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Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
FIGHTING BRIBERY AND CORRUPTION
- A sustainable initiative towards achieving Zero Tolerance to Corruption
SUTINAH SUTAN (Dato’)Independent Consultant
HOTEL ISTANA, KUALA LUMPUR9-10 JANUARY 2019
ISO 37001: 2016
ANTI-BRIBERY MANAGEMENT SYSTEM (ABMS)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
SCOPE
FORMS, TYPES AND NATURE OF CORRUPTION
LEGAL REQUIREMENT: CORRUPTION OFFENCES & LEGAL DUTIES
HOW BIG IS OUR CORRUPTION PROBLEM?
CAUSES OF CORRUPTION
PRESCRIPTION FOR CORRUPTION PROBLEM
HOW CORRUPTION PREVENTION RELATED TO ABMS
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
FORMS OFCORRUPTION
COMMON TERMINOLOGIES
• kickback, under counter payment,
facilitation payment, grease money,
tea/coffee money (Malaysia)
• Little envelope (Italy)
• Air supply (Uganda)
• Pungli - Pungutan Liar (Indonesia)
• 19.90 (US)
• Sleaze (UK)
• Black Mist (Japan)
• A jug of wine (France)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
FORMS OF CORRUPTION
• Bribery – the payment in money/kind that is given in a corrupt relationship.It has many names such as facilitating payments, pay-off, sweetener, grease money etc
• Embezzlement – when employees steal company resources they are hired to administrate; theft from work place in the broadest sense
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Fraud – when an employee (agent) who is responsible for carrying out orders or tasks assigned by his superiors (principal), manipulates the flow of information to his private benefit
• Extortion – money or other resources extracted by the use of coercion,violence or threats to use force
FORMS OF CORRUPTION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Favouritism – a mechanism of power abuse implying ‘privatisation’ and a highly biased distribution of state resources in order to favour friends, family or others related to the employees
• Nepotism – a special form of favouritism in which an office holder (ruler) prefers his proper kinfolk and family members
FORMS OF CORRUPTION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Grand – takes place on the hiher levels of political authority and involves head of states,ministers and top officials who are in control of resources and legislations
• Petty corruption – or ‘bureaucratic’ corruption takes place on a low bureaucratic level and typically bribe takers are police officers, customs, taxing and licensing authorities
CLASSIFICATION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
SPOTANEOUS
INSTRUMENTAL
INDIVIDUALISTIC
SYNDICATED
INVOLVING TWO PARTIES OR MORE
SECRETIVE
CONSENSUAL ACT
A WIN-WIN SITUATION
INVOLVE ABUSE OF POWER/AUTHORITY
TYPES & NATURE OF BRIBERY
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
DEFINITION OFCORRUPTION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“a civil servant abuses his
authority in order to obtain an
extra income from the public”(Jacob Van Kleveren,
The Concept of Corruption)
“Misuse of public power, office or
authority for private benefit .....”
[UNDP, 2011]
Definition of Corruption
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Corruption equals monopoly plus
discretion minus accountability
(C = M + D –A)
… one will tend to find corruption
when an organization or a person has
monopoly power over a good or
service, has the discretion to decide
who will receive it and how much that
person will get, and is not
accountable.”
Robert Klitgaard
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Corrupt means
doing an act
knowing that the
act done is wrong,
doing so with
evil feelings and
evil intentions”
PP vs Datuk Harun Idris,
Ex-Chief Minister of Selangor
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTIONOFFENCES FROM
ISLAMIC PERSPECTIVE
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Dan janganlah kamu makan (atau
mengambil) harta (orang-orang lain)
diantara kamu dengan jalan yang salah,
dan jangan pula kamu menghulurkan
harta kamu (memberi rasuah) kepada
hakim-hakim kerana hendak memakan
(atau mengambil) sebahagian dari harta
manusia dengan (berbuat) dosa, padahal
kamu mengetahui (salahnya)”.
