First amendment:

[Clause 5(6):

DELETE the words after “an officer of the Commission” and SUBSTITUTE “and shall have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code.”]

Until removed by the Anti-Corruption Act 1997, the Director-General of the Anti-Corruption Agency (ACA) had the powers of Deputy Public Prosecutor under the Criminal Procedure Code.

Thus, section 5(1) of the Anti-Corruption Agency Act 1982 states:

“5(1) The Director-General of the Agency shall have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code and all the powers of an officer of the agency.”

These powers of the ACA Director-General as Deputy Public Prosecutor were not given just by the ACA Act 1982, but were also in the Biro Siasatan Negara Act 1973, which was repealed by the 1982 ACA Act in order to effect a change in the name of the Agency.

Section 376(3) of the Criminal Procedure Code provides that a Deputy Public Prosecutor “may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally.”

Section 376(4) reads:

“The rights and powers vested in or exercisable by the Public Prosecutor by subsection 3 and sections 68(2), 184(2), 381, 385 and 386 shall be exercisable by the Public Prosecutor personally.”

As the six sections mentioned whereby the rights and powers of the Public Prosecutor must be exercised personally and cannot be delegated to the Deputy Public Prosecutor have nothing to do with the anti-corruption laws, this would mean that under the Anti-Corruption Act 1982, the Director-General of ACA had full independence, not only in terms of prosecution, but in full operational sense, such as investigations, search, seizure or arrest.

It is most unfortunate that on the 30th anniversary of the ACA, the important powers of the ACA Director-General as Deputy Public Prosecutor was removed and his position downgraded, and this must be regarded as one important factor why in the past 11 years, Malaysia’s anti-corruption standing took a nose-dive from No. 26 in the 1996 Transparency International (TI) Corruption Perception Index (CPI) when Parliament passed the Anti-Corruption Act, falling 21 places in 12 years to No. 47 in the 2008 TI CPI when Parliament is now debating the MACC Bill.

In this period, Malaysia’s CPI score had hovered between 5.02 in 1996 and 5.1 in 2008 (10 perceived as “highly clean” while 0 perceived as “highly corrupt) – while other Asian countries have either improved both their rankings or scores or both, viz:

Singapore

1996 – 7 (8.80)
2008 – 4 (9.2)

Hong Kong

1996 – 18 (7.01)
2008 – 12 (8.1)

Japan

1996 – 17 (7.05)
2008 – 18 (7.3)

Taiwan

1996 – 29 (4.98)
2008 – 39 (5.7)

South Korea

1996 – 27 (5.02)
2008 – 40 (5.6)

Malaysia

1996 – 26 (5.32)
2008 – 47 (5.1)

Parliament must ask: Will Malaysia’s ranking and score in TI Corruption Perception Index fall even lower with MACC Bill, just as they fell even lower from 1997-2008 after the passage of the Anti-Corruption Act 1997 because of provisions continue to put the Chief Commissioner under the thumb of the Public Prosecutor who is the Attorney General, with his record of selective and malicious prosecution and bias, as well as total lack of accountability and transparency.

Although the new MACC Bill reinstates somewhat the powers of Deputy Public Prosecutor to the top officer of the MACC, the Chief Commissioner, it is short of the DPP powers conferred on the Director-General of ACA before 1997, as apparent from the wording of Clause 5 (6) of the MACC Bill, which reads:

“5(6) The Chief Commissioner shall have all the powers of an officer of the Commission and shall have such powers of a Deputy Public Prosecutor as authorized by the Public Prosecutor for the purposes of this Act”.

There is no reference of the MACC Chief Commissioner being given the powers of “Deputy Public Prosecutor under the Criminal Procedure Code” but he is now kept under a tight rein by the Public Prosecutor, with the provision of “such powers of a Deputy Public Prosecutor as authorized by the Public Prosecutor for the purposes of this Act”, which is further reinforced by Clause 58 which stipulates “A prosecution for an offence under this Act shall not be instituted except by or with the consent of the Public Prosecutor”.

This is why I am also proposing an amendment of Clause 58 to substitute the term “Public Prosecutor” with “Chief Commissioner” of MACC.

There is widespread concern among jurists, former judges, former prosecutors and academicians that the downgrading of the position of the ACA Director-General, which is not fully restored in the MACC Bill for the Chief Commissioner, is an important factor for the lack of public confidence in the independence, impartiality, professionalism and effectiveness of the anti-corruption body in the country – why in the history of anti-corruption in Malaysia, only ikan bilis are caught but jerung have always been let off scot-free.

When the Anti-Corruption Agency was founded in 1967 under the first Director-General Tan Sri Harun Hashim, the ACA’s public standing as an independent anti-corruption agency was highest in the 41-year history of the ACA.

Unfortunately, after Tan Sri Harun Hashim’s tenure, the ACA had not been able to build on the public confidence enjoyed by the ACA.

Otherwise, the ACA should have become a premier anti-corruption body in the world instead of allowing the Hong Kong International Commission Against Corruption (ICAC) which was formed seven years after the ACA in 1974 to establish the international reputation as one of the best known and successful organisations dedicated to addressing issues of corruption in both the public and private sectors, to the extent that the Malaysia has to learn from ICAC, when it should be Hong Kong having to learn from the ACA!

This was why the deputy commissioner and head of operations of Hong Kong’s Independent Commission Against Corruption (ICAC) Daniel Li was feted as such a celebrity after the first reading of the MACC Bill, that his every word is regarded as ‘gospel truth” not only about the ICAC and anti-corruption in Hong Kong but also an authority on the MACC Bill and the corruption situation in Malaysia.

This was also what happened 11 years ago when the country was promised a new dawn in the battle against corruption with the enactment of the Anti-Corruption Act 1997, when Donald Li’s predecessor, ICAC Deputy Commissioner Tony Kwok Man-wai was regarded as such a “great catch” to promote the 1997 Anti-Corruption Act.

Isn’t it time for us to create the conditions and establish a record whereby other countries wanting to fight corruption would regard it as a “catch” to be able to invite top ACA or MACC officers to speak at their anti-corruption conferences and campaigns.

Will MACC create such conditions for Malaysia to even excel Hong Kong as a least-corrupt nation, as Daniel Li seems to be suggesting? If we want to create such conditions, then this and the other amendments to the MACC Bill which I am proposing should be adopted.

I wonder what Daniel Li could do if he is the Chief Commissioner of MACC. Why not engage Daniel Li to serve on contract as MACC Chief Commissioner for three years, to see whether the MACC Bill is better than the ICAC Ordinance and could make a world of a difference in propelling Malaysia from No. 47 in the Transparency International (TI) Corruption Perception Index (CPI) from the lowly No. 47 in 2008 to be among the world’s ten or 20 least corrupt nations in five years’ time?

(Speech when proposing amendments to Malaysian Anti-Corruption Commission (MACC) Bill during committee stage in Dewan Rakyat)