MACC: FREE AND INDEPENDENT?


MACC was established by virtue of the enactment of Malaysian Anti-Corruption Commission Act 2009, which was given the royal accent on 6 January 2009 and two days later on 8 January 2009 was published in the Government Gazette. Since then, the MACC accrued all the powers within the said Act. Well, what are the powers of the MACC within the said Act?  The MACC were empowered to investigate reports and enquire into information relating to the commission of offences under the Act. Then, what are the offences under the Act? The offences stipulated in the Act are accepting gratification, giving or accepting gratification by an agent, intending to deceive principal by agent, corruptly procuring withdrawal of tender, bribery of officer of public body, bribery of foreign public officials, and using office or position for gratification.

Apart from the powers to investigate cases of corruption and bribery within the Malaysian Anti-Corruption Commission Act 2009 (MACC Act 2009), the Commission have legal functions:

a)            to receive and consider any report of the commission of an offence under the Act and investigate such of the reports consider practicable;

b)            to detect and investigate any suspected offence, suspected attempt to commit and any suspected conspiracy to commit any offence under the Act;

c)            to examine the practices, systems and procedures of public bodies in order to facilitate the discovery of offences under the Act and to secure the revision of such practices, systems or procedures as in the opinion of the Chief Commissioner may be conducive to corruption;

d)            to instruct, advise and assist any person, on the latter’s request, on ways in which corruption may be eliminated by such person;

e)            to advise heads of public bodies of any changes in practices, systems or procedures compatible with the effective discharge of the duties of the public bodies as the Chief Commissioner thinks necessary to reduce the likelihood of the occurrence of corruption;

f)             to educate the public against corruption; and

g)            To enlist and foster public support against corruption.

In conducting investigations on matters relating to corruption and prescribed offences, the officers of the Commission are empowered to investigate reports and enquire into information, examine persons, conduct search and seizure, seizure of movable property, investigation of share, purchase account, obtain information, order not to part with or deal in movable property in bank, seizure of immovable property, application in prohibition of dealing with property outside Malaysia, forfeiture of property upon prosecution for an offence, forfeiture of property where there is no prosecution for an offence, and intercept communications.

In the course of an investigation, the officers of the Commission may order any person to attend before him for the purpose of being examined orally in relation to any matter which may, in his opinion, assist in the investigation into the offence, order any person to produce before him, within the time specified, any book, document, records, accounts or computerized data.  An officer of the Commission may record statements of any person in relation to the offence or may by written notice order any person to furnish a statement in writing made on oath or affirmation setting out therein all such information which may be required under the notice which would be of assistance in the investigation into an offence of bribery and corruption.

A person who gives an oral statement or making a written sworn statement under oath, shall furnish and disclose truthfully all information required which is within his knowledge, or which is available to him, and shall not refuse or disclose the information on the ground that it tends to incriminate him or his spouse.

In conducting an investigation, the Investigation Officer of MACC has to find the truth or otherwise of allegations made to him on any matter of bribery and corruption. The officer by virtue of statement recordings and procurement of documents and exhibits has to fulfil all the ingredients of an offence with corroborations by independent witnesses and eliminate any contradictions. Upon completing the investigation, the investigation paper has to be submitted to the Public Prosecutor or to any of his deputies for perusal and issuance of Consent to Prosecute (CTP), if the Public Prosecutor by himself or through his deputy satisfied that the investigation is completed with encouraging evidence to prefer a charge against the offender.

The MACC is free and independent to conduct any investigation on bribery and corruption without having to refer to any person including the Public Prosecutor but it has no power to charge any offender without the consent of the Public Prosecutor. This is clearly stated in Article 145(3) of the Federal Constitution which states that the Attorney General who is also referred as the Public Prosecutor has the power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Muslim court, a native court or a court martial. The provision of the said article 145(3) also implies that before prosecuting anybody in the ordinary courts, the Attorney General is not legally obliged to consult anybody; this is to ensure his independence. Likewise, section 58 of the MACC Act 2009, states that a prosecution for an offence under the Act shall not be instituted except by or with the consent of the Public Prosecutor.

Well, it is clear that the MACC is independent in instituting an investigation on bribery and corruption but has no legal power to institute a charge against the offender. The MACC could only make a suggestion to the Public Prosecutor to charge the offender on evidence gathered but it is the prerogative of the Public Prosecutor whether to prefer a charge or otherwise on the offender without having to give a reason for his decision.

Having discussed the powers of the MACC and the legal requirement of the law in instituting charges against the offenders, we now have no qualms but to admit that the MACC is truly independent in preferring to investigate any bribery and corruption matters but the provision of the law restrains any prosecution without the consent from the Public Prosecutor by himself or by empowerment to his deputies.

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