15 OCTOBER 2024
PRESS STATEMENT
The Center to Combat Corruption and Cronyism (C4 Center) is disconcerted by responses towards our recent press statement dated 9 October 2024 on urgent reforms necessary to uphold the role of the Malaysian Anti-Corruption Commission (MACC) as an “independent and accountable anti-corruption body”, pursuant to Section 2 of the MACC Act 2009.
The duty of a national anti-corruption body to detect and investigate corrupt acts must be carried out without fear or favour, regardless of who commits such acts. The powers granted to the MACC under its governing statute to perform its functions are wide and far-reaching, akin to those afforded to the Royal Malaysian Police. Therefore, it is vital for the MACC to be shielded from any sort of undue influence from external parties. In this regard, it is important to emphasise that looking at the letter of the law alone is a reductive approach that does not align with the reality of politics in Malaysia.
Executive discretion to appoint and remove brings inherent risks
For a clear illustration of this, one need only look at the removal of former Attorney General Tan Sri Abdul Gani Patail in the midst of his probe into the 1MDB scandal which – according to testimony by former Chief Secretary Tan Sri Ali Hamsa in court – was caused by a loss of trust by disgraced former Prime Minister Najib Razak. His replacement Tan Sri Apandi Ali subsequently cleared Najib of any criminal wrongdoing in relation to the 1MDB and SRC International cases: an opinion which has since been proven to be severely mistaken. According to Article 145 of the Federal Constitution, the Attorney-General:
- Is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister;
- Holds office during the pleasure of the Yang di-Pertuan Agong; and
- Shall receive such remuneration as the Yang di-Pertuan Agong may determine.
Once again, it is important to emphasise that Article 40 of the Federal Constitution renders the advice of Cabinet binding upon the Yang di-Pertuan Agong for most of his functions under law. This means that effectively, Cabinet (and specifically the Prime Minister as the leader of the Cabinet) has an overwhelming degree of power in determining matters such as appointment, tenure, remuneration and removal of the Attorney-General.
The dangers of this sort of power has been made clear in recent history. Therefore, is it not concerning that the Chief Commissioner of the MACC is also subject to the same stipulations under the governing law? Section 5 of the MACC Act 2009 makes it clear that the MACC Chief Commissioner:
- Is appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister; and
- Holds office at the pleasure of the Yang di-Pertuan Agong, subject to the advice of the Prime Minister and upon such period, terms and conditions as specified in their instrument of appointment (which may include matters such as tenure and remuneration).
Given the similar frameworks governing both these offices, we ask: what prevents a repetition of the Gani Patail situation in the future for the MACC? This arrangement creates an inherent motivation for any Chief Commissioner to act in accordance with the desires of the government of the day, in order to protect themselves from premature dismissal or the imposition of less favourable terms of appointment. There is a reason elements of independence such as appointment, tenure, remuneration, and removal are so fiercely guarded by the judiciary, for instance – as there is a clear recognition of the potential risk of undue influence if these matters are not sufficiently protected.
Demands for MACC reform are not new
Calls for reform of this appointment process are neither new nor uncommon. In 2015, C4 Center alongside the Malaysian Bar and several other civil society organisations released a Joint Memorandum for the Reform of the MACC which, among other recommendations, sought the creation of a Parliamentary Select Committee on Corruption which would be tasked with the nomination of commissioners to the anti-corruption commission. Additionally, recommendations received by Malaysia during Cycles 1 and 2 of the Implementation Review Mechanism for the UN Convention Against Corruption (UNCAC) covered the lack of constitutional or statutory provisions on the tenure and dismissal of the Chief Commissioner, which were recognised as a risk to independence. The reviews acknowledged that these gaps were planned to be filled by draft constitutional amendments at the time, but no such developments have been implemented since then.
Interestingly enough, the inadequacy of the present framework has even been acknowledged by the government itself. Some examples include:
- Proposals in the National Anti-Corruption Plan (NACP) 2019-2023 to establish a separate Parliamentary Select Committee to oversee the MACC, and for a Public Appointments Bill to “regulate the exercise of Executive Power in respect of Public Appointments to certain constitutional and statutory offices” which presumably would cover the statutory office of the MACC Chief Commissioner.
