- a sustainable initiative towards achieving zero

Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)

FIGHTING BRIBERY AND CORRUPTION

- A sustainable initiative towards achieving Zero Tolerance to Corruption

SUTINAH SUTAN (Dato’)Independent Consultant

[email protected]

HOTEL ISTANA, KUALA LUMPUR9-10 JANUARY 2019

ISO 37001: 2016

ANTI-BRIBERY MANAGEMENT SYSTEM (ABMS)


SCOPE

FORMS, TYPES AND NATURE OF CORRUPTION

LEGAL REQUIREMENT: CORRUPTION OFFENCES & LEGAL DUTIES

HOW BIG IS OUR CORRUPTION PROBLEM?

CAUSES OF CORRUPTION

PRESCRIPTION FOR CORRUPTION PROBLEM

HOW CORRUPTION PREVENTION RELATED TO ABMS


FORMS OFCORRUPTION

COMMON TERMINOLOGIES

• kickback, under counter payment,

facilitation payment, grease money,

tea/coffee money (Malaysia)

• Little envelope (Italy)

• Air supply (Uganda)

• Pungli - Pungutan Liar (Indonesia)

• 19.90 (US)

• Sleaze (UK)

• Black Mist (Japan)

• A jug of wine (France)


FORMS OF CORRUPTION

• Bribery – the payment in money/kind that is given in a corrupt relationship.It has many names such as facilitating payments, pay-off, sweetener, grease money etc

• Embezzlement – when employees steal company resources they are hired to administrate; theft from work place in the broadest sense


• Fraud – when an employee (agent) who is responsible for carrying out orders or tasks assigned by his superiors (principal), manipulates the flow of information to his private benefit

• Extortion – money or other resources extracted by the use of coercion,violence or threats to use force

FORMS OF CORRUPTION


• Favouritism – a mechanism of power abuse implying ‘privatisation’ and a highly biased distribution of state resources in order to favour friends, family or others related to the employees

• Nepotism – a special form of favouritism in which an office holder (ruler) prefers his proper kinfolk and family members

FORMS OF CORRUPTION


• Grand – takes place on the hiher levels of political authority and involves head of states,ministers and top officials who are in control of resources and legislations

• Petty corruption – or ‘bureaucratic’ corruption takes place on a low bureaucratic level and typically bribe takers are police officers, customs, taxing and licensing authorities

CLASSIFICATION


SPOTANEOUS

INSTRUMENTAL

INDIVIDUALISTIC

SYNDICATED

INVOLVING TWO PARTIES OR MORE

SECRETIVE

CONSENSUAL ACT

A WIN-WIN SITUATION

INVOLVE ABUSE OF POWER/AUTHORITY

TYPES & NATURE OF BRIBERY


DEFINITION OFCORRUPTION


“a civil servant abuses his

authority in order to obtain an

extra income from the public”(Jacob Van Kleveren,

The Concept of Corruption)

“Misuse of public power, office or

authority for private benefit .....”

[UNDP, 2011]

Definition of Corruption


“Corruption equals monopoly plus

discretion minus accountability

(C = M + D –A)

… one will tend to find corruption

when an organization or a person has

monopoly power over a good or

service, has the discretion to decide

who will receive it and how much that

person will get, and is not

accountable.”

Robert Klitgaard


“Corrupt means

doing an act

knowing that the

act done is wrong,

doing so with

evil feelings and

evil intentions”

PP vs Datuk Harun Idris,

Ex-Chief Minister of Selangor


CORRUPTIONOFFENCES FROM

ISLAMIC PERSPECTIVE


“Dan janganlah kamu makan (atau

mengambil) harta (orang-orang lain)

diantara kamu dengan jalan yang salah,

dan jangan pula kamu menghulurkan

harta kamu (memberi rasuah) kepada

hakim-hakim kerana hendak memakan

(atau mengambil) sebahagian dari harta

manusia dengan (berbuat) dosa, padahal

kamu mengetahui (salahnya)”.

