Malaysia
Answer ... The Malaysian Anti-Corruption Commission Act (MACC Act) is the main anti-corruption statute in Malaysia. Bribery in the private sector and bribery of public bodies/officials are criminal offences under the MACC Act, punishable by imprisonment, fines or both.
The following constitute criminal offences under the MACC Act:
- soliciting or receiving gratification;
- offering or giving gratification; and
- making false claims with the intention of deceiving or abusing one’s position or office for gratification.
An individual who is offered, promised or given gratification has a duty to report the offence. Failure to do so amounts to an offence under the MACC Act.
Construction companies should also be particularly aware of the new corporate liability provision under Section 17A of the MACC Act, which came into force on 1 June 2020. Section 17A creates a strict liability offence: a commercial organisation commits an offence if a person associated with it corruptly gives, agrees to give, promises or offers gratification to any person with the intent of obtaining or retaining business or an advantage for the commercial organisation. Directors or key management personnel of the commercial organisation will also be deemed under the law to have committed the offence. The burden falls on such persons to prove that the offence was committed without their consent and that they exercised due diligence to prevent commission of the offence.
It is an absolute defence for a commercial organisation to show that it has adequate procedures in place to prevent persons associated with it from undertaking corrupt activities. The MACC has issued guidelines to assist commercial organisations with the adoption and implementation of anti-corruption policies.
The Construction Industry Development Board has also taken steps to assist in combating bribery and corruption in the construction industry by issuing codes of ethics and providing training in an effort to enhance integrity among players in the industry.
Other statutes which include provisions to combat bribery and corruption include:
- the Penal Code, for bribery involving public servants;
- the Whistleblower Protection Act 2010, to encourage and facilitate disclosures to enforcement agencies of improper conduct and protect the persons making such disclosures from detrimental action; and
- the Anti-Money Laundering and Anti-Terrorism Financing Act 2001.