LETTER | Time to gazette new Section 17A of MACC Act for enforcement

LETTER | Transparency International Malaysia calls upon the de facto minister of law Takiyuddin Hassan to take steps to gazette the Corporate Liability Provision Section 17A for it to come into operation this June as has been earlier promised. By doing this, the Attorney-General’s Chambers will be able to publish in the Federal Government Gazette for this provision to come into force.

Under this provision, a commercial organisation commits an offence if any person associated with the organisation corruptly gives or agrees to give gratification for the benefit of another person with the intent of retaining the business or gaining an advantage for the commercial organisation.

Since the amendment to the MACC Act in April 2018 was done by the then BN government to include this new provision, the MACC has been aggressively advocating and educating commercial organisations throughout the country on their compliance with this provision. In fact, many companies have adopted the ministerial guidelines provided on adequate procedures and have put in place controls for good governance to prevent corruption. The government and the MACC should continue with this momentum as this is a very effective step to fight against corruption being part of Malaysia’s corporate culture.

A survey done by the MICG (Malaysian Institute of Corporate Governance) on 100 companies indicates that only 54 percent of the companies surveyed are ready with adequate procedures. However, it is a good indication that companies have recognised what is corporate liability and why they need to have adequate procedures. There is no reason to wait any longer to bring this provision into force or all the good work done so far will come to nought and companies may begin to waver putting in place their adequate procedures to prevent corruption in their organisation.

The MACC should use the UK as an example. When the UK Bribery Act 2010 with an equivalent provision came into force in 2011, the first conviction only came five years later. Hence, bearing in mind this lead time, TI-Malaysia urges the government to bring Section 17A into force quickly while the MACC should continue with its good work by educating all commercial organisations to have adequate procedures to prevent individuals associated with them from committing acts of corruption.

On the recent suggestion on the need to have a provision for a DPA (Deferred Prosecution Agreement) in the Criminal Procedure Code, TI-Malaysia fully supports this because such an agreement under the supervision of a judge will not only save the court’s time but would also allow companies to reflect back on what happened and give the company a second chance to make good on what went wrong after the prosecution and the defence have agreed on the penalty. Such a provision will add bite to corporate liability and work hand-in-hand to make companies be concerned in the fight against corruption.

On the call by some that the enforcement of this new provision in the MACC Act should be postponed for a year due to the Covid-19 pandemic which has caused business interruption to many companies and they will not be ready by June 2020, the MACC may take this into consideration but one year is definitely too long – in fact, the Covid-19 pandemic itself may be a cause for corruption as various parties become desperate and will commit bribery to gain commercial advantage and benefit. The provision must come into force latest within this year so that corruption will not find a foothold in the midst of the looming economic crisis.

TI-Malaysia strongly urges MACC and the government to move ahead as quickly as possible to enforce this corporate liability provision as it is needed now more than ever before.

The writer is president, Transparency International - Malaysia.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.