(Surah Al-Baqarah - Ayat 188)

KESALAHAN RASUAH MENGIKUT AL-QURAN


“Allah melaknat kepada orang

yang memberi rasuah dan

menerima rasuah serta orang yang

memberi jalan terhadap keduanya”

(Riwayat At-Tirmidzi)

Hadith Rasulullah s.a.w. bermaksud:


“Sesiapa sahaja yang telah kami

lantik untuk memegang sesuatu

jawatan atau kerja dan kami telah

tetapkan pendapatannya atau gaji

maka apabila ia mengambil lebih dari

apa yang ditetapkan itu dikira sebagai

satu penipuan dan rasuah”

Riwayat Abu Daud


CORRUPTIONOFFENCES


Malaysian Anti-Corruption Commission Act 2009 (Amendment 2018)

Section 137 Customs Act 1967 (Act 235)

Penal Code – Sec. 161, 162, 163, 164, 165, 213, 214 and 215

Part III of the Election Offences Act 1954 (Act 5)

Anti-Money Laundering, Terrorist Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFA)

Mutual Assistance In Criminal Matters Act 2002

Whistleblower Protection Act 2010

Witness Protection Act 2009 (Act 696)

RELATED LAWS ONCORRUPTION PREVENTION


CORRUPTION OFFENCES

YOUR LEGAL OBLIGATIONS

LAWS THAT PROTECT YOU

Legal requirements …..


UNDANG-UNDANGMALAYSIA

LAWS OF MALAYSIA

AKTA SURUHANJAYA PENCEGAHAN

RASUAH MALAYSIA 2009

(Akta 694)

MALAYSIAN ANTI-CORRUPTION

COMMISSION ACT 2009

(Act 694)

PRINCIPAL OBJECTS OF ACT – Section 2

(a) to promote the integrity and

accountability of public and

private sector administration

by constituting an

independent and

accountable anti-corruption

body; and

(b) To educate public

authorities, public officials

and members of the public

about corruption and its

detrimental effects on public

and private sector

administration and on the

community.


BRIBERY

• giving gratification

• accepting gratification

3 MAIN OFFENCES – MACC Act 2009

giving or using false

documents to make claims

abuse of public office for

pecuniary advantage

Sec. 16 & 17

Section 18

Section 23

1.

2.

3.


CORRUPTION OFFENCESinclude :-

an attempt to commit any of

the offences

an abetment of or a criminal

conspiracy to commit the

offence


OFFENCE OF GIVING OR ACCEPTING

GRATIFICATION

BY AGENT

[ Section 17 MACC Act 2009

(Act 694) ]

UNDANG-UNDANGMALAYSIA

LAWS OF MALAYSIA

AKTA SURUHANJAYA PENCEGAHAN

RASUAH MALAYSIA 2009

(Akta 694)

MALAYSIAN ANTI-CORRUPTION

COMMISSION ACT 2009

(Act 694)


(a) money, donation, gift, loan, fee, reward, valuable security, property or interest in

property being property of any description whether movable or immovable,

financial benefit, or any other similar advantage;

(b) any office, dignity, employment, contract of employment or services, and agreement

to give employment or render services in any capacity;

(c) any payment, release, discharge or liquidation of any loan, obligation or other

liability, whether in whole or in part;

(d) any valuable consideration of any kind, any discount, commission, rebate bonus,

deduction or percentage;

(e) any forbearance to demand any money or money’s worth or valuable thing;

(f) any other service or favour of any description, including protection from any penalty

or disability incurred or apprehended or from any action or proceedings of a

disciplinary, civil or criminal nature, whether or not already instituted, and

including the exercise or the forbearance from the exercise of any right or any

official power or duty; and

(g) any offer, undertaking or promise, whether conditional or unconditional, of any

gratification within the meaning of any of the preceding paragraphs (a) to (f).

“GRATIFICATION” means;– (Section 3, MACC Act 2009 (ammendment 2018))


“agent” – Section 3, MACC Act 2009 (ammendment 2018)

means any person employed by or acting

for another, and includes an officer of a

public body or an officer serving in or under

any public body, a trustee, an administrator

or executor of the estate of a deceased

person, a sub-contractor, and any person

employed by or acting for such trustee,

administrator or executor, or subcontractor.


“principal” – Section 3

includes any employer, any beneficiary

under a trust, any trust estate, any person

beneficially interested in the estate of a

deceased person, the estate of the deceased

person, and in the case of any person

serving in or under a public body, the public

body.


A person commits an offence if –

(a) being an agent, he corruptly accepts, or attempt to

obtain for himself or for any other person, any gratification

as an inducement or a reward or for showing or forbearing to show favour to any person in relation to his principal’saffairs or business.

