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Existence of 5 Independent Panels, MACC Shows Its Independence

MACC SPECIAL REPORT SERIES : #5

TODAY’s Malaysian Anti-Corruption Commission (MACC) is monitored by five independent oversight committees, comprising more than 40 members, representing all levels of society. The members include Members of Parliament from both the ruling party and the opposition. This is a clear indication that the anti-corruption agency is more transparent compared to its predecessor, the Anti-Corruption Agency (ACA).

special report series

special report series

Since its establishment in 2009, the MACC has been steadily discharging its duties and responsibilities as the primary agency tasked with weeding out corruption in Malaysia. In order to ensure MACC’s independence, transparency and professionalism, five separate and independent oversight bodies were formed to monitor the functions of the MACC an act as a check-and-balance. Members of these panels represent the general public and include senior former government officials, politicians (both from the government and the opposition), professionals, academicians, lawyers and individuals of high standing in society.

The existence of these independent oversight committees is a strong reflection of the MACC’s impartiality and independence, compared with the ACA. In 2009, the then-ACA forwarded a proposed new legislation to transform it into an independent anti-graft agency known as the MACC. The new entity took the bold move of having five independent oversight bodies to monitor, peruse and advise on the different functions of the organisation and to provide a check-and-balance mechanism in helping the MACC perform its function and role.

The legislation not only gave more power to MACC in its fight against corruption but the structural change also ensured that it was an independent anti-graft entity. Three independent oversight bodies were formed by virtue of provisions in the Act, while the other two were formed administratively. The five oversight

Five independent oversight bodies prove that MACC is truly an independent anti-graft entitybodies are the Parliamentary Special Committee on Corruption, the Anti-Corruption Advisory Board, the Complaints Committee, the Operations Review Panel and the Consultation and Corruption Prevention Panel.

The MACC presents its annual report to the Special Committee on Corruption, which comprises of members from both the government and the opposition. The Special Committee on Corruption peruses, scrutinises and gets the MACC to explain at length, every investigation that had been carried out in the previous year.

Apart from the approaches and strategies adopted by the MACC management itself, the setting up of these oversight committees contribute directly to the increase in public confidence in the MACC. The roles of these five independent oversight bodies have, to a certain extent, helped generate public awareness on the importance of fighting corruption as a collective. The MACC, to date, has benefitted from the advice and input given by these five external oversight bodies.

“A new chapter in the fight against corruption began when the MACC Act, 2009 came into force on the 1st of January 2009 and the MACC was established as a successor to the Anti-Corruption Agency (ACA). The new anti-corruption agency is more transparent, more independent and has added powers of prevention. In addition, five external oversight bodies were formed, making the MACC one of the most scrutinised anti-corruption institutions in the world,” said the Anti-Corruption Advisory Board in its first report – 2009 Annual Review.

The current structure of the MACC, according to the Chairman of the Parliamentary Special Committee on Corruption, Senator Tan Sri Abu Zahar Ujang, was aimed at making the Commission truly independent, neutral, open, and transparent in investigating corruption. Abu Zahar, who is Dewan Negara Speaker, also stressed that, “We have representatives from the opposition and the government. They are all appointed by the Yang di-Pertuan Agong. We are above politics, meaning our main mission is to carry out our duties as stated in the MACC Act.”

“The MACC is also the only anti-corruption commission in the world which is monitored by five different independent panels,” he said.

Among the suggestions were for the formation of an Anti-Corruption Service Commission, matters relating to the appointment of the MACC chief commissioner under the Federal Constitution, changes to strengthen Section 23 and 36 of the MACC Act, provisions for corporate liability and public officer misconduct and political funding. He added that they wanted to see the changes made to ensure that the commission was able to function in freely and unhindered.

The Anti-Corruption Advisory Board, which meets every month, has played an equally important role in advising the MACC. Some of the new approaches adopted by the MACC in its efforts to combat corruption were conveyed during its sitting. For example, in its 2013 annual report, the Anti-Corruption Advisory Board urged the MACC to initiate investigations on large projects with potential improprieties, as tabled in the Auditor General’s Report.

