Analysis On The Act Of Bribery

7/27/2019 Analysis On The Act Of Bribery

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FACULTY OF EDUCATION AND LANGUAGES

MAY 2013

OUMM3203

PROFESSIONAL ETHICS

STUDENT NAME :

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LEARNING CENTER : BATU PAHAT


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CONTENTS

CONTENTS i

1. Introduction 1

2. Economic Analysis On The Act Of Bribery 4

3. Legal Analysis On The Act Of Bribery 6

4. Ethical Analysis On The Act Of Bribery 13

5. Conclusion 14

References


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1. INTRODUCTION

Bribery can be defined broadly as the receiving or offering/giving of any benefit (in

cash or in kind) by or to any public servant or office holder or to a director or employee of a

private company in order to induce that person to give improper assistance in breach of their

duty to the government or company which has employed or appointed them. An occasion

where such assistance might be sought would be in relation to the award of an export contract

where a bribe might be used to influence the tendering process. Bribes may also be paid to

individuals who, although not holding an appointment in a relevant company or national

government, are nevertheless able to exert influence over such an appointee by reason of

some personal, business or other relationship. Bribes may be paid in advance, as an

inducement to a person to act improperly, or retrospectively pursuant to a previous promise,

understanding or agreement.

According to Zaharuddin bin Abd. Rahman (2008), bribe is wealth earned by

accomplishing a task for a party that should have been done without any compensation

(whether to bring benefit to the party or to avoid harm). In some situations, bribery is similar

to tips or rewards and distorted by some people who say that this is not bribery, but a reward'.

Bribery can be define as money, donation, loan, fee, gift, expensive collateral, properties

(moveable or immovable), rights in properties or any other similar benefits; any positions,

titles, designations, jobs, contracts or services, and promise for any type of job or service; any

payments, exemptions, settlement of loans, obligations and liabilities either in whole or in

part; any type of compensation, discount, commission, rebate or bonus; any action that

prevents oneself from claiming any money or monetary value or luxurious items; any type of

service or help such as protection from any penalties, disciplinary penalties, civil or criminal

charges. This includes using one's authority or preventing from using one's authority to

provide that protection; and any offers or promises, with or without conditions, to give bribes

such as any of the above items. According to Malaysian Law, Section 2 Anti-Corruption Act

1997 (act 575), it defines bribery as any money, donation, loan, fee, present, down payment,

property or the interest of the property, that is any type of property whether moveable or

immovable, or any benefit to that, given to someone to do something which is illegal.

Bribery is one of the oldest practices in the history of mankind, and it seems that the

oldest archaeological proof regarding bribes is a 3400 years old clay tablet, discovered by a

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team of Dutch researchers on the territory of what used to be the Assyrian empire, on which a

list of the "employees who took bribes" is imprinted. According to the worldwidewords.com

website, the word itself starts in medieval French, where bribe meant "a piece of bread". A

linguistic game of consequences led the sense from this to "a piece of bread given to a

beggar", then more generally to "alms" and "living upon alms", to "begging" and so to

associations with mendicancy and vagabondage. It was with the last of these senses that the

word first appeared in English in the fourteenth century, in the works of Chaucer and his

contemporaries. It soon evolved further to take in the idea of extortion, or demanding money

with menaces. Only in this usage did bribe finally come to mean a sum of money, though at

this time briber meant the person doing the menacing and so getting the money. The worst

offenders were often judges and public officials, who extorted money from claimants in order

to pass down a favorable outcome.

It was in the sixteenth century that the meaning flipped completely over so that briber

meant instead the person handing over the money. Nobody seems to know quite how this

happened. In the process, bribe changed to mean a supposedly voluntary inducement instead

of something extracted by force, thus arriving at the sense which it has retained ever since.

Nowadays, bribery is taking different shapes, adapted to the national culture. Western

countries have lower levels of corruption (at least low-level corruption, among doctors,

lawyers, judges etc.), but top-level corruption is still present, although very well hidden

between all kinds of contracts and more or less legal business deals.

However, in Eastern-Europe, the Middle East and some of the Asian countries, bribery

is much more widespread, being present at all levels. And the main reason behind this

situation is the fact that these people have what could be described as a "bribe-culture",

meaning that they've become so used to the idea of offering bribes in order to obtain some

favors (or simply get things done), that they don't imagine the world otherwise. (Stefan

Caragae, 2006).

