The Malaysian Anti-Corruption Commission’s (MACC) proposal to introduce Deferred Prosecution Agreements (DPA) for corruption cases involving sums exceeding RM100 million has sparked understandable public unease.
One of the most pointed concerns raised by certain quarters in recent days is whether it risks sending the wrong message that those who commit large-scale corruption can negotiate their way out of prosecution, creating the impression that it is somehow safer to “steal big” than to “steal small”.
This anxiety is not misplaced and deserves serious consideration, particularly in a country where public trust in anti-corruption efforts remains fragile.
A DPA is a legal mechanism that allows prosecutors to suspend criminal proceedings against an entity, usually a corporation, provided it complies with strict conditions.
These conditions typically include paying substantial financial penalties, returning misappropriated funds, cooperating fully with investigators, and implementing internal governance and compliance reforms.
If the terms are met within a specified period, prosecution may ultimately be discontinued. Importantly, DPAs do not declare innocence; rather, they represent a negotiated pause in prosecution aimed at achieving certain enforcement objectives.
MACC’s rationale for proposing DPAs is rooted in pragmatism.
Large-scale corruption cases often involve complex financial transactions, corporate structures, cross-border money flows, and lengthy legal battles that take years, sometimes decades, to resolve. During this time, stolen assets may remain unrecovered, public funds may remain lost, and accountability is delayed.
Proponents argue that DPAs allow the state to recover assets more swiftly, impose meaningful sanctions, and redirect enforcement resources towards other high-impact cases.
This approach is not uniquely Malaysian. DPAs are well established in the United States, the United Kingdom, and several other advanced democracies.
In the United States, they have been used in corporate criminal liability, particularly under laws governing corruption, fraud, and financial misconduct.
In the United Kingdom, DPAs were formally introduced in 2014 and require judicial approval, ensuring that agreements are fair, proportionate, and in the public interest. High-profile multinational corporations have been subjected to DPAs involving billions in fines and strict compliance obligations.
From a criminological perspective, DPAs reflect a shift from purely punitive justice toward a more instrumental model of crime control.
Rather than focusing solely on conviction and punishment, the emphasis is on harm reduction, restitution, and prevention of future wrongdoing.
This is particularly relevant in corporate and elite crime, here the damage caused, including the loss of public funds and erosion of trust, often far exceeds what traditional penalties can easily remedy.
However, the core concern remains: Do DPAs weaken deterrence and encourage moral hazard?
Deterrence theory suggests that crime is prevented not merely by punishment, but by the certainty, severity, and swiftness of consequences.
If DPAs are perceived as lenient, negotiable, or accessible only to powerful actors, they risk undermining the very deterrent effect they are meant to support.
In such circumstances, corruption penalties may be reframed as a cost of doing business rather than a serious criminal sanction.
This risk is amplified in societies where enforcement has historically been inconsistent or politically selective. If DPAs are applied without transparency, judicial oversight, or clear eligibility criteria, public perception may harden into the belief that wealth and influence buy immunity.
From a criminological standpoint, such perceptions are dangerous. Legitimacy is central to the effectiveness of the criminal justice system. When the public believes the law is applied unevenly, compliance declines and cynicism grows.
Another critical issue is inequality before the law. DPAs are typically designed for organisations, yet corruption is driven by human decision-makers.
If DPAs are confined only to corporate entities, senior executives, public officials, and political actors who authorise or benefit from corruption may evade personal responsibility.
Criminological research on white-collar and elite crime consistently shows that deterrence is weakest when liability is diffused and strongest when individuals face real personal consequences.
A DPA regime that excludes individuals, or fails to operate alongside individual prosecutions, risks shielding those most culpable and undermining the moral authority of anti-corruption enforcement.
That said, dismissing DPAs outright would also be short-sighted.
Traditional prosecutions have often failed to deliver timely justice in complex corruption cases.
Lengthy trials, evidentiary hurdles, and appeals can delay asset recovery for years, during which public harm continues.
DPAs can function as a complementary tool rather than a replacement for prosecution, particularly when they are designed to prioritise restitution, institutional reform and cooperation that leads to further prosecutions, including of individuals.
From a restorative justice perspective, DPAs can offer tangible benefits.
Rapid recovery of stolen funds, repayment to the state, and mandatory compliance reforms may provide more immediate public benefit than symbolic convictions achieved after a decade of litigation.
When properly structured, DPAs can also expose wider corruption networks by compelling cooperation and disclosure that might otherwise remain hidden.
The key question, therefore, is not whether DPAs are inherently good or bad, but how they are designed and governed.
For DPAs to avoid creating a “steal big” mentality, several safeguards are essential.
First, DPAs must be transparent and subject to judicial scrutiny. Second, penalties must be severe enough to outweigh the benefits of corruption.
Third, DPAs must not be limited to organisations alone and should never preclude criminal proceedings against individuals who authorised, facilitated, or benefited from the corruption.
Finally, their use must be consistent, principled, and clearly justified in the public interest.
In countries where DPAs have worked reasonably well, they operate within strong institutions, independent prosecutors, and credible courts.
Malaysia’s challenge lies not in adopting a foreign legal tool, but in ensuring that its implementation strengthens rather than weakens public confidence in anti-corruption enforcement.
Ultimately, DPAs should not be seen as an escape route for major offenders, whether corporate or individual, but as a strategic instrument within a broader anti-corruption framework.
If implemented with rigor, transparency, and genuine individual accountability, they may help recover stolen assets and disrupt systemic corruption.
If implemented poorly, they risk reinforcing precisely the injustice and impunity they are meant to combat. The difference lies not in the concept itself, but in the integrity of its execution.
Finally, while it is understandably frustrating to see tainted individuals or organisations avoid custodial sentences in exchange for financial penalties and asset forfeiture, it must be acknowledged that DPAs can still deliver substantial public gains if designed rigorously.
One possible enhancement worthy of serious consideration is the mandatory declaration of bankruptcy or financial incapacitation for culpable individuals and entities subjected to DPAs. This includes stripping individuals of their honorific titles. This ensures that corruption permanently strips offenders of economic power and social standing
In the Malaysian context, where public expectations of punishment remain deeply rooted, such measures may help reconcile pragmatic enforcement with the societal need for moral condemnation.
Without this balance, DPAs risk being perceived not as justice deferred in the public interest, but as justice diluted for the powerful.
The views expressed here are the personal opinion of the writer and do not necessarily represent that of Twentytwo13.
