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Section 17A of the MACC Act 2009 (Amendment 2018)
On 1st June 2020, Section 17A of the MACC Act 2009 was enforced should any person associated with a commercial organization commits any corruption offences, that person will be subjected to legal proceeding under the Section 17A of the said Act.
Person Associated with the Commercial Organization
A person deemed to be associated with the commercial organization if he or she is a:
- Director;
- Partner;
- Employees; or
- Person who performs services for or on behalf of the commercial organization.
Penalty
The director, controller, officer or partner or any person who is managing the affairs of the commercial organization shall deemed to have committed such offence if it is committed by the commercial organization unless they can prove that it was done without their knowledge and due diligence in preventing corruption practices have been exercised.
The penalty imposed shall be as follows: –
- Fine of at least ten (10) times of the value of the gratification or RM1,000,000.00, whichever is higher; or
- Imprisonment for a term not more than twenty (20) years; or
- Both.
Adequate Procedures
However, if the commercial organization have been charged for the offence, they can defense themselves against the charge if they are able to prove that adequate procedures have been in place to prevent and/or combat actual or potential corruption practices pursuant to S17A(4) of the MACC Act 2009.
Further to the above, the Prime Minister’s Office has issued a Ministerial Guidelines (“Guideline”) on December 2018 with the objective to assist the commercial organization in establishing, implementing and enforcing the adequate procedures. With reference to the Guideline, it mentioned that the adequate procedures should be prepared based upon the T.R.U.S.T principle which comprises the following: –
- Top-Level Commitment
Top-Level Management must ensure that the commercial organization practices highest level of integrity and ethics, full compliance with the relevant laws and regulatory requirements on anti-corruption as well as effectively manages the key corruption risks of the organization.
In addition, Top-Level Management must be able to provides assurance to both internal and external stakeholders that the business operation of commercial organization is in compliance with its policies and all relevant regulatory requirements.
- Risk Assessment
A comprehensive risk assessment shall be conducted once every three (3) years or when there is a change in relevant law in order to identify, analyze, assess and prioritize the internal and external corruption risks.
The result of such assessment shall thereafter be used to establish appropriate processes, systems and controls approved by the Top-Level Management in mitigating the corruption risks.
- Undertake Control Measures
The commercial organization shall establish and enforce appropriate controls and contingency measures in combating the corruption risks that may arise and it shall comprise the following: –
- Exercise highest level of due diligence on all relevant parties or personnel prior to the entering of any formalized relationships i.e. contract of service; and
- The establishment of confidential trusted reporting channel i.e. Whistleblowing Policy for both internal or external parties to report any corruption activities, be it actual or suspected, without the risk of being retaliated
- Systematic Review, Monitoring and Enforcement
Top-Level Management must ensure that periodical review be conducted as to assess the performance, efficiency, and effectiveness of the existing anti-corruption programme and such review may in the form internal audit or external audit.
In addition, the Top-Level Management shall monitor the performance of all personnel in relation to anti-corruption policies and procedures as to ensure that they have the full understanding and compliance.
- Training and Communication
The commercial organization shall provide internal and external training in relation to its anti-corruption management system to ensure that all personnel and related parties has thorough understand.
Moreover, the commercial organization shall make the anti-corruption policy publicly available by all means and be communicated to all personnel and business associates to inform that the commercial organization has zero tolerance for offenders.
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