Bribery encompasses three types of illicit deal: proprietary, bureaucratic, and letting-

off. Proprietary bribery features a governments agent who grants a governmental contract or

franchise to a person (or firm) and receives money or its equivalent in return. The briber

bypasses the competition with other bidders and obtains from the agent a favorable off-market

deal with the government. The agent thus helps the briber to steal from the government in

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exchange for money or its equivalent. Bureaucratic bribery involves no theft. Instead, it

expedites the bribers acquisition of an official permit, license, or document. The briber can

obtain the required permit, license, or document lawfully by following certain procedures or

by waiting in the applicants queue. The briber, however, chooses to act unlawfully: He pays

the governments agent for the red tapes removal or for bypassing the queue. In this

scenario, no one may actually get hurt. The agent does not give the briber a permit, a license,

or a document that the briber was not supposed to receive from the government. Law biding

citizens queuing for the governments permits, licenses, and documents endure no delays

either. Under the bureaucratic bribery scenario, the agent issues their permits, licenses, and

documents properly and at a scheduled time. At the same time, he introduces a private

improvement in the functioning of the governments agency by making it more productive.

Ideally, of course, it is the government that should make such improvements, but the

government does not know it can improve the agencys productivity (or does not care about

improving the agencys work). The agent exploits the governments ignorance (or

indifference) by introducing the improvement privately at the bribers expense, while

capturing its economic value (the bribe). The third and final variant of bribery is letting-off

a deal involving a law-enforcement agent who allows his briber to break the law and go

unpunished (after paying the agent).When the agent sabotages the governments enforcement

effort, the government suffers a tangible deprivation. The bribers deal with the agent

consequently becomes similar to proprietary bribery. The governments enforcement and

deterrent capacity, however, will not always be eroded as a consequence of such a deal.

Consider a government that rations its enforcement effort by requiring its agents to enforce

the law against eighty percent of the violators. The agent collects bribes from twenty

randomly chosen violators out of one hundred and lets them off, while meticulously enforcing

the law against the remaining eighty violators. In this scenario, the government gets

what it pays the agent for, while the agent delivers on his undertaking to the government.

Moreover, twenty violators that the government was ready to let off completely are now

paying a private violation tax to the agent. As a result, violators are better deterred overall

than under the governments plan. (Alex Stein, 2012).

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2. ECONOMIC ANALYSIS ON THE ACT OF BRIBERY

Bribery and corruption can have various negative impacts. Bribery is known to distort

markets and the allocation of resources by manipulating prices of products and services.

Bribery can also adversely affect the economic and social development of countries by

deterring long-term foreign and domestic investments, enhancing inflation and thereby

depreciating national currencies and reducing expenditure on education and health. (Paul

Mauro, 1997). Large, off-the-book payments to public officials or intermediaries may prove

to be a significant financial burden for a company and call into question the performance of

its duties to its stakeholders. Adverse publicity can significantly damage the companys

reputation, which may in turn result in restricted access to markets or difficulties in raising

capital. (Aerospace Daily & Defense Report, 2007). Companies may benefit with short-term

gains but at the possible cost of long-term profitability. These elements have significant

implications for the shareholders of companies and the risk profile of investment portfolios.

Governments and international organisations have sought to eliminate corrupt practices

frombusiness activities and introduced several codes to address the issue.

In 2008, the Government and Parliament agreed that the The Malaysian anti-

Corruption Commission (MACC)be established in order to enhance the effectiveness andefficiency of nationwide anti-corruption efforts, as well as to improve the perception of

independence and transparency of the functions of the Commission. MACC began its

operation officially on January 1, 2009, replacing the Anti-Corruption Agency (ACA)

malaysia. it was established by legislation, namely the malaysian Anti-Corruption

Commission Act 2009 (Act 694). Under the National Key Result Areas' (NKRA) anti-graft

initiatives, in 2012 Malaysia improving its standing in the Corruption Perceptions Index (CPI)

when it shot six spots up to 54th position from last year's 60.It was a marked improvement

from 2011 when the country fell four places down from 2010's 56th position.Transparency

International-Malaysia (TI-M) revealed that out of the 176 countries involved in the CPI

survey last year, Malaysia also ranked third among Asean countries, ahead of Thailand,

Philippines and Indonesia.The three countries ranked 88th, 105th and 118th respectively.

