COMMENT | The Center to Combat Corruption and Cronyism (C4) refers to the Pakatan Harapan government’s promise in its manifesto to reform the Malaysian Anti-Corruption Commission (MACC) and welcomes its strong commitment to addressing and stamping out corruption.
We would like to also congratulate the newly set-up committee on constitutional reform. In order to effectively address and combat corruption, a comprehensive and holistic reform ought to be urgently implemented. This reform can be realised through the implementation of a constitutional and legislative framework.
In light of this, C4 proposes that:
1. An Independent Anti-Corruption Commission (IACC), a constitutionally mandated commission, beyond the scope, control and influence of the executive be established;
2. Amendments to the Malaysian Anti-Corruption Commission Act 2009 (MACC Act);
3. Amendments to other related legislation.
The newly-created IACC entity would operate essentially as an oversight body to the MACC, the investigation arm of the IACC. Thus, both the constitutionally-founded IACC and the statutorily-established MACC are to be separate entities.
For the IACC to be established, it would require amendments to the Federal Constitution which allow for the introduction of a standalone provision to accommodate this new entity.
We propose that the IACC is moulded similar to the Election Commission, but with a unique structure, empowered with sufficient powers of oversight and accountability.
The IACC ought to have full autonomy and power over anti-corruption policies, practices and directives; recruitment and discipline of officers; as well as powers of oversight and supervision.
To ensure independence, the IACC ought to:
1. Be headed by a constitutionally recognised and mandated chairperson with the security of tenure and security from dismissal, akin to a judge of the Federal Court;
2. Commissioners to be voted in by Parliament, and with at least 40 percent of them coming from civil society.
Amendments to the MACC Act
Section 23 provides that it is an offence for any officer of a public body to use his office or position for any “gratification”. It is therefore corrupt practice to receive “gratification”. It may be implicit here that “gratification” connotes various forms of pecuniary corruption. However, an act of corruption may well go beyond the “gratification” envisaged by Section 23. It could involve abuse of office, advancement of one’s aim, status, promotional aspects, getting appointed to a job/position or transfer.
These examples are illustrative of various misconducts in public office that may not come within the strict confines of “gratification” in Section 23.
Instead of limiting the ambit of the amendment to “pecuniary advantage”, the words “any valuable thing, pecuniary advantage or advantage” be inserted. This would cover using corrupt means for promotion, obtaining favour and the other examples.
Section 36 - This provision deals with the power to obtain information by the MACC. The words “in connection with an offence under this Act” is limited in its reach in as much as the incidence of a public official living beyond his known source of income is not an offence under the MACC Act 2009. This severely restricts the powers of the investigation of the MACC under Section 36.
The amendment to Section 36 could deal with the “offence” of living beyond ones known source of income as a trigger for an investigation and it need not be treated as a presumption of the commission of an offence.
Amendments to other related legislation
Whistleblower Protection Act 2010 - Section 6 in that whistleblowing is to be made to the enforcement agency.
Amended so whistleblowing can be made through other means apart from through an enforcement agency for example through employers or lawyers.
The Official Secret Act 1972- Section 2C which provides that a minister or a public officer or the menteri besar or the chief minister of a state may, at any time declassify any document under their purview. However, it is rare that this occurs.
Amended so the application of the OSA should, in general, be restricted for use only on matters concerning national security, defence of the realm and foreign relations.
Witness Protection Act 2009, Section 3 which specifies that a Witness Protection Programme (“the Programme”) is to be administered by a director-general. The director-general and his subordinates are appointed by the minister-in-charge of the programme
Amended so the management of the witness protection programme includes decision-makers who are not just police but individuals who have an “arm’s length” relationship to police such as retired judges, prosecutors, justice officials and lawyers.
While we understand that constitutional amendments to set up the IACC require a two-thirds majority in Parliament which the new government does not currently have, this fact should not be treated as an impediment to realising this reform in the long run.
Various steps that do not require constitutional amendments can still be taken now as short-term measures to ensure the MACC reform agenda is not brought to a halt.
In light of the foregoing, we propose:
1. A non-political appointee to act as the new MACC chairperson so as to ensure impartiality, integrity, and competence;
2. A separate office for the attorney-general and a public prosecutor with the public prosecutor being granted the mandate to act autonomously in accordance with public interest. This move would enable him to prosecute those in positions of power without fear or favour.
3. Amendments to sections 23 and 36 of the MACC Act 2009;
4. Amendments to other related legislation such as the Whistleblower Protection Act 2010, Official Secrets Act 1972 and the Witness Protection Act 2009.
Further details of these measures are available from the Memorandum for the Reform of the MACC.
CYNTHIA GABRIEL is executive director, Center to Combat Corruption & Cronyism (C4).
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