(Surah Al-Baqarah - Ayat 188)
KESALAHAN RASUAH MENGIKUT AL-QURAN
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Allah melaknat kepada orang
yang memberi rasuah dan
menerima rasuah serta orang yang
memberi jalan terhadap keduanya”
(Riwayat At-Tirmidzi)
Hadith Rasulullah s.a.w. bermaksud:
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Sesiapa sahaja yang telah kami
lantik untuk memegang sesuatu
jawatan atau kerja dan kami telah
tetapkan pendapatannya atau gaji
maka apabila ia mengambil lebih dari
apa yang ditetapkan itu dikira sebagai
satu penipuan dan rasuah”
Riwayat Abu Daud
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTIONOFFENCES
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Malaysian Anti-Corruption Commission Act 2009 (Amendment 2018)
Section 137 Customs Act 1967 (Act 235)
Penal Code – Sec. 161, 162, 163, 164, 165, 213, 214 and 215
Part III of the Election Offences Act 1954 (Act 5)
Anti-Money Laundering, Terrorist Financing and Proceeds of Unlawful Activities Act 2001 (AMLATFA)
Mutual Assistance In Criminal Matters Act 2002
Whistleblower Protection Act 2010
Witness Protection Act 2009 (Act 696)
RELATED LAWS ONCORRUPTION PREVENTION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTION OFFENCES
YOUR LEGAL OBLIGATIONS
LAWS THAT PROTECT YOU
Legal requirements …..
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
UNDANG-UNDANGMALAYSIA
LAWS OF MALAYSIA
AKTA SURUHANJAYA PENCEGAHAN
RASUAH MALAYSIA 2009
(Akta 694)
MALAYSIAN ANTI-CORRUPTION
COMMISSION ACT 2009
(Act 694)
PRINCIPAL OBJECTS OF ACT – Section 2
(a) to promote the integrity and
accountability of public and
private sector administration
by constituting an
independent and
accountable anti-corruption
body; and
(b) To educate public
authorities, public officials
and members of the public
about corruption and its
detrimental effects on public
and private sector
administration and on the
community.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
BRIBERY
• giving gratification
• accepting gratification
3 MAIN OFFENCES – MACC Act 2009
giving or using false
documents to make claims
abuse of public office for
pecuniary advantage
Sec. 16 & 17
Section 18
Section 23
1.
2.
3.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTION OFFENCESinclude :-
an attempt to commit any of
the offences
an abetment of or a criminal
conspiracy to commit the
offence
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
OFFENCE OF GIVING OR ACCEPTING
GRATIFICATION
BY AGENT
[ Section 17 MACC Act 2009
(Act 694) ]
UNDANG-UNDANGMALAYSIA
LAWS OF MALAYSIA
AKTA SURUHANJAYA PENCEGAHAN
RASUAH MALAYSIA 2009
(Akta 694)
MALAYSIAN ANTI-CORRUPTION
COMMISSION ACT 2009
(Act 694)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
(a) money, donation, gift, loan, fee, reward, valuable security, property or interest in
property being property of any description whether movable or immovable,
financial benefit, or any other similar advantage;
(b) any office, dignity, employment, contract of employment or services, and agreement
to give employment or render services in any capacity;
(c) any payment, release, discharge or liquidation of any loan, obligation or other
liability, whether in whole or in part;
(d) any valuable consideration of any kind, any discount, commission, rebate bonus,
deduction or percentage;
(e) any forbearance to demand any money or money’s worth or valuable thing;
(f) any other service or favour of any description, including protection from any penalty
or disability incurred or apprehended or from any action or proceedings of a
disciplinary, civil or criminal nature, whether or not already instituted, and
including the exercise or the forbearance from the exercise of any right or any
official power or duty; and
(g) any offer, undertaking or promise, whether conditional or unconditional, of any
gratification within the meaning of any of the preceding paragraphs (a) to (f).
“GRATIFICATION” means;– (Section 3, MACC Act 2009 (ammendment 2018))
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“agent” – Section 3, MACC Act 2009 (ammendment 2018)
means any person employed by or acting
for another, and includes an officer of a
public body or an officer serving in or under
any public body, a trustee, an administrator
or executor of the estate of a deceased
person, a sub-contractor, and any person
employed by or acting for such trustee,
administrator or executor, or subcontractor.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“principal” – Section 3
includes any employer, any beneficiary
under a trust, any trust estate, any person
beneficially interested in the estate of a
deceased person, the estate of the deceased
person, and in the case of any person
serving in or under a public body, the public
body.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
A person commits an offence if –
(a) being an agent, he corruptly accepts, or attempt to
obtain for himself or for any other person, any gratification
as an inducement or a reward or for showing or forbearing to show favour to any person in relation to his principal’saffairs or business.