Singapore, which was placed third in the world, was the top anti-graft performer in Asean,

followed by Brunei at 46.Malaysia scored 49 out of 100, with 0 being the most corrupt and

100 corruption-free. Although Malaysia's 2012 TI CPI score of 49 out of 100 cannot be

compared with the past TI CPI scores of the past 17 years from 1995 to 2011, Malaysia is

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clearly below average in international rankings and scores. Since 1995 Malaysia has been

overtaken by South Korea and Taiwan while many countries are closing the corruption gap,

especially Turkey which was ranked No 29th with a CPI score of 4.1 in 1995, but which has

caught up with Malaysia with both equally ranked at No. 54 with a score of 49 in the 2011 TI

CPI.

Table 1: Malaysia's CPI ranking, score and total number of countries in sample, 2001 to

2012

Year 2001 2002 2003 2004 2005 2005 2007 2008 2009 2010 2011 2012

Ranking 36 33 37 39 39 44 43 47 56 56 60 54

Score 5 4.9 5.2 5 5.1 5 5.1 5.1 4.5 4.4 4.3 49Total No. of Countries 91 102 133 145 158 163 179 180 180 178 183 176

Table 2 : Malaysias TI CPI ranking and score from 1995 to 2011

Year CPI Rank CPI score

2001 36 5.0

2002 33 4.9

2003 37 5.2

2004 39 5.0

2005 39 5.1

2006 44 5.0

2007 43 5.1

2008 47 5.1

2009 56 4.5

2010 56 4.4

2011 60 4.3

* 10 (highly clean) and 0 (highly corrupt),

Indeed, one should not take too much comfort in the fact that Malaysia improved in

the ranking because it overtook "luminaries" of "clean" government such as Jordan, Namibia,

Oman, Kuwait and Saudi Arabia. Indeed, many developing countries that have far lower per

capita GDP compared to Malaysia continues to do better than us in the CPI rankings including

Rwanda (50), Bhutan (33) and Botswana (30), not to mention the newly industrialized

economies (NIEs) in Asia namely South Korea (45), Taiwan (37), Hong Kong (14) and

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Singapore (5). More worryingly, the three major thrusts of the Fighting Corruption National

Key Results Area (NKRA) under the Government Transformation Program (GTP) - namely,

to strengthen the anti-corruption enforcement agencies and legislation, to tackle grand

corruption and to reduce leakages from government procurement - continue to have gaping

holes when it comes to delivery and execution. For example, the Malaysian Anti-Corruption

Commission remains very much a toothless tiger which is dependent on the Attorney General

to prosecute cases. The PKFZ RM12.6 billion scandal - namely former Transport Ministers

Ling Liong Sik and Chan Kong Koy - have not been properly concluded leading one to

wonder if these cases will follow in the footsteps of the cases against former Sabah UMNO

Minister, Kasitah Gaddam, and former Perwaja chairman, Eric Chia, both of whom were

charged with corruption with great fanfare prior to the 2004 general election but who were

both subsequently released. And as long as the MACC is not independent or seen as

independent, even legislation such as the Whistleblowers Protection Act will not have any

substantive long term effect on reducing corruption.

3. LEGAL ANALYSIS ON THE ACT OF BRIBERY

Malaysias main bribery offences are found in the Malaysian Anti Corruption

Commission Act (MACCA). MACCA Sections 21 and 22 deal with domestic and foreign

bribery respectively. Additional (and more dated) domestic bribery offences are found in the

Penal Code (PC). Passive domestic bribery is covered by Sections 161 (public servant taking

a gratification) and 165 (public servant obtaining a valuable thing without consideration).

Active bribery constitutes an offence of a betting a public servant to commit passive bribery

(PC Sections 109 and 116) covers active domestic bribery. According to Malaysian

authorities, bribery offences are generally prosecuted under the MACCA rather than the PC.

Bribery may also be covered by other corruption offences such as accepting gratification to

induce a public official (MACCA Section 16, and PC Sections 162 and 163), bribery of

agents (MACCA Section 17), and using office or position for gratification (MACCA Section

23). Additional statutes may cover bribery of specific types of officials.

3.1 ELEMENTS OF THE ACTIVE AND PASSIVE DOMESTIC BRIBERY

OFFENCES.

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International standards require active bribery offences to expressly cover giving,

offering or promising a bribe. MACCA Section 21 only refers to offering a bribe, not giving

or promising. By contrast, the MACCA accepting gratification (Section 16) and foreign

bribery (Section 22) offences expressly cover giving, promising and offering. This would

suggest that offer does not include giving and promising. Otherwise, promising and giving in

Sections 16 and 22 would be redundant. As for the PC, active domestic bribery is covered

indirectly through the crime of abetment; there is no specific offence of active bribery.

