Transparency International Malaysia (TI-M) agrees that the Malaysian Anti-Corruption Commission (MACC) should have the discretion and the prosecutorial powers in order for it to effectively conduct an investigation and ultimately bringing a case up to the Federal Court.
This is especially true in some cases where the Attorney General’s Chambers (AGC) chooses not to proceed with the prosecution. This could be due to a number of possible reasons besides a difference in opinion between the investigation officer and the Deputy Public Prosecutor, a lack of evidence or the witnesses not willing to cooperate.
The prosecutorial powers should only be invoked by the MACC if there is sufficient reason to convince the advisory board that there is pressure from the top or because the case involves some cronies. In this case, the Attorney General should be made accountable to the parliament instead of allowing the case to be closed at his discretion.
This will allow the MACC to be accountable for its own track records. We have taken note of a number of cases which appear to have been closed by the AGC before it went to court citing a lack of evidence. This will have a demoralising effect on the investigating officer who may have put in long hours to collect evidence to convict someone of corruption, irrespective of whether it is a politician or a big time businessman.
To achieve this end, the government has to be seen having the political will to amend Article 145 of the Federal Constitution to include the Malaysian Anti-Corruption Commission (MACC) as one of the two parties besides the AGC to have the discretionary power to prosecute. At the moment, the Chief Commissioner and his officers are only given the power to investigate under Section 7 of the MACC Act 2009.
In the same breadth, the Federal Constitution Clause(3) of the article which empowers the Attorney-General to initiate, carry out or stop any proceedings except those before the syariah and military courts, should also be revisited, if prosecutorial powers are no longer to be vested on the Attorney-General alone.
However, for this to be effective, the MACC must report to a parliamentary committee co-chaired by a senior person from the ruling party and the Opposition, and either one of them has the power to instruct the MACC to proceed with a case if it smells ‘fishy.’ The Attorney General’s Chamber can still provide an independent advisory role on what is still lacking in evidence for the prosecution case to win the case up to the Federal Court.
The current system where the MACC would have to depend on the AGC is inherited from the British system, and it has its own pros and cons. The reporting line for both the AGC and the MACC is to the prime minister of the day. If with the existing system¸ where the both the MACC and the AGC continues to report to the prime minister, the MACC will be just another lame duck or a toothless tiger.
TI-M maintains that the tradition of the separation of powers within the criminal justice system should be maintained even as Malaysia addresses serious criminal cases involving corruption.
Taking the cue from US President, Obama Barack, TI-M has no reason to believe that even now, as it is, Prime Minister, Datuk Seri Najib Tun Razak cannot appoint the Opposition Leader or his representative, to chair the Anti-Corruption Advisory Board (ACAB) and/or the other 4 external oversight bodies of the MACC in a sincere effort to fight corruption. After all, Obama has appointed his opponent as the State Secretary and do away with the political differences where state administration is concerned. Recently, Tunku Abdul Aziz, ex-Vice Chairman of an opposition party and once the founding member and president of TI-M, has been appointed into ACAB. At one time, we have Dr Tan Seng Giaw served not only as the Vice-Chairman of Parliamentary Special Committee on Corruption but also an advisory member of MACC Special Committee on Corruption (SCC). Can we have the latest list of the members appointed to this SCC?
In the event that there is a degree of biasness by the co-chair of the special parliamentary committee or the Oversight Board to instruct the MACC to go after an opponent, the next level of check-and-balance would be the various levels of the Malaysian judiciary. The bottomline is that both TI-M and the nation are only interested in seeing the MACC to go after the big fishes, and the MACC is only worth its salt if it is able to prosecute and win big corruption cases running into the millions.
If there is a public outcry that there are evidences of abuses to the system, the parliament can then call for a Special Inquiry into the complaints, and if found guilty, the individuals concerned would have to be taken to task. To let off someone who has abused the system, or is clearly seen as corrupted, will only seek to embolden others to follow suit.
In the French system, the judge does both not just listen to the lawyer’s arguments; instead the judges themselves have the power to carry out their own investigations to determine the authenticity of the material facts or legal arguments presented. If there are merits to it, to follow the French judiciary, the Constitution would then have to be amended.
The proverbial saying is true, “Absolute power corrupts.” For this reason, TI-M maintains that there must always be check-and-balance, and if there are reasons to believe the AG’s Chamber, for example, have rejected the big cases of corruption, but the MACC manages to prove its worth by prosecuting and winning the case in court, the onus is therefore for the AG to either take a paycut, resign, or to do more for the country by fighting and curbing corruption. Malaysia, a corrupt free country.
Systems have to be reviewed from time to time in order to tighten the loopholes, but at the end of the day, it is who is holding the offices; therefore, removal of certain individuals has to be done in order to restore public confidence in the system.
Dato’ Akhbar bin Satar, President
Transparency International Malaysia
Dr KM Loi, Secretary-General
Transparency International Malaysia