“Donation" under Enquiry in the Malaysian Anti-Corruption Commission Act (MACC) Act 2009

"In Malaysia , there are no laws that prevent political parties to receive donations from their supporters," – Politician

The scourge of corruption

The World Bank in 2004 proclaimed that corruption was ‘the single greatest obstacle to economic and social development’. High and rising corruption is associated with higher income inequality and poverty.

Corruption is extensively identified as a perilous problem for developing economies, and is viewed as a priority issue by international organisations and donors. Governments place anti‐corruption high on their policy and strategic agenda.

What is happening at home?

Government of Malaysia's stance has been, from the beginning of its nationhood, to be always alert in addressing corruption, abuse of power and/or malpractices and its various threats to the nation.

This policy is reflected in its various penal, civil and administrative rules, regulations and laws that safeguard public law and order, as well as upholding integrity, transparency and accountability of the government machinery and those of the private sector.

No gratification for officials and officers

By looking at Section 3 of the Malaysian Anti-Corruption Commission Act (MACC) Act 2009, it defines the Prime Minister, members of the cabinet and all parliamentarians as "officers of a public body" by virtue of them being "members of the ‎administration" or "members of State Legislative Assembly" or "officers of government of Malaysia or state governments", all are prohibited from receiving any form of gratification.

Observing donation as an element in corruption act

What is corruption?

Bribery and corruption as an act “Giving or offering any reward to any person to influence his conduct; or
the receipt of such reward” - Concise Law Dictionary, P.G. Osborne

the Taking or giving of money for the performance or non-performance of a public duty” - John B. Saunders, Mozley and Whiteley 's Law Dictionary

What is gratification?

The interpretation of gratification has been given under section 3 of the MACC Act 2009, where the “gratification” means (a) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage.

Political donations are unregulated

However, there is no specific meaning or interpretation of “donation” given in the same Act. There is also no definition of the term “political donation” in the Societies Act 1966 and neither is there any legislative prohibition for any political party to accept so-called political donation from any individual or organization.

No limits set out by statute on amount

Currently, there are also no limits to the amount of “donations” political parties and candidates can receive from special interest groups, making it possible for some of the donations being channeled directly to individual politicians instead of their party.

What kind of donation is prohibited?

So far, the references that can be taken into consideration is by examining the case law or any judgment made by the court. The definition of “corruptly” has been defined in case of PP v. Datuk Hj. Harun b. Hj Idris (No. 2) [1977] 1 MLJ 15.

"Corrupt" means "doing an act knowing that the act done is wrong, doing so with evil feelings and evil intentions." (Lim Kheng Kooi v. Reg [1957] 1 LNS 36; [1957] MLJ 199); "purposely doing an act which the law forbids" (R v. Smith [1960] 1 All ER 256).

"Corrupt" is a question of intention

If the circumstances show that what a person has done or has omitted to do was moved by an evil intention or a guilty mind, then he is liable under the section. Thus, if the accused used his position to solicit gratification with a guilty mind, he is caught within the ambit of the section. The real point is whether there is soliciting a political donation with a corrupt intention.”

In the case of Datuk Haji Harun v Public Prosecutor [1997] 1 MLJ 15, the defence put up by the accused is that the sums of money solicited and accepted were political donations.

The court however rejected the defence and sentenced him to one year's imprisonment, in respect of the 1st Charge, and 2 years in respect of each of the 2nd and 3rd Charges.

Evil mind & inducement

In the said case, it was decided that a donation to a political party is legal, as long as the donation is not solicited/accepted with an evil mind (sick) by the accused, and that the donation should not be an inducement to do an official act or conduct.

To establish what is evil or otherwise, depends on the manner how the donation was solicited and presented.

Conclusion

Corruption has always been a challenge to good governance. The important role of good governance is to influence the country's economic performance. Poor governance and pervasive corruption cut into government returns and lead to inefficient spending, thereby weakening the macroeconomic situation of a country.

This results in the international financial organization wanting to be involved with the efforts to “strengthen” governance in country members through various means such as supporting economic policies and structural reforms that may trap them further into considerably difficult financial situation.