Abetting bribery arguably covers at least some types of offering and promising a bribe, e.g. a

bribe that is offered but rejected constitutes abetting bribery. However, it is unclear whether a

bribe that is offered but not received by an official is an offence. Malaysia states that Section

21 MACCA covers these situations but did not provide supporting case law. In any event,

criminalising active bribery through the abetment offence falls short of international

standards. International instruments require giving, offering, and promising bribes to be full,

complete offences.

A general offence of abetting the commission of a crime does not meet this standard.

Furthermore, all three modes of active bribery are of equal gravity. That is not the case in

Malaysia, since abetting bribery attracts lighter punishment than the full offence (see below).

Turning to passive bribery, three offences are applicable. First, MACCASection 21 deals with

officers of public bodies who solicit or accept a gratification as an inducement or reward for

certain acts. Second, Penal Code Sections 161 covers a public servant who accepts or obtains

gratification as a motive or reward for a certain act. This act, however, does not in fact have to

be performed; it is sufficient if the official represents that the act has been or will be

performed.

Third, Section 165 may apply to passive bribery under certain circumstances. It covers a

public servant who accepts, obtains etc. any valuable thing without consideration or for

inadequate consideration from a person concerned in any proceeding or business transacted

by the public servant. Mere acceptance of the valuable thing suffices; there is no further

requirement that the thing was a motive or reward for the recipient officials acts.

Section 165 is thus broader than Section 161 in this regard. But from another perspective, it is

narrower as it only applies to bribers who have proceedings or business involving the bribed

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official, or a connection with the officials functions. There is no such limitation to Section

161. International standards require passive bribery offences to cover accepting and soliciting

a bribe. MACCA Section 21 clearly meets this requirement. PC Sections 161 and 165 contain

the words accept or obtains, agrees to accept, or attempts to obtain. Soliciting is not

expressly covered, but may be considered an attempt to obtain. International standards

require coverage of bribery through intermediaries. PC Section 165 covers bribes from any

person whom [the official] knows to be interested in or related to the [briber] so concerned.

On the other hand, MACCA Section 21 and PC Section 161 do not expressly refer to

intermediaries. Comparison can again be made with the MACCA Section 22 foreign bribery

offence, which expressly covers a person who by him/herself or by or in conjunction with

any other person gives, offers or promises an official a bribe. The additional language in the

foreign bribery offence suggests that MACCA Section 21 and PC Section 161 may not cover

bribery through intermediaries. There is also uncertainty and inconsistency regarding bribes

given to third party beneficiaries. MACCA Section 21 does not contain language to this

effect, unlike the offences of foreign bribery (Section 22) and accepting gratification (Section

16). PC Sections 161 and 165 meet this requirement by expressly referring to officials who

accept, obtain etc. a bribe for himself or forany other person.

The MACCA covers bribery of officers of a public body. This is defined as a

member, officer, employee or servant of a public body, and includes a member of the

administration, member of Parliament, member of a State Legislative Assembly, judge of the

High Court, Court of Appeal or Federal Court, and any person receiving any remuneration

from public funds, and a person who is incorporated as a corporation sole that is also a public

body. A public body includes the federal government, state government, local authorities, and

their departments, services and undertakings. Also included are companies or subsidiaries

over which a public body has controlling power or interest, and various registered societies

and trade unions. While this definition is broad, judges of Magistrates and Sessions Court are

notably missing. Some may argue that these judges are covered as persons receiving

remuneration from public funds. But this would beg the question of why judges of other

courts (and indeed most other enumerated officials) are expressly mentioned in the definition.

According to Malaysian authorities, officers of public bodies does not include the King or

Sultans of Peninsular Malaysian states, but does include members of the government of the

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federal territory of WilayahPersekutuan. The Malaysian authorities were unsure whether the

definition covers Governors of Sabah and Sarawak in East Malaysia.