(b) he corruptly gives any gratification to any agent as an

inducement or a reward for doing or forbearing to do, or

for showing or forbearing to show favour to any person in relation to his principal’s affairs or business.

OFFENCE OF GIVING OR ACCEPTING GRATIFICATION BY AGENT[Section 17 MACC Act 2009]

1


Example:

That you on 15.1.2010 around 1.30 pm at D’AtasBrasseri, Floor 9, Hotel Legend, ….. being an agent, ie.Procurement Officer with XXX Bank corruptly receivedfor yourself, a gratification, ie. cash money totalingRM17,000.00 from ABI, Director of Syarikat MasterkleenSdn. Bhd. as a reward for doing an act ie. awardingSyarikat Masterkleen Sdn. Bhd. for carpet and officecleaning jobs at the Bank, and thereby, you havecommitted an offence under Section 17(a) of theMalaysian Anti-Corruption Commission Act 2009 (Act694), punishable under Section 24 of the same Act.

PP vs MSM


PUBLIC SERVANT OBTAINING ANY

VALUABLE THING, WITHOUT

CONSIDERATION, FROM PERSON

CONCERNED IN ANY PROCEEDING OR

BUSINESS TRANSACTED BY SUCH

PUBLIC SERVANT

SECTION 165, PENAL CODE


Whoever, being a public servant, accepts or

obtains, or agrees to accept or attempts to

obtain, for himself or for any other person, any

valuable thing, without consideration, or for a

consideration which he knows to be inadequate,

from any person whom he knows to have been,

or to be, or to be likely to be concerned in any

proceeding or business transacted, or about to

be transacted, by such public servant, or having

any connection with the official functions of

himself or of any public servant to whom he is

subordinate, or from any person whom he knows

to be interested in or related to the person so

concerned, shall be punished with imprisonment

for a term which may extend to two years or

with fine or with both.


Bahawa kamu pada 4 April 1995, di Garden City, Ujong Pasir,

Melaka dalam Daerah Melaka Tengah, dalam Negeri Melaka

semasa menjadi seorang penjawat awam iaitu Pengarah

Penilaian Dan Pengurusan Harta, Majlis Perbandaran Melaka

Bandaraya Bersejarah telah menerima untuk diri kamu suatu

benda yang bernilai, iaitu sebuah kereta Mercedes Benz E280

nombor pendaftaran WDV 9, tanpa balasan daripada Chan

Kok Chuang yang mana kamu mengetahui ada kena mengena

dengan urusan tugas rasmi kamu berhubung permohonan

Projek Penswastaan Pembinaan Terminal Bas/Teksi dan

Pusat Bandar di Semabok oleh Liga Maju Sdn. Bhd. yang

mana permohonan berkenaan telah diproses oleh kamu

dengan itu kamu telah melakukan satu kesalahan yang boleh

dihukum di bawah seksyen 165 Kanun Keseksaan [N.M.B.

(Bab 45)].

Sek. 165 Kanun Kesiksaan


A person commits an offence if hegives to an agent, or being an agent he

uses with intent to deceive his principal,any receipt, account or other document in

respect of which the principal is interested, and which he has reason to believe

contains any statements which is false or erroneous or defective in any material

particular, and is intended to mislead the principal.

OFFENCE OF INTENDING TO DECEIVE PRINCIPAL BY AGENT

(Section 18, MACC Act 2009)

2


In 2005, the accused, Ismail Bin Zainuin,

Secretary General of the Persatuan Rifel

Kebangsaan Malaysia, gave to an agent ie.

Finance Officer of the Majlis Sukan Negara

(MSN) an invoice no. 1017 belonging to

Vision Arms Sports Centre Sdn. Bhd.

amounting RM285,000 to MSN that contains

statements which he knew was false where

the items were paid but never supplied.

Example:

He was found guilty and was sentenced to 3 months

jail and fined RM 2,205,000, i/d 6 months jail.


Any officer of a public body who uses his office of position for any gratification,

whether for himself, his relative or associate, commits an offence

– when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or

associate of his, has an interest, whether directly or indirectly.

