The MACCA is the key Malaysian legislation regulating private and public sector corruption. The MACCA's application is very broad, and the penalties for non-compliance can be severe. There is no concept of facilitating payments under the MACCA, and neither are there value-based thresholds as to what is regarded to be gratification in breach of the MACCA, or otherwise.
Further, the MACCA provides for the rebuttable presumption of corrupt intent against the defendant once the prosecution establishes the act of gratification. The MACCA has extra-territorial application insofar as Malaysian permanent residents or citizens are involved in corrupt activities outside of Malaysia.
While the wrongdoer is not expressly confined to individual persons under the MACCA more such persons, as opposed to corporations and the like, have been prosecuted and punished. The MACCA is at present silent on corporate liability and as a general observation, the legal concept of criminal liability of a corporate entity under Malaysian laws can be described as being relatively under-developed.
This is expected to change shortly, and possibly within 2014. The authorities have, since the latter half of 2013, announced that corporate liability-related sections will be inserted into the MACCA within 2014. It is unclear at present what form these provisions will take, although the authorities have indicated that there will be a grace period for enforcement and that a robust internal anti-corruption policy coupled with adequate employee awareness and education efforts are expected to be key liability mitigation factors.
For employers in Malaysia, the need to ensure that there are sufficient internal controls coupled with pro-active and regular education efforts concerning gifts, entertainment and corruption generally, has now become even stronger.
The present upward trend of the Commission's enforcement-related activities concerning commercial corruption looks set to continue, and will likely increase dramatically, once these revisions are in force.
Employers in Malaysia are therefore strongly advised to re-look their gifts and entertainment policies, reporting controls, whistleblower and employee monitoring policies, internal escalation mechanisms and also to explore the possibility of appointing a senior in-country representative to assume an ad hoc Integrity Officer role.