The PC takes a rather different approach by listing a series of relatively narrow

functions performed by officials. Section 21 defines a public servant by enumerating several

specific categories of officials. These include commissioned military officers; judges, jurors,

arbitrators, and other persons empowered by law to perform adjudicative functions; court

officers charged with certain duties, such as investigations; officials responsible for

preventing offences, bringing offenders to justice, or protecting public health, safety and

convenience; officials dealing with the Governments pecuniary interests, property, contracts,

or revenue; and officials assessing or levying taxes. The PC definition of public servants

also falls short of international standards. Persons holding legislative office are clearly

missing. Noncommissioned officers and lower ranked military personnel are not covered.

There is no mention of public agencies and public enterprises. Some categories also cover

only officials of the Government, which is defined as the Government of Malaysia and of

the States and any person lawfully performing executive functions of Government under any

written law (PC Section 6).

Malaysia's bribery offences appear to be narrower. MACCA Section 21 covers an

official who (a) votes or abstains from voting in a public body; (b) performs or abstains from

performing any official act; (c) votes for or grants a contract; or (d) shows favour or disfavour

in his/her capacity as a public officer. All four means of committing the offence refer to acts

within the officials competence. PC 161 also has shortcomings in this respect. The offence

deals with a public servant who (a) does or forbears from doing any official act; (b) shows

favour or disfavour to any person in the exercise of his/her official functions; or (c) renders

any service or disservice to certain public officials.

Arguably, only category (c) deals with acts outside the officials competence, but it

may fall short of international standards in two respects. First, it is unclear whetherrendering

a service or disservice to another official includes using ones office to make another official

perform the act for which the bribe was intended. Second, the definition does not seem to

cover an official who acts outside his/her competence and uses his/her office to influence a

private individual. On the other hand, PC 165 may cover acts outside the officials

competence. The offence merely requires an official to accept a thing with

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inadequate or no consideration from someone who has dealings with the government. The

offence is unconcerned with what act, if any, the official performs as quid pro quo for the

thing received. International standards require coverage of bribes of both a monetary

and non-monetary nature. The term gratification in the PC is not restricted to

pecuniary gratifications, or to gratifications estimable in money.

The MACCA contains a lengthy definition of gratification that includes both

monetary and non-monetary things, such as employment, office, service or favour. Both

statutes therefore cover non-monetary bribes. PC Section 165 deals the giving of any

valuable thing to an official; it thus appears to cover only things of value and not all non-

monetary benefits. Neither the PC nor the MACCA, however, indicates whether an offence

of bribery is committed regardless of the value of the gratification, i ts results, the

perceptions of local custom, the tolerance by local authorities, the alleged necessity of the

bribe, or whether the briber is the best qualified bidder. Malaysian authorities assert that the

value of a gratification is not a consideration in the prosecution of offence for bribery under

MACCA. No supporting authority was provided.

The MACCA Part VI allows certain inferences to be drawn when proving some

elements of the bribery offences. The mere giving, accepting etc. of a gratification raises a

rebuttable presumption that the gratification was an inducement, reward or motive for the

officials act or omission. The acceptance of a valuable thing also raises a rebuttable

presumption that the recipient The PC and MACCA do not contain specific defences to

domestic bribery. There are no defences of solicitation, small facilitation payments (i.e.

payments to officials to induce them to perform non-discretionary routine tasks such as

issuing licenses or permits), or effective regret (i.e. an offender who voluntarily reports

his/her crime to the authorities).

3.2 BRIBERY OF FOREIGN PUBLIC OFFICIALS

MACCA Section 22 criminalises active and passive foreign bribery. The language of

the offence follows that found in international instruments fairly closely, and thus the offence

already meets many aspects of international standards. For example, the offence covers all the

essential modes of the offence (offer, promise, give, solicit and accept a bribe), as well as

bribery through intermediaries and bribery that benefits third parties. The offence is not

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limited to foreign bribery in international business transactions and hence goes beyond

international standards in this respect. Nevertheless, it could be useful to clarify two aspects

of the offence:

(a) The term foreign public official as defined in MACCA Section 3 does not clearly cover

persons performing public functions for a public enterprise or public agency.The Malaysian

authorities state that the definition is not exhaustive because Section 3 provides that foreign

public official includes certain prescribed classes of officials. Even if this is correct, there

remains no confirmation that the definition includes persons performing public functions for a

public enterprise or public agency.

(b) There is no definition of a foreign country. Hence, it is unclear whether the term (i)

includes all levels and subdivisions of government, from national to local, and (ii) is not

limited to states, but includes any organised foreign area or entity, such as an autonomous

territory or a separate customs territory.

