Call on all MPs to support motion to refer Anti-Corruption Bill to Select Committee to hold public hearings to fully involve civil society participation in the formulation of an anti-corruption law which could be accepted as a world model


Speech - Anti-Corruption Bill 1997
by Lim Kit Siang
(Dewan Rakyat, Monday):
It is a blemish that the much-awaited Anti-Corruption Bill, which 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, and replaces the Prevention of Corruption Act 1961, the Anti-Corruption Agency Act 1982 and the Emergency (Essential Powers) Ordinance 1970, has not involved much public involvement, participation or input.

The first reading of the Bill was presented in the Dewan Rakyat on Thursday on July 24 and today, four days later, we are debating its second reading. Although Parliament has four days to debate the Anti-Corruption Bill, this cannot be a subsitute for a meaningful public involvement, consultation and feedback as the second reading of a Bill in Parliament represents the final stage in the formulation of a Bill when by convention and tradition, the government is very reluctant to modify the Bill, not only on substance but even in terminology - where the second-reading debate is a mere formality for Parliament to perform its true role as a rubber stamp to approve whatever is presented to it by the Cabinet. This reverses the fundamental principle of Executive responsibility to Parliament into Parliamentary responsibility to the Executive!

It is most unfortunate that public involvement, consultation and input in the enactment of a law which should set the country on the path of good government and clean society in the new millennium, which is one of the nine strategic objectives of Vision 2020 for Malaysia to become a fully developed nation – namely a fully moral and ethical society - had been totally absent.

Up to now, only a handful - and this would include Members of Parliament - have seen or read the full contents of the Bill. Although the DAP has again performed a national service in posting the Anti-Corruption Bill on the Internet through the DAP homepage, very few had access to the Bill. None of the NGOs, for instance, and this includes the Bar Council and HAKAM, has yet got a copy of the Bill and the government has not made any effort whatsoever to get the views or inputs of organisations which have not only direct interest but special expertise to advise in this area of legislation.

Let us remedy this serious blemish in the formulation and enactment of the Anti-Corruption Bill by allowing a full and wide-ranging debate on the very important subject as how to combat corruption in Malaysia and how we can create a new culture of integrity in political life and public service with zero tolerance for corruption, where Malaysia can be universally recognised as one of the world’s top ten cleanest nations in the world instead of being ranked No. 26 out of 54 countries in the 1996 Transparency International international perception corruption index.

I think I dare say without fear of contradiction that although the Anti-Corruption Bill 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.

Three civil society initiatives in support of an all-out war against corruption in the past two weeks

In fact, I would propose that at the end of the second reading, the Anti-Corruption Bill should be referred to a Select Committee to hold public hearings to fully involve civil society participation in the formulation of an anti-corruption law which could be accepted as a world model.

This is one of the consensus reached at the Round Table (II) on the Anti-Corruption Bill which was held at the Swiss Garden Hotel, Kuala Lumpur yesterday which was attended by distinguished Malaysian personages who have vast experience and knowledge in the fight against corruption, whether as prosecutor, investigator, judge, legal practitioner, academician, like Tan Sri Harun Hashim, the first Director-General of the ACA when it was formed 30 years ago and the reputation and public confidence in the ACA had never been higher than when it was under the leadership of Tan Sri Harun Hashim;Raja Aziz Addruse, President of HAKAM and former Bar Council President; Datuk Param Cumaraswamy, another former Bar Council President; Dr. Syed Hussein Alatas, Malaysia’s world authority on corruption who was given international recognition by being appointed member Governing Board of Transparency International, Dr. Jomo K.S., Malaysia’s outstanding economist and Tunku Aziz, Convenor of Transparency International Malaysia.

The Round Table (II) on the Anti-Corruption Bill was the third civil society initiative in the past two weeks to create public awareness and mobilise public concern and support about corruption to create a new culture of integrity in political life and public service with zero tolerance for corruption.

The first initiative was the Round Table on Corruption - Assembly of Voices held at Tropicana Golf and on Country Club 13th July 1997 which I had convened as Parliamentary Opposition Leader and which was conceived as a gathering of eminent personages to give their views and proposals as to how a new political culture of public integrity with zero tolerance for corruption could be created as the prerequisite for a good government and a clean society.