(b) he corruptly gives any gratification to any agent as an
inducement or a reward for doing or forbearing to do, or
for showing or forbearing to show favour to any person in relation to his principal’s affairs or business.
OFFENCE OF GIVING OR ACCEPTING GRATIFICATION BY AGENT[Section 17 MACC Act 2009]
1
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Example:
That you on 15.1.2010 around 1.30 pm at D’AtasBrasseri, Floor 9, Hotel Legend, ….. being an agent, ie.Procurement Officer with XXX Bank corruptly receivedfor yourself, a gratification, ie. cash money totalingRM17,000.00 from ABI, Director of Syarikat MasterkleenSdn. Bhd. as a reward for doing an act ie. awardingSyarikat Masterkleen Sdn. Bhd. for carpet and officecleaning jobs at the Bank, and thereby, you havecommitted an offence under Section 17(a) of theMalaysian Anti-Corruption Commission Act 2009 (Act694), punishable under Section 24 of the same Act.
PP vs MSM
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
PUBLIC SERVANT OBTAINING ANY
VALUABLE THING, WITHOUT
CONSIDERATION, FROM PERSON
CONCERNED IN ANY PROCEEDING OR
BUSINESS TRANSACTED BY SUCH
PUBLIC SERVANT
SECTION 165, PENAL CODE
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Whoever, being a public servant, accepts or
obtains, or agrees to accept or attempts to
obtain, for himself or for any other person, any
valuable thing, without consideration, or for a
consideration which he knows to be inadequate,
from any person whom he knows to have been,
or to be, or to be likely to be concerned in any
proceeding or business transacted, or about to
be transacted, by such public servant, or having
any connection with the official functions of
himself or of any public servant to whom he is
subordinate, or from any person whom he knows
to be interested in or related to the person so
concerned, shall be punished with imprisonment
for a term which may extend to two years or
with fine or with both.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Bahawa kamu pada 4 April 1995, di Garden City, Ujong Pasir,
Melaka dalam Daerah Melaka Tengah, dalam Negeri Melaka
semasa menjadi seorang penjawat awam iaitu Pengarah
Penilaian Dan Pengurusan Harta, Majlis Perbandaran Melaka
Bandaraya Bersejarah telah menerima untuk diri kamu suatu
benda yang bernilai, iaitu sebuah kereta Mercedes Benz E280
nombor pendaftaran WDV 9, tanpa balasan daripada Chan
Kok Chuang yang mana kamu mengetahui ada kena mengena
dengan urusan tugas rasmi kamu berhubung permohonan
Projek Penswastaan Pembinaan Terminal Bas/Teksi dan
Pusat Bandar di Semabok oleh Liga Maju Sdn. Bhd. yang
mana permohonan berkenaan telah diproses oleh kamu
dengan itu kamu telah melakukan satu kesalahan yang boleh
dihukum di bawah seksyen 165 Kanun Keseksaan [N.M.B.
(Bab 45)].
Sek. 165 Kanun Kesiksaan
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
A person commits an offence if hegives to an agent, or being an agent he
uses with intent to deceive his principal,any receipt, account or other document in
respect of which the principal is interested, and which he has reason to believe
contains any statements which is false or erroneous or defective in any material
particular, and is intended to mislead the principal.
OFFENCE OF INTENDING TO DECEIVE PRINCIPAL BY AGENT
(Section 18, MACC Act 2009)
2
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
In 2005, the accused, Ismail Bin Zainuin,
Secretary General of the Persatuan Rifel
Kebangsaan Malaysia, gave to an agent ie.
Finance Officer of the Majlis Sukan Negara
(MSN) an invoice no. 1017 belonging to
Vision Arms Sports Centre Sdn. Bhd.
amounting RM285,000 to MSN that contains
statements which he knew was false where
the items were paid but never supplied.
Example:
He was found guilty and was sentenced to 3 months
jail and fined RM 2,205,000, i/d 6 months jail.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Any officer of a public body who uses his office of position for any gratification,
whether for himself, his relative or associate, commits an offence
– when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or
associate of his, has an interest, whether directly or indirectly.
