DPA needs to be clear and transparent

Dr Muhammad Mohan. -filepic

PETALING JAYA: A deferred prosecution agreement (DPA) comes with many benefits, but its processes must be clearly defined, transparent, and free from executive interference, say experts.

The Malaysian Anti-Corruption Commission (MACC) has proposed implementing the DPA in financial crime cases involving organisations.

According to Transparency International Malaysia (TI-M), DPA benefits include saving criminal justice costs, conserving the jobs and livelihoods of innocent employees, and having a lower impact on smaller companies and the local economy.

TI-M president Dr Muhammad Mohan described the DPA as a “good form of restorative justice.”

“When one or a few carry out corrupt practices for the benefit of a company, and it is slapped with a RM1mil fine, smaller companies and small and medium enterprises may be forced to close down, thus rendering many innocent, uninvolved employees jobless.

“The DPA is an efficient way to keep the company running, publicly reprimand the parties responsible, and ensure through close scrutiny the implementation of sincere and proper anti-corruption policies.

“It will also result in payment of an agreed upon fine to the government, instead of spending public money on court processes,” he said when contacted yesterday.

However, the DPA should not be misconstrued as an escape from punishment or just a slap on the wrist for corruption; a proper DPA ought to encompass a public reprimand, a confession from the guilty parties, an agreement for a turnaround plan, and an oversight and audit procedure for a few years, he said.

All the contents of the agreement with the MACC and judiciary have to be transparent and publicly available, Muhammad Mohan added.

He said that implementation of a DPA Bill must provide clear guidelines on how similar offences will be treated when involving government-linked companies (GLCs), government-linked investment companies (GLICs), societies, foundations, and statutory bodies.

He added that the DPA will only be effective at preventing corruption if it inspires compliance.

“If it is implemented and companies continue to use the representation letter route to have their charges lowered, dropped or obtain discharges not amounting to acquittals, then the DPA will be pointless.

“Separation of powers, independence of the public prosecutor and judicial integrity are central to the success of the DPA,” he added.

Criminologist and psychologist Assoc Prof Dr Geshina Ayu Mat Saat of Universiti Sains Malaysia said, on one hand, there are concerns about the elements and conditions of DPAs which could allow individuals charged with white-collar crime to avoid lengthy incarceration and reduce personal responsibility for the harm caused to victims.

“It appears to reduce the visible deterrent value of law enforcement efforts, provide perceived justice biasness between those who can afford to pay and those who can’t afford to pay, and avoid the societal censure that should accompany prosecution of financial crimes like fraud, embezzlement, terrorist financing, money laundering, and cybercrime,” she said.

On the other hand, DPAs take into consideration the likely scenario that a specific person in an organisation is a suspect and not everyone in the entire organisation is part of a criminal syndicate, she said, which is fair to investors, stakeholders and employees who are innocent.

“Companies are likely to cooperate more fully due to the reduced fear of being implicated in wrongdoings as well as reduced reputational damage that have far-reaching negative consequences for the livelihoods of innocent employees and business sustainability, ” she said.

DPAs also provide prosecutors with additional tools to deal with allegations of financial crimes due to challenges in procuring eyewitness testimony and documentary evidence, as well as problems with funding and time consumption for lengthy investigations, she said.

Assoc Prof Geshina said if DPAs are to be enforced, conditions need to be clear about what types of organisations they will apply to, such as whether it is government, semi-government or private.

Other details that need to be addressed include the types of crimes, seriousness ofthe alleged offence, public interest, nature of the cooperation given by the entity involved to the investigation team, and steps taken by companies towards accountability and avoiding future incidents.

She also suggested a transparent public consultation process open to interested parties and groups to enable public inclusion in decision making about the use of DPAs in Malaysia.

Lawyer Haniff Khatri Abdulla said the DPA will balance the concept of criminology and the national economy by ensuring that only corrupt individuals are taken through the system and uninvolved employees do not suffer.

Hanif said that if a DPA is granted, there must be certain terms imposed; for instance, the company must be willing to divulge all information about those involved in the alleged crime, including names of public officials, whether they are senior officers or even ministers.

He also said the implementation of the mechanism must be preceded by proper studies by a committee, while its application for GLCs and other types of companies be detailed so that it can be effectively applied in the Malaysian context.

He also said the MACC must work on improving public confidence in its work and enhance its independence before introducing DPAs.

There are questions about whether the anti-graft body is free from executive interference, for instance, he added.

Until and unless public confidence is higher, “how will the public accept a DPA system, which defers prosecution of a company purportedly for the benefit of society?”

People may believe this mechanism assists culprits in hiding their crimes instead, he said.

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MACC , DPA , Lawyers , Financial Crimes


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