The panellists of this first Round Table Conference, apart from Tan Sri Harun Hashim, Dr. Syed Hussein Alatas, Datuk Param Cumaraswamy, Dr. Jomo K.S. and Tunku Aziz also included former Auditor-General, Tan Sri Ahmad Nordin, undoubtedly the most famous Auditor-General in Malaysian history; veteran journalist Tan Sri Samad Ismail; Director of Just World Trust Dr. Chandra Muzaffar; President of FOMCA, Prof. Hamdan Adnan; Secretary-General of HAKAM, Gurmit Singh and MP for Parit Sulung and Chairman of BackBenchers’ Club, YB Ruhanie Ahmad.

The second important civil society initiative towards the same objective to strengthen the national integrity system was taken when the Barisan Backbenchers’ Club, together with Institut Kajian Dasar (IKD), Asian Strategic and Leadership Institute (ASLI) and the Centre for Leadership and Development Studies (CELDES), brought together political parties, government agencies, the private sector, trade unions, the consumer movement and NGOs in the historic "Consensus Against Corruption" Conference at the Putra World Trade Centre on July 19.

The "Round Table on Corruption - Assembly of Voices" came out with a Ten-Point Consensus on combatting corruption while the "Consensus Against Corruption" Conference issued a most seminal 16-Point Declaration.

There is no better start for the debate on the Anti-Corruption Bill than to consider these two important civil society documents on the war against corruption and to examine how the Bill had matched the various criteria set by these two documents as vital prerequisites in a successful and sustained fight against corruption.

The Ten-Point Consensus of the first "Round Table Conference on Corruption - Assembly of Voices" on July 13 was as follows:

  1. Public and Periodic Declaration of Assets and Liabilities by all members of Parliament and State Assemblies.
  2. Amendment of the law to provide for confiscation of ill-gotten gains of the corrupt.
  3. Amendment of the law to provide for a statutory presumption that a public officer having extraordinary wealth or leading a lifestyle disproportionate to his known sources of income should be deemed to have committed an offence of corruption unless he can give a satisfactory explanation.
  4. Greater transparency in funding of political parties.
  5. Restructuring of the Anti-Corruption Agency as an autonomous body independent of Executive control and which is directly responsible to Parliament.
  6. Restoration of an independent and impartial Judiciary.
  7. The need for a Free and Investigative Press.
  8. Greater accountability and transparency in the whole machinery of government and the privatisation process.
  9. Amendment or repeal of laws which inhibit a climate of openness, accountability, equity and justice, such as the Official Secrets Act, the Internal Security Act, the Printing Presses and Publications Act and the enactment of a Freedom of Information Act.
  10. Create a new culture of integrity in political life, administration and the public service with zero tolerance for corruption through inculcation of moral and ethical values in the family, school and religion.

The 16-Point Declaration of the "Consensus Against Corruption" Conference on July 19 was as follows:

