BY GURDIAL SINGH NIJAR
(Deputy President, HAKAM)
THE clamour for institutional reform has never been louder. From the ordinary layman who questions the false steps of some institutions – with mana boleh ini macam? – to the Bar Council’s measured assessments. All raise this as an urgent national agenda.
Even the MACC deputy chief commissioner (prevention), Datuk Seri Mustafar Ali, says that to “ensure our complete independence” the appointment of the chief commissioner should not just be provided for under the Malaysian Anti-Corruption Commission Act 2009, but instead be a constitutionally-appointed position like judges.
The Save Malaysia campaign has made this one of its key demands. Hakam, the premier National Human Rights body, headed by former Bar Council chief Datuk Ambiga Sreenevasan, speaks of the “dire need for institutional reform“.
Nobody denies that the bane of a country – corruption – must be curbed. Else the country may be on a roller-coaster to a dismal economic and governance future. Malaysia is a party to the UN Convention Against Corruption since 2008 which obliges it to enact measures to implement several anti-corruption measures aimed at preventing corruption, including domestic and foreign bribery, embezzlement, trading in influence and money laundering. And to cooperate internationally to provide effective legal mechanisms for asset recovery, technical assistance and information exchange.
Four years ago the prime minister said the government was studying a proposal for the MACC chief post to be a constitutional post (like that of the attorney-general, auditor-general and judges) to ensure MACC’s independence. He agreed to the formation of an independent service commission for the appointment and sacking of MACC members.
He promised “God willing, if Barisan Nasional is given the mandate of a two-thirds majority in the coming general election, appropriate amendments will be made to the constitution and the anti-corruption service commission will be formed.” He hardly needed to wait for a two-thirds majority. The opposition has always included an independent MACC as a pivotal part of its political demand.
In December 2014, Minister in the Prime Minister’s Department Datuk Paul Low said the Cabinet had given its nod for the MACC to have an independent service commission, which would also see to the appointment of the MACC chief.
But all has gone quiet on this front.
The cynical say that the 1MDB issue has effectively scuttled the move. Others more charitable say that the prime minister is attending to other urgent matters before returning to his reform agenda.
In the interim, there are disturbing signs indeed: Executive interference in transferring MACC officers in the midst of high-profile investigations; and the rather premature, if not swift, exoneration of person(s) by the attorney-general when the MACC’s report recommended further investigations.
The wider society’s concerns are reflected in the more recent joint memorandum by a wide swathe of civil society – the Bar Council along with four other bodies: IDEAS, Transparency International Malaysia, Centre to Combat Corruption and Cronyism, and the Citizens’ Network for a Better Malaysia. They proposed reforms including setting up an Independent Anti-Corruption Commission with this new commission led by a constitutionally-mandated chairman; and the commissioners guaranteed independence from the executive arm of government and security of tenure.
Other changes proposed include amendments to other legislation such as the Official Secrets Act and the Whistleblower Protection Act to improve witness protection and encourage whistleblowing; and the separation of the office of the attorney-general and public prosecutor to remove the conflict of interest between these two roles.
A threatened executive can undermine the effective functioning of a country’s anti-corruption commission. It can interfere in its work, provide no (or minimal) budgetary support for investigation of “venal” cases, and somehow ensure that its recommendations can be snubbed by those vested with powers to prosecute offenders.
It behoves the citizenry then to demand for change. We have indeed reached a stage where there is a vital need to ensure the successful establishment of an effective anti-corruption body. Recent scandals are of such gargantuan proportions that there is a precipitating crisis portending economic woes; the leakages are causing deep economic hardship; and the clamour by diverse groups for institutional reform point to a national consensual demand for change. The message to the MACC officers who are sincere in accomplishing their role: anti-corruption commissions are effective when they respond to that national consensus and a broad domestic coalition supports reform.
When support is more tenuous, the powers that be have “an incentive to weaken reforms and avoid any threat to their powerful constituents who profit from official inattention to expenditures, access to governments contracts, and other manifestations of public sector inefficiency” – according to a study.
Indeed events elsewhere have shown that an anti-corruption movement can be a powerful voice for change. In India the Aam Aadmi Party (Common Man’s Party) grew from a popular anti-corruption movement. In the 2015 Delhi Legislative Assembly election, the party won 67 of the 70 seats available. Its chief opponent, the Bharatiya Janata Party, was reduced to three seats, while the Indian National Congress was reduced to zero.
Gurdial was a former law professor at University of Malaya. He is the recipient of the Anugerah Akademic Negara (Journal article); and is the university’s nominee for The World Academic Science 2016 Prize. He is also Deputy President of HAKAM.