Section 17A MACC Act 2009
The act is enforced on 1st June 2020.
The amendment for this provision and amendments to other sections had been implemented previously through the Malaysian Anti-Corruption Commission Act (Amendment) 2018 (A1567 Act). After this amendment was gazetted on 4th May 2018, Section 17A MACC Act 2009 was given a two-year grace period to give room for commercial organisations to make appropriate preparations.
The provision under Section 17A MACC Act 2009 is a provision that stipulates a corporate liability principle where a commercial organisation (associated persons include the directors, partners, and upper management of the commercial organization and persons who perform services for and on behalf of the commercial organization) can be considered guilty if any of them commit corruption for the benefit of the organisation. The commercial organisation is also considered guilty in the event whether or not, the upper management or its representatives know about the corruption acts committed by its employees or associates.
“commercial organization” includes the following:
- A company incorporated under the Companies Act 2016 and carries on a business in Malaysia or elsewhere;
- A company wherever incorporated and carries on a business or part of a business in Malaysia;
- A partnership registered under the Partnership Act 1961 and carries on a business in Malaysia or elsewhere
- A partnership registered under the Limited Liability Partnerships Act 2012 and carries on a business in Malaysia or elsewhere; and
- A partnership wherever formed and carries on a business or part of a business in Malaysia.
PENALTY OF NON-COMPLIANCE
If a commercial organisation is found guilty under Section 17A, the penalty under Section 17A (2) is a fine of not less than 10 times the value of the bribe or RM 1 million, whichever is higher, or imprisonment for up to 20 years, or both. However, the commercial organisations can defend themselves if they can show that the organisation has implemented ‘Adequate Procedure’ in its operation.
The MACC foresees that there will be more reports on corruption in commercial organisations falling under this new Act and said more individuals are expected to be arrested and charged with the enforcement of the new provision – see https://www.nst.com.my/news/nation/2020/07/610600/more-expected-be-charged-under-section-17a
In line with this new Act, Bursa Malaysia Securities Berhad had also amended the Main Market and ACE Market Listing Requirements. The Securities Commission had also issued a questionnaire to companies that fall under the Capital Markets and Services Act 2007 to assess their extent of compliance to the Ministerial Guidelines on Adequate Procedures (T.R.U.S.T Guidelines).
This new provision encourages commercial organisations to take appropriate and parallel steps to ensure businesses are conducted with integrity and without corruption.
DEFENSE FOR COMMERCIAL ORGANIZATIONS
Section 17A(4) of the MACC (Amendment) Act 2018 states that a commercial organisation shall be acquitted of a charge under Section 17A if it proves that it “had in place adequate procedures designed to prevent persons associated with the commercial organization from undertaking such conduct.” The defense would be in the form of the commercial organization proving that they have implemented Adequate Procedures to prevent such mishap.
The Government has also provided a guideline to assist commercial organizations in drafting up their Adequate Procedures. Although it is not a legal obligation for commercial organizations to apply as according to the guideline, the Court would make use of such guideline to decide whether your commercial organization has taken the right steps in composing Adequate Procedures to be implemented throughout your organization.
DEFENSE FOR SENIOR PERSONNEL OF COMMERCIAL ORGANIZATION
The personal liability of the senior personnel in these commercial organizations can be prevented or defended by ensuring that he or she has exercised due diligence to prevent the commission of the offense as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances and to prove that the misconduct was done without his or her consent.
As simple as it sounds, both defenses would compliment each other whereby the senior personnel would have a solid defense if the commercial organization implements the Adequate Procedure. An additional effort on his or her part, the senior personnel would also have to prove that such misconduct was not under his or her direction and is done without consent.
A commercial organization’s adequate procedures should be based on the principle of TRUST, which consists of the following:
i- Top-Level Commitment:
ii- Risk Assessment:
iii- Undertake Control Measures:
iv- Systematic Review, Monitoring and Enforcement:
v- Training and Communication:
vi- Monitoring and Follow-Up
For more information pertaining to the Guidelines by the MACC, please click on this. Guidelines Issued by Prime Minister Department
The onus lies on the commercial organization to be prepared in taking the necessary measures to implement and enforce adequate procedures and anti-corruption programmes and policies to prevent and/or combat actual and potential corruption risks that the commercial organization may face. It is time to expedite matters before it is too late. Without adopting adequate procedures, a commercial organization will be left defenseless if it is implicated by the acts of individuals associated with them.