THIS article addresses the recent debates and differing viewpoints on the autonomy of the Malaysia Anti-Corruption Commission (MACC).
There is a growing consensus on the necessity of significant reforms within the MACC. These reforms are crucial to ensure its absolute independence, allowing it to function without political interference and maintaining its vital role in combatting corruption in Malaysia.
1. Constitutionally mandated commission
A new section should be added to the Federal Constitution, which would establish a constitutionally backed MACC to give the commission sufficient stability and power to perform its duty.
The new provision can be similar to Article 113 of the Federal Constitution, which delineates the functions, powers and objectives of the Election Commission. This ensures a unified policy framework for the MACC’s responsibilities.
A suggested caveat to this proposal is that the appointed chief commissioner should not be affiliated with any political party or facing ongoing criminal charges in court. This stipulation is intended to uphold MACC’s integrity and maintain a clean reputation.
2. Separate body to prosecute cases
Apart from the prosecutorial role defined in Article 145, the attorney-general (AG) is tasked with advising the Cabinet or ministers on legal matters.
To mitigate potential biases resulting from undue influence by the executive branch, the creation of a distinct office solely empowered to prosecute corruption cases, mirroring the structure of the UK’s Serious Fraud Office (SFO) is proposed.
The SFO, empowered by the UK’s Bribery Act 2010, operates autonomously with specialised prosecutorial powers.
Its mandate ensures that politically sensitive cases are prosecuted impartially, free from executive branch pressures. Implementing a similar model can provide a fair and balanced approach, ensuring that corruption cases investigated by the MACC receive unbiased treatment, unaffected by political pressures or conflicts of interest within the AG’s office.
3. Security of tenure and remuneration
Unlike judges and the AG, the chief commissioner does not have constitutional protection, making them vulnerable to government discretion.
In 2016, the MACC suggested amendments to the Federal Constitution to enhance its independence.
One proposal is to amend Article 132 to include an Anti-Corruption Service, and another is to introduce a new Article 138A specifically for the Anti-Corruption Commission, following the pattern of the Judicial and Legal Service Commission.
Comparatively, the appointment and tenure of judges in Malaysia, governed by Articles 122B and 125 of the Federal Constitution, can offer a model for the MACC.
Judges can have a secure tenure until a specified retirement age and can only be removed by the Yang di-Pertuan Agong under specific conditions, following an investigation by a tribunal.
Applying similar principles to the chief commissioner of the MACC will enhance their independence and transparency, enabling more effective investigations without political interference.
While the MACC functions as another arm of the public service, obtaining funding from the Consolidated Fund, it remains subject to the government presenting a budget and subsequently gaining approval from Parliament. This is in contrast to judges’ salaries explicitly designated as “charged on the Consolidated Fund” under Section 18 of the Judges Remuneration Act 1971.
This distinction is crucial as it shows the the extent of the commission’s independence. Therefore, providing the MACC with a level of financial security akin to that accorded to judges would augment its autonomy by diminishing dependence on government budgetary procedures.
4. Accountability to parliament
The MACC should be accountable to parliament instead of the prime minister. This can be achieved by abolishing the committees set up in Sections 13, 14 and 15 of the MACC Act 2009.
A new Parliamentary Oversight Committee (POC) should be established, mandatorily consisting of equal members from the opposition and government, excluding administration members.
Under this proposal, MACC would be obligated to regularly submit reports to the POC, encompassing its activities, investigated cases and allocated funds. Any queries raised by the POC would necessitate responses from the MACC.
The POC, in turn, would be responsible for providing regular reports to parliament and responding to inquiries about the MACC’s investigation progress and decisions if requested by parliament.
This approach enables continuous public scrutiny of the MACC’s operations, enhancing transparency and also public trust in the commission.
The newly proposed POC would consolidate the functions of the current five oversight bodies, ensuring checks and balances on the MACC while optimising resource utilisation.
5. Wider definition of corruption
Section 3 of the MACC Act 2009 should be amended to broaden the definition of “gratification” to include digital assets such as online currency, services or any benefit that exists in electronic form.
Furthermore, a distinction must be made between cultural gift-giving and bribery by amending Section 17 of the MACC Act.
How a gift can be differentiated from a bribe can be based on considerations such as the cultural significance of the gift, the timing of its receipt and the roles and responsibilities of the recipient. By including these factors, cultural practices of such gratification may be a successful defence in law when an individual is charged.
Malaysia should also align its anti-corruption measures with international standards, such as those set out in the United Nations Convention Against Corruption to ensure it is internationally coherent and credible.
In conclusion, overcoming corruption does not only depend on reforms in law. Any effective anti-corruption institution system must be coupled with leaders of strong political commitment or even the most perfect system would be futile and hopeless.
Without a strong political will in Malaysia, leaders and civil servants will only pay lip service to implement anti-corruption policies.
Leaders must also learn to develop a high sense of duty and integrity to steer the country away from corrupt practices.
Singapore, renowned as one of the least corrupt countries in Asia, serves as an example of how corruption can be minimised when a country’s leaders are dedicated to the cause.
The article was contributed by Samuel Lau Shiau Song, Tan Yi Juin, Lim Jia Xi, Tan Yee Koon, Thin Shiu Jim and Andy Chong Chun Fai from the “Institutional Affiliation – Taylor’s Impact Lab on Peace, Justice and Strong Institutions,” at Taylor’s University. Comments: letters@thesundaily.com
