LATELY, we have been seeing many photographs and a lot of video footage of handcuffed men and women in orange T-shirts bearing the words “Lokap SPRM”.
These are people who have been arrested by the Malaysian Anti-Corruption Commission (MACC) in connection with its investigations. Lokap SPRM is the Bahasa Malaysia term for the MACC lock-up.
Some of these men and women have been or will be charged in court for offences such as offering or soliciting bribes and abuse of power. If they are guilty, they will be punished.
But what if the wrongdoing is partly to do with how the private sector operates?
If businessmen believe that greasing someone’s palm is an acceptable way to get ahead of the competition, and if a company’s culture tolerates or even encourages corrupt practices, why should the employees be the only ones held accountable when the authorities enforce the law?
It is not easy, however, to prove that a company has criminal intent.
This will matter less if there are provisions in the law that deem companies responsible if employees commit certain offences in the course of their work.
This concept of corporate liability for the crimes of employees has been introduced in countries such as the United States, Britain and Australia.
Malaysia has long talked about introducing such provisions.
In July 2013, for example, Minister in the Prime Minister’s Department Datuk Paul Low said the Government wanted to introduce a “corporate liability law”.
The idea is to hold boards of directors and CEOs of companies responsible for bribes given by their employees unless it is proven that there are measures in place within the organisation to prevent corruption.
Since then, Low and senior MACC officers have several times brought up this matter.
It appears that the plan is to either amend the MACC Act or to come up with a fresh piece of legislation.
At one point, Low said the Bill would be tabled by March this year and that the new provisions would come into effect in 2018.
However, the draft legislation has yet to reach Parliament.
The latest update was from MACC deputy chief commissioner (operations) Datuk Azam Baki, who was quoted in a Sin Chew Daily report this week saying that the Cabinet had approved the Bill for the Corporate Liability Act and that it would be tabled in October.
It is understandable if the business community is less than enthusiastic about this.
There is always the fear that an employer will be unfairly blamed for an employee’s lack of integrity.
There is also the well-worn argument that complying with additional rules and regulations will increase costs amid already challenging conditions.
It is likely, however, that the new provisions are applicable only if the companies cannot demonstrate that they have done all they can to prevent the offences, or if they are negligent in addressing the risks of such offences being committed.
We will have to wait and see.
Meanwhile, businesses should examine their practices and procedures.
It is definitely in the best interest of a company to ensure that its employees understand well that corruption is not part of its corporate culture.
For that matter, corruption should not be part of any culture.
- Sunday Star Says
Amend MACC Act to give it more bite
TRANSPARENCY International Malaysia (TI-M) hails the call by the Malaysian Anti-Corruption Commission (MACC) to amend Section 23 of the MACC Act 2009 to give it greater clarity so that corrupt practices and other related offences could be better tackled especially in state-owned enterprises (SOEs).
As stated by MACC deputy commissioner (Operations) Datuk Azam Baki, MACC needs more bite to act against corrupt public officials including ministers, assemblymen and politicians.
TI-M also supports MACC on the recently proposed new law known as “Misconduct for Civil Service Act”, where civil servants who caused substantial financial losses to the Government due to negligent acts or non-compliance with official policies or procedures would face criminal charges under this proposed new Act.
TI-M has been advocating for these amendments to the existing MACC Act for the past several years and hopes to finally see the light at the end of the tunnel.
Section 23 of the MACC Act 2009 prohibits “an officer of a public body” or public officials from abusing their power for any gratification for themselves or for their relatives. TI-M shares Azam’s opinion that many politicians are being appointed into SOEs and public interest entities (PIEs).
In addition, TI-M is also looking forward to the inclusion of the corporate liability provisions into the MACC Act 2009, which will ultimately hold companies accountable for corruption cases involving their employees.
Currently, when an employee is caught for corruption or bribery, he or she will face the consequences and can be charged individually. The company which the respective employee works for is not held liable for its employees’ acts, as in law the company not being a human person is not capable of having criminal intent.
With the introduction of the corporate liability provisions, companies can be held accountable for their employees’ involvement in corruption or bribery if they are found to have failed to take adequate steps to prevent such corrupt acts by their employees.
When this becomes a reality, employers in the private sector would have no choice but to initiate anti-corruption programmes in their companies/organisations to mitigate and eventually eradicate corrupt practices.
TI-M, meanwhile, has been encouraging companies in the private sector to adopt the ISO 37001 Anti Bribery Management System as an initiative to put in place all the preventive controls and systems while simultaneously getting the top management to commit to the elimination of any form of bribery in their organisations.
On the proposed Misconduct for Civil Service Act, any effort or law to address misconduct which results in loss of taxpayers’ money should be lauded.
However, we would like to raise the issue of whether the proposed law should only apply to civil servants. What about instances where orders or instructions come from politicians or persons in elected positions? Should they not also be held liable if proven to be involved?
Any proposed law should fairly apply to everyone involved in the decision-making process, and that includes politicians.
Azam has been reported saying that each year, the AuditorGeneral’s Report reveals a litany of malpractices among government departments and agencies, some of which are outrageous, for which the civil servants responsible should be charged with criminal offences instead of just disciplinary action under the domestic rules applicable to them.
TI-M supports these new measures proposed by the MACC and hopes that the Government will give due consideration and also fully support the same by effecting the necessary changes in the law. This would ensure that we plug the existing loopholes in our anti-corruption laws.
DATUK AKHBAR SATAR President Transparency International Malaysia
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