The Bill will consolidate the existing laws relating to prevention of corruption and make new provisions. It will replace the Prevention of Corruption Act 1961, the Anti-Corruption Agency Act 1982 and the Emergency (Essential Powers) Ordinance No. 22 1970.
DAP welcomes some of the new provisions which shows that the government is now more serious about combatting corruption, but still feels that they need to be strengthened and improved if the all-out war against corruption is not to remain an empty slogan, as well as questions the need for some provisions like the one on false reporting.
Undoubtedly, the two most important provisions are Section 20 and Section 33(3) of the Bill.
Under Section 33(3), if the Public Prosecutor has reason to believe that a public officer who has been required under Section 33(1) to furnish information about property he owns or in his possession owns or possesses property which is in excess of his emoluments, the Public Prosecutor may require such person to give sastisfactory explanation about the excess. Failure to give such explanation will be an offence involving a jail sentence between six to 20 years or a fine "which is not less than five times the value of the excess, if the excess is capable of being valued, or ten thousand ringgit, whichever is the higher".
I am not very happy with this provision, as action against a public officer, which includes government servants, MPs, State Assemblymen, judges, who have extraordinary wealth or ostentatious lifestyles incommensurate to their emoluments are hemmed in by too many restrictions. For example, Section 33(3) cannot be invoked unless Section 33(1) is applied, requiring, among other things, that the Public Prosecutor "has reasonable ground to believe, based on the investigation carried out by an officer of the Agency, that any offence under this Act" had been committed.
The Public Prosecution refers here to the Attorney-General and not to the Director-General of the Anti-Corruption Agency.
What is needed is a definitive and clear-cut provision like the one to be found in the Hong Kong Prevention of Bribery Ordinance which states:
"Any person who, being or having been a Public Officer - (a) maintains a standard of living above that which is commensurate with his present or past official emoluments; or (b) is in control of pecuniary resources or property disproportionate to his present or past official emoluments, shall unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence."
I would urge the Cabinet and the Attorney-General’s Chambers to reconsider Section 33(3) of the Bill to bring it into line with the provision in the Hong Kong Prevention of Bribery Ordinance so as to send a clear message to all and sundry that henceforth, all public officers who have extraordinary wealth or lifestyles disproportionate to their emoluments would be liable for prosecution for corruption offences.
Another unsatisfactory part of the Bill is the rather vague provision with regard to confiscation of the corrupt ill-gotten gains of those found guilty of having extraordinary wealth or ostentatious lifestyles disproportionate to their emoluments. This needs also to be clarified to make it definitive and specific.
What is objectionable is Section 20 of the Anti-Corruption Bill which makes it an offence for any person to make any statement which is false or which is intended to mislead to an officer of the Agency or the Public Prosecutor who is exercising powers under the Act. The penalty on conviction is RM100,000 fine or 10 years’ jail or both.
The ACA should explain from its 30-year record of ACA reports why it is necessary for such a provision, which will only deter the public from co-operating to combat corruption and therefore most counterproductive if Malaysia wants to create a new culture of integrity in political life and public services with zero tolerance for corruption. Furthermore, there are also existing provisions under the Penal Code to deal with false information, false reporting and false charges.