DEFERRED PROSECUTION AGREEMENT: A NEW PATH TO COMBAT CORRUPTION IN MALAYSIA

Abstract

Corruption is an illegal act which not only occurs between individuals but corporations as well. Corporations are artificial entities without minds, making corruption prosecutions difficult because actus reus and mens rea cannot be established. Section 17A of the 2009 Malaysian Anti-Corruption Commission Act criminalises corporations and their affiliates for failing to prevent corruption unless they can establish they have adequate procedures to prevent it. The MACC Act allows a 20-year prison sentence or a fine of ten times the bribe or RM1 million. The United States and United Kingdom have established Deferred Prosecution Agreements (DPAs) to curb corruption. Thus, this research examined DPAs and their effects to evaluate if they may be used to combat corporate corruption in Malaysia. This study employed qualitative methodology and a legal doctrinal approach to investigate if DPA could prevent corruption in Malaysia. The legal basis for corruption and the DPA's capacity to tackle it were assessed using primary and secondary data. It is found that DPA helps both the prosecutor and the corporations avoid prosecution, and most significantly, it protects the interests of innocent third parties. This research recommends DPA as an innovative approach to corporate corruption in Malaysia.