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RECENTLY, an alleged scandal in Malaysia sparked public interest and debate on corruption issues involving the role of a certain individual who admitted giving funds to several politicians and the latter were said to have received these funds believing them to be political donations for their parties or constituencies.

It is important to note that to date, Malaysia has yet to legislate any Political Financing Act. 

In all criminal cases, there are two main elements that have to be established in a Court of Law before one can be found guilty; they are ‘actus reus’ (guilty act) and ‘mens rea’ (guilty mind). 

These elements must also exist in a corruption case, and the interplay between these two is very crucial particularly when the parties involved have differing understandings and intentions of the nature of the transactions.

One of the parties insists he or she should not be charged on the basis that he or she managed to expose the matter.

On the other hand, the other side maintans that the funds were nothing more than political donations. This creates a situation of differing understandings and intentions between the offeree and the recipient.

Whilst the Malaysian Anti-Corruption Commission Act (MACC Act) criminalizes both the acts as can be seen in Section 16 and Section 17 MACC Act, the important element is the intention of both parties i.e. whether there was corrupt intention in the transaction at the material point in time.

From the evidence or even admissions in public domain (e.g. through media reports) the giver intended to do so with the objective of securing a certain business benefit.

Therefore, it is open for one to conclude that he or she had corrupt intention in doing so.

For the other side to be found liable, there needs to be a meeting of minds that the funds were for the intended purpose.

As far as the other side is concerned, it was made  and were of the view that the funds amounted to nothing more than political donations. 

Given the fact that there is no specific law governing the receiving of such donations, the other side genuinely believed  no  wrongdoing was committed.

In addition to that, the receivers were not part of the approval body that could help the giver and are not in any position and do not have the power to help the giver in this regard, among others, would be relevant circumstances to corroborate the receiver’s defence. 

If the recipient genuinely believes the payment is a legitimate donation (without any expectation of a quid pro quo), this could negate the mens rea for corruption. 

The recipient’s defence would hinge on demonstrating that his or her belief was  reasonable and exercised held in good faith without knowing the giver’s corrupt intent.

Ultimately, all the relevant facts and circumstances surrounding the facts have to be analysed into order to determine the intentions of both sides.  

Having said that, if the recipient could establish that he or she did not share the giver’s intention, the latter’s corrupt intent could still stand for offering and giving.

This is due to the fact that the giver’s guilt depends on own state of mind, not that of the recipient.

In order to minimise, if not eliminate, this situation from recurring in the future, and to prevent unscrupulous individuals from taking advantage of donations, they make it is time to seriously look into introducing a Political Financing Act.

Datuk Amer Hamzah Arshad

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]