Well deputy commissioner and operations head of Hong Kong’s ICAC, Daniel Li may be right that the MACC Bill is ‘very comprehensive and very focused’ covering wider area.

Govt is however wondering why no one is applauding to what Daniel Li opined. No one who is realist is applauding because of profound doubts that the MACC or for that matter legislation by itself will stem systemic corruption when other factors nurturing it are in full play unabated, for examples: factors such as feudal mindset in no small way as pointed out by trublumsian in earlier posting exacerbated divisions by race and ancestral origins, where people are willing to tolerate corrupt leaders in exchange for perceived protection in various forms;or lack of other pillars like a free media culture;or as pointed by Godfather, lack of check and balance in other areas; and also the fact that moneys to fund politics are, in the absence of defined guidelines and parameters, customarily raised from plundering of the national wealth and public coffers under all kinds of guises like Mega Projects and Privatisation ostensibly for public good for objective of winning elections and perpetuating political power…

Here raises then the classic dilemma – can promulgation of a comprehensive anti corruption law change corrupt human behaviour or the other way around corrupt behaviour will circumvent and triumph over the most stringent anti corruption legislation and requires “other medicine” to counterbalance its tendency towards corruption, with power?

HK & Singapore are societies under pressure where elites right from the start were determined to stamp out corruption to encourage a favourable investment climate imperative for the economic survival of the societies over which they govern. Here the situation in the beginning was radically different : a mentality of strife and competition under a milieu free from corruption found it hard to take root under swaying coconut trees, where black gold and natural gas ooze from the ground besides yielding other goodies, whether tin, rubber now palm oil and rainforest timber…

With strong cultural and institutional factors militating against this war on corruption, this essentially implies that to tackle corruption you are very justified, to level the playing field in this contest, to demand in your proposed 5 amendments to MACC Bill further safeguards even if more comprehensive and stringent than the HK’s or S’pore’s version, whilst, at the same time, not forgetting the battle in other fronts to strengthen independence of other ancillary institutional structures such as the Press, the Prosecution Division and the Courts – and perhaps on the manner of implementation of policies like NEP which might be conducive than inimical to a culture of corruption.

May we know what are the five amendments – and whether the right of MACC to initiate its own investigation and prosecution independent of Public Prosecutor/AG is one of these.

The NST 12 Dec quoted Hong Kong’s Number Two graft fighter Daniel Li as saying “In reading the bill, I can see two things…”First, the determination of the Malaysian government in treating anti-corruption as a priority…Secondly, the government realises the problem and has given independence and authority to MACC to do its job.”

And the The Sun in its report of 11th Dec quoted Daniel Li as saying “while prosecution powers can never be taken away from the Attorney-General, the fact that the Chief Commissioner of the MACC has prosecution powers is an attempt to ensure that no one agency is vested with sole prosecution powers.”

I wish to point out that the suggestion that “ MACC has prosecution powers….to ensure that no one agency (like Public Prosecutor/Attorney General Office) being vested with sole prosecution powers” is misleading and untrue.

The MACC has no independent prosecution powers under the bill or proposed Act (“Act”).

Section 58 of the Act is clear to state “A prosecution for an offence shall not be instituted except by or with consent of the Public Prosecutor”.

In any seizure of travel documents and property and dealing with banks and land offices under the Act, the authorisation by Public Prosecutor is necessary.

Public Prosecutor is the Attorney General Office whose prosecution of “big fish” is, based on record, a matter of skepticism. Could MACC be said to have teeth when it cannot act on its own without Public Prosecutor/AG’s authorisation?

Also if the government or any of its employee including the Public Prosecutor refuses or fails to take action or prosecute under the Act, they enjoy immunity. Section 72 of the MACC Act says that no action, suit or prosecution shall lie or be instituted against the government or its employees/agents in respect of any act done or omitted to be done in intended pursuance or execution of the Act for so long as it is done in “good faith”.

Now what is “good faith”?

When faced with evidence of corruption, all one has to do to desist from prosecuting and yet enjoy immunity is to say, well in my opinion, evidence is not enough to secure court conviction, so lets not waste time and public funds to prosecute it – well that’s also “good faith” ! :)

When it comes to investigating corruption, the MAC Act is very draconian for eg:

· It reverses time honoured prsumption of innocence until guilt proven beyond reasonable doubt ;

· It waives banking secrecy – they can probe your accounts in any bank;

· It makes an exception of privileged information, your accountants and lawyers cannot claim professional privilege but have to divulge your financial and property/business affairs;

· It authorises wire and email tapping in violation of privacy;

· It encourages entrapment by agent provocateurs, ie agents purposely tempting you with bribes to arrest you, these agents being themselves immune from bribing but their evidence against you is admissible in court.

Net net it is Ok for us to sacrifice all these curtailment of liberties provided it is for a good cause ie. the MACC having teeth to curb corruption but the situation is not like that here when the MACC is arguably not independent since discretion to prosecute or not to still vest with Public Prosecutor.

This means we are giving up principles protective of privacy and liberty and getting nothing by way of trade off, in return! (Same old situation as before where Public Prosecutor’s discretion to prosecute or not is paramount!).

In fact these draconian features make the wielders of power within the power structure even more powerful.

They can, for example, by selective prosecution, threaten or put their political opponents away by the MACC and yet protect political friends and backers, claiming immunity under the “good faith” section 78!

In this sense, the MACC Act buttresses the wielders of power within the ruling party/coalition rather than subjecting their powers to restraint.

If the bill “can do more than ICAC” as what Big Joe says, whicvh I don’t disagree, and the problem/fault lies in the people implementing it, then does it mean that the bill is OK and should, by its own merits, be supported by us?

It is not necessarily so. We should fix the bill in the manner that divests the people doubted from their wide discretionary powers that may likely be abused for selective prosecution.

So we should build into the Bill provisions on (1) giving MACC’s commissioner powers of prosecution independent of the Public Prosecutor and give (2) MACC’s commissioner security of tenure.

These provisions exceed even those that HK’s ICAC does, and in that sense our bill should be 10 times more stringent.

It is not giving people doubted 10 times more stringent draconian powers in the bill so that they can indulge in more selective discretion in prosecution – it is making the bill 10 times more stringent than ICAC in terms of building ion checks and balances, taking way or restraining discretionary powers of the Executive an d people doubted that might interfere with work of the MACC and its commissioner.

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