Everyone condemns corruption. It diverts resources that are supposed to be used for public good, damages and taints the quality of political institutions, erodes democratic accountability and distorts economic growth. Yet, it seems that what constitutes corruption for some people may not be considered as such by others, and for that reason, I think, the fight against corruption becomes difficult and frustrating.

Take, for example, a public official, who is also a leader of a political party, makes a promise to allocate some resources from the department he leads for a charity activity carried out by a branch of his political party. Has he committed a corrupt act?

If we go by the general definition of “corruption” as “the misuse of a public or private position for direct or indirect personal gain”, that action can be construed as corrupt because he, as a public official, is using his position for an indirect personal gain, which can be public support for that particular branch of his political party, and this can be translated into votes for the party in a general election.

Also, if the allocation is eventually made, the official has indeed diverted public funds entrusted to him by his virtue of his position for the benefit of himself or his party. It is corruption by its normative definition.

However, if we follow the legal definition of “corruption” in a particular country, such action may not be considered corrupt. In Malaysia, for example, “corruption” is defined as “the act of giving or receiving of any gratification or reward in the form of cash or in kind of high value for performing a task in relation to his/her job description”. Four offences are considered corruption and penalised by the Malaysian Anti-Corruption Commission Act 2009. They are soliciting /receiving gratification, offering/giving gratification, false claim and using an office of position for gratification.

In the above example, the gratification element is unclear and the party leader in question may not need to put in a false claim to disburse funds for the charity activity because the event may actually take place.

When the gap between the normative definition and legal definition is too broad, the perception of corruption will vary and the incentive for those in power to avoid activities that are considered corrupt (normative definition) is minimal because they will not be charged with doing so anyway.

So, is the gap between the definitions in Malaysia that broad?

One of the standards that we can use to assess this is the United Nations Convention against Corruption. It is a global standard that outlines measures to prevent and criminalise various forms of corruption. Malaysia signed the convention in 2003 and ratified it five years later. In 2013, Malaysia’s observation of the convention, especially Chapter III (Criminalisation and Law Enforcement) and Chapter IV (International Cooperation), was reviewed by Kenya and the Philippines.

The review states that Malaysia’s legal and institutional frameworks conform with most of the articles in Chapter III. Active and passive bribery is criminalised, so are the abuse of functions and illicit enrichment. But, the reviewer notes that trading in influence is not clearly criminalised. The provisions for embezzlement, misappropriation and diversion are scattered and not strong enough.

The reviewer recommends that our country consolidate embezzlement and misappropriation offences and place them under the MACC Act, criminalise trading in influence and remove prior investigation as a condition for making an illicit enrichment a case. The same recommendations were put forward by a group of civil society organisations, including the Institute for Democracy and Economic Affairs (IDEAS) and the Bar Council.

If these recommendations are adopted, the gap between the normative definition and legal definition of “corruption” can be narrowed slightly.

I say “slightly” because it is one thing to have an adequate legal framework but quite another to implement it. To prove a corrupt act has taken place needs not only sufficient evidence (which will require the work of independent and professionally trained anti-corruption officers) but also an independent judicial system.

An independent judicial system will ensure that anyone who commits corruption will be prosecuted, and such action will not be seen as a political ploy against any group. For that reason, measures to ensure the independence of the Malaysian Anti-Corruption Commission and the Attorney General’s Chambers are included as well in the proposal put forward by IDEAS and its partners.

Closing the gap between the two definitions of “corruption” is important to ensure the fight against graft is not a hopeless cause. But, it is not the only way to eradicate corruption. It is the effort to ensure that the normative definition is upheld, that is we do not abuse the position entrusted to each one of us for personal gain directly and indirectly.

And it is not the duty of the politicians alone, but every one of us.

Sri Murniati is manager, Political Economy and Governance, at the Institute for Democracy and Economic Affairs 

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