OFFENCE OF USING OFFICE ORPOSITION FOR GRATIFICATION
(Section 23, MACC Act 2009)
3
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Interpretation of
“RELATIVE”
YOU
mother/father
grandmother/
grandfather
daughters/
sons
Grand children
brothers sistersbrotherssisters
son-in laws/
daughter-in laws
uncles*
aunties*
wife/husband
cousins*
nephews/nieces*
“cucu saudara”*
* Excluding spouses
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“X, sebagai pegawai badan awam di Universiti Sains Malaysia
telah menggunakan jawatannya memilih syarikat Arena Mulia
Enterprise untuk:
1) Membalut 20 kerusi banquet bernilai RM1,200.00
2) Membekal dan memasang span 1/2 inci beserta kain
kanvas bernilai RM5,736.00
3) Membekal kerja-kerja servis dan pengisian semula 466
unit cecair penyegar bernilai RM3500.00
4) Membekal dan memasang 'Urinal Sanitizer Dispenser
Model MS600P' sebanyak 466 unit bernilai RM47998.00;
berhubung dengan perkara yang dia mempunyai kepentingan
iaitu pemilik syarikat Arena Mulia Enterprise adalah adik
kandungnya.”
Eg: Offence under Sec. 23(1) – Abuse of Public Office
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“That you ….. whilst being a member of theadministration, namely the Chief Minister ofSabah, committed corrupt practice by usingyour public position for your advantage, inthat you did approve the award on a contractin the sum of RM1,483,341.60 for theconstruction of 12 units of 2 storey SEDCOshop houses Phase II in Tambunan toRIMKAYA Sdn. Bhd., in which your relativeswere amongst the director-cum-shareholders…..”
Eg: PP vs DATUK JOSEPH PAIRIN KITINGAN
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
ANY OFFICER OF A PUBLIC BODY TO WHOM ANY
GRATIFICATION IS GIVEN, PROMISED, OR OFFERED,
IN CONTRAVENTION OF ANY PROVISION OF THIS
ACT SHALL REPORT SUCH GIFT, PROMISE OR OFFER
TOGETHER WITH THE NAME, IF KNOWN, OF THE
PERSON WHO GAVE, PROMISED OR OFFERED SUCH
GRATIFICATION TO HIM TO THE NEAREST OFFICER
OF THE AGENCY OR POLICE OFFICER.
Penalty: Fine not exceeding RM100,000or imprisonment not exceeding 10 yearsor to both.
DUTY TO REPORT BRIBERY TRANSACTIONS BY PUBLIC OFFICER
Sec. 25 (1)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
DUTY TO REPORT BRIBERY TRANSACTIONS BY ANY PERSON
Sec. 25 (3)
ANY PERSON FROM WHOM ANY GRATIFICATION HAS BEEN
SOLICITED OR OBTAINED, OR AN ATTEMPT HAS BEEN MADE TO
OBTAIN SUCH GRATIFICATION, IN CONTRAVENTION OF ANY
PROVISION OF THIS ACT SHALL AT THE EARLIEST OPPORTUNITY
THEREAFTER REPORT SUCH SOLICITING OR OBTAINING OF, OR
ATTEMPT TO OBTAIN, THE GRATIFICATION TOGETHER WITH
THE FULL AND TRUE DESCRIPTION AND, IF KNOWN, THE NAME
OF THE PERSON WHO SOLICITED, OR OBTAINED, OR
ATTEMPTED TO OBTAIN, THE GRATIFICATION FROM HIM TO
THE NEAREST OFFICER OF THE AGENCY OR POLICE OFFICER.
Penalty: Fine not exceeding RM10,000or imprisonment not exceeding 2 yearsor to both.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
LEGAL PROTECTION
• MALAYSIAN ANTI-CORRUPTION COMMISSION ACT 2009 (amendment 2018)
- Section 29- Section 65
• WITNESS PROTECTION ACT 2009
• WHISTLEBLOWER PROTECTION ACT 2010
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
SECRECY OF REPORT LODGED TO THE MACC
“A report made under subsection (1)
shall be kept secret and shall not be
disclosed by any person to any
person other than officers of the
Agency and the Public Prosecutor
until an accused person has been
charged in court for an offence under
this Act …”
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
IDENTITY OF INFORMERS
& INFORMATION ARE
PROTECTED BY THE LAW
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“ …. where any complaint made by an officer of the
commission states that the complaint is made in
consequence of information received by the officer
making the complaint, the information referred to in
the complaint and the identity of the person from
whom such information is received shall be secret
between the officer who made the complaint and the
person who gave the information, and everything
contained in such information, identity of the person
who gave the information and all other circumstances
relating to the information, including the place where
it was given, shall not be disclosed or be ordered or
required to be disclosed in any civil, criminal or other
proceedings in any court, tribunal or other authority”
Section 65 (1)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTION IN THE PUBLIC SECTOR,
HOW BIG IS THE PROBLEM?
