18 JANUARY 2023
PM should adopt a more effective check and balance approach- backing civil servants with adequate reforms
During his monthly address to the staff of the Prime Minister’s Department, Prime Minister Dato Seri Anwar Ibrahim recently commented on the excess expenditure of public funds by the previous government and urged public officials to act as a check and balance in preventing corruption and wastages of public funds. Although the sentiment is appreciated, his subsequent statement calling for any irregularities to be directly reported to him is worrying. The Center to Combat Corruption and Cronyism (C4 Center) disagrees with this approach – it is ineffective at best, and at worst, it further consolidates Anwar Ibrahim’s dual power as both Prime Minister and Finance Minister – portfolios that should have remained separate.
The formation of the novel unity government may have possibly given rise to circumstances that led to Anwar Ibrahim’s decision to occupy the Chief Executive and Finance Minister roles despite his own earlier protests against this practice. Notwithstanding, several key questions arise: would protections for whistleblowers be guaranteed should they come forward to the Prime Minister? How feasible, effective, and impartial would a whistleblowing system concentrated solely at the Prime Minister be? How else can whistleblowing be complemented in order to eliminate wastage and corruption?
C4 Center strongly recommends that in the government’s agenda to eliminate wastage and leakage of funds, the tabling of a Procurement Bill which has already been laid out in the National Anti-Corruption Plan (NACP) under Strategy 3, should be given top priority. In the interests of good governance, an adequate Procurement Bill would prescribe a transparent procurement process – one that allows the public to access and scrutinise, doing away with the opaque direct negotiation method as promised by Anwar at the start of his tenure. This is also in-line with Anwar’s recent statements that an estimate of RM 3-4 billion could be saved by the government in regards to procurement of the military equipment with careful implementation of the procurement process.
However, if the current administration is intent on Anwar’s proposal for public officials to act as an effective check and balance mechanism, efforts should be focused on revising the existing Whistleblower Protection Act 2010 (WPA 2010). The current legislation is plagued with loopholes and gaps that would render ineffective all attempts of civil servants reporting on corruption within their departments or ministries. Amendments must be made to Section 6(1) of the Act to include allowing disclosure to external parties, such as media, members of parliament, civil society organisations, and other bodies not listed by the Act. Currently, the provision only allows a report to be filed with an enforcement agency and consequently loses protection if they decide to publicly disclose the information.
The same, Section 6(1) of the Act to be further amended to include a public interest defence that can be raised by whistleblowers who disclose information prohibited by written laws such as Official Secrets Act 1972, Section 133 of Financial Services Act 2013 as well as Section 203A of the Penal Code. Existing laws prevent whistleblowers from revealing information which are protected by the acts above and would face a criminal prosecution if they were to disclose that information. Arbitrary laws such as these are reasons why whistleblowers are reluctant to come forward and expose corrupt practices especially if they are faced with such a hefty fine.
Section 11(1) of the Act which confers enforcement agencies the power to revoke protection from whistleblowers should also be amended. The amendment should provide enforcement agencies with discretion to exercise some degree of flexibility to weigh all factors involved when deciding on revocation of protection. The current law does not provide enforcement agencies with a room for discretion when deciding on the revocation which is deemed crucial when whistleblowing.
C4 Center also calls for a provision for establishing an oversight body tasked with deliberating and deciding on revocation of whistleblower protection – one that is independent from the influence of the Executive and indeed the Prime Minister himself. This body should be equipped with power to oversee decisions made by enforcement agencies to revoke protection under Section 11(1) of the Act as well as reverse decisions not to grant protection under Section 6 of the Act. This would provide some sense of security that the protection given to them as whistleblowers, would be given and not be arbitrarily revoked leaving them defenceless against lawsuits and retaliatory actions.
Any initiative of good governance should be clear and consistent and not subjected to changes as and when a new government is formed – we saw that with the initiative to have MPs declare their assets to MACC that only resulted in inconsistencies of declaration, and was finally discontinued due to the practice not being made mandatory by way of legislation.
Transparency and effective check and balance by civil servants can only work if there are adequate laws to protect those who are willing to spill the beans on corrupt practices or abuse of powers, as well as a dedicated body empowered to receive and process reports by whistleblowers – the Prime Minister, acting of his own accord cannot undertake this monumental task alone. We therefore strongly urge the government to look into amending the Whistleblower Protection Act 2010 and legislating a Procurement Act as a matter of critical urgency.
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Center to Combat Corruption & Cronyism (C4 Center)
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