WHEN A FAVOUR MAY BE A BRIBE


A gift to a client can be deemed as a form of corrupt practice if it benefits the business.

WHAT constitutes a favour?

While the corporate sector may consider it a favour to a recipient, the Malaysian Anti-Corruption Commission (MACC) has specified that facilitation, payment, gift, entertainment, kickback, charitable contribution and sponsorship are deemed as corrupt practices in business.

“Favour is an issue that is very difficult to define, and it is up to one’s interpretation. It has a lot of subjective judgment,” says Malaysia-China Chamber of Commerce (MCCC) president Datuk Tan Yew Sing.

Referring to Section 17A of the Malaysian Anti-Corruption Commission (Amendment) Act 2018, he says: “Section 17A is a good starting point as it states that corruption does not only involve cash but also favour. (But) how to define favour?”

Under Section 17A, a commercial organisation can be prosecuted if an individual from the company gives or agrees to give, promises or offers any form of bribe to any persons to benefit its business.

The provision of this law has extra-territorial jurisdiction. This means Malaysian incorporated companies and partnerships committing corrupt practices outside of the country are equally as liable.

If convicted, the penalty is a fine of 10 times the value of the bribe or RM1mil, whichever is higher, or a jail term of up to 20 years, or both.

‘Let the whole world know that we are serious. Corruption is the mother of all evils,’ says Tan.‘Let the whole world know that we are serious. Corruption is the mother of all evils,’ says Tan.

In addition, all corporate people have to be careful as one cannot give the excuse that the act was done by the staff and the management has no idea about it, Tan says.

“The work, power and authority can be delegated to your staff but responsibility can’t be delegated in the sense of ‘I don’t know, and that is none of my business’,” he says, adding that from his interaction with foreign partners in joint-ventures, they are aware that they too are liable to prosecution.

The director, controller, officer or partner of the company is deemed to have committed bribery unless it can be proven that the alleged offence was committed without his/her consent or connivance, and that he/she exercised due diligence to prevent it.

A company which allegedly bribed to obtain business became the first commercial entity to be charged at the Shah Alam Sessions Court in March last year under Section 17A of the Act.

In the Transparency International’s Corruption Perceptions Index 2021 report, Malaysia dropped five places to 62nd out of 180 countries.

“In 2020, Malaysia was ranked 57th out of 180 countries, scoring 51 out of 100 points. We should be able to come out stronger,” Tan says.

Tan urges the MACC to strictly enforce the law and that they will support MACC in the implementation of anti-corruption measures and practices.

“Let the whole world know that we are serious. Corruption is the mother of all evils. We want to create a graft-free culture. We have to walk the talk and set a good example for the next generation for a reputable Malaysia,” he says.

Tan, who is the founder and chairman of INTI Education Holdings Sdn Bhd, says corruption could lead to income inequality and affect distribution of resources and impact innovative ideas, business growth and the integrity of the country.

“Once corruption comes in, you need to have wealth and connections. There will be all sorts of promises as corruption comes in many forms, and it is no longer competitive, as it will depend on what you can offer and who you are,” he says.

Preventive measures

The government is committed to root out corruption through the implementation of Section 17A(5). This provision was modelled after Section 7 of the UK Bribery Act 2010 and Foreign Corrupt Practices Act 1977.

In December 2018, the Prime Minister’s Department issued a set of guidelines on adequate procedures pursuant to Section 17A (5) of the MACC Act. These guidelines are based on the five principles of TRUST:

> Top level management’s commitment to maintain integrity and ethics.

> Risk assessment.

> Undertake appropriate controls and contingency measures.

> Systematic review, monitoring and enforcement of the anti-corruption programme.

> Training and communication relevant to its anti-corruption management system.

The provision is not to act as a punitive law only, but to help organisations implement adequate procedures to prevent corruption.

On June 1, 2020, Section 17A of the MACC Act was enforced following the expiry of the two-year grace period for businesses to implement anti-bribery measures.

Parliament passed the amendments to the Act on April 5, 2018, and it was gazetted on May 4 that year.

Tan says that among the 1,800 MCCC members are SME companies and some of them implemented their own anti-corruption measures, such as setting a limit to the value of gifts that they accept.

MCCC will work closely with MACC to educate its members more on the Act, he says.

“There are many SMEs that still do not understand the rules. They find it hard to tell what is bribery and what is not.

Tan says he is committed to work with the MACC and the Education Ministry to promote anti-corruption awareness activities with students, undergraduates and cultural associations.

“We have to place our hope on the younger generation. With students we must advocate that bribery is not acceptable. If there are no moral values in business dealings, anything can happen.”

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