Ladies and gentlemen.
It is my pleasure to welcome you all to today’s Public Consultation on the Reform of the MACC.
There is a perception among Malaysians that corruption is common in our country, present at all levels of society.
According to the Corruption Perception Index by Transparency International, which ranks countries according to how their public sector is perceived in terms of corruption, Malaysia was ranked 52 out of 175 countries in 2014. The year before that, 2013, Malaysia was ranked 53 out of 177 countries; and the year before that, 2012, Malaysia was ranked 54 out of 176 countries. 10 years ago, Malaysia was ranked 39 out of 158 countries. Thus, it would appear that the situation in Malaysia has not improved over the past ten years.
The Malaysian Bar views corruption as a matter of serious concern because corruption undermines the rule of law; denies the principles of fair competition; misuses public funds; entrenches bad governance; hinders efforts to eradicate hunger and poverty; degrades our environment; harms human health and well–being; and contributes to instability and human rights abuses. In short, corruption harms people’s lives, damages our economy and destroys our natural environment.
If Malaysia is to realise our aspiration to be a truly developed nation; to be advanced politically, economically and socially; and not merely have the appearance of a developed nation; the elimination of corruption in Malaysia must be given high priority on the reform agenda, which is why we are gathered here today.
The Malaysian Bar would like to seek public feedback on reform proposals with respect to existing anti–corruption laws for the purpose of enhancing the MACC’s ability to combat corruption.
Over the last few years, the Bar Council has been engaging with the MACC in general, and particularly with Tan Sri Abu Kassim, the Chief Commissioner of the MACC; Dato’ Sri Haji Mohd Shukri Abdull, the Deputy Chief Commissioner in charge of Operations; and Datuk Mustafar Ali, the Deputy Chief Commissioner in charge of Prevention on issues of fighting corruption. They too are desirous of strengthening the MACC. I take this opportunity to record my thanks to them for having been most welcoming and open to such engagement with the Malaysian Bar.
Eight months ago, Tan Sri Abu Kassim and the MACC approached the Malaysian Bar to seek our feedback to their desired reforms to the institution that is the MACC and the MACC Act so as to fortify the MACC’s ability to combat corruption.
Subsequent to that, the Malaysian Bar engaged with the MACC and civil society organisations to discuss the aforementioned proposals and to formulate more comprehensive proposals that can address the greater challenge of eradicating corruption in Malaysia.
This led to the Malaysian Bar collaborating with IDEAS, with support from Transparency International–Malaysia (TI–M), The Centre to Combat Corruption & Cronyism (C4) and The Citizens' Network for a Better Malaysia (CNBM) to address the challenges of corruption in Malaysia.
We also sought the views of other civil society organisations such as the Malaysian Centre for Constitutionalism and Human Rights; Penang Institute, Sinar Project and Bersih 2.0. I take this opportunity to thank them for the comments, ideas and feedback that they have contributed.
The result of all these discussions is a set of legislative and institutional reform proposals that we have outlined in a memorandum that we will share with the public today for your views. This memorandum contains proposed next–steps in the continuous improvement of the MACC and the fight against corruption.
These proposals are but part of the gradual and progressive evolution of anti–corruption efforts that have been taking place even before Malaya gained independence.
In 1950, the British introduced the Prevention of Corruption Ordinance in 1950 to replace previous laws related to corruption in the Federated Malay State, the state of Johor and the Straits Settlements.
In 1959, as a young nation, the newly formed government of Malaya established two units working under different departments to tackle corruption. They were the Criminal investigation Department (Special Crime) under the Royal Federation of Malaya Police (now known as the Royal Malaysian Police or PDRM) and the Corruption Prevention Unit under the Prime Minister’s Office. Meanwhile, prosecution was carried out by the Attorney General’s Chambers.
In 1961, the Prevention of Corruption Act was passed allowing for the establishment of the Anti Corruption Agency (“ACA”) under the Ministry of Home Affairs. The ACA began operations formally on 1 October 1967.
In 1973, the ACA was restructured and renamed as the National Bureau of Investigations (“NBI”) in accordance with the passing of the National Bureau of Investigations Act 1973 becoming a full–fledged department under the Home Ministry. The NBI’s task was not only to enforce the Prevention of Corruption Act 1961, but also to enforce the 1967 Customs Act, the Penal Code, the 1967 Police Act, and the Emergency Ordinance.
In 1982, in a move to create a specialised body to address corruption in terms of its roles and functions, the Anti Corruption Agency Act 1982 was enacted and the NBI was re–named as the Anti Corruption Agency.
