Rule of Law: The MACC Reform Project

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BAR COUNCIL Malaysia and the Institute for Democracy and Economic Affairs (IDEAS) are spearheading what is being referred to as the MACC Reform Project. It is an initiative worth noting, not least for the fact that the effort is aimed at strengthening the Malaysian Anti-Corruption Commission (MACC) and the legal framework within which it operates.

It is of particular interest as it was prompted by the MACC itself some eight or so months ago, when it sought the views of the Bar on what steps could be taken to improve the structural framework to make it more effective. The Bar, in conjunction with IDEAS and other groups, has since looked at the issue from a structural point of view. This approach is of value as it has become apparent over the decade or so since its inception that the MACC has not been sufficiently empowered to enable it to achieve its stated aim.

As the preamble to the Malaysian Anti-Corruption Commission Act (the Act) declares, the 2009 legislation was introduced “to make further and better provisions for the prevention of corruption and for matters necessary thereto and connected therewith”. This was a pithy statement, having regard to the factors that led to the genesis of the MACC.

The Abdullah administration recognised the need to upgrade the MACC’s predecessor, the Anti-Corruption Agency (ACA), into a more effective and efficient body. It further recognised that this required the establishment of a body that was more independent and transparent than the ACA.

The Act sought to achieve this by establishing bodies that would scrutinise and advise. These consisted of an independent advisory board, a parliamentary committee, a complaints committee, the operations review panel and the corruption consultation and prevention panel. Further parliamentary oversight was sought to be achieved by the Chief Commissioner reporting to a special parliamentary committee on corruption.

The vision underlying the intended transformation must be lauded. The implementation of that vision, however, left much to be desired. The bill for the establishment of the MACC was rushed through Parliament with unexplained haste. The government tabled the bill for its first reading on Dec 10, 2008, and it was passed by Parliament on Dec 16, 2008. Some quarters felt that policies and processes had not been given sufficient thought.

In particular, concerns have been expressed over the seeming lack of independence indicated by the manner in which the prime minister ultimately appoints the Chief Commissioner — although the appointment is by the Yang di-Pertuan Agong, His Majesty acts on the advice of the former. The Chief Commissioner does not have security of tenure and he or she holds office at the pleasure of His Majesty. In short, the Chief Commissioner is a civil servant who can be dismissed. This has grave implications insofar as its ability to act without fear or favour, perceived or otherwise, is concerned.

In the same vein, the recruitment of MACC officers is a matter within the purview of the Public Services Commission. This leaves the MACC little room to define its own recruitment and employment policies, a matter which has a bearing on its effectiveness. Some may recall that the qualifications, or lack of them, of the officers who gave evidence at the enquiry into the sudden death of Teoh Beng Hock. The nature of corruption is getting increasingly complex. Combating it requires the recruitment of qualified and skilled officers.

Another area of concern is the absence of prosecutorial independence and powers. Article 145 of the Federal Constitution vests the power to institute prosecutions exclusively in the Attorney General. This necessitates the securing of the AG’s approval for prosecutions, thus further reducing the autonomy of the MACC as well as subjecting it to yet another bureaucratic hurdle.

It is pertinent that in late December 2014, Datuk Paul Low, Minister in the Prime Minister’s Department, indicated that the Cabinet had approved a proposed amendment to the Constitution to make the MACC autonomous and independent of the civil service. It appears that the aim is to make the MACC a public services commission under the Constitution, with the exclusive right to hire and fire, and to give the chief commissioner security of tenure for a limited number of years.

The precise nature of the proposed amendment is yet to be understood, and there is no certainty as to when the amendment will be put to Parliament. What is clear though is the fact that the government seems open to the idea of a constitutional amendment to ensure a more effective MACC.

Though welcoming these efforts, the Bar, IDEAS and the other NGOs collaborating on the MACC Reform Project think that reform efforts ought to be approached by reference to the root concerns. I think they are right.

Apart from the structural reform needed to make it autonomous, true independence and autonomy will only be achieved if citizens perceive the body to be such. In my view, this can only be meaningfully achieved by establishing a constitutional body entrusted with the responsibility of combating corruption and vested with powers by the Constitution itself, as part of the supreme law of the federation, to discharge its functions.

Its commissioners must be afforded the protection given to other constitutional bodies like the judiciary and the Auditor-General. Judges and the Auditor-General have security of tenure and can only be removed by a tribunal appointed by Parliament. There is no reason why anti-corruption commissioners should not be treated in the same way, particularly in the light of the nature of the task they are charged with carrying out.

Some thought will have to be given to how the commissioners are appointed — they cannot be directly appointed by the prime minister and his role in the appointment process must be limited to merely acting on the recommendation of an appropriate appointing body.

Thought must also be given to the power to institute prosecutions. Under the UK’s Bribery Act 2010, the power to institute prosecutions is given to the director of the Serious Fraud Office, the agency tasked with anti-corruption efforts. This power is additional to the power of the AG to institute prosecutions. There is no reason why similar provision ought not to be made in Malaysia, vesting in the Chief Commissioner of the intended constitutional commission the power to do so.

Alternatively, recognition of the conflict of interest that lies in the fact that the AG, the chief legal adviser to the government, is also the public prosecutor, could allow a discussion of whether the power to commence prosecutions should be vested in an independent director of public prosecutions, or the like.

These matters will require a constitutional amendment and consideration must be given to how best this is to be effected. I am sure that a bill aimed at amending the Constitution to address the foregoing with a view to increasing the effectiveness of anti-corruption efforts will not be met with any resistance.

Apart from the constitutional dimension, the MACC Reform Project is also concerned about the manner in which corruption has been defined under the Act. The current definition of gratification appears to be principally concerned with that of a pecuniary nature. It is thought that a wider definition of gratification is required, allowing for investigation into and prosecuting of gratification of a non-pecuniary nature. This makes perfect sense. It confounds common sense, for instance, that the MACC is not empowered to investigate public officials who live extravagantly and in a manner beyond their means.

The group is similarly concerned that complementary legislation, in particular the Whistleblower Protection Act 2010 and the Witness Protection Act 2009, is not sufficiently wide or allow conflict of interests so as to undermine their effectiveness.

I think this is also a point well taken. The former requires whistleblowers to pass information to enforcement agencies before they are given the protection of the statute, unlike in the UK where whistleblowers can speak through lawyers or their employers. The latter vests the discretion to grant protection to the AG, with appeals being allowed to the home minister. For obvious reasons, this poses a difficulty where information is being passed on about corruption within the Executive or its agencies.

I highly recommend the efforts of the MACC Reform Project. It is an important civil society initiative that ought to be given anxious consideration. It is a work in progress, and the group is looking to take on views of as diverse a nature as possible. We will benefit from wide public involvement; we are, after all, the primary stakeholders in the effort.

Datuk Malik Imtiaz Sarwar is a practising lawyer and former president of the National Human Rights Society of Malaysia

This article first appeared in Forum, The Edge Malaysia Weekly, on March 9 - 15, 2015.