OFFENCE OF USING OFFICE ORPOSITION FOR GRATIFICATION

(Section 23, MACC Act 2009)

3


Interpretation of

“RELATIVE”

YOU

mother/father

grandmother/

grandfather

daughters/

sons

Grand children

brothers sistersbrotherssisters

son-in laws/

daughter-in laws

uncles*

aunties*

wife/husband

cousins*

nephews/nieces*

“cucu saudara”*

* Excluding spouses


“X, sebagai pegawai badan awam di Universiti Sains Malaysia

telah menggunakan jawatannya memilih syarikat Arena Mulia

Enterprise untuk:

1) Membalut 20 kerusi banquet bernilai RM1,200.00

2) Membekal dan memasang span 1/2 inci beserta kain

kanvas bernilai RM5,736.00

3) Membekal kerja-kerja servis dan pengisian semula 466

unit cecair penyegar bernilai RM3500.00

4) Membekal dan memasang 'Urinal Sanitizer Dispenser

Model MS600P' sebanyak 466 unit bernilai RM47998.00;

berhubung dengan perkara yang dia mempunyai kepentingan

iaitu pemilik syarikat Arena Mulia Enterprise adalah adik

kandungnya.”

Eg: Offence under Sec. 23(1) – Abuse of Public Office


“That you ….. whilst being a member of theadministration, namely the Chief Minister ofSabah, committed corrupt practice by usingyour public position for your advantage, inthat you did approve the award on a contractin the sum of RM1,483,341.60 for theconstruction of 12 units of 2 storey SEDCOshop houses Phase II in Tambunan toRIMKAYA Sdn. Bhd., in which your relativeswere amongst the director-cum-shareholders…..”

Eg: PP vs DATUK JOSEPH PAIRIN KITINGAN


ANY OFFICER OF A PUBLIC BODY TO WHOM ANY

GRATIFICATION IS GIVEN, PROMISED, OR OFFERED,

IN CONTRAVENTION OF ANY PROVISION OF THIS

ACT SHALL REPORT SUCH GIFT, PROMISE OR OFFER

TOGETHER WITH THE NAME, IF KNOWN, OF THE

PERSON WHO GAVE, PROMISED OR OFFERED SUCH

GRATIFICATION TO HIM TO THE NEAREST OFFICER

OF THE AGENCY OR POLICE OFFICER.

Penalty: Fine not exceeding RM100,000or imprisonment not exceeding 10 yearsor to both.

DUTY TO REPORT BRIBERY TRANSACTIONS BY PUBLIC OFFICER

Sec. 25 (1)


DUTY TO REPORT BRIBERY TRANSACTIONS BY ANY PERSON

Sec. 25 (3)

ANY PERSON FROM WHOM ANY GRATIFICATION HAS BEEN

SOLICITED OR OBTAINED, OR AN ATTEMPT HAS BEEN MADE TO

OBTAIN SUCH GRATIFICATION, IN CONTRAVENTION OF ANY

PROVISION OF THIS ACT SHALL AT THE EARLIEST OPPORTUNITY

THEREAFTER REPORT SUCH SOLICITING OR OBTAINING OF, OR

ATTEMPT TO OBTAIN, THE GRATIFICATION TOGETHER WITH

THE FULL AND TRUE DESCRIPTION AND, IF KNOWN, THE NAME

OF THE PERSON WHO SOLICITED, OR OBTAINED, OR

ATTEMPTED TO OBTAIN, THE GRATIFICATION FROM HIM TO

THE NEAREST OFFICER OF THE AGENCY OR POLICE OFFICER.

Penalty: Fine not exceeding RM10,000or imprisonment not exceeding 2 yearsor to both.


LEGAL PROTECTION

• MALAYSIAN ANTI-CORRUPTION COMMISSION ACT 2009 (amendment 2018)

- Section 29- Section 65

• WITNESS PROTECTION ACT 2009

• WHISTLEBLOWER PROTECTION ACT 2010


SECRECY OF REPORT LODGED TO THE MACC

“A report made under subsection (1)

shall be kept secret and shall not be

disclosed by any person to any

person other than officers of the

Agency and the Public Prosecutor

until an accused person has been

charged in court for an offence under

this Act …”


IDENTITY OF INFORMERS

& INFORMATION ARE

PROTECTED BY THE LAW


“ …. where any complaint made by an officer of the

commission states that the complaint is made in

consequence of information received by the officer

making the complaint, the information referred to in

the complaint and the identity of the person from

whom such information is received shall be secret

between the officer who made the complaint and the

person who gave the information, and everything

contained in such information, identity of the person

who gave the information and all other circumstances

relating to the information, including the place where

it was given, shall not be disclosed or be ordered or

required to be disclosed in any civil, criminal or other

proceedings in any court, tribunal or other authority”

Section 65 (1)


CORRUPTION IN THE PUBLIC SECTOR,

HOW BIG IS THE PROBLEM?