  1. Kerajaan hendaklah mengkaji semula kuasa, tugas dan tanggungjawab Badan Pencegah Rasuah supaya mencakupi aspek-aspek pendidikan, pencegahan serta penyiasatan yang menyeluruh. Ini akan membolehkan BPR mempelopori gerakan pendidikan anti-rasuah yang komprehensif di kalangan masyarakat; melakukan kegiatan pencegahan yang lebih berkesan; menjalankan penyiasatan dengan lebih cekap dan adil serta membuat perakuan-perakuan pindaan yang berwibawa ke atas segala amalan dan prosedur di sektor awam yang didapati menggalakkan rasuah.
  2. Kerajaan hendaklah memberi kuasa penuh kepada BPR untuk meminta mana-mana individu yang disyaki melakukan rasuah untuk menjelaskan harta yang dimilikinya menerusi kenyataan bersumpah. Jika individu berkenaan gagal memberikan penjelasan yang memuaskan berhubung pemilikan harta yang melebihi pendapatannya, maka pendakwaan hendaklah dibuat ke atasnya. Sekiranya didapati bersalah, harta individu tersebut hendaklah dirampas.
  3. Kerajaan hendaklah menubuhkan sebuah jawatankuasa penilai peringkat tertinggi (review committee) yang bertanggungjawab mengkaji semula semua kes rasuah yang telah disiasat oleh BPR dan diserahkan kepada Pejabat Peguam Negara, tetapi kes berkenaan tidak dibawa ke mahkamah. Jawatankuasa ini hendaklah melantik Peguam Negara sebagi Ex-Officio dan dianggotai oleh perwakilan rakyat jelata yang berwibawa tinggi serta bertanggungjawab terus kepada Parlimen.
  4. Di samping hukuman-hukuman berat yang dikenakan ke atas pesalah rasuah, Kerajaan hendahlah juga mengenakan hukuman sebat ke atas pesalah-pesalah tersebut.
  5. Kerajaan hendaklah mengutuk amalan rasuah sebagai musuh negara yang lebih dasyat bahayanya dari penagihan dadah. Justeru itu, Kerajaan hendaklah merestui kewujudan sebuah Majlis Anti Rasuah Negara. Majlis ini hendaklah bertanggungjawab mengesan, mengkaji serta menganalisa amalan rasuah, kesan dan implikasinya terhadap sosio-ekonomi, politik dan keselamatan negara. Majlis tersebut hendaklah diwujudkan menerusi kerangka undang-undang, mempunyai jawatankuasa di peringkat negeri dan daerah serta bergerak seiring dengan BPR.
  6. Kerajaan hendaklah menggalak serta mengiktiraf kewujudan satu gerakan anti-rasuah kebangsaan yang menggemblengkan penyertaan rakyat jelata, sektor awam, sektor swasta, pertubuhan politik dan pertubuhan sukarela di semua peringkat, di selurah negara. Gerakan bersepadu ini hendaklah mempunyai struktur organisasi yang sama dengan Majlis Keselamatan Negara. Gerakan ini juga hendaklah bergerak seiring dengan BPR dan Majlis Anti-Rasuah Negara yang dicadangkan di atas.
  7. Seluruh jentera, sistem, procedur, peraturan dan undang-undang yang boleh mendorong amalan rasuah dan didapati menyulit, menghalang atau melambat-lambatkan pembangunan, kemajuan dan modenisasi ekonomi dan perindustrian negara hendaklah dikaji semula dan diperbaiki keberkesanannya.
  8. Sektor awam, swasta dan kalangan politik hendaklah diberi kefahaman mendalam dan terperinci bahawa pembangunan, kemajuan dan modenisasi negara, khususnya di bidang ekonomi dan perindustrian, adalah tanggungjawab bersama selaras dengan semangat dan Dasar Malaysia Incorporated.
  9. Hendaklah diwujudkan mekanisme perundangan yang berkesan untuk menyelia urusan yang melibatkan sektor peniagaan dan Kerajaan. Perilaku kakitangan awam yang memproses, menganalisa, membuat perakuan, mengendali, menyelia dan meluluskan semua aspek percukaian, perlesenan, projek pembangunan dan projek penswastaan di peringkat pusat, negeri dan daerah mestilah telus dan bebas dari rasuah. Warga korporat yang berurusan dengan sektor awam mengenai penswastaan atau perlaksanaan projek pembangunan di semua peringkat juga dituntut berperilaku telus dan bebas dari rasuah.
  10. Sebuah sistem kawalan dalaman bagi jabatan-jabatan utama Kerajaan mengendalikan projek-projek penswastaan dan projek pembangunan negara yang besar hendaklah dipastikan telus, amanah dan berintetgriti dalam mengendalikan maklumat-maklumat yang bernilai komersial dan yang dapat diperdagangkan dengan nilai pasaran yang tinggi.
  11. Semua anggota penguatkuasaan undang-undang dan kakitangan awam di jabatan yang sering terdedah dengan amalan rasuah hendaklah mempunyai tatacara yang telus, berintegriti dan berkesan. Semua sektor swasta juga hendaklah mewujudkan Tatacara dan Etika Anti Rasuah dalam organisasi masing-masing.
  12. Sumpah jawatan bagi seluruh perlantikan awam, swasta dan politik di semua peringkat hendaklah mengandungi elemen kemurniaan akhlak, keluhuran undang-undang dan anti-rasuah.
  13. Seluruh kakitangan awam, kepimpinan politik dan kepimpinan korporat di mana Kerajaan mempunyai "saham keemasan" hendaklah dimestikan mengisytiharkan harta masing-masing kepada sebuah jawatankuasa di bawah pimpinan Perdana Menteri.
  14. Usaha mewujudkan masyarakat madani yang menjunjungi keluhuran undang-undang, mengamalkan tradisi moral yang murni, berbudaya, berintegriti dan tidak berkompromi terhadap rasuah perlu di perhebat dan diperkasakan lagi gerakannya di setiap lapisan masyarakat Malaysia. Seluruh jentera pembangunan generasi anjuran Kerajaan, parti-parti politik, organisasi korporat dan badan-badan sukarela di semua peringkat perlu mendukung usaha mewujudkan masyarakat madani ini menerusi gerakan kesedaran dan modul latihan ketatanegaraan dan keagamaan yang rapi, khusus, bersepadu dan berterusan.
  15. Elemen dan mesej-mesej anti-rasuah hendaklah diterapkan di dalam jiwa segenap generasi muda Malaysia menerusi kurikulum khas pendidikan rendah, menengah dan tinggi anjuran Kerajaan dan swasta. Elemen dan mesej anti-rasuah ini juga hendaklah diterapkan ke dalam jiwa segenap pelatih menerusi kurikulum khas di semua agensi latihan awam dan swasta.
  16. Pihak media massa hendaklah diberi galakan untuk melaporkan gejala dan amalan rasuah oleh segenap lapisan masyarakat secara jujur, adil dan berwibawa.