3.3 LIABILITY OF LEGAL PERSONS FOR BRIBERY

In theory, Malaysia can impose criminal liability against legal persons for bribery. The

MACCA and PC bribery offences apply to any person. For the MACCA, person includes a

body of persons, corporate or unincorporated (Interpretation Acts 1948 and 1967, Section 3).

For the PC, the same termincludes any company or association or body of persons, whether

incorporated or not (PC Section 11). Whether corporate criminal liability for bribery is

actually imposed in practice is wholly unclear. There is no reported case law in which a

company has been prosecuted for a criminal offence. Nothing in the Penal Code indicates

when a company is considered to have committed a crime. There is no guidance on when the

acts or omissions of a natural person may be attributed to a legal person, whose acts or

omissions may trigger liability, or whether the conviction of a natural person is a prerequisite

to convicting a legal person.

3.4 JURISDICTION TO PROSECUTE BRIBERY

PC Section 2 provides territorial jurisdiction to prosecute MACCA and PC bribery

offences which are committed within Malaysia. The Malaysian authorities state that they

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have jurisdiction to prosecute offences that take place partly in Malaysia. However, they did

not provide supporting authority or legislation, or explain what part or how much of an

offence must take place in Malaysia before territorial jurisdiction arises. Malaysia also has

jurisdiction to prosecute its citizens and permanent residents for offences committed without

and beyond the limits of Malaysia. Dual criminality is not required, i.e. the act or omission

subject to prosecution need not be an offence at the place where it occurred (MACCA Section

66 and PC Section 4(1)(b)). Malaysia does not appear to have nationality jurisdiction to

prosecute legal persons. As noted above, MACCA Section 66 and PC Section 4(1)(b)

provides nationality jurisdiction to prosecute only citizens and permanent residents. Only

natural and not legal persons can be citizens. Permanent resident is defined as a person

who has permission granted without limit of time under any federal law to reside in Malaysia,

and includes a person treated as such under any written law relating to immigration (Courts

of Judicature Act1964, Section 3). This definition appears to contemplate only natural and not

legal persons. The following table summarises the maximum available sanctions for the

bribery offences in the PC, MACCA and the statutes that deal with bribery of specific types

officials. (ADB/OECD Anti-Corruption Initiative for Asia and the Pacific, 2010)

Offences Maximum sentence available

MACCA Offences

Active and passive domestic

bribery (MACCA Section 21)

Imprisonment of 20 years and a fine of (1)

MYR 10 000 (approx. EUR 2 000 or USD 3

000) or

(2) at least five times the value of the

gratification

offered, promised or given, whichever is

higher

Active and passive foreign

bribery (MACCA Section 22)

PC Section 161 - Taking gratification in respect of an official act

Passive domestic bribery (PC

Section 161)

Imprisonment of three years and/or an

unlimited fine

Active domestic bribery /

abetment Official accepts

bribe (PC Sections 109)

Active domestic bribery /

abetment Official refuses

Imprisonment of nine months and/or an

unlimited fine

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bribe (PC Sections 116)

PC Section 165 Obtaining valuable thing without adequate consideration

Passive domestic bribery (PC

Section 165)

Imprisonment of two years and/or an

unlimited fine

Active domestic bribery /abetment (Sections 109)

Imprisonment of six months and/or anunlimited fine

4. ETHICAL ANALYSIS ON THE ACT OF BRIBERY

Bribery has been described as a practice involving the payment or remuneration of an

agent of some organisation to do things that are inconsistent with the purpose of his or her

position or office (Adams and Maine, 1998, p. 49). When doing ethical analysis, there are

four models that serve as a framework to structure an argument: utilitarianism in terms of

actions, utilitarianism in terms of rules, rights & duties, and virtue. Utilitarianism is the

process of weighing benefits and harms, and choosing the option that offers the most benefits

for the greatest number of people. Rule-utilitarian thought focuses on benefits and harms

created by rules, while act-utilitarian thought calculates the consequences of actions

themselves. The rights & duties model chooses the course that respects what others are

entitled to (rights) and obligations a stakeholders has to fulfill them (duties). The last model,

virtue, chooses the option that enforces good habits of character for yourself and others. Each

model can be applied when evaluating whether bribery is ethical or not.

