DECEMBER 30 — In recent discussions about enhancing the independence of the Malaysian Anti-Corruption Commission (MACC), Johor Ruler Sultan Ibrahim Iskandar proposed placing the MACC and Petronas under the purview of the Yang di-Pertuan Agong rather than Parliament. He believes that this change would safeguard the commission’s autonomy.

Prime Minister Anwar Ibrahim responded positively to this suggestion, indicating a willingness to deliberate on the proposal. However, former Prime Minister Tun Dr Mahathir Mohamad cautioned against taking this idea lightly, labelling it as merely the Sultan of Johor’s personal opinion. This proposal has sparked debate among legal experts based on the Federal Constitution. They argue that, as a constitutional monarch, the Agong acts on the advice of the Prime Minister, which implies that transferring MACC under the Agong’s purview might not effectively shield it from executive influence.

In light of these discussions and differing viewpoints, there’s a growing consensus on the need for substantial reforms within the MACC. Such reforms are essential to guarantee its complete independence, ensuring that the agency can operate without political interference and continue its critical role in combating corruption in Malaysia.

Solutions proposed:

1. Constitutionally mandated Anti-Corruption Commission

A new section should be added into the Federal Constitution which would establish a constitutionally backed MACC to give the commission sufficient security and power to perform their duty. The new provision can be similar to Article 113 of the Federal Constitution which clearly explains the functions, powers and objectives of the Election Commission. This is to ensure that a single unified policy is strictly followed when carrying out their duties. A suggested limitation is that any person appointed as the Chief Commissioner must not be affiliated with any political parties or undergoing any criminal charges in court to ensure a clean reputation for MACC.

2. Another body to prosecute cases aside from the Attorney General’s Chamber

The Attorney General under Article 145, aside from its prosecutorial function, is also responsible to advise the cabinet or ministers on legal matters. A solution to address any AG’s possible biases due to the executive branch’s undue influence is to establish another separate office that has powers to prosecute only corruption cases. This is seen in the UK’s Serious Fraud Office (SFO). The SFO, empowered by the UK’s Bribery Act 2010, operates with considerable autonomy and has special prosecutorial powers. Its mandate ensures that politically sensitive cases are prosecuted impartially, without succumbing to executive branch pressures. This model could provide a balanced approach, ensuring that corruption cases investigated by the MACC are handled fairly and are not swept under the rug as a result of political pressures or conflicts of interest by the AG.

3. Security of tenure and remuneration in office

Unlike judges and the Attorney General, 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. These changes would follow 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, offer a model for the MACC. Judges 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 would enhance their independence and transparency, enabling more effective investigations without political interference.

MACC essentially operates as another branch of public service where its funding is derived from the Consolidated Fund, but it still subjects to the government tabling a budget for it and then getting Parliament’s approval, unlike the judge’s salary which is explicitly stated to be "charged on the Consolidated Fund” under Section 18 of Judges Remuneration Act 1971. This is crucial as it shows the commission’s degree of independence. Therefore, the degree of financial security given to judges should be given to MACC in order to enhance the independence by reducing the reliance on government budgetary processes.

4. Accountability to Parliament

The MACC should be accountable to the Parliament instead of the Prime Minister by abolishing the committees set up in Section 13, 14 and 15 of the MACC Act 2009. A new Parliamentary Oversight Committee (POC) shall be establish mandatorily consisting of equal members from the opposition and government (but not from members of the administration). The MACC will be mandated to submit regular reports to the POC detailing its activities, cases investigated and funds allocated. Any questions raised by the POC are to be answered by MACC.

The POC will then be required to submit regular reports to the Parliament while also being required to respond to any inquiries regarding investigation progress and decisions made by the MACC if it is requested by the Parliament. Through this way, the public is able to consistently monitor the MACC’s operations which enhances transparency and also public trust of the commission. The new POC will carry out all the functions of the current five oversight bodies to effectively check & balance MACC while also consuming lesser resources.

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 like 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 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 (UNCAC) to ensure it is internationally coherent and credible.

In conclusion, overcoming corruption does not only depend on the reforms in law. Any effective anti-corruption institution system must also be coupled with leaders of strong political commitment or else 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. Malaysian leaders must also learn to develop a high sense of duty and integrity in order to bring the country away from corruption practices. Singapore, as one of the least corrupt countries in Asia, is an example that corruption can be minimised when leaders of a country are committed to the cause.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.