On March 26, 2018 the Malaysian Anti-Corruption Commission Amendment Bill 2018 (the "Amendment") passed the first reading. The amendments propose several changes to the Malaysian Anti-Corruption Commission Act of 2009 ("2009 Act").
The most significant proposed change is the addition of a new section(1) which for the first time adds a corporate liability(2) provision for corrupt acts committed by persons associated with a "commercial organization"(3). The 2009 Act only contained provisions for individual liability. With the Amendment a commercial organization commits an offense if:
"a person associated with the organization(4) 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."(5)
Penalties under the Amendment are no less than ten times the sum or value of the gratification, or one million ringgit ($253,000), whichever is higher, and/or imprisonment for up to 20 years. In addition, the Amendment states that commercial organizations will be able to provide a defense against a corruption charge by having adequate procedures in place that were designed to have prevented persons associated with the organization from committing the offense. The Malaysian government intends to publish guidelines in the future that will provide more clarity on how they will interpret "adequate procedures".
- The Amendment introduces corporate liability for corrupt acts committed by persons associated with a commercial organization
- Having an adequate compliance program in place may mitigate the potential penalties associated with a corrupt act by an associated person
- Associated persons include both employees AND third parties providing services on the company's behalf
- The penalties for non-compliance are potentially severe
- If you have a business that operates in Malaysia we recommend a review of your compliance programs in country and a review of your monitoring and auditing practices to ensure they are adequate to prevent and detect corrupt acts.
GCSG will continue to follow developments and will distribute the guidelines when the Malaysian Anti-Corruption Commission publishes them. For more information contact your GCSG experts.
References and Definitions:
- (1) The 2009 Act only provided for individual liability associated with corruption by company employees - Malaysian Anti-Corruption Commission Act 2009
- (2) The corporate liability amendments are modeled after the UK Bribery Act 2010.
- (3) "Commercial Organization...means (a) a company incorporated under the Companies Act 2016 and carries on a business in Malaysia or elsewhere; (b) a company wherever incorporated and carries on a business or part of a business in Malaysia; (c) a partnership- (i) under the Partnership Act 1961 and carries on a business in Malaysia or elsewhere; or (ii) which is a limited liability partnership..and carries on a business in Malaysia or elsewhere; or (d) a partnership wherever formed and carries on a business or part of a business in Malaysia."(5)
- (4) "A person is associated with a 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."(5)
- (5) Malaysian Anti-Corruption Commission (Amendment) Bill 2018
- Malaysian Anti-Corruption Commission