Illicit Financial Outflows of Dirty Money from Developing Countries - Study by the Global Financial

Integrity(GFI - an international anti-corruption group

•Malaysia ranked 5th

•Malaysia has lost RM171.11 billion in 2012

•Malaysia has lost RM1.38 trillion since 2003

- corruption

- tax evasion

- organized crime


CORRUPTION SITUATIONPerceived level of corruption for Malaysia [CPI 1995 – 2017]

0

1

2

3

4

5

6

7

8

9

101

99

5

19

96

19

97

19

98

19

99

20

00

20

01

20

02

20

03

20

04

20

05

20

06

20

07

20

08

20

09

20

10

20

11

20

12

20

13

20

14

20

15

20

16

20

17

5.28 5.32 5.01 5.30 5.10 4.80 5.00 4.90 5.20 5.00 5.10 5.00 5.01 5.01 4.50 4.40 4.30 4.90 5.0 5.2 5.0 4.9 4.7

23 26 32 29 32 36 36 33 37 39 39 44 43 47 56 56 60 54 53 50 54 55 62

Lowest level of corruption

Highest level of corruption

S C

O R

E


(Research done by Prof. Shang-Jin Wei from Kennedy School of Government, Havard University)

(Source: TI Source Book)

‘ A FULL POINT INCREASE IN THE CORRUPTION LEVEL IS

ASSOSIATED WITH A 16% REDUCTION IN THE FLOW OF

FOREIGN DIRECT INVESTMENT (FDI) ’

Malaysian organization are not doing enough to

protect themselves

Reported incidents of bribery and corruption

continue to increase from

It is concerning that Malaysian organizations appear to

be ambivalent about addressing the risks of bribery and

corruption

BRIBERY AND CORRUPTION KEEPS RISING…

19% 35%30%


Source: pwc, 2018


THE DRIVERS OF FRAUD

INCENTIVES OR

PRESSURE TO PERFORM

RATIONALIZATION

85%

OPPORTUNITY

FRAUD RISK

39%42%

Source: pwc, 2018


OPPORTUNITIES weak procedures red tape lack of transparency high level of discretion

MOTIVE or PRESSURE heavily indebtedness

political pressure

to meet target/KPI

sale before expiry date

RATIONALIZATION – WRONG MINDSET

“I did not demand, they wanted to give” “If my boss did it and not get caught, why not

me?” “Ini anggaplah sedekah” “I can’t help it, it is part of doing business”


STATISTIC ON CORRUPTION CASES UNDERTAKEN BY MACC(2011 TO 2018)

YEAROVERALLREPORT

REPORT ON

CORRUPTION

INVESTIGATION

PAPERS

NO OF

ARRESTCHARGED CONVICTED

2011 13,325 6,475 1,304 918 293 299

2012 11,765 5,485 1,078 701 350 212

2013 7,927 3,946 976 509 296 173

2014 6,584 2,954 919 552 334 230

2015 6,343 2,982 982 841 223 162

2016 6,551 NA 985 939 268 172

2017 7,348 NA 863 879 373 216

2018 7,920 NA 833 896 293 210

TOTAL 67,763 -7,940

(11.7%)

6,235

(9.2%)

2,430

(3.6%)

1,674

(2.5%)

Source: MACC (4.1.2019)


TAHUNPegawai Awam

SwastaOrang Awam

Ahli Politik

Ahli Majlis

Lain-lain

Jumlah

2016 467 210 239 3 0 22 941

2017 408 168 271 12 0 23 882

2018 423 183 220 24 0 46 896

Jumlah1,298

(47.7%)561

(20.6%)730

(26.8%)39

(1.4%)0

91(3.3%)

2,719

STATISTIK TANGKAPAN MENGIKUT PECAHAN SEKTOR BAGI

TAHUN 2016 - 2018



NO OF ARRESTS BY SECTORS & TYPESOF OFFENCES [ 2011 – 2015 ]

