ACCORDING to the Malaysian Anti-Corruption Commission (MACC) Act, generally speaking, corruption or bribery is the act of giving or receiving of any gratification or reward, in cash or in kind, for performing a task in relation to a person’s job description.
An example is a contractor giving an expensive watch to a government official in return for awarding a project to a company belonging to the contractor. More examples can be found in the MACC’s website, sprm.gov.my.
Bribery can also be in the form of gifts in kind such as discount offers, votes, services (including sex), job position or placement, loans and many other forms of payment.
There are four main offences relating to bribery and corruption as set out in the MACC Act.
First, soliciting or receiving gratification (bribe) under Sections 16 and 17(a) of the MACC Act, which is the common scenario of a person or agent soliciting/receiving any form of gratification/bribe as an inducement for performing or not performing a task.
An example of a previous court case: Baharudin Ahmad, former president of Kangar Municipal Council, was charged with soliciting and receiving a bribe from a contractor of a housing development spanning some 4ha in Padang Besar, Perlis. In return, he promised to approve the project as well as ensure its smooth running.
The bribe received from the contractor was RM30,000 cash, RM30,000 in a cash cheque and a Mizuno golf set worth RM2,500. The court, after finding him guilty of the offence, jailed him for four years and fined him RM1.92mil.
Secondly, the offering or giving of gratification which falls under Section 17(b) of the MACC Act, which is the scenario of a person or agent offering or giving any form of gratification or bribe as an inducement for performing, or not performing a task in relation to the official duty of a civil service officer.
One of the examples under this section was a case in Sibu, Sarawak, where a contractor was sentenced to eight months’ imprisonment and fined RM25,000 for giving a bribe of RM1,500 to one Sandum Hitam, who was a forestry management officer at the Sibu District Forestry Office. The bribe was to expedite the application process for the “Permit to Enter Coupe”.
Thirdly, the case of intending to deceive (false claim), which is an offence under Section 18 of the MACC Act. Section 18 states that “any person providing documents such as receipts or invoices that are false or contain false details with the intention to deceive the principal (office)” commits an offence.
An example of this offence occurred in Shah Alam when Datuk Md Saberi Md, ex-dean of the Faculty of Sports Science and Recreation of Mara Technology University (UiTM), was sentenced to three years’ jail and fined RM10,000 by the Sessions Court for acknowledging a false invoice for the supply of sports equipment worth RM138,600 in 1999.
The goods were never delivered. The judge also imposed the same penalty on the owner of the sports equipment supplier, one Zaleha Abdul Rahman, for the offence of colluding in producing the said invoice.
Lastly, under Section 23 of the MACC Act, it is an offence to abuse one’s power or use one’s office or position for gratification. Abuse of power takes place when a person who is a member of a public body uses his position or the office in making a decision or taking action for the benefit of himself, his relative or associate.
In addition to the MACC Act, there are also related offences in the Penal Code. For example, under Section 165 of the Code, it is an offence for a public servant to obtain any valuable thing, without consideration, from a person concerned in any proceeding or business transacted by the public servant. If found guilty, the penalty is a maximum two-year jail term or fine, or both.
One of the classic cases of such an offence is that of Datuk Seri Mohamad Khir Toyo, who was charged with knowingly obtaining a valuable thing as a public servant by paying inadequate consideration for a piece of property.
Khir Toyo, a former Selangor Menteri Besar, was given a 12-month jail sentence after being found guilty of obtaining two plots of land and a bungalow in Section 7, Shah Alam, for himself and his wife Zahrah Kechik, from Ditamas Sdn Bhd through its director Datuk Shamsuddin Hayroni with the inadequate payment of RM3.5mil in 2007. Ditamas had itself bought the property in 2004 for RM6mil.
The general penalty for any corruption-related offence in the MACC Act is (i) imprisonment for a term not exceeding 20 years and (ii) a fine of not less than five times the sum or value of the gratification or RM10,000, whichever is higher.
Examples: If A receives a bribe amounting to RM5,000, the penalty will be imprisonment and a fine of RM25,000 (RM5,000 x 5).
If B receives a bribe amounting to RM1,000, he/she will be jailed and fined RM10,000 (the minimum fine takes precedence as the penalty charge on the value of the bribe amounts to less than RM10,000 (RM1,000 x 5 = RM5,000).
The punishment for cases involving corruption should be reviewed to provide for heavier sentences. This is necessary because existing penalties have had no effect on some offenders. A higher penalty will also deter would-be offenders.
While the MACC Act was an improvement on anti-corruption legislation, after 50 years and all the experience gained in that time, there should be a thorough review to make the anti-corruption laws even stronger. Heavier penalties are called for in view of the persistent threat of corruption plaguing our country.
DATUK AKHBAR SATAR
Transparency International Malaysia
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