The 16-Point Declaration was drafted by a committee comprising YB Ruhanie Ahmad, Tan Sri Harun Hashim, Dr. Syed Hussein Alatas, Dr. Chandra Muzaffar as well as Dato’ Shafee Yahya, Director-General of Anti-Corruption Agency, Tony Kwok Man-wai, Deputy Commissioner, Independent Commission Against Corruption, Hong Kong, Tan Sri Ramon Navaratnam, Corporate Adviser to Sungei Way Group, Dato Michael Yeoh, Director/Executive Vice President of the Asian Strategic and Leadership Institut, Abdul Rahman Adnan, Director Institut Kajian Dasar and Dr. Zambry Ab. Kadir, Executive Director of Centre for Leadership and Development Studies (CELDES).

As the Anti-Corruption Bill before the House is not only to establish an Anti-Corruption Agency, but "to make further and better provisions for the prevention of corruption and for matters necessary thereto or connected therewith", it should have dealt with all the aspects and problems of corruption as highlighted in the 10-Point Consensus of the Round Table Conference of 13th July 1997 and the 16-Point Declaration of the Consensus Against Corruption Conference on 19th July 1997.

Defined simply, corruption is the misuse of public power for private profit. Corruption involves behaviour on the part of officials in the public sector, whether politicians or civil servants, in which they improperly and unlawfully enrich themselves, or those close to them, by the misuse of public power entrusted to them.

Corruption can also be described as representing non-compliance with the "arm’s-length" principle, under which no personal or family relationship should play any role in economic decision-making, be it by private economic agents or by government officials. The arm’s-length principle is seen as fundamental for the efficient functioning of any organization.

At the Round Table (II) on the Anti-Corruption Bill yesterday, Dr. Syed Hussein Alatas raised the pertinent point as to why there is no definition of "corruption" in the Bill although it has a definition of "gratification", which is only a part of corruption. May be we can get a reply on this query by Dr. Syed Hussein during the Minisisterial winding-up.

Who shall guard the guards?

Apart from the failure to fully involve the civil society and concerned Malaysians in the formulation of the Bill, its failure to address in a comprehensive manner with the problem of corruption as identified by the 10-Point Consensus and the 16-Point Declaration is the next blemish of the Bill.

