Frequently Asked Questions (FAQ)
Section 17A MACC Act 2009 was enforced effective 1st June 2020.
1. When is Section 17A MACC Act 2009 enforced?
2. Who can be charged under Section 17A MACC Act 2009?
A company incorporated under the Companies Act 2016 [Act 777] and carries on a business in Malaysia or elsewhere
A company wherever incorporated and carries on a business or part of a business in Malaysia
Partnership under the Partnership Act 1961 [Act 135] and carries on a business in Malaysia or elsewhere
Partnership which is a limited liability partnership registered under the Limited Liability Partnerships Act 2012 [Act 743] and carries on a business in Malaysia or elsewhere
A partnership wherever formed and carries on a business or part of a business in Malaysia
3. What is the difference between ISO 37001 Anti Bribery Management System (ABMS) and the Organisational Anti-Corruption Plan (OACP)?
Effective 1st June 2020, Section 17A related to corporate liability of the MACC Act 2009 became operative. Organisations are required to implement ‘adequate procedures’ to mitigate corporate liability risk related to corruption.
The OACP is compulsory and fundamental anti-corruption policy document that organisations must have as per the Ministerial Guidelines cascaded from Malaysia’s National Anti-Corruption Plan or NACP under initiative 2.1.5 – since 2019. The OACP will be the base document to mitigate risks of corporate liability under Section 17A.
ISO37001 ABMS is an International Standards Organisation or ISO based system or operating procedures that has to be certified and practised to protect organisations against corruption.
In Malaysia, it is COMPULSORY to have the OACP which must be at the centre of all anti-corruption initiatives by the organisations to be followed by rules or procedures or standards or systems to check and eradicate corruption – all part of the definition of ‘adequate procedures’ to mitigate risks of corporate liability under Section 17A.
4. Can you explain in detail the difference between EXCEL compared to other anti-corruption courses?
EXCEL is a bespoke program on corporate liability developed by the Malaysian Anti-Corruption Academy (MACA). It is an intensive 4 days lecture and workshop course (train the trainer) conducted by MACC trainers that covers the legal framework of anti-corruption laws pertaining to corporate liability (Section 17A of MACC Act 2009); the components of Corruption Risk Management (CRM) and how an organisation can develop and implement the OACP.
At the end of the program, the participants would be able to develop and implement the OACP and CRM for their organisations.
EXCEL is unique and a major product differentiator for the following reasons:
The ONLY 4 day program developed by MACA for the commercial organisations.
Conducted by MACC Officers who are experts in corporate liability
Certificate of Completion issued by MACA
Excel will guide the organisation to complete the OACP post training
5. Can I register with MACA for EXCEL program?
No, MACA has available OACP only products. EXCEL does not only provide training on OACP but is a compressed and bespoke 4 days program – covering Legal Framework, CRM and OACP. Furthermore, EXCEL will guide the organisation until they can complete their OACP.
6. By regulation, all organizations shall comply to MACC Act 2009 Section 17A. Would an organization be considered to be in compliance to Section 17A if OACP is in place?
If an organisation is charged under the provisions of Section 17A, it can mitigate in its defence that it has put in place ‘adequate procedures’ which should have the OACP as the central mantle followed by other measures or systems to combat corruption.
If the organisations do not have OACP and does not have any other measures in place, it would be difficult or futile exercise to mitigate this risk once being charged. The law will view the organisation to be not doing anything to stop corruption being practised in its operations and business.
7. Would OACP be the only required to proof of adequate procedure to defence from prosecutions ?
OACP will be a compulsory box that needs to be checked – followed by other procedures that should also be in place. The adequacy will be decided by the court of law in the context, nature and scale of the corruption case vis a vis corporate liability under Section 17A.
8. Is Anti Bribery and Anti-Corruption (ABAC) policy sufficient in an organisation to mitigate corporate liability?
ABAC policy is a statement of intent being use to guide decision and achieve rational outcomes. However, ABAC policy does not layout the detail strategy on how to mitigate corporate liability. Therefore, OACP will be a compulsory box that needs to be checked – followed by other procedures that should also be in place.
9. Companies feel like lack of enforcement action on Section 17A, MACC Act 2009.
MACC will not announce publicly when an organisation is under investigation. This is to ensure the investigation can be done smoothly without any interruption. Hence, companies shall always be prepared with compliance commitment to reduce corporate liability.