- Prime Minister Anwar Ibrahim’s statement in Parliament on 28 March 2023 that the implementation of an alternative process for appointing the MACC Chief Commissioner would depend on the progress made by Parliament – in the event such a mechanism is decided upon and studied by the relevant stakeholders, he stated that he would have no issues with it.
- A long-term substrategy in the new National Anti-Corruption Strategy (NACS) 2024-2028 to “relook” at the requirements for the appointment and dismissal of the MACC Chief Commissioner, with an anticipated period of 4-5 years for implementation.
- Malaysia’s support of Recommendation 55.93 received during its 4th cycle Universal Periodic Review in early 2024, which called for the creation of “permanent independent bodies, such as parliamentary select committees, to oversee appointments to anti-corruption and all oversight institutions, with sufficient resources and independence to perform their function.”
Room for improvement in MACC’s oversight framework
There is also room for improvement for MACC oversight, with regard to the submission of Annual Reports and the role of the oversight bodies established by statute and administrative order. Unlike other oversight institutions such as the Human Rights Commission of Malaysia and the Enforcement Agency Integrity Commission, the MACC does not submit its annual reports directly to Parliament for debate. Rather, these reports are submitted to the Anti-Corruption Advisory Board (ACAB), which then submits it to the Special Committee on Corruption (SCC), which makes an annual report of its own, which is submitted to the Prime Minister who then lays it before Parliament. This multi-stage bureaucratic process has been the subject of criticism as well, such as by Pasir Gudang MP Hassan Abdul Karim who was a member of the SCC at the time. According to this structure, the original report does not reach Parliament, which prevents wider debate thereupon by the entire house.
Besides, the effectiveness of these established oversight bodies may be called into question as well. The lack of clear criteria for appointment to the oversight bodies creates a risk of appointees being chosen for improper considerations. It must be highlighted that we are not alleging that any presently appointed members are indeed biased or unqualified. However, greater transparency in the appointment process is vital in order to maintain public trust in the integrity of these frameworks. As for the policy impact of these bodies, we believe that this excerpt from the last publicly available SCC report from 2020 speaks for itself: “…pihak YAB Perdana Menteri wajar mengambil maklum akan kandungan Laporan JKMR ini. Terdahulu didapati bahawa pihak YAB Perdana Menteri tiada memberi apa apa reaksi, cadangan atau huraian tentang pandangan, syor dan nasihat yang dikemukakan JKMR. Adalah diharapkan Laporan ini tidak beroleh nasib yang sama.” [“…the Prime Minister should heed the contents of this SCC Report. Previously it has been seen that the Prime Minister gave no reaction, suggestion, or explanation on the views, recommendations and advice submitted by the SCC. It is hoped that this Report shall not face the same fate.”]
C4 Center prioritises transparency and calls to collaborate on issues of national importance
In short, MACC reform has been a part of civil society advocacy, Malaysia’s international obligations, and even the government’s own policies for many years now. It is therefore unfortunate that valid and well-founded points of constructive criticism are waved aside by some parties as baseless negative accusations. In light of the matters mentioned above, is it unfair for civil society to raise these concerns? Is the public expected to show unwavering faith in the presumed flawlessness of the present framework?
Since its establishment, C4 Center has tirelessly advocated for justice, transparency, and accountability in Malaysia with no regard for political partisanship. We wish to see positive change enacted for the benefit of all. We have made no secret of our sources of funding, and any person who wishes to access more details may refer to our annual reports published on our website. We have always welcomed collaboration with all relevant stakeholders on issues of national importance, and we shall continue to do so in working towards upholding good governance and combating corruption in all its forms. We have forged strategic partnerships and conducted joint projects with various government agencies over the years, including with the MACC itself in 2016-2017 and the National Centre for Governance, Integrity, and Anti-Corruption (GIACC) in 2019-2020.
It is undeniable that the MACC has been instrumental in the fight against corruption in recent years, such as the commencement of investigations into allegations of financial impropriety from decades ago. We merely seek to remind Malaysia that there is still ample space for improvement. We can only hope that the government and members of the public are able to recognise the value of open and honest criticism.
END OF STATEMENT
Issued by:
Center to Combat Corruption & Cronyism (C4 Center)
For further enquiries, please contact:
c4center@gmail.com
019-216 6218