The Limits of Law Enforcement
I give anti-bribery and corruption training to my colleagues regularly. During this training, I find myself talking about the Keppel Offshore and Marine FCPA case very often. For an audience in this part of the world, there are lots of highlights:
- It’s bribery carried out by Singaporeans. We might have a reputation for being docile, law-abiding citizens, but anyone is capable of corruption overseas
- The amount of the bribe and the criminal fine (millions of US dollars!) is eye-catching. This case received some attention in Singapore’s Parliament as well.
- The case shows that the authorities in the US can prosecute cases with seemingly few connections to their country with devastating consequences
- A bribery scheme impacts lots of people in the company. A senior member of the legal department had to plead guilty for his role in drafting agreements in the scheme — that could be me! Being in the back won’t spare you from liability once you’re involved.
This happy state of affairs was interrupted when Singapore’s anti-corruption agency, the Corrupt Practices Investigation Bureau, issued stern warnings to six former senior management staff of Keppel Offshore and Marine. A “stern warning” sounds scary, but it’s probably the meekest in the agency’s arsenal.
The upshot is that while the US authorities deemed it fit to fine the company over $422m dollars, no humans in the company are going to get punished for this in Singapore. Does this mean that the authorities here aren’t able to go against Singaporeans who commit bribery overseas? What if somebody stands up to me during training and tells everyone that there are no real consequences to overseas bribery?
Let’s make this clear — anti-corruption cases are not easy to prosecute, even when they don’t involve foreign witnesses or evidence. For senior staff, short of declaring at a meeting that “the company will commit bribery and damn the consequences!”, determining involvement and culpability is not a straightforward task. Failing to monitor your subordinates and preventing them from committing crimes might have professional and reputational consequences, but it’d take more to claim that you thus have the common intention to commit the crime.
Undoubtedly, the story would have been magical if the CPIB scored a slam dunk and marched those responsible into jail. Reality dictates otherwise. There will be complaints that the agency didn’t do enough, or that there are nefarious forces protecting the elites. The CPIB has its own track record of success it should stand on. In any case, it is worth discussing whether the CPIB has enough expertise or resource to investigate and prosecute a case of such scale and complexity.
In the meantime, if anyone in the company believes that anti-bribery training is no longer important, be warned that being charged for an offence is only one facet of their troubles. This case has loomed over them for several years. They have already lost their positions in the company, and people online (rightly or wrongly) want their heads. None of this is enviable, and they likely would have lawyers to back them. Most employees, like you, me and that lawyer in this case, are far more likely to be forced to enter a guilty plea.
This case might vividly illustrate the limits of law enforcement, but that is cold comfort for those who are affected by it.
Love.Law.Robots. – A blog by Ang Hou Fu