by Wan Saiful Wan Jan. First published by digitalEDGE weekly 17 August 2015
At around 10.45am on Tuesday 28 July 2015, my colleagues and I arrived at the Malaysian Anti Corruption Academy. The MACC Advisory Board chaired by Tunku Abdul Aziz Tunku Ismail had their meeting that morning and we were invited to present our proposals on how the MACC can be made more independent and stronger.
We were supposed to start our presentation at 11am. But Minister at the Prime Minister’s Department Dato’ Paul Low was still in the room with the Board and there was no sign that we would be invited in as scheduled.
At around 11.15am things started to go haywire. News about the sacking of Attorney General Tan Sri Abdul Gani Patail was making its round and everyone was shocked. In between answering calls from local and international reporters, my chat with others in the lobby very quickly turned to questions about why Gani was sacked.
We were almost unanimous. The sudden sacking led us to assume that he must have been presented with enough evidence to charge the Prime Minister for corruption. And to prevent prosecution, he had to be removed. Of course this was just gossip and there is absolutely no way to confirm or refute the assumption.
Unfortunately that thought crossed our minds because the Attorney General is the sole person who can decide whether or not to prosecute. His removal would be the most efficient way to derail an anticipated prosecution. So even if the idea is wrong, that perception is inevitable.
Our chat in the lobby then went on to the fate of the MACC’s Chief Commissioner Tan Sri Abu Kassim Mohamed. If someone as important as the Attorney General can be removed just like that, then what of the MACC’s head?
Interestingly enough, Tan Sri Abu Kassim is still in office until today. But his staff have not been that lucky. The latest case was when two senior officers were transferred out from the MACC on Friday afternoon, only to be transferred back to the MACC on Monday. This was government efficiency at record level. Even transferring my child from one school to another is more bureaucratic.
Nevertheless all these actually proved our point. For quite a while we have been arguing that the MACC needs to given greater independence, including the power to hire and fire their own staff. What happened over the last few weeks clearly showed how dangerous it is when the MACC does not have the freedom that they deserve.
Some parties are calling for an MACC service commission to be established. The idea is that the service commission will supply manpower to serve the MACC, similar to the Public Service Commission supplying and overseeing staffing of public services. But this suggestion is weak. It creates only the independence to hire and fire and not the independence in other aspects of investigation and work.
In fact, a service commission would give power only to that service commission itself and not to the MACC. In practice the MACC still does not have the independence that they need. What difference is that from the current situation? For example, what if the service commission decides to transfer key staff at a time when there is an ongoing investigation? The Chief Commissioner still does not have any say. And the status quo would remain.
That is why we propose a superior arrangement whereby the whole MACC should be elevated to become a constitutional commission. We want the MACC to be “promoted” to become the Independent Anti Corruption Commission (IACC), and they then be given complete autonomy in every aspect, similar to the status of the Election Commission today.
On top of that, we propose for up to 15 people to be appointed as IACC Commissioners, all of whom should enjoy security of tenure similar to that of a Federal Court judge. Among this 15 commissioners, 40 percent should be from civil society, so that the IACC will earn the trust and respect from society at large.
The IACC should be given full autonomy and power over anti-corruption policies, practices and directives. They should control their own recruitment and discipline of officers, and they should also have complete powers of oversight and supervision. And equally important is that the post of the IACC Chairman should also be constitutionally recognised and mandated.
This raises the question of who will conduct investigations if the MACC is elevated to become a constitution commission. Our proposal is for the current operational functions of the MACC to be given to a newly formed Anti-Corruption Agency (ACA). The ACA is the one responsible for operational matters involving detection and investigation of corrupt practices or activities.
Of course there are many steps that need to happen concurrently. The first step is our Federal Constitution needs to be ammended. This will requires two thirds majority in parliament, which means both sides of the political divide need to agree on it.
Working with other partners in this project, we will soon be holding a series of events to explain our proposal to the public. The proposal paper itself is already available freely on our website.
At a time when many parties are showing support to the MACC, it is timely that a holistic and proper reform is considered seriously. And, frankly, having seen how the MACC is treated lately, isn’t it time we stop the rot before it gets worse?
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Wan Saiful Wan Jan is chief executive of the Institute for Democracy and Economic Affairs (www.ideas.org.my)