Illicit Financial Outflows of Dirty Money from Developing Countries - Study by the Global Financial
Integrity(GFI - an international anti-corruption group
•Malaysia ranked 5th
•Malaysia has lost RM171.11 billion in 2012
•Malaysia has lost RM1.38 trillion since 2003
- corruption
- tax evasion
- organized crime
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUPTION SITUATIONPerceived level of corruption for Malaysia [CPI 1995 – 2017]
0
1
2
3
4
5
6
7
8
9
101
99
5
19
96
19
97
19
98
19
99
20
00
20
01
20
02
20
03
20
04
20
05
20
06
20
07
20
08
20
09
20
10
20
11
20
12
20
13
20
14
20
15
20
16
20
17
5.28 5.32 5.01 5.30 5.10 4.80 5.00 4.90 5.20 5.00 5.10 5.00 5.01 5.01 4.50 4.40 4.30 4.90 5.0 5.2 5.0 4.9 4.7
23 26 32 29 32 36 36 33 37 39 39 44 43 47 56 56 60 54 53 50 54 55 62
Lowest level of corruption
Highest level of corruption
S C
O R
E
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
(Research done by Prof. Shang-Jin Wei from Kennedy School of Government, Havard University)
(Source: TI Source Book)
‘ A FULL POINT INCREASE IN THE CORRUPTION LEVEL IS
ASSOSIATED WITH A 16% REDUCTION IN THE FLOW OF
FOREIGN DIRECT INVESTMENT (FDI) ’
Malaysian organization are not doing enough to
protect themselves
Reported incidents of bribery and corruption
continue to increase from
It is concerning that Malaysian organizations appear to
be ambivalent about addressing the risks of bribery and
corruption
BRIBERY AND CORRUPTION KEEPS RISING…
19% 35%30%
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Source: pwc, 2018
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
THE DRIVERS OF FRAUD
INCENTIVES OR
PRESSURE TO PERFORM
RATIONALIZATION
85%
OPPORTUNITY
FRAUD RISK
39%42%
Source: pwc, 2018
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
OPPORTUNITIES weak procedures red tape lack of transparency high level of discretion
MOTIVE or PRESSURE heavily indebtedness
political pressure
to meet target/KPI
sale before expiry date
RATIONALIZATION – WRONG MINDSET
“I did not demand, they wanted to give” “If my boss did it and not get caught, why not
me?” “Ini anggaplah sedekah” “I can’t help it, it is part of doing business”
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
STATISTIC ON CORRUPTION CASES UNDERTAKEN BY MACC(2011 TO 2018)
YEAROVERALLREPORT
REPORT ON
CORRUPTION
INVESTIGATION
PAPERS
NO OF
ARRESTCHARGED CONVICTED
2011 13,325 6,475 1,304 918 293 299
2012 11,765 5,485 1,078 701 350 212
2013 7,927 3,946 976 509 296 173
2014 6,584 2,954 919 552 334 230
2015 6,343 2,982 982 841 223 162
2016 6,551 NA 985 939 268 172
2017 7,348 NA 863 879 373 216
2018 7,920 NA 833 896 293 210
TOTAL 67,763 -7,940
(11.7%)
6,235
(9.2%)
2,430
(3.6%)
1,674
(2.5%)
Source: MACC (4.1.2019)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
TAHUNPegawai Awam
SwastaOrang Awam
Ahli Politik
Ahli Majlis
Lain-lain
Jumlah
2016 467 210 239 3 0 22 941
2017 408 168 271 12 0 23 882
2018 423 183 220 24 0 46 896
Jumlah1,298
(47.7%)561
(20.6%)730
(26.8%)39
(1.4%)0
91(3.3%)
2,719
STATISTIK TANGKAPAN MENGIKUT PECAHAN SEKTOR BAGI
TAHUN 2016 - 2018
Source: MACC (4.1.2019)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
NO OF ARRESTS BY SECTORS & TYPESOF OFFENCES [ 2011 – 2015 ]
0%
20%
40%
60%
80%
100%
Other
offences
Misuse of
position
False claims
Giving
bribes
Receiving
bribes
PublicSector
PrivateSector
PoliticiansMembersOf Public
TownCouncil
Members
1410(40%)
558(15.8%)
1548(43.9%)
7(0.2%)
2(0.1%)
Source: MACC (4.1.2019)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
