Section 17A of the MACC Act will come into effect on 1.6.2020. It fulfilled the international requirements under Article 26 of the United Nations Convention Against Corruption (“UNCAC”), which refers to the liability of legal persons.
All the while, MACC Act has been focusing on the prosecution of individuals involved in corruption. However, Section 17A will expand its focus to enable “commercial organisations” involved in corruption activities to be subjected to legal action and “persons associated” with the organisations will be deemed to commit the corresponding offence unless it can be proven that “adequate measures” have been put in place.
“Commercial organisations”
- A company incorporated under the Companies Act 2016 and carries on a business in Malaysia or elsewhere;
- A company wherever incorporated and carries on a business or part of a business in Malaysia;
- A partnership registered under the Partnership Act 1961 and carries on a business in Malaysia or elsewhere;
- A partnership registered under the Limited Liability Partnerships Act 2012 and carries on a business in Malaysia or elsewhere; and
- A partnership wherever formed and carries on a business or part of a business in Malaysia.
“Persons associated”
Includes directors, partners, employees, agents, consultants, nominees, distributors, JV partner, subsidiary, trustees, etc.
“Adequate measures”
T – top level commitment
R – risk assessment;
U – undertake control measures;
S – systematic review, monitoring and enforcement;
T – training and communication
In another word, if corruption-related actions are done by persons associated for the benefit of the commercial organisation, the organisation can be found guilty, and further, the director, officer, partner or manager of a commercial organisation can be personally liable for the said offence. In light of the fact that there is a presumption of criminal liability here, the burden of proof lies with the persons prosecuted, unless it proves that it had in place adequate procedures designed to prevent persons associated with the commercial organisation from undertaking such conduct.
Penalty for the offence shall be a fine of not less than 10 times the sum of the gratification involved or RM1 million, whichever is higher, or imprisonment for a term not exceeding 20 years, or both.
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