0%

20%

40%

60%

80%

100%

Other

offences

Misuse of

position

False claims

Giving

bribes

Receiving

bribes

PublicSector

PrivateSector

PoliticiansMembersOf Public

TownCouncil

Members

1410(40%)

558(15.8%)

1548(43.9%)

7(0.2%)

2(0.1%)



TYPES OF OFFENCES

2016 2017 2018

PK SW OA AP LL PK SW OA AP LL PK SW OA AP LL

Received

Bribes315 51 81 0 15 275 48 60 9 15 230 73 62 10 19

Gave

Bribes5 57 129 0 1 4 65 172 1 0 0 21 99 3 1

False

Claims114 76 11 0 4 82 36 21 0 3 103 69 42 0 18

Abuse of

Position12 8 1 0 7 31 11 8 1 3 71 5 7 4 4

Others 14 18 16 0 4 18 10 5 1 2 19 15 10 7 4

Total 460 210 238 0 31 410 170 266 12 23 423 183 220 24 46

TOTAL 939 881 896

NO OF ARRESTS BY SECTORS & TYPESOF OFFENCES [ 2016 – 2018 ]



PROCUREMENT

DEVELOPMENT PROJECTS

ENFORCEMENT

LICENSING/PERMITS

LAND MATTERS

REVENUE COLLECTION

ASSET/STORE MANAGEMENT

SUBSIDIES MANAGEMENT

FINANCE & ACCOUNT

HUMAN RESOURCE

HIGH RISK AREAS IN PULIC SECTOR:


71% of respondents believed that

bribery is an inevitable cost of doing business

KPMG MalaysiaFraud, Bribery and Corruption Survey 2013

64% believed business can’t be done in Malaysia without paying bribes


INTERNATIONAL DIMENSION


WTO (transparency in GP for global trade)

INTERNATIONAL DONORS eg. WB, ADB

UNCAC – Declaration Against Corruption

INTERNATIONAL CHAMBER OF COMMERCE – Rules of Conduct to Combat Extortion and Bribery

FOREIGN DIRECT INVESTORS

APEC – Santiago Commitment to Fight Corruption and Ensure Transparency

NGO – eg. T.I. (Corruption Indexes)


SANTIAGO COMMITMENTTO FIGHT CORRUPTION AND ENSURE

TRANSPARENCY (21 November 2004)

APEC Course of Action on Fighting Corruption and Ensuring Transparency

“… commitment to cooperate in APEC to implement concrete actions to fight corruption and ensure transparency and accountability in the proper management of public affairs and public property, …”


PREVENTING BRIBERY & CORRUPTION IN YOUR

ORGANIZATION


HIGHREWARDS

andLOW DETECTION

RISK

EASY TO COMMITand

HARD TO DETECT

LOWREWARDS

andHIGH DETECTION

RISK

HARD TO COMMIT

AND EASY TO DETECT


BREEDING AREAS

SYMPTOMS

WHAT and WHERE

to look for corruption?


WHERE ARE THE BREEDING AREAS?


CORRUP-

TION

Lack supervision and monitoring, inefficiency, poor handling of public complaints

Unclear policies, rules & regulations, - inadequate outdated, not practical, uncontrolled discretionary power

Code of Ethics –insufficient publicity, outdated, weak enforcement

Low level of integrity – greed, living beyond means

MACC

System and procedures arenot transparent, no check & balances, work manuals -outdated, delay

CAUSES EFFECTS

Weak leadership,not hands-on, unclear direction,absolute power

Untrained Staff

ABUSE OF

POWER

FRAUD


• Wujud peluang rasuah

• Ahli Lembaga membuat dua tuntutan

bertindih.

• Kerugian kepada Kerajaan.

• Tiada dasar/peraturan yang melarang.

Contoh: TUNTUTAN PERJALANAN OLEH AHLI LEMBAGA PENGARAH RISDA DAN ANAK SYARIKATNYA


• Aduan: Penguatkuasa terima rasuah kerana tidak ambil tindakan (saman)

• Wujud Peluang rasuah/salahguna kuasa dalam penguatkuasaan.

• Undang-undang tidak dipinda (lapok), tidak boleh dikuatkuasakan dan Alat pengukur cahaya tidak diwartakan.

