the government or under its supervision.
(ii) Members of general or local representative assemblies, whether elected or appointed.
(iii) Arbitrators, experts and deputies of the prosecutor's (niyaba's) offices, receivers and judicial administrators.
(iv) Every person entrusted with public service.
(v) Members of the board of directors, managers and employees of organizations, companies, societies and institutions if the state, or a public authority, contributes to its funding in any manner whatsoever.
Second, the material element of bribery must be present, i.e. the benefit which is considered the means for motivating the criminal act, in the sense that the bribed person seeks or accepts bribery in order to obtain a promise, gift or present. These benefits need not be material, but include non-material benefits which cannot be estimated in monetary terms.
Third, the element of intent also must exist in the crime of bribery, i.e., the intent of bribing, which the briber seeks. This intent is the mental or subjective state which caused the crime of bribery to take place. The goal of bribery is to cause the public official to perform (or refrain from performing) one of his duties, or to violate any requirements of his office. In international contracts, for example, the negotiator might accept benefits in exchange for concluding the contract on conditions unjust to his government employer.
The verdict (sentencing a person as guilty of bribery) must include a statement of these three elements, i.e., the judge is obliged to explain, in his verdict, that these elements exist in the case before him.
8. The "Active" Crime of Bribery
Similar to the "passive" crime of bribery, active bribery consists of three elements similar to those mentioned above. In the active crime of bribery, however, these elements are directed toward the position of the briber.
PUNISHMENT OF BRIBERY
What is the penalty arising from the crime of bribery? In brief, the offender bears criminal responsibility, civil liability and, if the offender is a government official, he is questioned by his administrative superiors. Thus, the crime of bribery raises issues of criminal, civil and disciplinary punishment.
9. Criminal Penalty
The criminal penalty is the punishment imposed by law in the name of the community against whoever is proven responsible and liable for a specified offense. In accordance with a law issued on 19 February 1953, the Egyptian legislator established a severe punishment for bribery. This punishment may extend to a life sentence with hard labor.
What about our example of a negotiation with a foreign government? Article 77 of the Criminal Law, paragraph "D"/"E", imposes a life sentence with hard labor on any person who, while entrusted to negotiate with a foreign government on behalf of Egypt, uses the negotiation proceedings against Egypt's interest. In addition to the prison sentence, the offender is subject to fines and confiscation of the benefit paid as a bribe.
In the example mentioned above, there are multiple aspects leading to multiple offenses, because the criminal act can be given more than one legal description. In other words, a criminal act could constitute more than one crime. In the example mentioned above, the criminal act constitutes both bribery and treason by the negotiator. The matter is resolved by application of the first section of Article 32 of the Criminal Law, which states that if a single act constitutes several crimes, then one must only apply the punishment relating to the crime with the severest punishment.
10. Exemption (Amnesty) From Penalty
Article 107Bis of the Criminal Law states that the briber or the middleman may be exempted (granted amnesty) from penalty if he informs the authorities of the crime of bribery, or confesses to it. Moreover, Article 108 states that the briber or middleman shall be exempted from penalty if he informs the authorities of a related crime punishable more severely than the crime of bribery [such as the treason example, given above].
11. Civil Penalty
From the civil law perspective, the international contract remains valid despite the negotiator's acceptance of a bribe. There is no reason for holding such a contract invalid, so long as the treason of the negotiator occurred before the signing of the contract.
In contrast to the above, the bribery agreement is absolutely invalid thus one cannot demand execution of such an agreement. This is because the obligation contained in that agreement is invalid, for its purpose violates morality. This is confirmed explicitly by Article 136 of the Egyptian Civil Code, which states:
A contract is void if there is no cause for the obligation or its object is contrary to public policy or morality.
What if the bribery agreement has already been executed, in other words, if the briber has given the benefit to the recipient of the bribe? Does the briber have the right to demand reimbursement of that bribe, based on the theory of nullity, requiring the two contracting parties to return to their original pre-contractual state, extinguishing all consequences of the contract? Or is such reimbursement impermissible, in accordance with the ancient Roman rule that a person should not be reimbursed such payment as a result of his own mal fides?
On 25 December 1951, the criminal circuit of the court of cassation ruled that the crime of bribery has been made an offense under law, as that crime is one of the forms which an official trades on his position and violates the duty of trust placed upon him. The briber is one of the parties participating in that crime; and the briber should not be entitled to demand compensation for a crime involving his participation. This result is not affected by the provisions of law exempting the briber or the middleman from punishment if he informs the authorities of the crime, or confesses to it. The court decided that it would incorrect to grant the briber a civil award to reimbursement of the bribe which he had offered. Thus, the criminal court decided not to accept that civil law suit in favor of the briber, because its cause was illegal.
12. Disciplinary Penalty
When a public official commits the crime of bribery, that act demonstrates his violation of the duties of his position, and consequently requires questioning him administratively and imposing on him disciplinary penalties. These are essentially matters of administrative law.
However, it must be emphasized that the disciplinary cause of action is independent from the criminal case, and neither of these two cases would be suspended because of the other. Nor would a judgement issued in either of these two cases affect the other. In other words, this is not a situation for the rule that an individual can not be punished twice for the same act.
From a practical perspective, the bribed official may be dismissed from his post by the administrative authorities, as a disciplinary punishment.
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