Posts Tagged ADB
PETALING JAYA: Malaysia has been lauded for making good progress in combating corruption. Organisation for Economic Cooperation and Development (OECD) deputy secretary-general Mario Amano said the country had taken positive steps in nipping the problem in the bud.
“We are pleased with Malaysia’s progress. Treating bribe-receiving and bribe-giving as crimes and imposing tough jail sentences and
fines for individuals and companies are steps in the right direction,” he said recently.
Enforcement efforts by the Malaysian Anti-Corruption Commission (MACC), he added, had helped make Malaysia one the leaders in the region
in lighting bnbery.
“Effective criminalisation of bribery must become a standard practice in the Asia-Pacific region,” he said. The Government’s efforts to combat
corruption include setting up a public “name and shame” database, compliance units, a MyProcurement portal, and an integrity pact between
government and vendors to enhance transparency.
As of Wednesday, 195 names of convicted corruptors were listed on the database available on the MACC website. The website also stated that 605 individuals had been arrested for corruption-related offences as of last month of which 32% were civil servants, Fighting corruption is part of the Government’s six National Key Result Areas.
Meanwhile, Asian Development Bank (ADB) South-East Asia director general Kunio Senga said that corruption sabotaged policies and programmes that aimed to reduce poverty and promote economic growth and development. Malaysia, he added, had actively participated in the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific region since its establishment in 1999.
Both Amano and Senga were in town recently for the Initiative’s 10th regional seminar on the criminalisation of bribery.
Thematic Review on Criminalisation of Bribery
Conclusions and Recommendations
1. On the whole, the Initiative’s members have taken significant steps towards meeting international standards on the criminalisation of bribery, though notable gaps remain. Several region-wide trends may be observed:
(a) Domestic bribery offences: All of the Initiative’s members have criminal domestic bribery offences. The problem in many jurisdictions is actually too many offences. Multiple general and specific bribery offences with inconsistent definitions could result in uncertain application of the law.
Aside from duplication, the other deficiencies are generally more subtle, such as the failure to cover the different modes of committing bribery, certain categories of public officials, bribery through intermediaries and bribery for the benefit of third party beneficiaries, and bribery in order that an official act outside his/her official competence. Judicial interpretation may ultimately confirm coverage of these scenarios. Nevertheless, in the absence of confirmatory case law, the Initiative’s members should adopt legislation with clear, express language to ensure compliance with international standards.
(b) Foreign bribery offences: The problem with foreign bribery is the opposite of domestic bribery: instead of too much legislation, most members of the Initiative have none. This is understandable, since international standards require the criminalisation of foreign bribery only recently. Nevertheless, the absence of a foreign bribery offence is a pressing concern, given the dramatic increase in international economic activity in recent years. Some of the Initiative’s members have sought to reinterpret their existing bribery offences to cover foreign bribery. Having regard to the experience of OECD countries, these members should instead consider enacting a new, specific foreign bribery offence to ensure compliance with international standards.
(c) Liability of legal persons: The inability to punish legal persons for domestic and foreign bribery is another major deficiency. Only about half of the Initiative’s members have the ability to hold companies liable for bribery. More troublingly, corporate liability in these jurisdictions appears to exist only in theory. There have been no reported prosecution of companies for domestic bribery and only a handful of cases for foreign bribery. In most jurisdictions, it is unclear whether this is due to deficient legislation, a lack of expertise and capacity, or a deliberate prosecutorial policy. Regardless of the cause, this situation needs to be rectified.
(d) Jurisdiction to prosecute bribery: All members of the Initiative unsurprisingly have territorial jurisdiction to prosecute bribery. Few members, however, articulate whether it can prosecute bribery that takes place only partly in one’s territory. This issue may
have to be resolved by the courts. Nationality jurisdiction is relatively uncommon, which may have negative ramifications in transnational bribery cases.
(e) Sanctions for bribery: With a few exceptions, the maximum sanctions available against natural persons for bribery among the Initiative’s members largely meet international standards. Fines against legal persons in some jurisdictions are inadequate, however. Confiscation is generally available but could be improved by confiscating indirect proceeds of bribery and imposing a pecuniary penalty in lieu when confiscation is not possible. An underdeveloped area is administrative sanctions, particularly against a briber. Very few members of the Initiative ban bribers from seeking public procurement contracts or receiving state benefits and subsidies.
