Due to the increased array of actions, the Malaysian Anti-Corruption Commission (MACC) paired with the Madani Policy, are reminding commercial organisations to ensure and constantly improve their compliance programme. Prime Minister Datuk Seri Anwar Ibrahim announced that Malaysia is heading towards a zero tolerance for misconduct and corruption.
Section 17A of the Anti-Corruption Amendment Act 2018 (A1567) came into force and states the principle of a commercial organisation´s criminal liability. A commercial organisation commits an offence if a person associated with it commits bribery to obtain or retain business for the commercial organisation or to obtain or retain an advantage in the conduct of business for the commercial organisation. A person associated with a commercial organisation is a director, a partner, an employee or a person who performs services for or on behalf of the commercial organisation.
If convicted, an offence is punishable not less than ten (10) times the value of the bribe or one-million-ringgit (RM 1,000,000.00), whichever is higher, or to imprisonment for a term not exceeding twenty (20) years or to both.
The commercial organisation is liable for the bribe unless it can prove that it had in place adequate procedures to prevent persons associated with it from undertaking such conduct. To provide guidance regarding the adequate procedures the Prime Minister issued a guideline which has been formed on the following five principles:
1. Top Level Commitment:
| Responsibility of the top-level management to ensure that the commercial organisation complies fully with the applicable laws and regulatory requirements which includes establishing the organisation´s tone from the top as well as reviewing, monitoring and training.
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2. Risk Assessment:
| The commercial organisation should conduct corruption risk assessment periodically – recommended every three years – to establish appropriate processes, systems and controls.
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3. Undertake Control Measures:
| The commercial organisation should put in place the appropriate controls and contingency measures in order to address any corruption risks, including due diligence, reporting channel and financial controls.
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4. Systematic Review, Monitoring and Enforcement:
| The top-level management should ensure that regular reviews are conducted to assess the performance, efficiency and effectiveness of the anti-corruption programme and take the form of an internal audit, or an audit carried out by an external party at least once every three years.
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5. Training and Communication:
| The commercial organisation should provide regular and relevant, internal and external trainings and communications. |
Additionally, a person who is a director, controller, officer or partner, or who is concerned in the management of its affairs at the time of the commission of the offence, is deemed to have committed the 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.