Report No. 258

E. Malaysia36

36 The information on Malaysia has been taken from the 'Country Review Report of Malaysia', Review by the Philippines and Kenya for the review cycle 2012-2013, United Nations Office on Drugs and Crime. See also Executive summary on Malaysia, Note by the Secretariat, Resumed fourth Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/3/1/Add.1 (2013).

3.6.1 Malaysia signed the UNCAC in 2003 and subsequently ratified it in 2008. The anti-corruption bodies in Malaysia include the Malaysian Anti-Corruption Commission, the Attorney General's Chambers, the Royal Malaysia Police, the Royal Customs and Excise Department, the Financial Intelligence Unit of the Central Bank of Malaysia, the Ministry of Foreign Affairs, the Public Service Department and the Judiciary.

3.6.2 In respect of clause (a) of Article 15 of the UNCAC, Malaysia has adopted measures to penalise active bribery of its national public officials under sections 16 (b), 17 (b) and 21 of the Malaysian Anti-Corruption Commission Act ("MACCA"). Furthermore, sections 214 and 161 to 165 of the Penal Code along with section 137 of the Customs Act are also relevant for the purpose of active bribery of national public officials.

In this regard, if the conduct is question is punishable under MACCA and any other law, the offender will be charged only under MACCA. Further, the Country Review Reports on Malaysia also point out that all gifts received by national public officers must be reported in accordance with section 25(1) and (3) of MACCA. In the instance a gift is received and not reported, it is deemed to have been received corruptly.

3.6.3 Passive bribery under clause (b) of Article 15 of the UNCAC is covered under sections 16(a), 17(a) and 21 of MACCA. The various forms of passive bribery covered include soliciting, receiving, agreeing to receive, agreeing to accept, and attempting to obtain any gratification for oneself or another.

The corresponding offences on passive bribery of national public officials are also covered under sections 161, 162, 163, 165 and 215 of the Penal Code. Section 161 of the Penal Code outlaws the taking of gratification, other than legal remuneration, in respect of an official act by a public servant and is also applicable to "someone expecting to be a public servant".

3.6.4 Paragraph 1 and paragraph 2 of Article 16 on active and passive bribery of foreign public officials and officials of public international organisations are implemented under section 22 of MACCA. The offence of bribery of foreign public officials and officials of public international organisations was introduced in 2009 in order to ensure compliance with Article 16 of the UNCAC. MACCA contains definitions of "foreign public officials" and "officer of a public international organization" which reflect the corresponding definitions under Article 2 of the UNCAC.

In Malaysia,the legislature has also provided a compelling presumption under section 50 of MACCA in order to ease the prosecution of cases involving the aforementioned offences. The presumption comes into operation only when the essential ingredients of the offence have been established by the prosecution.

Under this presumption, once it has been shown that gratification has been received by a national or foreign public official or an official of a public international organisation, it shall be presumed that it was corruptly received, unless the contrary is proved. It is pertinent to mention that in relation to paragraph 2 of Article 16, Malaysia has made a request for technical assistance under its Country Review Report submitted to the UNCAC for reconciling the provisions of MACCA with its obligations under the Diplomatic Privileges Act and the International Organizations Act.

3.6.5 In the context of jurisdiction under Articles 4 and 42 of the UNCAC, sections 2, 3 and 4 of the Penal Code, section 66 of MACCA and section 82 of Anti-Money Laundering and Anti-Terrorism Financing Act are of relevance. In the instance an offence is committed by a citizen or permanent resident outside Malaysia, jurisdiction maybe exercised over the offence as if it were committed in the territory of Malaysia. Jurisdiction also extends to offences committed by any person against the property of any citizen or the Government of Malaysia. Principle of dual criminality is recognised in Malaysia and is applied in the context of extraditable offences.