ON ‘PUBLIC OFFICE MISCONDUCT’
Adding provision in MACC Act will boost drive against corruption
THE Malaysian Anti-Corruption Commission (MACC) has charged a private company under the Corporate Liability provision (Section 17A) of the MACC Act 2009.
The offshore vessel support company became the first commercial entity in Malaysia to be charged under Section 17A since the law came into force on June 1 last year.
MACC Investigations director Datuk Norazlan Mohd Razali recently said with the enforcement of Section 17A, more arrests and charges for corruption are expected against commercial organisations and individuals.
In Malaysia, the key legislative change in the fight against corruption in or by the private sector is the insertion of Section 17A in the MACC Act 2009, which imposes criminal liability on commercial organisations for failure to prevent corruption.
Commonly termed Corporate Liability, Section 17A states that “A commercial organisation shall be deemed to have committed an offence if a person associated with the commercial organisation corruptly offers or gives any gratification to any person with an intent to obtain or retain business or advantage in the conduct of the business of the commercial organisation”.
The burden of proof thus shifted to the commercial organisation, wherein the charged individual must show that the offence was committed without his/her knowledge or consent, and he/she had exercised sufficient diligence to prevent the commission of the offence.
This can be done by showing that adequate procedures were in place in the organisation to prevent corrupt practices.
To strengthen the MACC Act, it is also timely that we introduce the “Misconduct in Public Office” provision to address misconduct by public officials that results in huge financial losses by the government.
The Hong Kong government has legislation in place to address this. In 2017, Donald Tsang, the former chief executive and the highest-ranking ex-official to be charged in the city’s history, was jailed for 20 months for misconduct in public office.
Malaysia needs this provision for both punitive and deterrent purposes. It should fairly apply to everyone involved in the decision-making process, including cabinet ministers and politicians.
They are elected by the people and should be held to a higher standard. By holding government officers and politicians accountable and liable, it can prove to be a valuable legislative tool in the fight against institutional corruption.
MACC Chief Commissioner Datuk Seri Azam Baki has stated that often, public servants responsible for causing financial losses had been found to have taken orders from higher-ups, including ministers and politicians. However, when they were apprehended, their bosses who gave the instructions were often nowhere to be seen, leaving them to fend for themselves.
Public servants should at all times know that they are protected when discharging their rightful duties and be able to exercise their right to ignore politicians who try to interfere in their work, especially when the request is contrary to the civil service code of conduct and not in accordance with the law.
Hence the law should get to the root of the case and nail both master and the executor.
Transparency International in 2020 estimated that bribery and corruption can cost between 10 and 50 per cent of a public contract’s value.
The MACC is keen to have the “Misconduct in Public Office” provision inserted in the MACC Act 2009 tabled and debated. It is worth noting that when the Section 17A amendment was tabled and debated in Parliament in 2018, it received strong bipartisan support.
With this new “Misconduct” provision, the government will be better equipped to reduce fraud, leakages and wastage of public sector finances.
The need for this provision to be supported and passed soon is abundantly clear.
Additionally, the chief secretary to the government should encourage government agencies to be serious and proactive about fighting corruption and reward officers who tackle the problem.