Malaysian Anti-Corruption Commission Act 2009
Act 694 under the Laws of Malaysia, also known as the Malaysian Anti-Corruption Commission Act 2009, received royal assent, gazetted and enforced in January 2009. The Act provides for the establishment of the Malaysian Anti-Corruption Commission (MACC) as well as further and better provisions for corruption prevention. MACC replaces the Anti-Corruption Agency as the sole body that investigates cases related to corruption and acts as the front liner in corruption prevention initiatives across the nation.
The main objective of the Act is to promote integrity and accountability in public and private sector administration by establishing an independent and responsible corruption prevention body, which educates the public on corruption and its impact, with emphasis on public authorities and their officers
Section 7 of the MACC Act 2009 lists MACC’s functions as follows:
- To receive and consider any report of the commission of an offence under this Act and investigate any report;
- To detect and investigate any suspected offence, any suspected attempt or conspiracy to commit any offence under the MACC Act 2009;
- To examine the practices, systems and procedures of public bodies in order to facilitate the discovery of offences under the MACC Act 2009;
- To instruct, advise and assist any person on ways in which corruption may be eliminated;
- To advise heads of public bodies of any changes in practices, systems or procedures to reduce the likelihood of corruption;
- To educate the public against corruption;
- To enlist and foster public support against corruption.
This Act also sets provisions for main offences in corruption as stated below:
Section 16 – Offence of accepting gratification
Any person who solicits, receives or agrees to receive any gratification as an inducement to do or not to do anything, commits an offence.
Section 17 – Offence of giving or receiving gratification by agent
A person commits an offence if, acting as agent, corruptly accepts or obtains, or gives or offers any gratification as an inducement to do or not to do any act in relation to his principal’s affairs.
Section 17A – Offence by a commercial organization
A commercial organization commits an offence if, any person associated with it corruptly gives, agrees to give, promises or offers to any person any gratification to obtain or maintain business; or to obtain or maintain benefits in conducting business.
Section 18 – Offence of intending to deceive principal by agent
A person commits an offence if he gives to an agent, or being an agent, he uses with intent to deceive his principal, any receipt, account or other document that contains any false or erroneous details intended to mislead the principal.
Section 20 – Offence of corruptly procuring withdrawal of tender
A person who, with intent to obtain from any public body a contract for performing any work, offers any gratification to any person who has made a tender for the contract, as an inducement or a reward for his withdrawing the tender, commits an offence under this Act.
Section 21 – Bribery of officer of public body
Any person who offers to an officer of any public body, or being an officer of any public body solicits or accepts, any gratification as an inducement or a reward for:
- The officer voting or abstaining from voting at any meeting of the public body in favor of or against any measure, resolution or question submitted to the public body;
- The officer performing or abstaining from performing or aiding in the procuring, expediting, delaying, hindering or preventing the performance of, any official act;
- The officer aiding in procuring or preventing the passing of any vote or the granting of any contract or advantage in favor of any person; or
- The officer showing or forbearing to show any favor or disfavor in his capacity as such officer, commits an offence.
Section 23 – Offence of using office or position for gratification
Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.
Section 25 – Duty to report bribery transactions
Any person to whom any gratification is given, promised or offered, must report such gift, promise or offer and any person who fails to report such offence, if convicted, shall liable to a fine not exceeding RM100,000 or imprisonment for a term not exceeding ten years.
Section 26 – Offence of dealing with property from bribery
Any person who holds any dealings (example: uses, holds, receives or conceals) any property of the person committing bribery, commits an offence under this Act.
Penalty for offence
Under Section 24 of the Malaysian Anti-Corruption Commission Act 2009, any person who commits an offence under sections 16, 17 20, 21 22 and 23 shall on conviction be liable to:
- Imprisonment for a term not exceeding twenty years, and
- A fine not less than five times the sum or value of the gratification.
Offence under Section 17A shall on conviction be liable to:
- A fine not less than ten times the sum or value of the offence or RM1,000,000, whichever is higher; or
- Imprisonment for a term not exceeding 20 years; or
Forfeiture of property
Section 40 of the Malaysian Anti-Corruption Commission Act 2009 provides that in any prosecution under the Malaysian Anti-Corruption Act 2009, the court can make an order for the forfeiture of any property proven to be the subject of the offence. Meanwhile, Section 41 of this Act provides that any property forfeited under this Act and where there is no prosecution or conviction, the Public Prosecutor may apply to the Sessions Court Judge for an order of forfeiture of that property if he is satisfied that such property has been obtained as a result of or in connection with an offence under this Act.
Whistleblower Protection Act 2010
The Whistleblower Protection Act 2010 provides protection to a whistleblower who voluntarily comes forward to lodge a report or reveal information on corruption activities. This Act encourages the public and all sectors to disclose corrupt activities. The whistleblower’s identity and the disclosed information are kept confidential from all parties. The whistleblower is also given immunity from any civil, criminal or disciplinary action for disclosing the corrupt conduct.
This act was passed by the Parliament in June 2010, and went into effect on 15 December 2010. This act is the sole law of Malaysia to fight corruption and other misconducts by encouraging and facilitating the disclosure of inappropriate conduct in the public and private sector. The objective of this act is to provide protection to whistleblowers in the form of information confidentiality, immunity from civil and criminal action as well as protection from detrimental action taken against them. Whistleblower protection is one of the initiatives of the Government of Malaysia towards combating corruption and promoting good governance under the Government Transformation Program.
This Act covers both the public and private sectors that are prone to misconduct. Among the intended disclosures are abuse of power, violation of laws and ethical standards, dangers to public health and security as well as gross waste. Disclosures should be made in “good faith” based on “honest and reasonable grounds at the time” without necessitating hard evidence from the whistleblower. The duty to gather evidence falls on the investigation unit of the enforcement agencies to ensure that the whistleblower is not compromised. However, whistleblowers may provide evidence if it is legally available through the course of their work.
Disclosure of confidential information will be liable to a fine not exceeding RM50,000 or imprisonment for a term not exceeding 10 years, or both. A whistleblower cannot be subjected to civil action or criminal liability and no administrative process can be taken against them for disclosing improper conduct.
A person who provides information disclosing misconduct, to the relevant enforcement agency (i.e. MACC), that may enable the enforcement agency to initiate an investigation. The identity of the whistleblower shall not be disclosed and protection is provided under the Whistleblower Protection Act 2010.
Anti-Money Laundering Act, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001
The Anti-Money Laundering Act, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) aims to prosecute money laundering, which are dealings with proceeds from criminal activities, providing detection measures for money laundering and terrorism financing, mechanisms for seizure and forfeiture of criminal proceeds and terrorist properties.
In relation to corruption prevention initiatives, several offences under the Malaysian Anti-Corruption Commission Act 2009 (Section 16, 17, 18, 20, 21, 22, 23, 25, 27, 28 and 48) are included as serious offences and listed in the Second Schedule of the Anti-Money Laundering Act, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.