TYPES OF OFFENCES
2016 2017 2018
PK SW OA AP LL PK SW OA AP LL PK SW OA AP LL
Received
Bribes315 51 81 0 15 275 48 60 9 15 230 73 62 10 19
Gave
Bribes5 57 129 0 1 4 65 172 1 0 0 21 99 3 1
False
Claims114 76 11 0 4 82 36 21 0 3 103 69 42 0 18
Abuse of
Position12 8 1 0 7 31 11 8 1 3 71 5 7 4 4
Others 14 18 16 0 4 18 10 5 1 2 19 15 10 7 4
Total 460 210 238 0 31 410 170 266 12 23 423 183 220 24 46
TOTAL 939 881 896
NO OF ARRESTS BY SECTORS & TYPESOF OFFENCES [ 2016 – 2018 ]
Source: MACC (4.1.2019)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
PROCUREMENT
DEVELOPMENT PROJECTS
ENFORCEMENT
LICENSING/PERMITS
LAND MATTERS
REVENUE COLLECTION
ASSET/STORE MANAGEMENT
SUBSIDIES MANAGEMENT
FINANCE & ACCOUNT
HUMAN RESOURCE
HIGH RISK AREAS IN PULIC SECTOR:
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
71% of respondents believed that
bribery is an inevitable cost of doing business
KPMG MalaysiaFraud, Bribery and Corruption Survey 2013
64% believed business can’t be done in Malaysia without paying bribes
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
INTERNATIONAL DIMENSION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
WTO (transparency in GP for global trade)
INTERNATIONAL DONORS eg. WB, ADB
UNCAC – Declaration Against Corruption
INTERNATIONAL CHAMBER OF COMMERCE – Rules of Conduct to Combat Extortion and Bribery
FOREIGN DIRECT INVESTORS
APEC – Santiago Commitment to Fight Corruption and Ensure Transparency
NGO – eg. T.I. (Corruption Indexes)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
SANTIAGO COMMITMENTTO FIGHT CORRUPTION AND ENSURE
TRANSPARENCY (21 November 2004)
APEC Course of Action on Fighting Corruption and Ensuring Transparency
“… commitment to cooperate in APEC to implement concrete actions to fight corruption and ensure transparency and accountability in the proper management of public affairs and public property, …”
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
PREVENTING BRIBERY & CORRUPTION IN YOUR
ORGANIZATION
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
HIGHREWARDS
andLOW DETECTION
RISK
EASY TO COMMITand
HARD TO DETECT
LOWREWARDS
andHIGH DETECTION
RISK
HARD TO COMMIT
AND EASY TO DETECT
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
BREEDING AREAS
SYMPTOMS
WHAT and WHERE
to look for corruption?
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
WHERE ARE THE BREEDING AREAS?
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORRUP-
TION
Lack supervision and monitoring, inefficiency, poor handling of public complaints
Unclear policies, rules & regulations, - inadequate outdated, not practical, uncontrolled discretionary power
Code of Ethics –insufficient publicity, outdated, weak enforcement
Low level of integrity – greed, living beyond means
MACC
System and procedures arenot transparent, no check & balances, work manuals -outdated, delay
CAUSES EFFECTS
Weak leadership,not hands-on, unclear direction,absolute power
Untrained Staff
ABUSE OF
POWER
FRAUD
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Wujud peluang rasuah
• Ahli Lembaga membuat dua tuntutan
bertindih.
• Kerugian kepada Kerajaan.
• Tiada dasar/peraturan yang melarang.
Contoh: TUNTUTAN PERJALANAN OLEH AHLI LEMBAGA PENGARAH RISDA DAN ANAK SYARIKATNYA
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Aduan: Penguatkuasa terima rasuah kerana tidak ambil tindakan (saman)
• Wujud Peluang rasuah/salahguna kuasa dalam penguatkuasaan.