Another important body is the Operations Review Panel. It functions as a check-and-balance for the operational activities carried out by the MACC. Acting as a public watchdog, the panel plays an important role in ensuring that the MACC takes into account the views and opinions of the public when it carries out its duties and responsibilities in enforcing the law when it comes to corruption. The Operations Review Panel ensures that allegations against the MACC or the Deputy Public Prosecutor of closing an investigation without supervision or a directive from an independent mechanism do not arise.

The independence of the supervisory mechanism is provided under the terms of reference of the Operations Review Panel where the MACC management is required to present to the Operations Review Panel all cases under investigation. In turn, the panel has the right to request for an explanation and a review of the cases referred to it. Since 2009, the Operations Review Panel had recommended that 60 cases, initially considered by the Public Prosecutor to have no merit for prosecution, be reviewed. Eight of these were eventually brought to court. This development is concrete proof that the MACC Act, 2009 has enhanced the effectiveness of the Commission.

The establishment of the Operations Review Panel has also been recognised by international bodies such as the United Nations Office on Drugs and Crime (UNODC).

“The establishment of an independent Operations Review Panel that does not influence the independence and discretion of the public prosecution, but which has the possibility to scrutinise the measures taken and to make recommendations, is a noteworthy support mechanism,” the UNODC report said.

“The recognition of this particular panel by the UNODC is a significant achievement,” said Tan Sri Abu Zahar.

The fifth body, the 14-member Consultation and Corruption Prevention Panel, has been instrumental in advising the MACC on the implementation of community education programmes and corruption awareness campaigns, as well as building public support towards a corruption-free society. In carrying out its functions, the Consultation and Corruption Prevention Panel holds monthly meetings to come up with proposals and recommendations for the MACC.

“I greatly appreciate the work, dedication and commitment of the Special Committee on Corruption, Anti-Corruption Advisory Board, Complaints Committee, the Operations Review Panel and the Consultation and Corruption Prevention Panel in continuously providing sound advice to the MACC management in fulfilling its functions effectively. MACC’s top management are always in receipt of constructive and insightful views from all the 460 members of the five independent bodies,” said MACC Chief Commissioner, Tan Sri Abu Kassim Mohamed.

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MACC INDEPENDENT OVERSIGHT PANELS: AT A GLANCE

Special Committee on Corruption:

The Special Committee on Corruption was set up by the provision of law under Section 14 of the Malaysian Anti-Corruption Act, 2009. The members of the SCC are appointed by the Yang di-Pertuan Agong, and are drawn from both the Senate and the House of Representatives, and none of whom are members of the administration.

Anti-Corruption Advisory Board:

The Anti-Corruption Advisory Board is set up by the provision of law under Section 13 of the Malaysian Anti-Corruption Commission Act, 2009. The members of ACAB are appointed by the Yang di-Pertuan Agong from among individuals who have rendered distinguished public service or have achieved distinction in their professions.

Complaints Committee:

The Complaints Committee was formed by the provision of law under Section 15 of the Malaysian Anti-Corruption Commission Act, 2009 with the members duly appointed by the Minister.

Operations Review Panel:

The Operations Review Panel is appointed by the Prime Minister from among experts in the relevant professions and who embody the integrity and independence of the Commission. The Panel acts as a check-and-balance for ongoing cases handled by the MACC. The ORP may also present its views to the MACC on cases, should clarification be required.

Consultation and Corruption Prevention Panel:

The Consultation and Corruption Prevention Panel is appointed by the Prime Minister from among individuals who represent various organisations, including academicians, businessmen, religious figures, media experts and social activists who can help the MACC achieve its objective of nurturing a society that does not tolerate corruption.

For more details, please visit www.sprm.gov.my/lembaga-penasihat-panel.html

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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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