Corruption overseas – Gurdial Singh Nijar

Source: The Sun Daily

BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)

spotlight_on_corruption__victor_ndulaMALAYSIA has hit the international headlines again. Perhaps not in the way we would wish. The Age and theSun newspapers “revealed” a superlative excess sum paid out by Mara to buy a building in Melbourne to accommodate its bumiputra students – by some RM4.75 million.

Other “revelations” speak of an excess RM61 million for two other properties. The reports have yet to be proved.

The first transaction was allegedly channelled through shelf companies in the British Virgin Islands and Singapore. Another embattled government-backed entity also did transactions via Cayman Island and later Singapore.

This implies that monies arising out of these dealings were channelled outside Malaysia and landed up in people’s accounts.

Normally only the country where an offence is committed has the right (or jurisdiction) to charge any wrongdoer. Criminal law does not allow a country to claim extra-territorial rights.

So does this mean that the Malaysian authorities have no legal basis to investigate the matter; and proceed against any wrongdoing, if established?

No. Because at least two Malaysian laws explicitly extend the right for Malaysia to act against its citizens or even permanent residents in such a situation. They are the recently revamped Anti-Corruption Commission Act 2009 and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (in short, the Anti-Money Laundering Act).

These laws bestow the power on our authorities to act for any offence committed in any place outside Malaysia “as if the offence was committed at any place within Malaysia”. So these laws have effect outside as well as within Malaysia.

Quite rightly the prime minister and the Mara authorities called for “full investigations” and for no wrongdoer to be spared; only to be up-staged by the IGP’s swift declaration that there has been no criminal breach of trust – an offence under the Penal Code.

But the case involves corruption, if the alleged facts are proved. And corruption can be proceeded with under these two laws.

Under the Anti-Corruption Act a corporate body (which Mara is under the Mara Act 1966) can commit an offence by itself; or by any person acting on its behalf. The offence is for receiving any gratification (this can be money or any other kind of valuable benefit, and includes any commission or bonus) for doing matters on behalf of the body (such as buying properties or undertaking investments). The gratification can be for his principal, for himself, or for his relative or associate. Additionally a person can be prohibited from dealing with any “corrupt” money deposited outside Malaysia.

The money can also be forfeited if it is deposited in the name of any person who is not entitled to it (say a relative, an associate or a nominee).

The punishment is hefty – jail for a maximum of 20 years as well as a minimum fine of not less than five times the sum or value of the gratification.

Then under the Anti-Money Laundering Act it is an offence to “money launder”, defined to include anyone who engages in “unlawful activity”. Corrupt gratification is one such unlawful activity.

This law casts a very wide net to rope in any person who:

» engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity;

» acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or

» conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity.

Criminal liability attaches if it can be safely concluded from the objective factual circumstance that the person in the public body knows or has reason to believe, that the property represents the proceeds from the corrupt activity; or if the person, without reasonable excuse, fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity. The term “property” could include monies in any form.

The Act gives very wide powers of investigation. Secrecy laws of banks and financial institutions are overridden, whistle-blowers are protected, and elaborate measures exist to track the ill-gotten proceeds. A person may also be required to account for his assets including bank accounts, wherever located.

In short, the relevant authorities in Malaysia are armed with sufficient powers to bring to book any corrupt Malaysian citizen or permanent resident, body and its officers – wherever the act is committed or the illegal proceeds deposited.

All that remains is the will to do so.

On a final note: the corruption relates to securing or seeking gratification. The offence is committed whether the property was sold at the market price or not, although an over-priced purchase may be strong presumptive evidence of the gratification. — 5 July 2015

Gurdial Singh Nijar - file pic
Gurdial Singh Nijar – file pic

 

Gurdial is professor at the Law Faculty, University of Malaya, and HAKAM Deputy President.

 


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