Gordon-Smith J in his judgement[1] has intimated that bribery and corruption of officialdom is like a cancer which may grow and destroy the whole body. Like Caesar’s wife, officials (including Judges) must be above suspicion and lack of confidence in this respect strikes at the whole foundation of good Government.[2]
It is therefore beyond doubt that corruption could permanently impair or even worse, wreck the society predominantly a developing country like Malaysia. It is indeed a serious and infectious disease that needs to be curbed at all costs as it has always been living with us and the humankind has been continuously fighting against this immoral and unethical crime.
What is the interpretation of Bribery & Corruption?
The primary legislation which governs the bribery and corruption in Malaysia is the Malaysian Anti-Corruption Commission Act 2009 (‘MACC Act’) which was enacted to provide for the establishment of the Malaysian Anti-Corruption Commission, to make further and better provisions for the prevention of corruption and for matters necessary thereto and connected therewith. The MACC Act is a substitution of Anti-Corruption Act 1997 that has been repealed. It is designated to promote integrity and accountability of public and private sector administration and to educate public authorities, public officials, and members of the public about corruption and its detrimental effects.[3] The words corruption and bribery are used interchangeably in the MACC Act. However, there exists no apparent elucidation of those words in the said Act. We shall therefore refer to the case laws for the interpretation of bribery and corruption.
With reference to the case of PP v Datuk Haji Harun bin Haji Idris (No. 2)[4], Raja Azlan Shah FJ discussed the word ‘corrupt’ and referred to Lim Kheng Kooi v R which states that “corrupt” means doing an act knowing that the act done is wrong, doing so with evil intention[5]. Further, in Sandison v Malayan Times Ltd & Ors[6], corruption and corrupt practices connote bribery, the perversion of integrity by bribery or favour as the Oxford Dictionary has it. According to Black’s Law Dictionary, in general corruption can be regarded as a form of fraud, deceit or dishonesty which relates to activity undertaken by an individual or organization entrusted with a position of authority to acquire unlawful benefit. In Malay language, the term 'rasuah' derives from the Arabic word 'al-risywah' and is been regarded as a criminal act under the Islamic law.[7]
In addition to the MACC Act, offences of bribery and corruption are also governed by other legislation(s), among others, the Penal Code as enunciated under sections 161 until 165 with regards to the offences by or relating to public servants[8], the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 whereby the “serious offences” mentioned therein are inclusive of the offences under the MACC Act[9] and the Whistleblower Protection Act 2010 which is a piece of legislation protecting the rights and identities of persons who report instances of corruption[10]. As such, these legislations are to be read side by side when it comes to the offences which relates to bribery and corruption. The common denominator highlighted in the said legislations are the offences of accepting, agreeing to accept and/or giving or agreeing to give gratification.
What is gratification?
Section 3 of the MACC Act defines “gratification” as follows: -
a. money, donation, gift, loan, fee, reward, valuable security, property or interest in property being
property of any description whether movable or immovable, financial benefit, or any other similar advantage;
b. any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity;
c. any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;
d. any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage;
e. any forbearance to demand any money or money’s worth or valuable thing;
f. any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and,
g. any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (a) to (f).
What are the forms of bribery and corruption offences under MACC Act?
The general offences of bribery under the MACC Act are as follows: -
a. Section 16 – accepting gratification by any person who corruptly solicits or agrees to receive for himself or any other person and corruptly gives promises or offers to any person whether for the benefit of that person or other persons.
b. Section 17 – giving or accepting gratification by agent as an inducement or a reward for doing any act in relation to his principal’s affairs or business, or for showing favour or disfavour in relation to his principal’s affairs or business.
c. Section 18 – intending to deceive principal by agent by using any receipt, account or document in respect of which the principal is interested and which he has reason to believe contains any false or erroneous statement or defective in any material particular and is intended to mislead the principal.
d. Section 20 – a person who with intent to obtain from any public body a contract for performing any work, or offers any gratification to any person who has made a tender for the contract as an inducement or a person who solicits or accepts any gratification as an inducement for his withdrawing a tender made by him for such contract.
