Why not introduce deferred prosecution agreements?

 

From Hafiz Hassan

Labuan MP Suhaili Abdul Rahman has suggested that the government consider offering tycoons or political figures a “second chance” to bring back wealth currently held overseas.

Suhaili said a temporary amnesty for the wealthy to reinject assets worth billions into the domestic economy was the best step forward amid the economic uncertainty and depreciation of the ringgit.

I say why not introduce a deferred prosecution agreement (DPA) into the country’s law.

A DPA is an agreement between a prosecutor and a person whom the prosecutor is considering prosecuting for an offence in relation to which a DPA may be entered into under the law.

It’s akin to plea bargaining – not unknown under the law in many countries and here in Malaysia.

DPAs have become the mainstay of white collar criminal law enforcement. In the US, they have become commonly invoked for offences of corruption, money laundering, and fraud.

Take the example of the UK Serious Fraud Office (SFO), which is a specialist prosecuting authority tackling the top level of serious or complex fraud, bribery and corruption. It is part of the UK’s criminal justice system covering England, Wales and Northern Ireland.

In August 2016, the SFO announced that it had opened a criminal investigation into allegations of fraud, bribery and corruption in the civil aviation business of Airbus Group. These allegations concerned irregularities involving third party consultants.

Following an investigation, an indictment was laid before the President of the Queen’s Bench Division of the High Court in England and Wales, Victoria Sharp, in January 2020.

The indictment was at the instance of the director of the SFO. Airbus was charged with five counts of failing to prevent bribery, under Section 7 of the UK Bribery Act 2010.

Through a news release on Jan 31, 2020, the SFO informed that it had entered into a record-breaking DPA with Airbus following its approval by Sharp.

Under the terms of the DPA, Airbus agreed to pay a fine and costs amounting to €991 million (or about RM4.54 billion) to the SFO following investigations which began in 2016 against the company, over allegations that it used external consultants to bribe customers to buy its civilian and military aircraft.

While DPAs have made their way into the UK and Singapore legislation through the Crime and Justice Act 2013 and Criminal Justice Reform Act 2018 respectively, there is no equivalent legislation in Malaysia.

But the concept is not unknown in Malaysia.

In September 2021, Transparency International Malaysia (TI-M) organised a forum titled “Deferred Prosecution Agreement: Options and Impact on Malaysia” to present research findings on how DPAs were applied in countries like the US, the UK and Singapore.

According to TI-M, a stakeholder engagement with Malaysian Anti-Corruption Commission chief Azam Baki and several legal officers was held right after the public forum to get their feedback on the research done.

MACC was said to have obtained approval to carry out comprehensive research on DPAs in close consultation with the Attorney-General’s Chambers (AGC) and report its findings.

So, what has happened since?

DPAs, too, can reinject assets worth billions into the domestic economy. -FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.