Fighting graft: A call to arms

Posted by Penarik Beca Monday, December 15, 2008

NST (14/12/08): Datuk Seri Abdullah Ahmad Badawi is a man in a hurry. He denies that it is a legacy issue, but in the same breath talks about a promise he made to the people that he has to deliver before he exits political centre stage in March.

He therefore wants to expedite legislation that introduces much needed reforms to institutions and laws that strengthen the nation's capacity to fight corruption, restore independence to the judiciary, make the police and other enforcement agencies less susceptible to abuse, and protect whistleblowers.

Two bills, on the establishment of the Malaysian Anti-Corruption Commission (MACC) and the Judicial Appointments Commission (JAP), have already been tabled in Parliament. The finishing touches are reportedly being put on the other two.

In the meantime, the debate over the two bills is on not only in Parliament but in discussion groups, the mainstream media and the blogs as well. All the stakeholders, including the all-important "man in the street", non-governmental organisations, the diverse interest groups and political parties, are intensely involved. This is healthy because this is their country, the institutions are theirs and the laws are made with their ultimate acquiescence. This is their future.

In the discourse -- and I am referring in particular in this article to the anti-corruption bill -- various important questions and issues have been raised, including by Barisan Nasional members themselves.
One is that the Bill is being rushed, all because a leader is in haste to leave behind a legacy. That Pak Lah is in a hurry is obvious. He does not have too much time to deliver on a promise he and his party made to the people. That a leader would like to leave a legacy should also be welcomed, for who wants leaders who do not intend to leave behind good legacies?

But to think that the Bill was hastily cobbled together without due diligence and much consultation is to be ill-informed. The draft from the Anti-Corruption Agency originated before the March general election. Many stakeholders including respected ones like Transparency International and Pemudah were consulted. Seminars were held and a trip was made to Hong Kong to scrutinise its successful model at close quarters. The cabinet deliberated on the Bill several times before it was tabled in Parliament.

Another issue that has been raised is that the MACC is not sufficiently independent, and that ultimately it is the prime minister who advises the Yang di-Pertuan Agung on the appointment of the chief commissioner and members of bodies such as the Special Committee on Corruption consisting of parliamentarians. It has been suggested that Parliament and not the prime minister be the nominating authority.

This suggestion is not without its merits, but nomination by the Parliament, like nomination by the prime minister, is not foolproof. It is an arduous process, and in Indonesia the Parliament is reportedly considering curbing the enthusiasm of its Corruption Eradication Commission because it is targeting too many legislators.

If Hong Kong provides a proven model of an independent and effective anti-corruption agency, the chief commissioner of the Independent Commission Against Corruption (ICAC) as well as the members of all committees are appointed by the chief executive and not by the Legislative Council. In other successful models like Singapore the nominating authority is also the prime minister.

Related to concerns about the issue of independence are reservations about the fact that prosecution for an offence under the Act can only be instituted by the public prosecutor or with his consent. It is suggested that the Constitution be amended to provide independent powers of prosecution to the chief commissioner of MACC.

It is understood that the government did not choose this path as it would require a two-thirds majority vote in Parliament, and it did not want to risk not securing sufficient votes. In any case, the public prosecutor has delegated his authority under the Anti-Corruption Act to the chief of the ACA since October last year and now retains only residual powers. Respecting the powers of the public prosecutor under the Constitution is also important, and it may not be wise to confuse issues with regard to the incumbent, should there be any, with the office itself.

Some quarters also have concerns that the Special Committee on Corruption will be filled by members of Parliament from Barisan Nasional only. This is a valid concern, and it is for the minister tabling the bill to give the solemn assurance in both Houses that opposition members of parliament will be included. The government's integrity in this regard will be quickly established once the members of the committee are announced.

The powerful external checks and balances imposed by not only the Special Committee but by four other bodies as well (Anti-Corruption Advisory Board, Complaints Committee, Operations Review Panel and Corruption Prevention and Consultation Council) that will exercise close scrutiny of the independence, integrity and performance of the MACC should not be overlooked. No other national body will be as closely monitored and examined as the MACC. No other national body will have as many independent persons of known character, personal integrity and public standing in the monitoring and advisory bodies.

Institutions and laws are critical. But in the final analysis, institutions and laws are only as good as the people that man them and implement them.

Much will therefore depend on the courage, integrity and skills of the officers of the new commission, and the resources given to it. It is hoped that the 5,000 additional staff and specialised training announced by the prime minister will be made quickly available if the Bill is passed.

The success of Malaysia's anti-corruption drive will also depend on ferocious and sustained political will, as well as support from all stakeholders. It is assuring that in this transitional period the deputy prime minister, who will assume the leadership, has pledged his full support for and commitment to the initiative. Indeed, Datuk Seri Najib Razak is an integral part of the initiative.

When the ICAC was set up in Hong Kong in 1974, there was little confidence in it. It took two to three years, according to Deputy Commissioner Daniel Lee, for the public to begin to have faith in it. Malaysia is not where Hong Kong was in 1974. It has a better record. But the public's confidence in the MACC will only be forthcoming when it sees better results and significant successes as in Hong Kong.

The Bill as it is constituted gives much hope. The MACC will have greater independence, wider powers and enhanced resources. It is compelled by the various oversight and advisory bodies to perform and to be transparent and accountable. Elected representatives and leaders of civil society play an active and vital part in ensuring compliance and delivery.

For those who want to see a better Malaysia these are exciting and encouraging times.

Tan Sri Mohamed Jawhar Hassan is chairman and CEO of ISIS Malaysia. The views here are his own

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