Columns
Corruption offences and the penalties
Akhbar Satar 
advertisement[x]

The Anti-Corruption Agency (ACA), now known as the Malaysian Anti-Corruption Commission (MACC), was established in 1967 in accordance with the Anti-Corruption Act 1967. Last year, the commission celebrated its golden jubilee. In 2008, Parliament and the government unanimously approved the formation of an independent anti-corruption commission to be known as the Malaysian Anti-Corruption Commission and replacing the ACA Act 1982 with the new MACC Act 2009.

The MACC Act 2009 only came into effect on Jan 1, 2009 and led to the official establishment of the MACC as an independent, transparent and professional body to effectively and efficiently manage the nation’s anti-corruption efforts.

In moving towards convincing the public of the MACC’s independency, transparency and professionalism, a check-and-balance mechanism was created through the formation of a five-panel independent body to monitor the functions of the MACC.

This check-and-balance mechanism comprises the Anti-Corruption Advisory Board, Special Committee on Corruption, Complaints Committee, Operations Review Panel, and Consultation and Corruption Prevention Panel. Their functions include advising as well as ensuring that the functions and roles of the MACC are carried out efficiently, effectively, independently and with transparency and professionalism.

Members of these committees represent the public and comprise senior ex-government officials, politicians (government and opposition), professionals from the business and corporate sector, academicians, lawyers and well-respected individuals.

According to the MACC Act, generally speaking, corruption or bribery is the act of giving or receiving of any gratification or reward in cash or in kind for performing a task in relation to his/her job description. An example is a contractor giving an expensive watch to a government official in return for awarding a project to the company belonging to the contractor.

Bribery can also be in the form of gifts in-kind, discount offers, votes, services (including sex), job position or placement, loan and many other forms of payment.

There are four main offences relating to bribery and corruption as set out in the MACC Act.

First, soliciting or receiving gratification (bribe) under Sections 16 and 17(a) of the MACC Act, which is the common scenario of a person or agent soliciting/receiving any form of gratification/bribe as an inducement for performing or not performing a task.

An example of a previous court case: Baharudin Ahmad, former president of Kangar Municipal Council, was charged with soliciting and receiving a bribe from a contractor of a housing development spanning some 10 acres in Padang Besar, Perlis. In return, he promised to approve as well as ensure the smooth running of the project. The bribe received from the contractor was RM30,000 cash, RM30,000 in cash cheque and a Mizuno golf set worth RM2,500. The court after finding him guilty of the offence jailed him for four years and fined him RM1.92 mil.

Secondly, the offering or giving of gratification which falls under Section 17(b) of the MACC Act which is the scenario of a person or agent offering or giving any form of gratification or bribe as an inducement for performing, or not performing, a task in relation to the official duty of a civil service officer.

One of the examples under this section was a case in Sibu where a contractor was sentenced to eight months’ imprisonment and fined RM25,000 for giving a bribe of RM1,500 to one Sandum Hitam, who was a forestry management officer at the Sibu District Forestry Office. The bribe was to expedite the application process for the “Permit to Enter Coupe”.

Thirdly, the case of intending to deceive (false claim) which is the offence under Section 18 of the MACC Act. Section 18 states that “any person providing documents such as receipts or invoices that are false or contain false details with the intention to deceive the principal (office)” commits an offence.

An example of this offence occurred in Shah Alam where Datuk Md Saberi Md, ex-dean of the Faculty of Sports Science and Recreation of Mara Technology University (UiTM), was sentenced to three years’ jail and fined RM10,000 by the Sessions Court for acknowledging a false invoice for the supply of sports equipment worth RM138,600 in 1999.

 

Abuse of power

The goods were never delivered. The judge also imposed the same penalty on the owner of the sports equipment supplier, one Zaleha Abdul Rahman, 48, for the offence of colluding in producing the said invoice.

Lastly, under Section 23 of the MACC Act, it is an offence to abuse one’s power or use one’s office or position for gratification. Abuse of power takes place when a person, who is a member of a public body, uses his position or the office in making a decision, or taking action for the benefit of himself, his relative or associate.

In addition to the MACC Act, there are also related offences in the Penal Code. For example, under Section 165 of the Code, it is an offence for a public servant to obtain any valuable thing, without consideration, from a person concerned in any proceeding or business transacted by the public servant. If found guilty, the penalty is a maximum two-year jail term or fine, or both.

One of the classic cases of such an offence is that of Datuk Seri Mohamad Khir Toyo, who was charged with knowingly obtaining a valuable thing as a public servant by paying inadequate consideration for a piece of property.

Khir Toyo, a former Selangor menteri besar, was given a 12-month jail sentence after being found guilty of obtaining two plots of land and a bungalow in Section 7, Shah Alam, for himself and his wife Zahrah Kechik, from Ditamas Sdn Bhd through its director Datuk Shamsuddin Hayroni with the inadequate payment of RM3.5 mil in 2007. Ditamas had itself bought the property in 2004 for RM6 mil.

 

Calculating the fine

The general penalty for any corruption-related offence in the MACC Act is (i) imprisonment for a term not exceeding 20 years and (ii) a fine of not less than five times the sum or value of the gratification or RM10,000, whichever is higher.

Examples: If ‘A’ receives a bribe amounting to RM5,000, the penalty will be imprisonment and a fine of RM25,000 (RM5,000 x 5).

If ‘B’ receives a bribe amounting to RM1,000, he/she will be jailed and fined RM10,000 (the minimum fine takes precedence as the penalty charge on the value of the bribe amounts to less than RM10,000 (RM1,000 x 5 = RM5,000).

The punishment for cases involving corruption should be reviewed to provide for heavier sentences. This is necessary because existing penalties had no effect on offenders. A higher penalty will also deter would-be offenders.

While the MACC Act was an improvement on the anti-corruption legislation, after 50 years and experience learnt there should be a thorough review to make the anti-corruption laws even stronger. Heavier penalties are called for in view of the persistent threat of corruption plaguing our country.

Datuk Akhbar Satar is the director of Institute of Crime & Criminology, HELP University, a criminologist and certified fraud examiner. Comments: editor@focusmalaysia.my



This article first appeared in Focus Malaysia Issue 270.