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Keeping Gifts Clean

As an expat, you may have come from a country where any transactions with clients or customers that go beyond the agreed price or work-scope are viewed with suspicion. Or you might have come from a country where absolutely nothing moves forward without extra, under-the-table, payment incentive.

Over the past couple of years, the Malaysian Government has started taking serious measures to counter both the very real problem of corruption and the many mistaken assumptions one might have about what “business as usual” means in this country.

In 2009, Prime Minister Dato’ Seri Najib Tun Razak unveiled the Government Transformation Plan (GTP) to set Malaysia on track to becoming a fully developed nation by the year 2020. Six National Key Result Areas (NKRAs) were identified, one of them being fighting corruption. The Government, along with Malaysian Anti-Corruption Commission (MACC), will not rest until corruption is totally eradicated here.

Gifts Vs. bribes
In Malaysia, “gift” is not just a euphemism for bribe. However, confusion may arise as the practice of receiving and giving gifts is, in Malaysia as in most countries, a popular way of expressing gratitude, appreciation, friendship and brotherhood especially during special occasions such as weddings, birthdays, and cultural festivities. The culture of private giving and receiving gifts is not only commonplace in the civil service, but in the private sector as well.

In business, you will occasionally find yourself on both giving and receiving of gifts. In many circumstances this is not only an innocent act, but one of thoughtful goodwill.

When a gift is not a gift
A gift is a bribe when the act of gift-giving is abused or used to encourage special treatment. A gift is a bribe when a gift is not freely given, but there is expectation of reciprocation in either deed or favour. When lines become blurred, it creates erroneous expectations, marring both the integrity and image of the public sector.

To prevent confusion and keep transactions clean, the service circular number 3 of 1998 issued by the Government touched on the guidelines for giving and receiving gifts in the civil service. These guidelines include receiving and giving gifts among public officials, government agencies, unions and associations involving public officials and the sports and welfare clubs.

When a gift is a gift
Under the circular, gifts include:
+Money
+Movable or immovable property
+Vehicles
+Stocks
+Lottery tickets
+Travel facilities
+Entertainment
+Service
+Club membership
+Any kind of discount or commission
+Hampers
+Jewelry
+Ornaments
+Grants

Whether any of these are considered gifts or bribes, depends on the intention under which they are given or received.

Gift-giving guidelines
Public officers are prohibited from accepting or giving gifts if it is in connection with their public duty and the form, amount or value of the gift is not commensurate with the purpose of the gift given.

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Rules that prohibit employees public giving and receiving gifts fall under sub-regulation 8. (1) (a) and (b), Public Officers Regulations (Conduct and Discipline) 1993 (Amendment) 2002.

It states that an officer shall not accept or give, or not allow his wife or her husband or any other person to receive or provide for on their behalf, directly or indirectly, any gift (whether in the form of tangible or otherwise) from or to any association, body, person or group of persons.

This holds true if the public officer is receiving or giving gifts that are related, with in any manner, the execution of public duty officer and the form, amount or value of the gift is not commensurate with the purpose gift was given.

Crime and penalties
Malaysian law has criminalised any act of bribery. Under the current Malaysian Anti-Corruption Commission (MACC) Act 2009, there is no minimum sentence stipulated if an individual is found guilty of corruption. At the same time, for cases that are not prosecuted, departmental disciplinary actions taken are usually light (the issuance of warnings). This has resulted in the lack of deterrents against accepting bribes.

Therefore, heavy penalties of not more than 20 years in jail and five times the value of bribe money in fines will be imposed. In addition, a harsher penalty structure will also be implemented for convicted public officers (civil servants and members of the administration, legislature and judiciary), as public trust and funds are involved.

Convicted public officers will also be removed from their positions, lose their pensions and other benefits as well as be barred from future public appointments.

As for cases which are referred back to the relevant departments, there will be clear guidelines that align disciplinary actions to the severity of the offence. Delivery of such disciplinary actions will adhere to a fixed timeline to ensure that there are no unnecessary delays in the delivery of punishments.

Blacklisting
It is not just the public sector that will be held accountable; there will also be long-term sanctions addressing the private sector. Currently, convicted offenders are not blacklisted and can still participate in government procurement. As such, government contracts will include clauses that subject convicted offenders to instant termination of contract without compensation as well as a five-year participation ban on any public contract.

Reporting corruption
It is the public’s duty to report all corruption cases to the MACC. Under Section 25 (2) of the MACC Act 2009, any person who fails, without reasonable excuse, to report a request or receipt of a bribe can, upon conviction,be fined RM100,000 or imprisoned not exceeding 10 years. Under Section 25 (4), any person who fails to report offer or giving of a bribe commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Those who used to hesitate about coming forward no longer have to fear retribution. Under the Whisteblower’s Protection Act, protection will be given to the informants of the reported corruption cases. The informer’s identity is protected and will not be revealed in any court of law.

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Legal protection
Under Section 65 (1) and (2) of the MACC Act 2009, all matters related to the identity of the informer shall be kept confidential and the information provided shall be kept secret.

It must be noted that it is an offence to provide false information to the MACC. Any person, who gives any information knowing that it is false, commits an offence.

Section 65 (3) of the MACC Act 2009 states that if convicted, the person is liable for imprisonment for a term not exceeding 10 years and a fine not exceeding RM100,000.

For more information about Malaysia’s fight against corruption, please visit www.nkracorruption.gov.my or call the toll free report corruption hotline 1800 88 6000.

When reporting corruption cases, the public is required to provide information with the following details:
+date,time and place of incident.
+The people involved in the incident or transaction.
+Witness who know about or saw the incident.
+Relevent documents.
+Amount of money/gift/service or other matters involved.
+Other details like account number,receipt, identity card number, car licence plate, house address, office address or identity of the person involved.

Source: The Expat October 2011
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This article has been edited for ExpatGomalaysia.com




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