(f) Tools for investigating bribery: The Initiative’s members largely have a range of useful tools for gathering evidence in bribery cases. However, clearer and more explicit rules overriding bank and tax secrecy rules could be helpful. The freezing of assets is widely available but could be improved by streamlining the procedure in some jurisdictions. There are no major legal impediments to seeking extradition and MLA in bribery cases. Special investigative techniques could be made more readily available. To the extent possible under their legal systems, members could consider using plea bargaining and the assistance of co-operating offenders in bribery cases. Those that do so already should consider formalising the process in writing to enhance accountability.
(g) Enforcement of bribery offences: Most of the Initiative’s members did not provide statistics on the enforcement of their bribery offences. Members need to maintain detailed statistics in order to evaluate the effectiveness of their anti-bribery efforts. Statistics should cover investigations, prosecutions, convictions and sanctions for bribery, and should be broken down into active, passive, domestic and foreign bribery. It would also be helpful to maintain information on the use of particular investigative techniques, such as wiretaps and other types of electronic surveillance, the seeking of international assistance, undercover operations and controlled deliveries.
2. Finally, the Initiative could benefit from additional analysis of issues that are related to criminalisation but were beyond the scope of this study. Looking at other criminal corruption offences other than bribery, such as illicit enrichment, could be useful. On a more practical level, the Initiative could engage in a more in-depth examination of the actual application and enforcement of corruption laws by considering the experience of investigators, prosecutors, lawyers, companies and civil society. A proper, thorough study of this topic would require an on-site visit of a reviewed country by experts. Other potential issues of interest could include the availability of resources; training and expertise, e.g. in financial investigations, information technology and forensic accounting; political interference in investigations and prosecutions; interagency coordination; and detection of corruption, such as through anti-money laundering systems, tax authorities, accountants and auditors. As a multilateral body, the Initiative could also be an appropriate forum for considering issues such as transborder corruption cases and joint investigations.
KUALA LUMPUR: The inconsistent interpretation of corruption by different countries has made the task to combat social ills even more difficult.
Malaysian Anti-Corruption Commission deputy chief commissioner (prevention) Datuk Sutinah Sutan said greater efforts were being made globally to standardise and streamline the understanding and procedures linked with corruption so that it could be tackled effectively.
“Many lesser developed countries are still learning from the experience of others and are attempting to adopt their initiatives.
“Malaysia is seen as a role model as a nation successful in combating corruption. Many countries look at how we have rapidly progressed and developed since achieving Independence in 1957.
“They say we have managed very well to control corruption with our strong political will,” she said at the close of the three-day “15th ADB/OECD Anti-Corruption Initiative for Asia and the Pacific” and “Regional Seminar on the Criminalisation of Bribery” at the Palace of Golden Horses in Seri Kembangan, Selangor yesterday.
Sutinah, who is also the event’s secretariat chairman, said the delegates agreed that corruption was a big threat among lesser developed countries and greater initiatives were being put into place by their respective governments.
She said Malaysia had measured up to international standards like those laid out in the “Mutual Legal Assistance in Criminal Matters Act” and other United Nations laws and regulations.
“We have learnt that minimising bureaucracy and delays can reduce corruption. The idea is to promote business without corruption by enhancing confidence-building measures for businessmen and foreign investors.”
She said the message was clear — one does not have to bribe officers; there is no “extra cash” required to do business in Malaysia.
“We are also pushing for matters concerning extradition, asset recovery and other new action plans in a systemic manner with the cooperation of other countries.”
The event saw 28 countries and over 200 representatives involved, including representatives from the Asian Development Bank, the Organisation for Economic Cooperation and Development, Transparency International, World Bank, German Training Institution, American Bar Association and the United Nations Development Programme.
The speakers presented international standards and national approaches to issues concerning international instruments on the criminalisation of bribery, challenges in establishing and applying domestic and foreign bribery offences, corporate liability for bribery, investigative techniques, and sanctions and confiscation.