MACCORRUPTION

Adzim Amir Hamzah explains the meaning of "corruption" under the Malaysian Anti-Corruption Commission Act 2009

 

INTRODUCTION 

The mysterious death of Teoh Beng Hock, the controversial V.K. Lingam video clip, the double-tracking rail project and the Port Klang Free Zone (PKFZ) scandal, to name a few, have certainly made the Malaysian Anti-Corruption Commission (“MACC”) the Malaysian headline grabber for the year 2009.

The MACC was established under the Malaysian Anti-Corruption Commission Act 2009 ("MACC Act") which came into force on 1 January 2009. The MACC Act was aimed as a catalyst to improve corruption prevention in Malaysia. 

Almost a year after the coming into operation of the MACC Act, Berlin-based anti-graft watchdog, Transparency International (“TI”), recently announced that Malaysia had plunged nine places in its Corruption Perception Index (“CPI”) ranking from 47th in 2008 to 56th position out of 180 countries in 2009. Malaysia’s CPI score also plunged to a record low of 4.5 out of 10 (10 being the least corrupt), the lowest in 15 years for the country.

According to TI, “(t)he decline in the CPI score for Malaysia may be attributed to the perception that there has been little progress combating corruption and a lack of political will to implement effective anti-corruption measures. The MACC appears to focus on “small fish” and opposition politicians.”

Whilst the TI report was based on perceptions gathered through surveys and may be due primarily to the negative press coverage received by the MACC, this article focuses on the offences of corruption under the MACC Act and its divergence from its predecessor, the Anti-Corruption Act 1997 (“ACA Act”).

 

 

GRATIFICATION

The offences of corruption under the MACC Act revolve around the act of giving or accepting gratification. “Gratification” is indeed the defining word and is extensively defined under Section 2 of the MACC Act as follows:

“(a)  money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage;

(b)    any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity; 

(c)     any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d)    any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage;

(e)     any forbearance to demand any money or money’s worth or valuable thing;

(f)     any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted including the exercise or the forbearance from the exercise of any right or any official power or duty; and 

(g)    any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (a) to (f) above.”

 

 

THE CORRUPTION FELONIES

The offences of corruption under the MACC Act are as follows:

(A)    Giving or accepting gratification

A person commits an offence if he by himself, or through or with any other person (a) corruptly solicits or receives or agrees to receive for himself or for any other person, or (b) corruptly gives, promises or offers to any person for the benefit of that person or another person, any gratification as an inducement to, or reward for, any person or any officer of a public body doing or forbearing to do anything in respect of any matter or transaction.  

Under the ACA Act, a “public body” was defined to include the Government of Malaysia, a state government, any local or statutory authority and any department, service or undertaking of the Government of Malaysia or a state government or a local authority. The MACC Act has expanded the scope of “public body” to include any registered society (and its branches), sports body, co-operative body, trade union or youth society. The definition of "public body" in the ACA Act which includes a company or subsidiary company over which a public body has controlling power has also been widened to include such companies in which a public body has controlling interest.

(B)    Giving or accepting gratification by agent

An agent commits an offence if he corruptly accepts or obtains, or agrees to accept or attempts to obtain, for himself or any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act, or for showing or forbearing to show favour or disfavour to any person, in relation to his principal’s affairs or business. A person who gives gratification to an agent also commits an offence under this provision.

In proceedings against an agent, it is sufficient to prove that he had reason to believe or suspect that the gratification was solicited or offered as an inducement or reward for carrying out, or forbearing to carry out, the act in question in relation to his principal's affairs or business. In a case against a giver of gratification, it is sufficient to prove that he had reason to believe or suspect that the agent had the power, right or opportunity to do, or forbear from doing, the act in question and that the act was in relation to the agent’s principal’s affairs or business.

In both situations, it is irrelevant that the agent had no power, right or opportunity to do, or to forbear from doing, the act in question, or that the act did not relate to the principal's affairs or business. It is also irrelevant in proceedings against an agent that he did not do, or had no intention to do, or forbear from doing, the act in question.

