Turning MACC into a law unto itself

By Tunku Abdul Aziz

A certain member of Parliament heading an MACC committee has suggested that MACC should not only be given more money, as if the tens of millions of ringgit of government funds already dished out are still insufficient, but also the power to prosecute cases investigated by that organisation itself. A monstrous idea even if the MACC had a reputation for the highest professional integrity which, of course, it hasn’t. The fact of the matter is that this much touted independent corruption fighting outfit modelled on the Hong Kong ICAC continues to be regarded with a degree of disdain.

The MAC does not enjoy the cachet and the public trust and confidence of the Malaysian public. Only corrupt politicians and public servants have complete trust in the MACC, but, sadly, for all the wrong reasons. Someone somewhere has to have his head examined for even thinking of making the MACC a law unto itself. Has the YB concerned not heard of the need for a system of checks and balances or the vital necessity of avoiding a conflict of interest situation in the conduct of public affairs as a means of reducing corruption? The whole harebrained suggestion is akin to allowing the Attorney-General to double as a judge in a case he has decided as AG to prosecute! He may well relish the idea, but will justice be served in the process? Or perhaps we don’t care.

The MACC is apparently only good at bleating about insufficient funding. Many anti-corruption agencies in countries much larger and better endowed than Malaysia would drop on their knees to thank God the Almighty for a drop of what we apportion to the MACC to do the work expected of them, but sadly they have failed to deliver. It is really quite pointless defending them on the grounds that they are still new. The acronym MACC may be new, and we sometimes forget that this is the same old wine-turned vinegar presented in a new bottle. By continually saying that they need even more resources, they are publicly admitting, and Transparency International HQ in Berlin please note, that corruption in Malaysia has become endemic in the system and has assumed Sub-Saharan African proportions. By their own admission, they have failed to arrest the spiralling problem of corruption in this country.

If the corrupt are crawling thick on the ground, in their thousands, why is it that the MACC has been so singularly unsuccessful in pulling in the bigger species such as cabinet ministers, chief ministers, menteris besar and others of their ilk? By your failure, are you intimating that Malaysian public figures are men and women of probity, honour, integrity and totally incorruptible? The money you ask for will be there, but we want to see some results. Is that too much to ask of our MACC that is proudly trumpeted and proclaimed as being based on the Hong Kong anti-corruption model? You can adopt any model, but do not forget that external factors can only be as influential as your internal weaknesses will allow. To use a soccer analogy, do you think adopting the German soccer model will make the slightest bit of difference to the moribund Malaysian national soccer team?

The MACC will not earn its spurs unless and until it is placed under “an all-party” parliamentary committee, and not Najib who himself has many allegations of impropriety to contend with. I do not believe that the chief commissioner has the courage to investigate allegations of corruption against the Prime Minister, and other high officers of state under existing arrangements. Your claims to professional independence in the present circumstances are nothing if not spurious to say the least.

The MACC is its own worst enemy. It is run, and I have no doubt in my mind, by people who are totally unsophisticated in the art of damage control. Even with its reputation in tatters resulting from its questionable interrogation methods in the Teoh Beng Hock case, it is insistent that it will not allow a video camera into the room in which its officers will record a statement of a witness in London which they are going to conduct shortly. It will also not allow a lawyer to be present during the interview of the witness. I am totally lost for words to describe the obtuseness of our corruption fighters. How on earth do they expect us to take them seriously when they cannot appreciate the fact that their actions are under constant scrutiny, and we are watching for signs that they can be trusted? They have to earn our trust by their actions which have to be grounded firmly in public duty for the public good. In short, In God We Trust, in the MACC we don’t without first seeing the colour of their money. Our “independent” MACC has its work cut out for it.

  1. #1 by habis on Saturday, 3 July 2010 - 11:22 am

    All along the reputation of MACC is in tatters and it is sad to admit that it has yet to show and prove to the rakyat that it is truly an independent body acting withour fear but at last can we trust them with their shoddy investigation methods which has yet to show results??In term of comparison with the Hong Kong counterpart they are way off in a scale of 10 they rank a low 2 and to provide further fund to this body is totally a waste of public fund unless it can prove to the rakyat that it is worthy of its very existence and only unanswerable to the King and not to the PM!!!Investigations into high profile cases are still ongoing but those which involves the other side will show quick extra fast rate of investigation almost overnight.Whether they are biased or not is up each individual point of view and obviously you and I will surely come to the same conclusion.

  2. #2 by dagen on Saturday, 3 July 2010 - 11:22 am

    Oh come on. We have angkasawan. We cant be that bad. Well at the least we are surely better than singapore. Ask spongebob. He can testify for us. And I am sure patrick star would second him. Just one issue, tunku dont be like that ever doubtful and suspicious squidward tentacle.

  3. #3 by k1980 on Saturday, 3 July 2010 - 12:16 pm

    If you have US$194,000 and a sport pilot license, the moment you spot the macc coming for you, just hop in and zoom away at 115 miles per hour.


