Tan Sri Speaker,
I thank the Honourable Tan Sri Speaker for the opportunity to participate in the debate on the Malaysian Anti-Corruption Commission Bill 2008.
An independent commission to fight corruption is long overdue. I congratulate the Honourable Prime Minister for your courage and conviction to table this Bill.
Corruption destroys the soul of a nation. Corruption is like cancer, when left unchecked it spreads through the rest of the body killing everything. Corruption undermines good governance. It distorts public policy. It causes misuse of a nation’s limited resources. In the end it is the poor and those from the low income group that suffers most as they have to pay for the losses caused by corruption. People pay for the corruption with their lives. It is not an accident that killed the innocent passengers who board not roadworthy buses. It is corruption. It is not a natural disaster that killed innocent residents when houses and condominiums are buried by landslide on hill slopes should not be allowed for development.
Section 5(1) provides that the Chief Commissioner shall be appointed by the Yang di-Pertuan Agong acting on the advice of the Prime Minister.
The definition in clause 3 provides that the “Minister” refers to the minister responsible for the Commission.
There are no provisions for the provision of independent financial resources for the Commission.
The most important difference between this Bill and previous legislation on anti-corruption is supposed to be the independence of the commission. However, the Chief Commissioner cannot be independent if his appointment is dependent on the Prime Minister. He cannot be independent if he has to report to a Minister. He cannot be independent if he is dependent on the Minister for his financial needs. If these weaknesses in this Bill are not remedied then this Malaysian Anti-Corruption Commission Bill is doomed to failure as its predecessor.
To be an independent Commission, the Commission must be truly independent and must be free from the danger of political interference. It must not be accountable to any political entity and it must have a proper allocation of its financial resources from the parliament.
The present Anti-Corruption Agency (“BPR”) is perceived by the public to be ineffective because of political interference. It is perceived by the public to be used to give a clean bill of health to politicians who are involved in scandals and questionable issues. If the ability of political interference is not completely removed then this Bill will be nothing more than just another white wash.
Selection of Chief Commissioner
In order to have an independent commission it is necessary for the public to be involved in the selection of the Chief Commissioner. Inviting nominations from the public after stating criteria of the qualities required for such a commissioner will allow the public to be involved in the selection process. The nominations should then be presented to Parliament that will peruse and shortlist the nominees they have found suitable for the appointment by the Yang di-Pertuan Agong.
Independent Financial Resources
For this Commission to succeed it must have adequate financial resources provided by Parliament. It must have its own budget allocation to be approved by the Parliament and not to be part of a Ministry so that the issue of independence and control will not arise.
Powers of Investigation and Prosecution
Powers of Investigation and Prosecution
The Bill provides for the Public Prosecutor to authorize various aspects of investigation such as the seizure of records and obtaining restraining orders and prosecution.
The Commission must have powers of investigation, seizure and prosecution and not rely on the Attorney General. It is imperative for the Commission to have its own powers to investigate and prosecute thereby taking away the responsibility of corruption from the police and the AG. The fact that the Commission must be created to be autonomous is an important and critical formula to ensure its success.
The requirement for the Commission to report to a Minister is one of the areas of concern that weakens the independence of the Commission.
The Commission should be appointed through the Parliament. It should be reporting to the Public Accounts Committee. Parliament is a representative body of the people’s interest. It is better for the Commission to report to such a body than to any specific individual. There have been many complaints involving senior government officials that have not been investigated. The complaints and reports made to the BPR against VK Lingam and the Judges mentioned in the report by the Royal Commission on the Appointment of Judges or better known as the VK Lingam Commission is an example. The Commission cannot be expected to be able to investigate and to charge the Prime Minister or the Minister that the Commission reports to if there is a complaint to the Commission against the Prime Minister or the Minister concerned.
Hong Kong ICAC
The main emphasis of the Hong Kong Independent Commission Against Corruption (“ICAC”) is prevention and public participation. This Commission recognized the need to involve the public in the fight against corruption and it was determined that the best possible way to win the public in the fight against corruption was to prosecute and punish high level perpetrators. “Big and corrupt actors must be named and punished so that a cynical citizenry believes that an anti-corruption drive is more than just words”.
cannot be faulted for taking a cynical view of the political will to combat corruption when the investigatory arm is regarded as corrupt. It is more important to focus on the corrupt systems than on corrupt individuals. Corrupt individuals can be charged and punished but a corrupt system will breed new corrupt individuals if not changed. It is necessary to concentrate on the systems that enable one to participate in corrupt activities. These systems include situations where the checks and balances have been removed where the separation of powers have become illusory and the powers of the executive, the legislature and the judiciary have come to concentrate on one individual or one group of a selected few.
It is the monopoly of power that allows corruption to thrive. This is why it is important that this monopoly of power be removed to allow this Commission to succeed.
15 December 2008
William Leong Jee Keen
Member of Parliament