Politicians taking potshots at MACC is mere hyprocrisy

A Concerned Criminologist, The Star

THE celebrations of both the 64th National Day and 58th Malaysia Day brought to light debates surrounding the true essence of the word “independence”. More so, regarding the independence of Parliament, the Judiciary and other important institutions.

Much has been said both in the mainstream and social media, with arguments and perspectives from various commentators projecting their thoughts from both ends of the spectrum. Presently, one of the most controversial debates is on the independence of the Malaysian Anti-Corruption Commission (MACC).

Questions continue to arise over the need to enhance the independence of MACC, such as “should the MACC be under direct jurisdiction and oversight of Parliament or even under the Yang di-Pertuan Agong (YDPA)”. Many argue that only if MACC is directly under the oversight of either Parliament or the YDPA, can it be truly independent of influence and meddling of vested interests. Let us dissect and examine the arguments above.

Questions we should be asking is at the state it is in now, is MACC not independent? Are there no checks and balances in place currently via any oversight by independent bodies? Does placing MACC under either the purview and oversight of Parliament or YDPA truly makes MACC independent?

Is MACC independence to act guaranteed under the oversight of Parliament? By conducting a comparative analysis of the model: so far, we only have Indonesia’s Corruption Eradication Commission or Komisi Pembenterasan Korupsi (KPK) as a benchmark. Mulholland and Sanit (2020) highlights that the commission is an anomaly in Indonesia’s corrupt institutional environment. Even though KPK is projected as one of the “world’s most effective anti-corruption agencies, critics and state powerholders had duplicitously argued for the KPK to be reinvented to function as a politician-friendly ‘watchdog’ focusing on corruption prevention”.

One can argue that the House of Parliament is the nest where politicians “live”. The dynamics of a parliament monopolised by members of one party or group of parties similarly aligned in the majority will determine any action by MACC in the interest of the political party or parties.

The question remains – why is it a travesty to place MACC under Parliament? If MACC is placed under Parliament then the freedom of action will be fully controlled by Parliament where its members will dictate the operational functions of MACC according to their political whims and fancies.

One need to consider the scenario where the majority of Members of Parliament (MPs) are from the same party or coalition of parties ruling the country, then the direction of MACC may be determined by that particular group. A clear example here is Indonesia’s KPK. The immense difficulties faced by KPK in performing its investigations due to red tape, bureaucracy and political agendas are hampering KPK, which needs to get the approval of a special committee appointed by the President and consists of MPs.

Many may not realise that MACC is monitored by five independent committees. These existing monitoring entities are more than adequate to curtail any unwanted biases in the operational functions of MACC. These entities cast a hawk eye on the operations in terms of policy and direction, operations (investigation and prosecution), discipline, prevention and a dedicated Special Committee on Corruption which consists of MPs.

One other question that has been brought up by a number of commentators is whether MACC should be accorded the power to prosecute? My argument is that this will be open to more accusations of abuse of power. There needs to be separation of prosecutorial powers from the investigating authority. The element of checks and balance must not only be in place but must be seen to be in place.

As it is now, the Attorney General’s Chambers (AGC) is the entity empowered to prosecute. Even so, in every instance where a prosecution may fail or a charge is withdrawn, MACC gets the brunt of blame even though it is not in its powers to prosecute. Imagine if the powers of prosecution are given to MACC, there will be an outcry and allegations of abuse levelled at MACC every time there is a failure in prosecution either because of technical legal issues or just bad prosecution.

It is the Attorney General’s office that should answer, not the MACC. One point to note is that the Attorney General and the Solicitor General (the Law Officers) have a duty to give legal advice to government, hence its independence can be questioned. Therefore there needs to be an independent body mirroring that of the United Kingdom’s Crown Prosecution Service (CPS) that should be responsible for all prosecutions.

This new body will be independent of the AG and responsible for prosecuting all criminal cases, including corruption cases for all investigative organisations in Malaysia. All decisions to prosecute are independent of the government. This body’s remit, just like the CPS, includes deciding which cases should be prosecuted; determining the appropriate charges in more serious or complex cases; advising all investigative organisations during the early stages of investigations; preparing cases and presenting them at court; and providing information, assistance and support to victims and prosecution witnesses.

The prosecutors must follow a Code of Conduct similar to that of the CPS. With regard to the appointment of the Chief Commissioner, many would support the constitutional amendment for appointment to be decided by Parliament. However, the candidates must be from serving MACC officers. We cannot repeat the debacle of political appointments to the post as was done previously.

The most important caveat is that there must be security of tenure. This will ensure that the Chief Commissioner will have the independence to act without fear or favour against anyone from across the political divide when initialising any investigation. Threats and intimidation by anyone will not have any bearing for him/her to succumb to with security of tenure.

What is interesting is during the time of writing this piece, we are witnessing enormous pressure from politicians and others calling for the Chief Commissioner to take a leave of absence or so-called “garden leave”. The argument is that the Chief Commissioner must take overall responsibility and be accountable to any wrongdoings or criminality committed by officers of the commission. What is laughable is that the same politicians, the likes of Lim Guan Eng, Mohamad Sabu and a number of others from both sides of the political divide are clamouring for this when either they themselves or those under them are under investigation or facing charges themselves.

We do not see the DAP or Amanah leadership going on garden leave themselves because of the wrongdoings of their subordinates! Their hypocrisy is glaringly visible. They need to talk the talk and walk the walk! If the yardstick of accountability is that the leaders of law enforcement agencies should go on garden leave, why was there no outcry for the Inspector-General of Police or the Director-General of Immigration to go on similar leave of absence when cases after cases of corruption and other criminal prosecutions of officers that plagued the Royal Malaysia Police and Immigration Department respectively, came to light?

Hence the 25-million-ringgit question here is why are those political wolves demanding for the Chief Commissioner’s head to be on the guillotine? One reason could be for their own political survival and by training their guns on the commission’s leadership and creating a fog of war and ultimately putting into question the integrity of the Chief Commissioner, MACC’s credibility is undermined, which may be the actual plot. Then again, those who have investigation files with MACC can argue on the premise that “getting the fox to guard the chicken” analogy.

Another point to consider is that the political wolves on both sides are extremely worried that the MACC’s leadership does not play ball with them, and the best way is to fire a salvo shot in a head-on collision tactical strategy. MACC has in the past been pleading for the appointment of more officers and extra budget but this has fallen on the same deaf ears of the wolves in Parliament.

With only around 3,000 officers, with almost half of them not on operational duties such as investigation, intelligence and so on, there is actually no political will to strengthen the commission. Are they worried that if MACC is given all the resources, it will be unleashing an unstoppable juggernaut that will crush their selfish desires? Inevitably, the enormously high expectations of the public and society will just remain that – high expectations!

In the final analysis, nothing is as it seems with everyone who has vested interests firing potshots at MACC because of a minority number of bad apples (so far three officers, in this case). Kudos for the way the commission has handled the investigation and is recovering the stolen loot. But calling for the MACC Chief Commissioner to move aside is all but an example of hypocrisy of the highest level.