LETTER | MACC scandal: Justice must be seen to be done

LETTER | The allegations against the MACC chief commissioner give rise to two matters that are crucial for the survival of our country:

1. Justice: Do we have a good system of governance to ensure justice is done?
2. Institutional reform: This is more urgent than ever.

Justice: Who investigates?

On Jan 8, the prime minister said that investigations were being conducted by various parties including the Securities Commission and “MACC itself”.

Is the MACC the proper body to investigate this? Definitely not. Why?

• It would be a travesty of justice. It would infringe the cardinal principle of justice nemo judex in causa sua (no one should be a judge in their own cause). The MACC has a vested interest by virtue of the fact that it would be investigating its own chief commissioner.
• Given that all three of the MACC’s deputy commissioners had on Jan 9, promptly come out with a statement declaring their support for their boss and dismissing the allegations against their boss as “purported attacks against the commission”, without stating facts or evidence of any inquiry being done, it is clear that the main officers of the MACC cannot be seen to be unbiased investigators.
• The Anti-Corruption Advisory Board (ACAB) formed under the MACC Act 2009 shot itself in the foot when six board members publicly disputed its chair Abu Zahar Ujang’s hasty declaration that there was no wrongdoing committed by the chief commissioner.
• At any rate, the ACAB is not the proper body to internally investigate wrongdoing by the MACC chief commissioner as it is not empowered under the Act. Its functions are mainly advisory. Consequently, it is irregular for the ACAB or its chairperson to exonerate the chief commissioner of his alleged offences.
• The Special Committee on Corruption established under Section 14 of the Act is also not the proper body to investigate the allegations against the chief commissioner. Its functions are also mainly advisory in nature and cover inter alia advice on “any aspect of the corruption problem in Malaysia” and examination of the annual report of the commission. They do not include any power to investigate the alleged misconduct of the chief commissioner. Most importantly, it reports to the prime minister. Therefore, although the composition of the committee comprises MPs nominated by the PM, the committee does not report to Parliament. We must not mistakenly deem it to be a parliamentary select committee. Hence, the special committee’s announcement that it will have a hearing on Jan 13 to investigate the matter, does not hold up much hope. At any rate, its report to the PM would cover “an annual report on the discharge of their functions” as prescribed by the Act.

Stymied PSC?

Whereas there is in existence a Parliament Select Committee on the Agencies under the Prime Minister’s Department that is an actual parliamentary select committee (PSC), it is disappointing to see that this select committee seems to be occupying a back seat in this matter. Its function seems to be stymied. 

The clerk of Parliament even wrote to the minister in charge of law in the PM’s department for consent to allow the PSC to convene! That is wrong. Under Art 43(3) of the Federal Constitution, the cabinet reports to Parliament and not the other way around. The PSC does not need the cabinet’s permission to act. 

After social media reaction, MP William Leong who is a member of that PSC subsequently apologised for the clerk and said he “made an error in judgment by writing to the minister”.

Parliament, SC and other parties

The PSC should be the primary independent body looking into this matter and the MPs in that committee should take a more assertive role. 

In fact, all the MPs should take a more assertive and active role to defend the integrity of Parliament, as they swore on oath to do.

The Securities Commission is of course the proper body to investigate the alleged offences under the Securities Industry Act. We wait with bated breath the outcome of their investigations. 

We hope that no undue influence is brought to bear on the commission. This commission’s deliberations are not public. Malaysians are so wary of secret deliberations.

Who are the other “various parties” investigating? The PM did not specify. At this juncture, we must draw attention to Section 5(4) of the Act which states that “the chief commissioner shall… be deemed to be a member of the general public service of the federation for purposes of discipline”. 

Therefore, the usual standard procedure on the discipline of public servants should be applied. We have not heard of any investigation being launched by the chief secretary to the government. Even if there was one, it would be behind closed doors. And herein, lies the crux of the matter.

Visible justice 

Justice must be seen to be done - this is the most important point. Justice must not only be done, but it must be seen to be done. There must be an independent impartial body to investigate this extremely important issue. 

The proceedings must be transparent. Its findings must be reported to Parliament. Not only is the MACC’s reputation at stake but also our precious judicial system of governance and the rule of law.

Institutional reforms

Given our history with the 1MDB saga, the rakyat is wary of closed-door investigations and there is a trust deficit with our law enforcement and justice institutions. When did we stop caring about truth and accountability?

This saga with the MACC, if not handled properly, will break our country even more. We have to reform our institutions urgently. We should begin with the MACC Act. It must be amended as soon as possible. There must be more accountability and transparency in the way our government handles things.

We have to do better.

The writers are Gerak Independent candidates Tawfik Ismail, Siti Kasim, Charles CJ Chow, Ravee Suntheralingam and KJ John. 

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.