• Undang-undang tidak dipinda (lapok), tidak boleh dikuatkuasakan dan Alat pengukur cahaya tidak diwartakan.
• Perbezaan penentuan kadar saman antara JPJ & PDRM.
Contoh: KAEDAH-KAEDAH MOTOR VEHICLES (PROHIBITION OF CERTAIN TYPES OF GLASS) RULES, 1991 - JPJ
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Wujud peluang rasuah/salahguna
kuasa
• Pegawai ada pengaruh/kedudukan
• Tiada dasar/peraturan bertulis
Contoh: ISU KEAHLIAN PEGAWAI KANAN KERAJAAN DI DALAM
SESEBUAH KELAB GOLF SYARIKAT SWASTA ATAS DASAR NOMINEE
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
• Wujud peluang rasuah/salahguna
kuasa
• Penompokan kuasa - Enakmen
peruntuk kuasa kepada YDP
untuk menetapkan kadar
kompaun
Contoh: PENETAPAN KADAR SAMAN BAGI KESALAHAN SEK. 6(1) ENAKMEN HIBURAN DAN TEMPAT-TEMPAT HIBURAN NEGERI
SELANGOR 1995
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
PENGARAH
KERANIREKOD
Proses KerjaPendakwaan Kes Jabatan Kastam
PEGAWAIPENDAKWA
MAHKAMAHPEGAWAI
PENDAKWA
BILIKKEBAL
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
* lavish lifestyle - living beyond means
* unexplained sources of wealth
* unusual close relationship with clients
* unnecessary involvement in other division
* Heavy indebtedness, gambling
* refusal of suppliers/contractors to deal
with other staff
* prefer to work alone, very secretive
* unnecessarily making extra copies of
document
COMMON CORRUPTION INDICATORS/SYMPTOMS
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
UK Bribery Act
2010
(The 6 Principles)
CISM
(The 10 Anti-Corruption
Initiatives) (2014)
ISO 37001:2016 - ABMS
(The 8 ‘TRUST' Requirements)
PricewaterhouseCoopers
(The 5 Essential Elements)
(2008)
• Top Level
Commitment
• Leadership • TOP LEVEL COMMITMENT
- Top Management Leadership,
Commitment and Responsibility
• Tone at the Top
• Proportionate
Procedures
(Anti-Bribery
Programme –
detailed
policies and
procedures)
• Code of Ethics
• Policy Compliance
• Whistle Blowing Policy
• Referral Policy
• Conflict of Interest Policy
• Compliance Policy and
Programmes
• Corporate Social
Responsibility
• UNDERTAKE CONTROL
MEASURES- An Anti-bribery Policy,
Procedures and Controls
- Governing Body Oversight –
Compliance Function
- Review, Corrective Action and
Continual Improvement
• Programme Design and
Control Activities
(Typical Policies & Control:
- Facilitation Payments
- Gifts, Entertainment
- Charitable Contributions
- Acquisition Due
Diligence
- Record Keeping
• Bribery Risk
Assessment
• Due Diligence
• Identifying Specific
Corruption Risk Area• RISK ASSESSMENT
- Due Diligence on Projects and
Business Associates
• Risk Assessment on
Business Processes
• Effective
Communicatio
ns and
Training
• Ethics Training,
Education &
Communication
• TRAINING AND
COMMUNICATION
(Consistent Communication
under Tone at the Top)
• Monitoring and
Review
• Anti-Corruption
Reporting• SYSTEMATIC REVIEW
MONITORING AND
ENFORCEMENT
• Monitoring
• Response & Remediation
ANTI-CORRUPTION MEASURES – Guidelines on Adequate Procedures
ORGANISATION ANTI-CORRUPTION POLICIES AND GUIDELINES ON:
• GIFT RECEIVING
• CHARITABLE CONTRIBUTIONS/ SPONSORSHIP
• FACILITATION PAYMENTS
• HOSPITALITY/ENTERTAINMENT EXPENSES
• CONFLICTS OF INTEREST
• REFERAL POLICY
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
RAISING CONCERNS AND SEEKING GUIDANCE
• Provide secure and available channels through which employees and others able to raise concerns and whistle-blow (without retribution)
• Provide guidance in respect of the interpretation of the Principles/ Code
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
CORPORATE LIABILITY FOR CORRUPTION
Section 17(A) MACC Act 2009 (amendment 2018)
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
COST OF CORRUPTION
Siemens was accused of bribery
and other corporate
malfeasance in approximately
20 countries. Bribes were given
to win many contracts.
