I understand it was this BN’s Kangar MP Datuk Seri Mohd Radzi Sheikh Ahmad in one of MACC’s select committees who would be proposing to PM to let MACC have, besides more funding, independent prosecution powers from AG in order to improve MACC’s image and restore public confidence in MACC.

Graft fighter extraordinaire, Tunku Abdul Aziz (Tunku) here derides Radzi’s suggestion. “Someone somewhere has to have his head examined for even thinking of making the MACC a law unto itself” the Tunku says.

I think thats being too hard on Radzi. His suggestion (though simplistic) is well –intentioned and anyway reflect the fashionable opinion of large swathes of public and civil society that MACC is not independent, tied, as it vwere, to the umblical cord of the AG’s office [At present, our MACC cannot, after investigation, initiate prosecution on its own unless with Public Prosecutor (AG)’s consent as required under section 50 of MACC Act. AG is however a cabinet minister appointed by PM and government’s principal lawyer. So how can his office wearing 2 hats – one for govt and the other public – be seen by public as independent to have final say whether MACC’s investigations will lead to prosecution or otherwise?]

Anyway what’s the Tunku’s beef in MACC becoming “a law unto itself” in sense of being investigator and prosecutor all rolled into one without these aspects being subject to another body’s oversight?

After all, the corrupt guys at the top of political and bureaucratic heirarchy are also and already a law unto themselves – so whats wrong with MACC, the law unto itself, being pitched against these others laws unto themselves ??? Let them get at each others throats!

OK I am joking! Tunku has made a valid point – that what happened to Teoh Beng Hock is good justification not to allow the MACC to be “law unto itself”.

But who should then exercise oversight over MACC in the stead of the Public prosecutor (AG)’s office on matters of prosection?

Tunku suggests that the “MACC will not earn its spurs unless and until it is placed under “an all-party” parliamentary committee, and not (PM) Najib…”

From the standpoint of “independence, there’s no doubt that ” Tunku’s suggestion of of as “all-party parliamentary committee” (with members drwn from Opposition) is ideal because it represents total independence from the Executive.

However though ideal is Tunku’s suggestion practical? I don’t think so because the ruling parties in power (whose say is final regarding changes to MACC’s institutional framework) will never implement such a proposal that strikes at the heart of the patronage ridden system in which they sit on and thrive. Imagine any case involving allegations of corruption against any of the ruling parties politicians will, upon MACC’s investigation, be brought under the oversight of such a “all-party parliamentary committee” in which is comprsied a few opposition members like YB Kit here, and even if such a committee determines that there’s no case to prosecute, the facts obtained by Opposition members in such a committee may be used as political fodder and raised publicly in parliament enjoying full parliamentary immunity from strictures and penalties in the MACC Act regarding secrecy of matters investigated (for protection of those investigated) that did not culminate in prosecution for reasons of lack of proof.

Contiuing from the preceding posting:

If it were not practical to exclude Executive’s oversight entirely, it does not mean that any Executive’s oversight over and power in enforcement of law cannot be subject to “carves out” and exceptions by way of checks and balances.

To name a few examples of such carves out/check and balances:-

· the Prosecutor’s or MACC’s chief’s tenure of service can, like a judge’s, be protected against arbitrary removal by Executive;

· in the US’s case the AG must within 30 days of receiving an allegation of (say) corruption investigate and shall not later than 5 months from the start of such investigation signify to the Independent Counsel Division of any U.S. Court of Appeals whether or not there is need for investigation and prosecution by an Independent Counsel;

· in the case of Indonesia’s Komisi Pemberantasan Korupsi, it could have recourse to prosecute in separate Anti-Corruption Courts set up.

In our case, for example, maybe MACC could be empowered to prosecute directly without AG’s consent officials below echelon I and 2 of Civil Service

In the case of any official from 1 and 2 upwards including ministers, any prosecution would as normal require Public Prosecutor/AG’s consent.

However if AG’s approval were not forthcoming within 6 months of MACC’s submission of investigation papers to it, then MACC, with the consent of its oversight committee, could be empowered to apply to any High Court for leave to directly prosecute the case by MACC’s own prosecution team before any of the High Courts, and so on and so on.

These examples are just hypothetical for illustrations only of how “carves out” may, in principle, be made to the general rule of Executive’s oversight.

They are not meant to be exhaustive for consideration. Experts on this subject could work out modalities of what form checks and balances may take.

Suffice to say, the idea here is not to be rigid. ie to demand a total exclusion of Executive’s control and oversight over prosecution of corruption cases in the name of absolute “independence” from Executive – for to do so is not practical – but, by changes in law or constitution, to build within such Executive’s general oversight and control, various institutional checks and balances to mitigate conflicts of interest raised by Tunku Abdul Aziz in his commentary above.