• Perbezaan penentuan kadar saman antara JPJ & PDRM.

Contoh: KAEDAH-KAEDAH MOTOR VEHICLES (PROHIBITION OF CERTAIN TYPES OF GLASS) RULES, 1991 - JPJ


• Wujud peluang rasuah/salahguna

kuasa

• Pegawai ada pengaruh/kedudukan

• Tiada dasar/peraturan bertulis

Contoh: ISU KEAHLIAN PEGAWAI KANAN KERAJAAN DI DALAM

SESEBUAH KELAB GOLF SYARIKAT SWASTA ATAS DASAR NOMINEE


• Wujud peluang rasuah/salahguna

kuasa

• Penompokan kuasa - Enakmen

peruntuk kuasa kepada YDP

untuk menetapkan kadar

kompaun

Contoh: PENETAPAN KADAR SAMAN BAGI KESALAHAN SEK. 6(1) ENAKMEN HIBURAN DAN TEMPAT-TEMPAT HIBURAN NEGERI

SELANGOR 1995


PENGARAH

KERANIREKOD

Proses KerjaPendakwaan Kes Jabatan Kastam

PEGAWAIPENDAKWA

MAHKAMAHPEGAWAI

PENDAKWA

BILIKKEBAL


* lavish lifestyle - living beyond means

* unexplained sources of wealth

* unusual close relationship with clients

* unnecessary involvement in other division

* Heavy indebtedness, gambling

* refusal of suppliers/contractors to deal

with other staff

* prefer to work alone, very secretive

* unnecessarily making extra copies of

document

COMMON CORRUPTION INDICATORS/SYMPTOMS


UK Bribery Act

2010

(The 6 Principles)

CISM

(The 10 Anti-Corruption

Initiatives) (2014)

ISO 37001:2016 - ABMS

(The 8 ‘TRUST' Requirements)

PricewaterhouseCoopers

(The 5 Essential Elements)

(2008)

• Top Level

Commitment

• Leadership • TOP LEVEL COMMITMENT

- Top Management Leadership,

Commitment and Responsibility

• Tone at the Top

• Proportionate

Procedures

(Anti-Bribery

Programme –

detailed

policies and

procedures)

• Code of Ethics

• Policy Compliance

• Whistle Blowing Policy

• Referral Policy

• Conflict of Interest Policy

• Compliance Policy and

Programmes

• Corporate Social

Responsibility

• UNDERTAKE CONTROL

MEASURES- An Anti-bribery Policy,

Procedures and Controls

- Governing Body Oversight –

Compliance Function

- Review, Corrective Action and

Continual Improvement

• Programme Design and

Control Activities

(Typical Policies & Control:

- Facilitation Payments

- Gifts, Entertainment

- Charitable Contributions

- Acquisition Due

Diligence

- Record Keeping

• Bribery Risk

Assessment

• Due Diligence

• Identifying Specific

Corruption Risk Area• RISK ASSESSMENT

- Due Diligence on Projects and

Business Associates

• Risk Assessment on

Business Processes

• Effective

Communicatio

ns and

Training

• Ethics Training,

Education &

Communication

• TRAINING AND

COMMUNICATION

(Consistent Communication

under Tone at the Top)

• Monitoring and

Review

• Anti-Corruption

Reporting• SYSTEMATIC REVIEW

MONITORING AND

ENFORCEMENT

• Monitoring

• Response & Remediation

ANTI-CORRUPTION MEASURES – Guidelines on Adequate Procedures

ORGANISATION ANTI-CORRUPTION POLICIES AND GUIDELINES ON:

• GIFT RECEIVING

• CHARITABLE CONTRIBUTIONS/ SPONSORSHIP

• FACILITATION PAYMENTS

• HOSPITALITY/ENTERTAINMENT EXPENSES

• CONFLICTS OF INTEREST

• REFERAL POLICY


RAISING CONCERNS AND SEEKING GUIDANCE

• Provide secure and available channels through which employees and others able to raise concerns and whistle-blow (without retribution)

• Provide guidance in respect of the interpretation of the Principles/ Code


CORPORATE LIABILITY FOR CORRUPTION

Section 17(A) MACC Act 2009 (amendment 2018)


COST OF CORRUPTION

Siemens was accused of bribery

and other corporate

malfeasance in approximately

20 countries. Bribes were given

to win many contracts.

