By Datuk Wan Shaharuddin Wan Ladin
KUALA LUMPUR, Sept 17 (Bernama) — The Deferred Prosecution Agreement (DPA) procedure is a new initiative proposed to strengthen the national criminal justice system.
Internationally, this mechanism has been adopted in countries such as the United Kingdom (UK), Singapore, Canada, and the United States (US), particularly in addressing corporate and economic offences.
For instance, in 2017, Rolls-Royce signed a DPA with the UK’s Serious Fraud Office (SFO) following a global investigation into allegations of corruption.
Similarly, the giant airline company, Boeing, signed a DPA with the US Department of Justice (DOJ) and paid penalties and compensation totalling USD2.5 billion related to the crashes of two 737 MAX aircraft, which claimed 346 lives.
Malaysia plans to introduce this procedure into its national legal framework, with the aim of making it an effective instrument for upholding justice, restoring corporate integrity, and protecting public interest.
What is a DPA?
In essence, a DPA is an agreement reached between the public prosecutor and a legal entity such as a company, organisation, or partnership under investigation.
Through this agreement, the prosecution can postpone or resolve a case without going through a full trial. It is important to understand that a DPA is not intended to replace the criminal justice process, but rather to offer an alternative procedure for certain cases that are suitable for improvement through restitution, compensation, and internal reforms.
A DPA can be offered for offences involving economic and corporate interests, including corruption, fraud, money laundering, and violations of tax and capital market laws.
However, it is not suitable for offences involving violence or crimes against life, as these types of offences cannot be redeemed through restitution measures. In line with international benchmarks, the application of DPA in Malaysia is limited to legal entities only and does not involve individuals.
Advantages of Implementing a DPA
Among the key advantages of a DPA is that it saves the costs and time of court trials, whereby trials can take years or even decades following appeals.
By complying with the terms of the agreement, the legal entity can improve its internal governance, strengthen integrity, and implement necessary corporate reforms. A DPA can also encourage companies to come forward as whistleblowers without the fear of their reputation being tarnished by an open charge in court.
More importantly, a DPA aligns with the doctrine of restorative justice, which ensures that the offending party takes responsibility to compensate victims or repair the damage done to society.
It also contributes to the recovery of national assets and obligates the company to finance investigation costs, implement compliance programmes, and improve internal procedures.
The Power of the Public Prosecutor and DPA Conditions
The power to offer a DPA rests entirely with the public prosecutor, in line with Article 145(3) of the Federal Constitution.
In considering a DPA application, the main factors taken into account are the interests of justice, the public interest, and the impact on the national economy. This approach aims to ensure that innocent employees, investors, and stakeholders are not affected if the company faces a full prosecution.
To guarantee the effectiveness of a DPA and restorative justice, certain conditions must be met. These include a statement of facts and an admission of the offence committed, payment of financial penalties, compensation to victims, contributions to charitable bodies, payment of investigation costs incurred by the authorities, governance and management reforms (including establishing anti-corruption policies and corporate integrity training), and full cooperation with the authorities throughout the agreement period.
A DPA is typically in effect for two to five years, with the possibility of cancellation if the terms are not complied with.
Should there be a breach of the terms, prosecution can be re-initiated against the company. However, the company is given the opportunity to provide a reasonable explanation and request an amendment to certain conditions, subject to the public prosecutor’s discretion.
Addressing Public Concerns
One of the common concerns raised is the perception of favouritism, as if only certain companies are given the DPA opportunity.
To avoid this perception, the government will develop clear legal guidelines covering the criteria for eligible offences, the principles of selection, and the mandatory compliance conditions. These guidelines will ensure that the implementation of a DPA is transparent, structured, and free from elements of favouritism.
In addition, the role of the court is also being considered. Although the initial proposal does not give the court a substantive role, international experience shows that courts can play a supervisory function to ensure that the public interest is protected. This matter will be carefully considered before being finalised.
Monitoring and Enforcement
The implementation of a DPA will be monitored by the relevant enforcement agencies and independent third parties such as auditors or appointed monitoring bodies.
Compliance reports must be submitted periodically to the public prosecutor to ensure that the agreed commitments are truly being fulfilled.
Overall, the introduction of the DPA in Malaysia is a progressive step that balances the need to punish corporate offenders with the importance of rehabilitating the economic system, protecting victims, and preserving public confidence in the legal system.
Through transparent and ethical implementation guided by clear guidelines, a DPA can become an important instrument in the national agenda to combat corruption, strengthen governance, and ensure that justice is more comprehensively upheld.
— BERNAMA
* Datuk Wan Shaharuddin Wan Ladin is a Senior Director of the Legal and Prosecution Division of the Malaysian Anti-Corruption Commission (MACC).
(The views expressed in this article are those of the author and do not reflect the official policy or position of BERNAMA)
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