Notice for first batch of 15 amendments to Anti-Corruption Bill to ensure independence of Anti-Corruption Agency

The thrust in the first batch of amendments is to ensure the independence of the Anti-Corruption Agency by providing for a new sub-section (11) to Section 3 of the Bill to make the ACA Director-General answerable only to Parliament and to submit an annual report to Parliament.

The amendments would also prevent the erosion of the existing powers of the ACA Director-General, as under the new Bill, the ACA Director-General would cease to have the powers of a Deputy Public Prosecutor under the Criminal Procedure Code which is currently provided in the Anti-Corruption Agency Act 1982.

I am proposing an amendment to restore this provision so that the ACA Director-General will continue to have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code under the new Anti-Corruption Act.

Several of the amendments would ensure that the ACA and in particular the Director-General would have full operational independence when discharging his mandate to fight corruption, and not, as at present proposed, be subject to the approval of the Attorney-General in his capacity as Public Prosecutor at every turn.

Under the Anti-Corruption Bill, the Attorney-General as Public Prosecutor has vastly expanded powers, as it is he and not the ACA Director-General who will finally decide whether the new vast powers in the Anti-corruption Bill would be exercised, such as:

• Clause 32 - to inspect and make copies of the accounts of any person kept in bank, inspect the contents of a safe deposit box in a bank and to seize any document or other things being inspected;
• Clause 33 - to require persons, including relatives and associates, to furnish a sworn statement in writing of all property owned or in possession and to require a public officer to give satisfactory explanation about the properties which are in excess of their emoluments;
• Clause 34 and 35 - to order the seizure of movable and immovable property deemed to have been acquired through corrupt practices.
• Clause 40 - to authorise to intercept postal articles or any message sent by telecommunications and to listen to any conversations by telecommunications.

My first batch of amendments would vest these powers, which concern the operational independence of the ACA, on the ACA Director-General rather than the Attorney-General in his capacity as Public Prosecutor.

In my next batch of amendments, I would propose a mechanism to check against abuses of these vast powers, so that civil rights and liberties of innocent citizens are not trampled upon under the guise of investigating corruption.

The second thrust of my amendments is to provide for a clear-cut provision whereby a political leader or public officer who have extraordinary wealth disproportionate to his known sources of income would be required to prove he had derived them from legal means, failing which he would have committed an offence of corruption and his corrupt ill-gotten gains would be forfeited.

The new amendment, Section 16A, which I am proposing is as follows:

"16A - Possession of unexplained property

(1) Any person who, being or having been an officer of a public body, -

• (a) maintains a standard of living above that which is commensurate with his present or past official emolument; 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.

(2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that, having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, until the contrary is proved, be presumed to have been in control of the accused.

(3) Where a person is convicted on indictment of an offence under subsection (1)(b) the court may, in addition to any penalty imposed by any other section under this Act, order the confiscation of any pecuniary resources or property -

(a) found at the trial to be in his control as provided in subsection (1); and

(b) of an amount or value not exceeding the amount or value of pecuniary resources or property in acquisition of which by him was not explained to the satisfaction of the court."

Another amendment is to reduce the penalties for false reports in Section 20 of the new anti-corruption law from RM100,000 fine or ten years� jail or both to RM10,000 fine or two years� jail or both, so as not to frighten off public co-operation to fight corruption.

Actually, the new Section 20 on false reports is completely unnecessary as there are adequate existing provisions in the Penal Code to deal with them.

Section 182 of the Penal Code provides for a maximum of six months� jail, RM2,000 fine, or both for any "false information, with intent to cause a public servant to use his lawful power to the injury of another person".

Under section 203 of the Penal Code, "whoever, knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false" is liable to a maximum penalty of two years jail, fine, or both.

Section 211 of the Penal Code provides for a maximum of seven years� jail, fine or both for whoever "falsely charges any person with having committed an offence� punishable with death, imprisonment for life or imprisonment for seven years or upwards".

With these ample criminal sanctions for false allegations on corruption, had the ACA charged any person for false allegations from the 8,940 complaints it had received in 1996 or in the previous 30 years of its history?

At the "Consensus Against Corruption" Conference on July 19, the Deputy Commissioner of Hong Kong�s Independent Commission Against Corruption, Tony Kwok Man-wai agreed that there was a need for an offence for making a false report about the commission of corruption offence, that the Hong Kong Prevention of Bribery Ordinance has such a clause which has proved to be effective in dealing with false reports.

This is to be found in Section 29 of the Hong Kong Prevention of Bribery Ordinance. What is significant about this section is its penalty which is a fine of HK$20,000 or one year�s jail.

In contrast, despite having existing laws to deal with false reports, the new Anti-Corruption Bill is creating another offence with maximum penalty of RM100,000 fine, 10 years jail or both - which is most unjustifiable and oppressive.

Harun Hashim, Raja Aziz Addruse and Param Cumaraswamy to lead off Round Table on Anti-Corruption Bill tomorrow

The Round Table on the Anti-Corruption Bill in Kuala Lumpur tomorrow will start off with a panel on "Anti-Corruption Bill - Legislation and Enforcement" comprising the first ACA Director-General, former judge and currently Acting Dean, Faculty of Law, International Islamic University, Tan Sri Harun Hashim, President of HAKAM, Raja Aziz Addruse and former Bar Council President, Datuk Param Cumaraswamy.

The second panel, "Anti-Corruption Bill - A Holistic Appraisal" would comprise Dr. Syed Hussein Alatas, Dr. Jomo K.S. and Tunku Aziz. The third panel, "Anti-Corruption Bill - Civil Society Expectations" would feature representatives from NGOs to be followed by "An Assembly of Voices" in a discussion on the Anti-Corruption Bill.

The Round Table Conference on the Anti-Corruption Bill would be held at the Swiss Garden Hotel, Jalan Pudu, Kuala Lumpur beginning at 9.30 a.m.

I wish to clarify that I am convening the Round Table Conference as Parliamentary Opposition Leader and that the Round Table is not a DAP Confererence.

(26/7/97)