In terms of benefits and harms to the Malaysian economy, Malaysian firms will losedeals due to bribery. Where giving bribes is a common practice in procuring contracts, a

firm or a company that does not offer bribes will clearly be at a disadvantage, at least in the

short term. According to Ida Lim (2012), Malaysia tops the list in a Transparency

International (TI) survey of 30 countries where companies felt they had lost deals because

they did not pay bribes. It is likely to lose out to less scrupulous competitors in the battle for

contracts. Suppose that such a company enunciates its policy clearly, and publicly calls

attention to the corrupt practices of its competitors. While this would probably be

counterproductive in the short run, the result may be to build up good will among the forces in

the country that are fighting against corruption, Should those forces prevail, then the honest

company is likely to be rewarded. In the worst case, it may be necessary to recognize that

there are times when one must choose between immediate self-interest and ethical behavior.

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Where corruption is so rampant that it is not possible to do business in an honest manner, then

perhaps the most appropriate response is simply to refrain from doing business in that

country. If this policy were widely adopted, then strong pressure for reform would be a likely

outcome.

The most powerful argument against bribery is related to the virtue model. Bribery is a

form of corruption that alters a behavior or outcome based on a reward. Rather than

encouraging good habits of character, such as hard work and judiciousness, the action teaches

individuals to cheat in order to get ahead. By using such a tactic to pay off debt, the

Malaysian government is justifying to citizens that the ends justify the means. Such examples

will likely lead to corrupt behavior within the Malaysian economy, because the government

did not fulfill its duty of being a moral representation of the country it administers. If the

government engages in bribery, what would stop business owners, politicians, lobbyists, and

other stakeholders from doing the same?

5. CONCLUSION

Bribery is an act of giving money or gift giving that alters the behavior of the

recipient. Bribery encompasses three types of illicit deal: proprietary, bureaucratic, and

letting-off. Bribery and corruption can have various negative impacts on Malaysia economy.

In the recently released Transparency Internationals Corruption Perception Index 2012,

Malaysias ranking improved from 60 out of 183 countries in 2011 to 54 out of 176 countries

in 2012.Nevertheless one must keep in mind that this ranking of 54 is still worse than

Malaysias ranking of 43 out of 179 countries in 2007 and far worse than the ranking of 33

out of 102 countries in 2002. More bold measures must be taken to eliminate corruption. To

be effective, measures against corruption must therefore address to causes and not the

symptoms. Emphasis must thus be placed on preventing corruption by tackling the root

causes that give rise to it through undertaking economic, political and institutional reforms.

Anti-corruption enforcement measures such as oversight bodies, a strengthened police force

and more efficient law courts will not be effective in the absence of a serious effort to address

the fundamental causes. Another observation that may be useful to bear in mind is that

corruption is most prevalent where there are other forms of institutional weaknesses, such as

political instability, bureaucratic red tape, and weak legislative and judicial systems. The

14


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important point is that corruption and such institutional weaknesses are linked together and

that they feed upon each other. For example, red tape makes corruption possible and corrupt

officials may increase the extent of red tape so that they can get more bribes. So, getting rid

of corruption helps a country to overcome other institutional weaknesses, just as reducing

other institutional weaknesses helps to curb corruption.

Words (5492)

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ADB/OECD ( 2010).The Criminalisation Of Bribery In Asia And The Pacific

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Aerospace Daily & Defense Report (2007), Volume 222, Issue 62, 27

Alex Stein (2012). "Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services

Fraud"Law & Contemporary Problems 75 : 61-81.

Ida Lim (2012). Malaysian firms lose deals due to bribery, TI survey shows

(Online)http://www.themalaysianinsider.com/malaysia/article/malaysian-firms-lose-deals-

due-to-bribery-ti-survey-shows. (Accessed 7 July 2013)

Mauro, Paul (1997). Why worry about corruption.IMF Economic issues No. 6

SPRM. Laws of Malaysia Act 694. (Online)

http://www.sprm.gov.my/images/webuser/files/static_content/act/SPRM_act_BI.pdf.

(Accessed 7 July 2013)

Stefan Caragae (2006).Bribery, an Immortal Plague.

http://news.softpedia.com/news/Bribery-an-immortal-plague-21543.shtml. (Accessed 7 July

2013)

Worldwidewords.com. (1997). Bribery (Online)

http://www.worldwidewords.org/topicalwords/tw-bri1.htm. (Accessed 7 July 2013)

Zaharuddin bin Abdul Rahman (2008). Corruption and bribery will destroy our nation

(Online)http://www.zaharuddin.net/. (Accessed 7 July 2013)

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Documents

Analysis On The Act Of Bribery