Corporate Culture as a Means of Proving Mens Rea in Corporate Criminal Liability Under Malaysian Anti-Corruption Law

Abstract

The fight against corruption is a national and international primary concern for lawmakers and enforcement officials. Corporate criminal liability is an aberration of imputing criminal responsibility on a corporation against a natural person, which requires a combined effect of the actus reus and mens rea. A corporation incapable of committing a crime imputes corporate mens rea through its directors, senior managers or officers that constitute executive powers. In doing so, Malaysia uses the identification doctrine to impute mens rea. This article evaluated the most effective technique of establishing mens rea in dealing with modern corporate criminal responsibility. It used a doctrinal library- based research method to review pertinent corporate criminal liability literature, cases and legislations. The journal articles, cases and legislations were collected and analysed according to the themes to achieve the research objective. It was discovered that Malaysia still uses identification doctrine to prove corporate mens rea, making it difficult and near impossible to find large and multinational corporations liable since the directing mind and will are not actively involved in the corporations’ day-to-day operations. However, intention can still be imputed on the corporation based on its corporate culture. Hence, for section 17A of the MACC Act 2009 (2018 amendment) on bribery to be effective, there is a need for a shift from the use of identification doctrine in proving mens rea to corporate culture as that would balance the discrimination and unfairness of the identification doctrine and make it easier for large and multinational corporations to be charged with corporate criminal liability.