This public forum is part of the #NyahKorupsi Campaign organised by IDEAS, to listen to the podcast of the forum click here.
The #NyahKorupsi campaign is a campaign by IDEAS to reform the Malaysian Anti-Corruption Commission and Attorney General’s Chambers. It’s main aim is to:
1. Strengthen anti-corruption laws
2. Create a more effective anti-corruption body
3. Give more independence to our Public Prosecutor, the person responsible for bringing corrupt individuals to court
Read more about the campaign proposals here.
IDEAS Chief Operating Officer Tricia Yeoh kicked off the forum by introducing the NyahKorupsi campaign and explaining why combating corruption is imperative to all Malaysians, regardless of where they are from. She emphasised the need for institutional reforms and systemic changes – reforming the MACC and the Attorney General’s (AG) Chambers are two important steps that need to be made to effectively tackle corruption and ensure accountability for individuals who commit corruption.
She then expressed IDEAS’ support for decentralisation of powers from the Federal government. She acknowledged the importance of the issue of autonomy for Sarawakians, and how decision-making powers need to be decentralised away from Kuala Lumpur and Putrajaya.
The first panellist, Shaza Onn began by asking the audience how often they have read about corruption scandals in the media. She exposed the RM199.7 billion that have been lost through illicit financial outflows in 2013, and what this amount of money can provide for the people of Sarawak. As corruption affects each and everyone of us, we should all be very concerned about the damaging consequences it has upon ourselves, and support reforms towards our anti-corruption institutions.
Shaza explained he weaknesses in the current setup of the MACC. The weaknesses are the fragility of the MACC being a statutory body and the absence of security of tenure for its commissioners. The first proposal for reform sought to address this through the establishment of the Independent Anti-Corruption Commission (IACC). The IACC will be a constitutional body, receiving its mandate from the Federal Constitution. The IACC’s commissioners will also be granted security of tenure and can only be removed through a process similar to the removal of a judge of the Federal Court. Some of the commissioners should come from civil society. In addition to that, a Parliamentary Select Committee, whose members consist of MPs from the government and opposition, will select the candidates for commissioners. The Dewan Rakyat and Dewan Negara will then vote on who is most qualified to be a Commissioner.
She then pointed out other weaknesses in the Malaysian Anti-Corruption Commission Act 2009. ‘Gratification’ in Section 23 of the MACC Act does not cover corruption in the non-pecuniary sense unlike in India where the Prevention of Corruption Act covers ‘public misconduct’ – a term that connotes any act that is an abuse of power. Furthermore, Section 36 does not provide allow MACC officers to investigate public officials who are living beyond their means which should be amended to give the MACC that power.
She highlighted other laws such as the Whistleblower Protection Act which at the moment does not provide adequate protections for whistleblowers as well as The Official Secrets Act (OSA) which should also allow for the declassification of documents that should rightly be made available to the public, such as the Auditor-General’s Report on 1MDB. Finally, she raised the issue of the AG and the Public Prosecutor who in IDEAS’ view should be two different people in order to avoid conflict of interest and political interference in the two roles.
Dato’ Sri Haji Zakaria Jaffar, the second panellist, started off by stating the different roles he has played in the MACC for over 33 years. He then described the various changes in all the different anti-corruption legislation that have taken place until now. He then explained the 3 main offences described in the MACC Act. Firstly, the offence of any person who gives or receives gratification to commit or not commit an act. Gratification covers various elements such as money, positions, commissions and donations. Secondly, using one’s position for his or his family’s benefit. This offence applies to public officials only. The third offence is when any person who uses any document that contains incomplete, false or suspicious information to mislead a principal.
Dato’ Sri Zakaria highlighted the fact that only MACC officers appointed under the Act have investigative powers. The public can only make complaints. This is why, trust in the MACC is extremely important. After conducting investigations, MACC officers pass on the papers to the AG’s office. The AG’s office can then do 4 things:
1. they can agree with the investigation
2. they can disagree due to lack of evidence
3. they can agree but charge individual A instead of B
4. they can charge additional individuals other than A and B.
The AG’s prerogative in this regard lies in Section 58 of the Act and Article 145(3) of the Federal Constitution.
Furthermore, the burden of proof for corruption cases is ‘beyond reasonable doubt’ and as such proving a corrupt act can be extremely difficult. Punishment for corruption offences on the other hand is a fine and a jail sentence for up to 20 years, at the discretion of the judge.
The third panelist, Ann Teo from ROSE started her talk by describing her movement and the reasons behind its founding. She explains that her focus is on voter empowerment, and ROSE gives citizens, Sarawakians in particular, a platform to engage in the democratic process. Ann showed the audience the various activities conducted by ROSE for the people of Sarawak, some of them include voter and civic education, how to choose your leaders, and raising awareness on anti-corruption. ROSE also worked with Tindak Malaysia and BERSIH regarding delineation issues, and to educate citizens on their rights as guaranteed in the Federal Constitution. Ann said that political patronage and vote buying still dominates Sarawak elections. She acknowledges that election corruption laws exist, but prosecutions have yet to be carried out.
Ann’s presentation focused more on vote-buying and electoral corruption in general. She particularly emphasised how vote-buying reduces the money that should be used for the rakyat’s benefit. Less money goes into the economy when business people fund campaigns and helps political parties buy votes. This also causes an uneven playing field for candidates. Ann highlighted the travel bans imposed on certain politicians during the campaigning period for the recent Sarawak state elections.
Questions and Answers Session
The first audience member, who is part of a Sarawak NGO, raised the point that true reform can only come from political will. He stated that Malaysia needs political reform, where government politicians cannot just reject whatever proposals that the rakyat puts forward. Political parties and NGOs should also work together to create awareness amongst rural communities especially. Reform needs to happen from the top to the bottom.
The second audience member, from BARAMAS, raised concerns over those who live in the rural areas and at the frontier. He stated that corruption cannot be fought with just the law, it needs to come from the people themselves. He wants the MACC to collaborate with the NGO that he is working in to help raise awareness amongst the people.
The third audience member asked whether or not there is a need for a separate state anti-corruption agency to deal with state issues, and what are the challenges in making sure there is no conflict of interest.
Shaza notes the lack of demands that the public have of their elected representatives. The people who elect those into power do not hold them to account enough for their actions. Malaysians do not question politicians as much as they should, as compared to the electorate in the US who question their representative much more. In India, there is a Freedom of Information Law that is used to provide information to the layperson, which makes it easier for voters to know what they are entitled to. This in turn enables politicians to be held accountable for their actions.
Ann noted that the proposals are holistic as it covers whistleblower protection as well. In our federal system, there are clear distinctions between state and federal jurisdictions. Tricia added that the MACC is still a centralised agency, and MACC Sarawak will still report to MACC Putrajaya. Sarawak now has 4 DPPs that have been delegated from the AG’s Chambers. They are only allowed to prosecute offences under state law. Because they are delegated from the federal AGC, they cannot prosecute on sensitive issues freely.
Shaza added that Sarawakians should be able to determine how corruption is fought as they know their state’s issues better than anyone else.
Kelvin from the DAP raised the point that Malaysian businesses tend to think that bribery and corruption is a norm in business. Direct negotiations are being carried out to get contracts because there are no discretionary limits on the number of direct negotiations that ministries are able to carry out. He asked if direct negotiation was considered corruption.