(C)    Corruptly procuring withdrawal of tender

A person commits an offence if he, with the intent of obtaining any contract for the supply of product or services from any public body, offers any gratification to any person who has made a tender for the same contract as an inducement or reward for him to withdraw the tender. It is also an offence for a person to solicit for or receive any gratification for withdrawing his tender.

(D)    Bribery of officer of public body

A person commits an offence if he offers to an officer of a public body any gratification as an inducement or reward for that officer to (a) vote or abstain from voting at any meeting in favour of or against any question submitted for approval by the public body; or (b) perform or abstain from performing or to assist in procuring, expediting, delaying, hindering or preventing the performance of any official act; or (c) assist in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person; or (d) show or forbear from showing any favour or disfavour in his capacity as an officer of a public body. An officer of a public body who solicits or accepts gratification on the grounds stated above also commits an offence under the MACC Act.

An "officer of a public body" includes a person who is a member, an officer, an employee or a servant of a public body, a member of Parliament or of a State Legislative Assembly or a judge of the High Court, Court of Appeal or Federal Court. As Sessions Court Judges and Magistrates are employees of the Government of Malaysia, they are deemed to be officers of a public body.

As stated in Part (A) above, a “public body” includes a company or subsidiary company over which a public body has controlling power or interest. This means that the offence extends to any gratification given to or received by an officer or employee of a Government-Linked Company (GLC) if a public body has controlling power or interest over such company. 

(E)    Bribery of foreign public officials

The section on bribery of foreign public officials is a newly introduced provision under the MACC Act. It was not previously included under the ACA Act. The introduction of the provision is in line with Article 16 of the United Nations Convention against Corruption which was ratified by Malaysia on 24 September 2008.

A person commits an offence under this provision if, he by himself or by or with any other person gives, promises or offers, or agrees to give or offer, to any foreign public official (“FPO”), whether for the benefit of that FPO or of another person, any gratification as an inducement or reward for the FPO to (a) use his position to influence any act or decision of the foreign state or public international organization for which the FPO performs any official duty; or (b) do or forbear from doing, or assist in procuring, expediting, delaying, hindering or preventing the performance of any of his official duties; or (c) assist in procuring or preventing the granting of any contract for the benefit of any person.

It is also an offence for an FPO to solicit, accept or obtain, or agree to accept or attempt to obtain, for the benefit of himself or of another person, any gratification on any of the grounds stated in the preceding paragraph.

An FPO includes a person who (a) holds a legislative, executive, administrative or judicial office of a foreign country; or (b) exercises a public function for a foreign country; or (c) is authorized by a public international organization to act on behalf of that organization.

(F)    Offence of using office or position for gratification

It is an offence under the MACC Act for an officer of a public body to use his office or position for any gratification for himself, his relatives or associates. 

Under the ACA Act, “relative” was limited to the spouse of a person, or the brother or sister of a person or of the spouse of that person, or a lineal ascendant or descendant of a person. The MACC Act extends the definition of “relative” to include inter alia, (a) a lineal ascendant or descendant of a spouse of the person; and (b) the uncle, aunt, cousin, son-in-law or daughter-in-law of the person.

An "associate" of a person includes (a) a nominee or an employee of such person; (b) a person who manages the affairs of such person; (c) an organization or a corporation controlled by such person or his nominee in the manner set out in the MACC Act; and (d) a trust created by such person or a trust in which such person has contributed not less than 20% of the value of the assets of such trust.

 


THE PENALTY

The minimum jail sentence of 14 days for an offence of corruption under the ACA Act has been removed by the MACC Act. The offences mentioned in Parts (A) to (F) above carry, upon conviction, a term of imprisonment not exceeding 20 years and a fine of not less than 5 times the sum or value of the gratification which is the subject matter of the offence, if it can be valued, or RM10,000.00, whichever is the higher.

 

 

PRESUMPTION

In proceedings relating to any of the offences described above, any gratification received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised or offered, by or to an accused is presumed to have been done so corruptly, unless the contrary is proved.

 

 

CONCLUSION

Apart from the introduction of a provision on bribery of foreign public officials and the expansion of certain definitions, the differences between the provisions on corruption offences in the MACC Act and the repealed ACA Act are minimal.

 

 

ADZIM AMIR HAMZAH ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 
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