Siemens agreed to pay a record

$1.34 billion in fines in

December 2008 after being

investigated for serious bribery.


COST OF CORRUPTION

Alcatel was charged with two

counts of violating the US

Foreign Corrupt Practices Act.

Three of its subsidiaries

agreed to plead guilty to one

count each of conspiracy to

violate the anti-bribery law.

Agreed to pay more than US

$137 million (RM430.4 million)

to settle US charges that it

paid millions of dollars in

bribes to foreign officials to

win business in Latin America

and Asia, US authorities.


COST OF CORRUPTION

Alstom paid more than $75

million in bribes from 2000

to 2011 to secure $4 billion

in contracts around the

world, which led to profits

of about $300 million.

They were fined US$772

million.

In UK, they were still being

prosecuted in 2017 for

bribes paid more than ten

years ago.


Corporate Liability For Corruption – Sec 17A(1) MACC Act 2009 (amendment 2018)

THE ‘OFFENCE’

A commersial organization commits an offence if a

person associated with the commercial organization

corruptly gives, agrees to give, promises or offers to

any person any gratification whether for the benefit

of that person or another person with intent –

a) To obtain or retain business for the commercial organization; or

b) To obtain or retain an advantage in the conduct of business for the commercial organization.


ASSOCIATED PERSON

Section 17(6)For the purposes of this section, a person is associated with the commercial organization if he is a director, partner or an employee of the commercial organization or he is a person who performs services for or on behalf of the commercial organization.

Corporate Liability For Corruption – Sec 17A(6) & (7) MACC Act 2009 (amendment 2018)

Section 17(7)The question whether or not a person performs services for or on behalf of the commercial organization shall be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between him and the commercial organization.


Prosecution side –

• THE ACT OF BRIBERY WAS COMMITTED TO THE

CRIMINAL STANDARD

• THE PERSON WAS ASSOCIATED WITH THE

CORPORATION

• THE PERSON INTENDED TO OBTAIN OR RETAIN

BUSINESS FOR THE CORPORATION; OR OBTAIN OR

RETAIN AN ADVANTAGE IN THE CONDUCT OF THE

BUSINESS OF THE CORPORATION

THE ‘PROVING’

Corporate Liability For Corruption – Sec 17A MACC Act 2009



THE ‘CONVICTION’

The conviction and sentencing would not be for the offence of bribery but for the failure to prevent the offence.



THE ‘PENALTIES’

Section 17A(2)Any commercial organization who commits an offence under this Section shall on conviction be liable to a fine of not less that ten times the sum or value of the gratification which is the subject matter of the offence, where such gratification is capable of being valued or is of pecuniary nature, or one million ringgit, whichever is the higbher, or to imprisonment for a term not exceeding 20 years or to both.



THE ‘DEFENCE’

Section 17(4)If a commercial organization is charged for the offence referred to in sub-section 1, it is a defence for the commercial organization to prove that the commercial orgnization had in place adequate procedures to prevent persons associated with the commercial organization from undertaking such conduct.


Corporate Liability For Corruption – Sec 17A(5) MACC Act 2009

WHAT ARE ADEQUATE PROCEDURES?



LIABILITY OF MANAGERS AND DIRECTORS

• Section 17A had another layer of liability which is not found under the UK Bribery Act 2010.

• Under Section 17A(3), if the commercial organization is found liable because it does not have adequate procedures, the management of the commercial organization including directors and managers may also be found individually liable forn the offence committed by the commercial organization.



SECTION 17A(3)

Where an offence is committed by a commercial organization, a person –

a) Who is its director, controller, officer or partnerb) Who is concerned in the management of its affair,

At the same time of the commission of the offence, is deemed to have committed that offence UNLESS that person proves that the offence was committed without his consent or connivance and that he exercised due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.


DEFFERED PROSECUTION AGREEMENTS

(DPA) – Settlement Agreements

- To avoid bad publicity

- Affects company’s reputation

- Impacts on the company’s ability to win

future works/contracts

- Lengthy period of court trials

- To avoid additional expenses

Corporate Liability For Corruption


“Leadership is not rank, privileges, titles or money;

it is responsibility.”

[Peter Drucker]

THANK YOU

LETS MAKE A DIFFERENCE:FIGHT CORRUPTION

- a sustainable initiative towards achieving zero

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