Siemens agreed to pay a record
$1.34 billion in fines in
December 2008 after being
investigated for serious bribery.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
COST OF CORRUPTION
Alcatel was charged with two
counts of violating the US
Foreign Corrupt Practices Act.
Three of its subsidiaries
agreed to plead guilty to one
count each of conspiracy to
violate the anti-bribery law.
Agreed to pay more than US
$137 million (RM430.4 million)
to settle US charges that it
paid millions of dollars in
bribes to foreign officials to
win business in Latin America
and Asia, US authorities.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
COST OF CORRUPTION
Alstom paid more than $75
million in bribes from 2000
to 2011 to secure $4 billion
in contracts around the
world, which led to profits
of about $300 million.
They were fined US$772
million.
In UK, they were still being
prosecuted in 2017 for
bribes paid more than ten
years ago.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A(1) MACC Act 2009 (amendment 2018)
THE ‘OFFENCE’
A commersial organization commits an offence if a
person associated with the commercial organization
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.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
ASSOCIATED PERSON
Section 17(6)For the purposes of this section, a person is associated with the 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.
Corporate Liability For Corruption – Sec 17A(6) & (7) MACC Act 2009 (amendment 2018)
Section 17(7)The question whether or not a person performs services for or on behalf of the commercial organization shall be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between him and the commercial organization.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Prosecution side –
• THE ACT OF BRIBERY WAS COMMITTED TO THE
CRIMINAL STANDARD
• THE PERSON WAS ASSOCIATED WITH THE
CORPORATION
• THE PERSON INTENDED TO OBTAIN OR RETAIN
BUSINESS FOR THE CORPORATION; OR OBTAIN OR
RETAIN AN ADVANTAGE IN THE CONDUCT OF THE
BUSINESS OF THE CORPORATION
THE ‘PROVING’
Corporate Liability For Corruption – Sec 17A MACC Act 2009
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A MACC Act 2009
THE ‘CONVICTION’
The conviction and sentencing would not be for the offence of bribery but for the failure to prevent the offence.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A MACC Act 2009
THE ‘PENALTIES’
Section 17A(2)Any commercial organization who commits an offence under this Section shall on conviction be liable to a fine of not less that ten times the sum or value of the gratification which is the subject matter of the offence, where such gratification is capable of being valued or is of pecuniary nature, or one million ringgit, whichever is the higbher, or to imprisonment for a term not exceeding 20 years or to both.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A MACC Act 2009
THE ‘DEFENCE’
Section 17(4)If a commercial organization is charged for the offence referred to in sub-section 1, it is a defence for the commercial organization to prove that the commercial orgnization had in place adequate procedures to prevent persons associated with the commercial organization from undertaking such conduct.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A(5) MACC Act 2009
WHAT ARE ADEQUATE PROCEDURES?
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A MACC Act 2009
LIABILITY OF MANAGERS AND DIRECTORS
• Section 17A had another layer of liability which is not found under the UK Bribery Act 2010.
• Under Section 17A(3), if the commercial organization is found liable because it does not have adequate procedures, the management of the commercial organization including directors and managers may also be found individually liable forn the offence committed by the commercial organization.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
Corporate Liability For Corruption – Sec 17A MACC Act 2009
SECTION 17A(3)
Where an offence is committed by a commercial organization, a person –
a) Who is its director, controller, officer or partnerb) Who is concerned in the management of its affair,
At the same time of the commission of the offence, is deemed to have committed that 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 as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
DEFFERED PROSECUTION AGREEMENTS
(DPA) – Settlement Agreements
- To avoid bad publicity
- Affects company’s reputation
- Impacts on the company’s ability to win
future works/contracts
- Lengthy period of court trials
- To avoid additional expenses
Corporate Liability For Corruption
Implemented byPilot project by National Centre for Governance, Integrity and Anti-Corruption (GIACC)
“Leadership is not rank, privileges, titles or money;
it is responsibility.”
[Peter Drucker]
THANK YOU
LETS MAKE A DIFFERENCE:FIGHT CORRUPTION