  4. #4 by Jeffrey on Saturday, 3 July 2010 - 12:31 pm

    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.

  5. #5 by Jeffrey on Saturday, 3 July 2010 - 3:33 pm

    On tackling corruption there are two watchwords – “political will” and “independence” and what exactly “independence” entails.

    Where there is a genuine and strong political will to stem corruption as a social & economic cancer, the issue of ‘independence’ of institutional framework of anti corruption agency is of marginal importance only. The case in point is Singapore’s Corrupt Practices. Investigation Bureau (CPIB). It has a good anti- corruption record even though it hardly can be said “independent” in that all corruption prosecutions investigated by CPIB needs not only the Public Prosecutor’s consent, but where they concern high level officials, the consent of the Prime Minister is required as well! They have a PM there who had the resolve there to investigate his own ministers who earning S$50,000 a month have no excuse to be corrupt!

    However in countries of lesser discipline, where the political and cultural ethos tolerate if not support corruption to flourish, what the Tunku said about “the need for a system of checks and balances or the vital necessity of avoiding a conflict of interest” is spot on and crucial.

    The question is how much “independence” and how the nature of check and balance?

    It is ideal but impractical, if contemporary examples elsewhere are indicative, to expect 100% total independence of anti corruption branch from the Executive. No Executive permits that. The Executive (Govt) always has the excuse that constitutionally as well as customarily the enforcement of law rests with the Executive arm of government. Hence even the efficient anti corruption branch of Hong Kong (ICAC) reports directly to HK’s Chief Executive and before it prosecutes, it has to procure the consent of the Hong Kong Secretary of Justice, like our AG here. Even in the US, the anti corruption agency there – Office of Government Ethics (OGE) – has to report to Department of Justice headed by the AG for approval.

    The difference is that whilst the Executive in these places have ultimate power of oversight and control regarding prosecutions of corruption, there are other institutional checks and balances built in to balance the Executive’s power in the entire process beginning with investigations, through recommendations to prosecute to prosecution itself.

  6. #6 by Jeffrey on Saturday, 3 July 2010 - 3:40 pm

    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.

  7. #7 by DAP man on Saturday, 3 July 2010 - 3:58 pm

    Excellent piece Tunku!!

    Just like the Judiciary, PDRM, AG Chambers and EC, the MACC has been leashed like a dog to the doorpost.

    There is no way this dog will bite its master – PM and his gang of robbers.

    It can do nothing, but bark occasionally.

    There is no way we can compare MACC to Hong Kong’s ICAC.

    ICAC have integrity and walk tall. MACC are pet dogs and walk with its tail between the legs when it confronts the master.

  8. #8 by Winston on Saturday, 3 July 2010 - 10:43 pm

    Well, after talking so much and so voluminously about the doubtful qualities of the UMNO/BN government, isn’t it time to throw in your lot with the PR and let them govern this country for at least one term as the Federal government?

  9. #9 by limkamput on Sunday, 4 July 2010 - 4:21 am

    Why are we discussing the MACC, the Police, and the Judiciary endlessly? They will never have the independence or the power to decide anything on their own. So, why keep discussing the independence or the power of these institutions? Didn’t we try to give the former ACA more power and you look at the performance of MACC now? Didn’t we try to pay the police better, give them better equipment and give them better promotion opportunities and you look at how they perform their duties now? Didn’t we discuss and institute procedures at length on how top judges should be appointed and you look at what has happened now? Ultimately, it is the government of the day. Did we have men and women of character at the helm? Some of you may want to argue we are the ones who elect our government. My answer to you is: then you look at the election process and the maturity of our people.

  10. #10 by syeikh85s on Monday, 5 July 2010 - 12:50 pm

    I have read many articles and comments that want the MACC without all the powers of investigation and prosecution as what Tunku Aziz is saying. It will be a good system to check and balance on MACC. People must understand that MACC is an investigative entity and must not have the power to prosecute. Let the AG Chambers decide on charges. However, the AG must be accountable and transparent on all cases that have been sent for perusal. I disagree with Tunku Aziz that you need little money to fight corruption. This is not TI but an investigation institution which need a huge amount of money to pay wages, allowances, vehicle, training, rental for office, utilities, marketing, advertising and promotion and so on and so forth to educate the citizens in the fight against corruption. T. Aziz has failed in his tenure as the President of TI-M which now is in a good hands of Datuk Paul Low. TA speaks as though an expert but is not. He reads and writes on corruption but shallow in knowledge in enforcing the laws of corruption. Experts advice and give opinion to counter corruption not curse and criticize the entity which fights corruption. It looks like TA has an axe to grind with the chief of MACC if not for some vested interest. I thought intellectuals and NGOs will go together with graft fighters in fighting corruption but seems TA is not included as he seems to always wrong others than to be some help. May be he is not an expert on the matter but knows to talk much without any idea on the matter.

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