This is why this Round Table on the Anti-Corruption Bill was hurriedly organised within 60 hours to allow for a civil society response and input which could make an impact on the Parliamentary debate on the Bill, which begins tomorrow.
The shortness of time, coinciding with the weekend, has not made it possible to reach as many Malaysians and organisations concerned about corruption as we would like, as another major NGO conference on health care is presently being held nearby, and with several others tied down by prior commitments.
There is of course another reason why this Round Table on the Anti-Corruption Bill, the third civil society initiative in the past two weeks to support an all-out war against corruption and to create a new culture of integrity in political life and public service with zero tolerance for corruption, has run into more difficult terrain.
The climate appears to have changed in a space of a few weeks – from the first Round Table Conference on Corruption – An Assembly of Voices held in Petaling Jaya on July 13 and the Consensus Against Corruption Conference held at Putra World Trade Centre on July 19 – and it would not be wrong to say that conditions appear to be quite "wintry".
I know for instance of mass media which have scrapped plans to provide full support to the all-out war against corruption because of the sudden change of climate, and the enthusiasm they have shown for this crusade seems to have withered away.
In Malaysia, spring is very short before winter sets in. This is very sad.
However, this is the challenge to all Malaysians who are committed to the cause of integrity in political life and public service – that they must be able to sustain their commitment regardless of the season, whether spring, summer, autumn or winter.
In the 1970s, I had tried to persuade Parliament of the need for a new culture of integrity in political life and public service, and this was why in 1975 I sought to move a private member’s bill to combat corruption in high political places by making unexplained extraordinary wealth or pecuniary resources disproportionate to one’s known sources of income an offence of corruption and in 1977 a private member’s bill to make the then National Bureau of Investigations into an independent agency answerable only to Parliament.
However, these messages down the decades have still to be acted upon and incorporated as an integral part of Malaysian public and political morality.
I had extended invitations to the Attorney-General, Tan Sri Mohtar Abdullah and the Anti-Corruption Agency, Datuk Yahya Shafee, to this Round Table on the Anti-Corruption Bill. We have a representative from the ACA with us, Encik Abu Kassim Mohamad, Ketua Unit Perancangan dan Ko-ordinasi Dasar BRR. Tan Sri Mohtar had been kind enough to reply stating that as he and his principal officers were involved in the drafting of the Anti-Corruption Bill 1997 and have to work over the weekend in connection with the second reading of the Bill in Parliament tomorrow, they were unable to accept the invitation to attend the Round Table Conference.
This is most unfortunate, for the Attorney-General does not seem to recognise or regard this Round Table on the Anti-Corruption Bill as an integral part of the preparations of the Attorney-General’s Chambers for the second reading of the Bill – for the feedbacks and inputs in this Round Table not only by concerned Malaysians, but also by distinguished personages who have vast experience and knowledge in the field, whether as prosecutor, investigator, judge, legal practitioner, academician, like Tan Sri Harun Hashim, Raja Aziz Addruse, Datuk Param Cumaraswamy, Dr. Syed Hussein Alatas, Dr. Jomo K.S., Tunku Aziz, should be able to provide invaluable contributions to make the Bill a more effective instrument in the fight against corruption.
By staying away or not sending a representative to the Round Table, the Attorney-General, who under the Bill will play an even more important role than the Director-General of the Anti-Corruption Agency in the fight against corruption, has in fact gone against the spirit of the Bill which, for the first time, has given statutory recognition to the need to enlist public support if the war against corruption is to succeed.
This is rather ironical when this is the only part in the Hong Kong anti-corruption legislation which the AG’s Chambers is prepared to follow.
For instance, Section 8 on the Bill on the duties of the Director-General and the officers of the ACA are based on section 13 of the Independent Commission Against Corruption Ordinance 1974, and for the first time in Malaysia, statutory recognition is given to the importance of the ACA to "(f) educate the public against corruption; and (g) enlist and foster public support in combating corruption".
On both these grounds, both the AG and the ACA DG should have been present at this Round Table.
It is rather disturbing that this is the only part of the Hong Kong anti-corruption legislation which the AG’s Chambers is prepared to accept in toto, but not the most important provision to check corruption in high places, whether in political life or public service, in connection with unexplaIned extraordinary wealth or lifestyle above known means of income.
Under Section 33(3) of the Bill, 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 too hemmed in with 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.
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."
This is one of the 15 amendments in my first batch of notice to the Speaker, Tan Sri Mohd. Zahir Ismail, of amendments I wish to move to the Bill during the Committee stage of the debate. I hope all MPs are allowed to declare their stand on this proposal, not based on party line, but on individual conscience.
What is also very disturbing about the Bill is that although it provides for enhanced powers in the fight against corruption, and increased penalties, the power of the ACA Director-General had comparatively been eroded and reduced and that of the Attorney-General as Public Prosecutor expanded - with the removal of the existing provision whereby the ACA Director-General "shall have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code". [Section 5(1) of Anti-Corruption Act]. I am sure Tan Sri Harun will be enlightening us on the full implications of this amendment.
The Anti-Corruption Bill consolidates the existing laws relating to the prevention of corruption and makes new provisions relating to the powers of investigations to enable the country to deal with acts of corruption.
The Bill replaces the Prevention of Corruption Act 1961, the Anti-Corruption Agency Act 1982 and the Emergency (Essential Powers) Ordinance 1970 and makes new provisions in fighting corruption.
I note in passing that the Prevention of Corruption Act 1961 has 30 clauses, the Emergency Ordinance 19 clauses and the ACA Act 11 clauses – a total of 60 clauses. In contrast, the new Anti-Corruption Bill has 63 clauses.
What is important, however, is not in the number of clauses, but in the provisions in the Bill.
The two questions we should address at this Round Table in the two panels are: firstly, from the legislation and enforcement aspect, in particular how the present Bill compares with the three anti-corruption laws it is replacing. Secondly, whether the Bill addresses the whole problem of corruption in Malaysia.
With regard to the first issue, I think I dare say without fear of contradiction that although it has been received with mixed feelings, the Bill is generally supported by all MPs and Malaysians who are concerned about the scourge of rampant corruption in the country.
In view of the fact that all MPs support the Bill, I would like to propose that the ruling and opposition parties remove the Whip in the debate on the Anti-Corruption Bill to allow all MPs to speak and vote freely according to their conscience whether to endorse or oppose particular provisions in the Bill and amendments which might be introduced, whether by the Government or MPs – whether from ruling or opposition parties.
Finally, there is time for the views and proposals expressed at this Round Table to be conveyed to Parliament. I am in fact working on the second batch of amendments to the Anti-Corruption Bill and if there are amendments which any speaker think should be considered by Parliament, I would welcome suggestions.