For instance, the first item of the 10-Point Consensus called for "Public and Periodic Declaration of Assets and Liabilities by all members of Parliament and State Assemblies".

Why was this important subject left out of the Bill, when under Section 8 of the Bill, the prevention of corruption is being specified as one of the statutory duties of the Director-General of the ACA.

In October 1977, I had moved a motion in the Dewan Rakyat seeking leave of the House to introduce a private member’s bill, to be known as Ministers and Members of Parliament (Declaration of Assets) Act, where I said:

It has been said that the example set by leaders and high-ranking public officials is crucial to the achievement and maintenance of an effective national integrity system. But the critical question down the ages of human history has always been, as so well put in Juvenal (Satires, vi.347): Quis custodiet ipsos custodes? (Who shall guard the guards?)

Call on Members of Parliament to set an example of integrity by amending the Anti-Corruption Bill to provide for annual public declaration of assets

This is why a periodic and public declaration of assets by political leaders and high-ranking public officials, particularly by MPs and Assemblymen, which would include Ministers, Deputy Ministers, Parliamentary Secretaries, Mentri-Mentri Besar, Chief Ministers and State Executive Councillors, is so fundamental in any national integrity system.

Such a public and periodic declaration of assets by MPs and Assemblymen should form the apex of a system of checks and balances to create a self-sustaining "virtuous circle", in which the principals at risk - whether political leader, public officer or judge - are all monitored, by themselves and by others.

Monitoring corruption cannot be left only to public prosecutors and to the forces of law and order. Action cannot depend solely on detection and criminal prosecution. Rather, action must include a combination of interlocking arrangements. In part, this approach includes improving the transparency of relationships, and to the extent possible, preventing the development of relationships which can lead to corruption. It includes transparency in the financial affairs of key players and the prospect of reviews being conducted by independent institutions which are likely to be outside any particular corruption network.

The challenge therefore is to construct a transparent and accountable system, which has two primary objectives: the first is to prevent corruption from taking place, and the second to make the principal players believe that there is a realistic chance of corruption being detected.

One of the key instruments for maintaining integrity in political life and public service is the periodic completion by all those in positions of influence of returns of their income, asset and liabilities. Although the disclosure of assets and income will, of course, not be accurately completed by those who are taking bribes, it will, however, force them to record their financial positions, and, in so doing, lay an important building block for any subsequent prosecution. It would, for example, dissuade them from suggesting that any later wealth that has not been disclosed was, in fact, acquired legitimately.

If Parliament is serious in wanting the country to embark on an all-out war against corruption, then the political leadership, starting with Members of Parliament should set an example of integrity by amending the Anti-Corruption Bill to provide for annual public declaration of assets by Members of Parliament, which should be kept in a register in Parliament accessible to members of the public.

I propose to amend the Anti-Corruption Bill to provide for the annual public declaration of assets by MPs during the Committee stage, and I hope that this will get the support of MPs regardless of party affiliation.

The amendment I propose to move on declaration of assets by Members of Parliament during the Committee Stage will read as follows:

I submit that if Parliament is prepared to amend the Anti-Corruption Bill to provide for an annual public declaration of assets, there would be no more potent message to the country and the world about Malaysia’s seriousness and commitment to create a new culture of integrity in political life and public services with zero tolerance for corruption.

Call for legislation to provide for transparency in funding of political parties and a centralized election fund to minimise the evil influence of money politics in Malaysian political life

Closely tied to the subject of integrity of political leaders is the third issue in the Ten-Point Consensus calling for greater transparency in the funding of political parties.

Political parties, especially those in the ruling government, are expensive to run. Many countries have implemented mechanisms to ensure that the fundraising process by political parties do not distort the political system and skew the democratic structures in favour of those with access to money - but there are no signs that we in Malaysia are yet prepared to give this subject serious consideration although money politics in Malaysia has reached such a serious stage that the Prime Minister was moved to tears at last October’s UMNO General Assembly warning about how the cancer of money politics can lead to the ruination of the party, race and nation.