Apart from the above-mentioned provisions, the offence(s) of bribery and corruption which relates to public body, public officials and office are propounded under section 21, section 22 and section 23 of MACC Act respectively[11].
What are the punishments?
The penalties are clearly stipulated under section 24 of the same act whereby any person who commits an offence under section 16, 17, 20, 21, 22 and 23 shall on conviction be liable to imprisonment for a term not exceeding 20 years and a fine of not less than five times the sum or value of the gratification, where such gratification is capable of being valued or is of a pecuniary nature, or RM10,000, whichever is higher.
Besides, any person who commits an offence under section 18 shall on conviction be liable to imprisonment for a term not exceeding 20 years and a fine of not less than five times the sum or value of the false or erroneous or defective material particular, where such false or erroneous or defective material particular is capable of being valued, or of a pecuniary nature, or RM10,000, whichever is higher.
For the bribery offences which governs the public servant under the Penal Code, the penalties include imprisonment for a term which may extend to 3 years or with fine or both as envisaged under section 161 of the Penal Code.
Is it possible to initiate civil action?
The offences of corruption and bribery mainly involved the criminal law and the remedies in civil law tend to be overlooked despite the fact that civil remedies may also be an effective option for dealing with bribery and corruption especially when criminal law avenues are not available and/or not favourable to a circumstances of a given case.
Civil law provides a means for the injured and/or aggrieved party to recover or seek for compensation and the person who accepts or gives bribe may be obliged to pay for damages (subject always to the decision of the Court). One may initiate civil proceedings under the cause of action, among others, unjust enrichment, breach of contract, breach of fiduciary duties, intimidation or duress, fraud and conspiracy.
Notwithstanding the precedent, given the fact that bribery and corruption are very secretive in nature, the aggrieved party may encounter complication in obtaining the evidence for the corrupt deal and/or to prove the causal link. It would be a greater challenge in obtaining the disclosure of bank records due to the issue of confidentiality. However, there exists possibilities for the data to be obtained via a formal application of discovery which might also involve a third party proceeding.
Recent cases involving bribery and corruption
In the case of Datuk Seri Mohd Najib bin Hj Abd Razak v Public Prosecutor[12], whereby Najib was charged under section 23(1) of the MACC Act for using his position as the former prime minister and finance minister for gratification to himself of a sum of RM42 million by taking part in the decision of the Malaysian Government to guarantee a RM4 billion loan from the country’s Pension Fund to a newly incorporated private limited company (SRC) in which Najib had interest. He was then convicted and sentenced to 12 years’ jail and RM210 million fine (in default of five years’ jail) for the said charge.
Besides, in the case of Public Prosecutor v Rosmah bt Mansor[13], Rosmah (the accused) faced three charges under section 16(a)(A) of the MACC Act where she was accused of corruptly soliciting and also receiving gratification as an inducement and reward for helping a company called Jepak Holdings Sdn Bhd in getting a project from Ministry of Education in the sum of RM187.5 million. The accused was found guilty of all charges and was sentenced to 10 years of imprisonment for each charge with the sentences to run concurrently. The accused was also fined a total of RM970 million.
Conclusion
The comprehensive anti-corruption legislation that has been enacted and enforced in our country alone will not be sufficient in combating the infectious disease of corruption as the real antidote comes from a strict adherence by the society to the said legislation. The fight against corruption cannot be won overnight but the public authorities, public officials, and members of the public as a whole shall strive without fear and favour against corruption to avoid the greed from consuming life and power from being abused for selfish and unscrupulous gains at the expense of others.
[1] Rex v Teo Cheng Lian [1949] MLJ 170 [2] Pendakwa Raya lwn Tan Sri Mohd Isa bin Abdul Samad [2021] MLJU 596 [3] Section 2 of the Malaysian Anti-Corruption Commission Act 2009 [4] [1977] 1 MLJ 15 [5] [1957] MLJ 199 [6] [1964] 1 MLJ 332 [7] Corruption: The Law and Challenges in Malaysia [2021] 1 ILJA ii [8] Act 574 [9] Second Schedule, Act 613 [10] Act 711 [11] Act 964 [12] [2022] 1 MLJ 137 [13] [2022] 11 MLJ 801
Authored by Nurin Husnina Hussein
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