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Solomon Islands proposed Anti-Corruption Bill considers as a defence under customary practices, the giving or accepting of gifts, monetary or otherwise, which can be interpreted as bribery.
Acknowledging that some will view this provision as an ‘escape route’ for corruption offenders Prime Minister Rick Houenipwela argued this departure from the United Nations Convention Against Corruption (UNCAC) must be taken in the context of the island nation’s customary practices.
He admitted the provision is not found in the UNCAC but, ‘it is our invention which was deemed justifiable given Solomon Islands context.’
“While we acknowledge these good arguments has been taken out of respect, and in recognition of Section 75 of our Constitution, as well as the given local context of Solomon Islands as a post-conflict country. Sir the Constitution is our supreme law and we have to respect our customs and traditional cultures. And being a multi-ethnic post-conflict country, we have to do exactly that. We have to continue to grow as a nation in peace-building and nationhood-building through respect, understanding and tolerance of our various customs, values and aspirations. To totally ignore our customs is definitely unacceptable, argued PM Hou.
Speaking in Parliament, PM quoted a ruling of former Solomon Islands Chief Justice, Sir John Muria in 1997 when he said, “It is a fallacy to view a constitutional principle or a statutory principle as better than those principles contained in customary law. In my view, one is no better than the other. It is the circumstances in which the principles are applied that vary and one cannot be readily substituted for the other.”
“We have a respectable judiciary in the country. And because of this, I am inclined to give a chance to the judiciary to develop jurisprudence over the application of custom as a defense in corruption cases.
PM Hou said many who commit corruption offences will attempt to use this defense.
“We are confident however that the conditions to be satisfied to successfully use this defense are already ‘water-tight’ to ensure the action under question was an act conducted according to customs and tradition. But let me assure you that the Government stands ready to further tighten these conditions in the future if need be, the Prime Minister assured.
“As the framer of this proposed law, I am not interested in whether the Court upholds this defense or not. It is how the court decision was derived that matters because it will be educational and significant to the continuing process of peace building and integration of our multi-ethnic society; a process that is underpinned by the principles of respect, understanding and tolerance for our customs, values and aspirations.
“It is far more acceptable to society if the Court says that an act of exchange (considered to be bribery by the prosecutor) is in fact an act not in accordance with custom than for an authority outside of the Court to say the same. To totally exclude custom practices as a defense however, would undoubtedly be indicative of our defiance of Section 75 of the Constitution, explained PM Hou.
He also raised his concern about illicit wealth or unexplained wealth.
“It has been claimed that the Bill does not address the problem of unexplained wealth. Let me make it very clear that I do agree that if it is proven that a leader or public official has amass his/her wealth by way of corrupt acts then that person must be prosecuted for corruption (whether that is an act of abuse of office or acceptance of bribe in return for a benefit).
PM Hou said Clause 42(2) (b) of the Bill has sufficient powers for the Solomon Islands Independent Commission against Corruption (SIICAC) to commence an investigation into any allegations of illicit wealth.
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