An ideal anti-bribery and corruption policy is a customized internal and external guideline which lists out clearly the prohibitions on the corrupt acts of any person(s) associated with the commercial organisation together with the suitable whistleblowing channels aiming to efficiently prevent bribery and corruption.
Before the Malaysian Anti-Corruption Commission (Amendment) Act 2018 came into force and effect, there were no clear rules imposing a criminal liability on a commercial organisation in relation to the corrupt acts conducted by any person(s) associated with the organisation. However, with the introduction of Section 17A in 2018, a commercial organisation could possibly be held liable for any corrupt acts carried out by any person(s) associated with the commercial organisation for the organisation’s benefit or advantage regardless of whether the organisation was aware of the alleged acts[1].
In the event should a commercial organisation is found liable under this section, it shall, upon conviction, be liable for a fine for a sum of not less than ten (10) times the value of the gratification or one million ringgit (RM1,000,000.00), whichever is higher or to an imprisonment for a term of not more than twenty (20) years or both unless the commercial organisation can prove that the organisation had adequate procedures in place to prevent the corrupt acts[2]. The same applies to the directors, partners or the persons who are in charge of the management of the organisation’s affairs[3].
Similar to the United Kingdom’s Bribery Act 2013[4], the Malaysian Prime Minister’s Department has published the Guidelines on Adequate Procedures pursuant to subsection (5) of Section 17A under the Malaysian Anti-Corruption Commission Act 2019 providing insights on what could possibly be deemed as adequate procedures.
The principles[5] are as follows:
As indicated in the said Guidelines, it is crucial and necessary for every commercial organisation to have a customized anti-bribery and corruption policy which is proportionate with the risks of bribery and corruption involved in their business in place. Training and communication with both internal and external parties, as part of the suggested adequate procedures, are also essential in the implementation of such anti-bribery and corruption management system.
The importance of having a suitable anti-bribery and corruption policy and the appropriate training in place should not be overlooked as the commercial organization is now at high risk for the potential exposure to the criminal liability if adequate procedures are not in place.
Hence, it is strongly advisable for every commercial organisation to seek professional advice to customize and design their adequate procedures, in particular, their anti-bribery and corruption policy, policy statement and training, which are proportionate to the nature, risk and complexity of the organisation’s activities.
[1] Section 17A of the Malaysian Anti-Corruption Commission Act 2018. [2] Section 17A(2) & (4) of the Malaysian Anti-Corruption Commission Act 2018. [3] Section 17A(3) of the Malaysian Anti-Corruption Commission Act 2018. [4] Guidance about Procedures which Relevant Commercial Organizations Can Put into Place to Prevent Persons Associated with Them from Bribing (Section 12 of the Bribery Act 2013). [5] Guidelines on Adequate Procedures Pursuant to subsection (5) of Section 17A under the Malaysian Anti-Corruption Commission Act 2019.
Authored by Lee Sui Cheng
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