On bribes and ‘political donations’

By Wu Ching-chin 吳景欽  / 

Sun, Apr 07, 2013 - Page 8

Responding to allegations of her involvement in the Taipei Twin Towers project bribery scandal, Chinese Nationalist Party (KMT) Taipei City Councilor Lai Su-ju (賴素如) admitted that she received NT$1 million (US$33,380), but said she had believed it to be a political donation, not a bribe, adding that the money had already been returned.

This type of argument seems to have become the mantra of all politicians asked to account for where funds of undisclosed origin had come from. The problem is: Is the claim that an amount of money was a political donation a sufficient defense against accusations of accepting bribes?

By political donations, one means an amount of money given with no conditions attached by a member of the electorate to a certain politician whose ideas and politics the donor approves of, and in which they place a degree of hope, to be used to help that politician get elected.

Therefore, the biggest difference between a political donation and a bribe is that the former is unconditional, while the latter is a quid pro quo arrangement, in which the giver expects something in return. There is, then, a clear distinction between the two. However, if one looks look at the current laws, there is considerable confusion about when something should be considered a political donation, and when it should be considered a bribe.

To prevent a candidate accepting bribes in the guise of political donations, the first clause of Article 7 of the Political Donations Act (政治獻金法) provides a list of 11 types of individuals, groups or profit-seeking organizations prohibited from making political donations.

The second item on this list reads as follows: “Manufacturers that have signed a government procurement contract worth a large amount or an investment contract of important public construction and are performing the contract.”

Such businesses are not allowed to give money as political donations, so that no situation arises in which they can attempt to offer bribes to secure their profit.

The trouble is that there is a loophole in this prohibition in that it does not cover any contractors in the process of preparing for a public construction project or procurement bid, nor those that have already won the bid, but are still negotiating the price.

Although Paragraph 1 of Article 9 of the same law — “Political donations may not be contributed to ask for, or in the expectation of, undue benefits” — ostensibly addresses this loophole, not only does the text lack substance, it is also undermined elsewhere in the act.

Paragraph 1, Article 29, states: “Anyone who contributes political donations infringing the provision of Paragraph 1 of Article 9 shall be fined a sum doubling the amount of the donations accepted,” emasculating the prohibition in Article 9.

Further, although the Control Yuan is ostensibly responsible for monitoring political donations, this process is subject to personnel constraints, and there is no way to make sure every single candidate is reporting donations properly. All that the Control Yuan can do is undertake random spot checks, which encourages the sort of mentality among people that makes them feel they can chance it, that they might get away with it.

One has to rely on the honesty of individual politicians, in the hope that they will report all of the donations they receive. The problem is, of course, that if the intention of the person or organization making the donation is to secure some kind of profit or benefit illegally, it is unlikely they would be foolish enough to actually report said donation. That being the case, the Political Donations Act is in practice little more than a moral code that will appeal only to people of higher moral character — the Confucian “gentleman” if you like — and is of little use for those who set less exacting moral standards for themselves.

One must take a practical view of whether arrangements should be regarded as quid pro quo bribes. Elected representatives, for example, do not necessarily have any direct influence or the ability to decide on government procurements or tenders, but if they demand, agree to take or actually receive money from contractors, and undertake to force the government’s hand through amendments and proposals, or even by cutting budgets, to ensure that the contractor involved wins a major bid, then this should be regarded as a quid pro quo arrangement.

This is why Article 5 of the Anti-Corruption Act (貪污治罪條例) stipulates that anyone “demanding, taking or promising to take bribes or other unlawful profits by an act that belongs to [their] official duties ... shall be punished by imprisonment for a term of no less than seven years.”

Receiving money in this way, whether it is characterized as a political donation, a consultancy fee or whatever, is a crime.

No matter how one characterizes receiving money, be it as a political donation, a consultancy fee or whatever, a crime has been committed.

What is more, this crime is technically referred to as a behavioral offense — as opposed to a consequential offense — which is to say the crime is established by the act itself, in this case, the initial demand, regardless of whether one eventually benefits or profits from that demand.

Whether the money has been returned certainly has no bearing on the verdict.

With a succession of corruption cases under investigation, is it really the case that it is impossible to clean politics up in Taiwan?

Wu Ching-chin is an associate professor in the Department of Financial and Economic Law at Aletheia University.

Translated by Paul Cooper