In 1997, the Anti–Corruption Act was enacted. It replaced the Prevention of Corruption Act and it granted the ACA the powers to investigate, interrogate and arrest offenders of both private and public sector corruption. The ACA was also given the power to access documents and question witnesses as they feel necessary; freeze assets; seize passports; monitor income and assets; and propose administrative and legal reforms. Thus the ACA was able to adopt a more comprehensive approach toward eradicating corruption.
In 2008, the Government repealed the ACA Act 1982 and replaced it with the MACC Act 2009 that outlined the establishment of a commission to be known as the Malaysian Anti–Corruption Commission (MACC), replacing the ACA. According to the MACC Annual Report 2009, the MACC was established “to enhance the effectiveness and efficiency of its anti–corruption efforts as well as to improve perception of independence and transparency of the functions of the Commission.”
To improve the MACC’s transparency and professionalism, as well as to address public perception with regard to its work, check and balance mechanisms were established in the form of five independent oversight bodies whose ambit is to closely and constantly monitor the functions of the MACC to ensure that the functions and roles of the MACC are implemented efficiently, effectively and independently.
The five independent oversight bodies are
a) the Anti–Corruption Advisory Board (ACAB);b) the Special Committee on Corruption (SCC);c) the Complaints Committee (CC);d) the Operations Review Panel (ORP); ande) the Consultation and Corruption Prevention Panel (CCPP).
The first three independent oversight bodies mentioned are established by statute whereas the last two are established by administrative order.
The membership of these five bodies is intended to be representative of the interests of the general public; and consist of people who are of high caliber and good standing in society. The functions of these five oversight committees are important for good governance and as check and balances for the role and functions of the MACC.
Two weeks ago, on 23 February 2015, the Prime Minister announced 26 new appointments to three of the committees i.e. the Complaints Committee; the Operations Review Panel; and the Consultation and Corruption Prevention Panel. We look forward to the work of these five committees in fulfilling their respective functions.
Altogether there are 45 individuals sitting in the five committees currently. Of these 45, 10 of them are ex–senior government officials; 10 are academicians; 8 are from the corporate sector; 7 are current legislators in the Dewan Rakyat and the Dewan Negara; 4 are heads of media organisations; and 3 are members of civil society.
Broken down by gender, 37 of them are men and eight are women.
It is the Malaysian Bar’s hope that the membership of these five oversight committees will be further strengthened in the future by featuring more members and leaders of civil society and more women as well, for greater diversity of views, expertise and background.
Ladies and gentlemen,
There is a structural weakness in the MACC. It does not have the power to recruit its own staff and has to draw their staff from the common pool of civil servants, as mandated by the Public Service Commission and administered by the Public Service Department.
The MACC does not have the ability to directly recruit, interview and employ candidates who in their minds have the requisite qualities to be officers of MACC. This makes it difficult for the MACC to employ officers who are independent and able to investigate allegations of corruption of other civil servants without fear or favour.
Further, the Chief Commissioner of the MACC does not have security of tenure. Although he or she is appointed by the Yang Di Pertuan Agong, the service and tenure of the Chief Commissioner is nevertheless wholly dependent upon the advice of the Prime Minister rendered to the Yang Di Pertuan Agong who is constitutionally obliged to follow and act upon the advice.
These provisions do not lend to the independence of the office of the Chief Commissioner and therefore the overall independence of the MACC.
Thus, it is proposed that an Anti–Corruption Service Commission be set up under the Federal Constitution to redress this; the salient features of which are set out in our memo.
Other proposals contained in the memo pertain to the MACC Act to strengthen the ability of the MACC to act against corruption. For instance, it is proposed to have a provision making it an offence for public officials to abuse or misconduct themselves in public office.
According to the United Nations Convention Against Corruption,
“Public official” shall mean:(i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority;(ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party;(iii) any other person defined as a “public official” in the domestic law of a State Party”
In addition, it is also recommended that there should be a law that governs the declaration of assets by public officials and that it should be an offence to be found living beyond one’s known means of income.
It is also proposed that there should be a provision in the MACC Act 2009 to provide for corporate responsibility or liability of businesses for the corrupt acts of their employees.
There are also other related proposals pertaining to amendments to the Whistleblower Protection Act 2010, the Official Secrets Act 1972, the Witness Protection Act 2009 and the enactment of a Freedom of Information law. A presentation of these salient features will be made in the course of this evening.
I wish to express my sincere appreciation to the MACC for looking to the future of MACC and for being desirous of enhancing and improving the MACC to perform its functions and undertake its responsibilities in an independent, efficient and effective manner.
To all present here, I once again express a very warm welcome to you. May we have a meaningful and insightful discussion today.
Thank you.
Christopher Leong
President
Malaysian Bar