Are donations in and of itself a form of corruption? – Lim Chee Wee

The recent statement made by Datuk Mustafar Ali, the deputy chief commissioner (prevention) of the Malaysian Anti-Corruption Commission, in explaining the relationship between donation and corruption is correct and the statements were made not in relation to any of the ongoing issues, nor related to 1MDB.

What was shared by Mustafar was a technical and legal explanation on donation and the circumstances under which a corruption offence is committed. The comments by the public on what has been said by Mustafar are correct that donations can be an offence, and in no way contradicts Mustafar’s statements.

In any law, the area highlighting various definitions is crucial in providing true meaning of specific terms that the law may impact. Next would be the jurisdiction of the law enforcement agency, list of offences and its penalties.

When we refer to offences, literal interpretation is misplaced, rather what is critical are the ingredients that determine an offence. This would mean that there are several elements which make an act an offence.

In the MACC Act 2009 the term donation features in Section 3, under the area interpreting "gratification". Interpretation would mean that the term in use needs to be read together with the elements that constitute an offence under the MACC Act 2009.  Its link then would be on the offences and primarily referring to the core offences namely sections 16 and 17. Here it is important to drill down to the ingredients of the offence or in a nutshell circumstances that constitute the offence.

Taking it in turn, under "Gratification", item (A) lists 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 (there are seven items but I shall only refer to this item in line with the word in issue).

This basically means that the list of terms is a possible tool of corruption used in corruption transactions. A tool will only be considered as a corruption tool in circumstances where a corruption offence has been identified based on the ingredients of the law. Till then, as in the spirit of the law where one is innocent until proven guilty, any of the listed items, including donation, is equally innocent until donation is proved to be a tool for corruption when proved with other elements.

What then are the other ingredients that must be proved to satisfy a corruption offence other than donation itself.

Sections 16 and 17 provide:

1. Any person acting against his/her principal affairs/duties that includes as a public official and a member of a public body.

2. Influencing decision making (to perform or not to perform) where most likely would lead to violation of laws, rules and regulations, and procedures.

3. The item acts as an inducement, favour or reward to the individual.

4. The item received is a benefit or gains meant for the individual either personally, for the family or friends or allies.

All of the above points to a person committing an offence with a corrupt intent i.e. doing an act knowing that the act done is wrong.

In the ongoing investigation by MACC involving SRC International Sdn Bhd and the RM2.6 billion, MACC has thus far stated that the RM2.6 billion was not from the IMDB accounts and that it was from a donor. Moreover, MACC has stated that it intends to continue its investigation to ascertain the purpose of the donation which means that the investigation is still ongoing.

It is only proper and professional to allow MACC to complete its investigation without being pressured by any party. The public is anxious to see the outcome. Nonetheless, we should not be making premature judgments but to allow the law enforcement agencies such as MACC to carry out the investigation in a professional, independent and effective manner. – August 19, 2015.

*Lim Chee Wee is a member of the MACC Operations Review Panel.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider. 

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