Duarte Santana Lopes (standing)
A presentation of the Handbook on Anti-Corruption Legislation in Portuguese- Speaking Countries (PSC) and regions, promoted by law firm MdME, has been given at the Consulate General of Portugal, with lawyer Duarte Santana Lopes delivering the presentation.
During his talk, Lopes noted that the handbook is not so much about uncovering corruption, but about its prevention. The handbook is for clients who are seeking business deals in the jurisdiction covered by the handbook, he said.
The handbook mainly covers corruption rules in the Portuguese-speaking countries and regions including Portugal, Angola, Mozambique and Macau.
When comparing Portugal to Macau, Duarte Santana Lopes said, “Portuguese legislation also criminalizes certain content that is not criminalized in Macau, which is the undue receiving of an advantage. The difference of this crime to the corruption crime itself is that the offering or the acceptance of this particular advantage does not have to be intended for the public officials [to] carry out.”
In Portugal, there is a specific framework for holders of political offices and holders of high public offices.
“Although these entities are obviously subject to the general corruption crime in the public sector, […] Macau does not have a specific regime for this kind of [position],” the lawyer said.
Regarding punishment of corruption in the private sector, a law has been set out to criminalize active and passive corruption whenever carried out by, or related to, any person holding management or administrative positions in private sector entities.
“It should also be noted that in relation to this regime or this law in Macau, that the maximum […] applicable penalty, in this case, can be increased,” Lopes stated.
In both Macau and Portugal, corrupt behavior by civil servants and staff in other departments is punishable by law.
Concerning another comparisons between Portuguese legislation and Macau legislation, both the MSAR and Portugal’s anti-corruption laws have extraterritorial application.
“In Macau and in Portugal, the rule is that the respective criminal laws are only applicable to facts that were carried out in the respective territories,” Lopes explained, also pointing out that, in Portugal, companies can be held criminally responsible for all crimes of corruption that are set out in the Portuguese legislation, which is not the case in Macau.
“The rule in both Macau and Portugal is that only [an] individual can be criminally responsible for crimes,” the lawyer highlighted, further noting that an extension of responsibility to corporate entities can be found in Portugal, whereas such an extension can only be found in Macau in regard to foreign trade issues.
“I have to be honest, I think the Macau legislation is not up to date [at] this particular point. I think it is quite surprising and it is quite strange that criminal liability for cooperate entities in terms of corruption is only set out for the specific crime [foreign trade] and not for all the crimes that are foreseeing and that are set out in the Macau law,” said Lopes.
Asked whether the existence of compliance programs excludes corporate liability for crimes of corruption, Lopes commented: “I think it is one of the most important legal provisions that a certain jurisdiction can have in order to be effective to prevent corruption.”
However, according to the Handbook, neither Portugal nor Macau has explicit rules on the topic.
“In Macau and in Portugal, there is no explicit rule regarding the exclusion of the criminal liability of corporate entities. In Macau, […] there is no explicit rule, although there is [a] rule that says something like this, […] which is something like [stating] corporate entities are not liable for the acts by their employees or representatives, when those employees or representatives acted against explicit rules issued by those companies,” said the lawyer.
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