1. Bribery in the home (private to public)
1.1 The Legal Environment
The Malaysian Anti-Corruption Commission Act 2009 (MACCA), which went into effect on January 1, 2009, is the most important anti-corruption legislation in the country. The Malaysian Anti-Corruption Commission is the relevant authority in charge of the MACCA (MACC). Both the private sector and public bodies / officers of a public body are covered by the MACCA. The MACCA does not distinguish between bribery in the commercial sector and bribery of public authorities.
1.2 What does bribery mean?
Instead of using the term “bribe,” the MACCA Act uses the term “gratification,” which encompasses both monetary and nonmonetary bribes. Money, donation, gift, any valuable thing of any type, any forbearance to demand any money or money’s worth, any other service or favour of any type, or any offer, undertaking, or promise of any such gratifications are all examples of satisfaction. “
Any person who, by himself, or by or in conjunction with any other person, corruptly solicits, receives, or agrees to receive for himself or for any other person; or corruptly gives, promises, or offers to any person, whether for the benefit of that person or another person, any gratification as an inducement to, a reward for, or otherwise on account of any pecuniary gain for himself or for any other person; or corruptly gives, promises, or offers to any person, whether for Any person who offers or accepts any gratification as an incentive or a reward from an officer of any public body, or who is an officer of any public body, commits an extra violation under the MACCA.
During any meeting of the public body, the officer voting in favor of or against any measure, resolution, or issue submitted to the public body; the officer who performs or refrains from doing any official act, or who assists in procuring, expediting, delaying, obstructing, or preventing its completion; the officer who assists in obtaining or obstructing the passage of a vote, the awarding of a contract, or any other benefit to a person; or the officer who, in his or her capacity as such officer, shows or refrains from showing any favor or disfavor. Even if the officer lacked the authority, right, or opportunity to do so, show or forbear, or accepted the gratification without intending to do so, show or forbear, or did not in fact do so, show or forbear, or the inducement or reward had nothing to do with the affairs of the public body, an offense would be committed.
Dealing with, using, holding, receiving, or concealing any property that was the subject of an abovementioned offense is also banned, as is attempting to commit, conspiring to commit, or abetting the conduct of any of the abovementioned acts.
1.3 What does it mean to be a public official?
A person who is a member, an officer, an employee, or a servant of a public body is defined as a “officer of a public body” under the MACCA. A member of the administration; a member of Parliament; a member of a State Legislative Assembly; a judge of the High Court, Court of Appeal, or Federal Court; and anyone receiving remuneration from public funds, including the person who is incorporated as such where the public body is a corporation sole.
In defining and establishing who falls inside such a criteria, the courts have taken a broad approach. The federal government, state governments, and local governments, as well as their departments, services, and projects, are all considered public bodies. Companies or subsidiaries over which a public entity has control or an interest, as well as different registered societies and trade unions, are also listed.
1.4 Bribery’s Consequences
(a) For the Individuals Involved Bribery that is more serious has a penalty of up to 20 years in jail and a fine of not less than five times the sum/value of the gratification where it is capable of being valued or is of a monetary nature, or MYR 10,000, whichever is greater. There is also a general penalty of up to MYR 10,000 in fines or up to two years in prison, or both.
(b) For the corporation/legal entity there is no additional penalty for businesses.
1.5 Contributions from politics
Political contributions are not governed by any specific regulations. Though political donations are not directly prohibited by Malaysian law, special care must be taken to ensure that they are not regarded as an inducement or reward for performing or refraining from doing any act, as this would fall under the MACCA’s general restrictions. Furthermore, unless the contrary is shown, the MACCA considers the giving or receiving of gratification to be corrupt.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Offering and accepting goods, services, and hospitality will be considered a corruption crime under the MACCA if the aim is for the offer/acceptance to be a bribe. There is no provision in the MACCA for a de minimis criterion. The Guidelines on Giving and Receiving Presents in the Public Service / Service Circular No. 3 of 1998 (the “Circular”), issued by the Malaysian government, lays out the rules for giving and receiving gifts in the public sector.
According to the Circular, if the value of a present surpasses one-fourth of the officer’s monthly compensation or MYR 500, whichever is smaller, it is regarded not proportionate with the gift’s objective. As a result, public officials are generally prohibited from receiving or giving gifts, or allowing their spouse or another person to receive or give gifts on their behalf, from or to any person, association, body, or group of persons, whether in tangible form or otherwise, if the receipt or giving of such gift is in any way connected, either directly or indirectly, with his or her official duties.