Unless the political funding process is made transparent and political parties are required to disclose the sources of sizeable donations, the public is left to draw its own conclusions when it sees those suspected of funding political parties openly benefiting from handsome privatisation contracts and other government business.

Malaysia should emulate the example followed by some other countries which are concerned about the corruption of money politics and I call for legislation to provide for greater transparency in funding of political parties and also to provide for a centralized election fund so that political parties would not be too over-dependent on business donations creating an unhealthy patron-client relationship which is not conducive to a new culture of integrity with zero tolerance for corruption.

Has the government the political will to launch an all-out war against corruption, to catch the "big ones" and not just the "small ones"?

If Malaysia is to aim for the Vision 2020 objective of a fully moral and ethical society, we must strive to be a corruption-free society. This is why the tenth issue in the 10-Point Consensus underlined the fundamental importance of "creating a new culture of integrity in political life, administration and the public service with zero tolerance for corruption through inculcation of moral and ethical values in the family, school and religion."

In the final analysis, however, what is most important is the unanimity reached by the three civil society initiatives in support of the all-out war against corruption - the first Round Table Conference on Corruption and Assembly of Voices, the Consensus Against Corruption Conference and the Round Table (II) on the Anti-Corruption Bill - that no out war against corruption can succeed unless the top political leadership is fully committed to declare Corruption as the Public Enemy No. 1 in Malaysia.

Recently, high hopes had been generated among the people that the top political leadership really means business and that the all-out war against corruption, launched by the Acting Prime Minister, Datuk Seri Anwar Ibrahim under the directive of the Prime Minister, Datuk Ser Dr. Mahathir Mohamad on his two-month "working leave", would not end like previous anti-corruption campaigns with a lot of thunder but with no rain.

The highly-publicised campaign for a "Clean, Efficient and Trustworthy" Government in 1981 for instance fizzled out in a slew of corruption and accountability scandals or 15 years later, or the Prime Minister would not have to shed tears over the subject at the UMNO General Assembly.

In fact, 22 years ago, at a Joint Meeting of UMNO Youth and Wanita UMNO in June 1975, the then Deputy Prime Minister, Datuk Hussein Onn, famous in the annals of Malaysian history for his personal integrity, gave a stirring speech on corruption, condemning it as "deviations in the country’s development" which left unchecked would "sap the fibre of the nation and bring about decadence". He pledged that the government would expose these corrupt practices "irrespective of who are involved – be they mouse-deer or dragon". But this pledge also came to naught.

Let us be honest and courageous enough to admit that in recent days, the skeptics that the declaration by the then Acting Prime Minister, Datuk Seri Anwar Ibrahim that "Now is the time to act…we will catch the big ones and we will catch the small ones" would be translated into reality or that the government would have the political will and commitment to create a new culture of integrity in political life and public service with zero tolerance for corruption seem have won the day.

I had hoped that on the issue of creating a new culture of integrity in political life and public service, the entire national society could be united on a common ground, including all political parties, all branches of government and the civil society.

This was why in a statement on 19th June 1997, I made the following stand:

Overnight, however, the climate seems to have changed, and this can be discerned from the changed atmosphere in a space of a few weeks – from the first Round Table Conference on Corruption held in Petaling Jaya on July 13 and the Consensus Against Corruption Conference held at Putra World Trade Centre on July 19 on the one hand and the Round Table on the Anti-Corruption Bill yesterday on the other.

It would not be wrong to say that the climate appears to be quite "wintry" and 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.

Successful anti-corruption reforms had been rare in human history, while failures had been numerous – with grandiose promises and the conspicuous inability to deliver, in many cases, with genuine intentions which are overwhelmed by the size of problem of corruption. Sometimes of course, the anti-reform postures were just postures with no expectation that any meaningful change will follow – and the best example is of course former President of South Korea, Roh Tae Woo, who at his inauguration vowed that he intended to be the cleanest President in his country’s history but who is presently in prison convicted of a host of major corruption charges.

Eight major causes of failures of past anti-corruption efforts in human history

It should be instructive for Parliament as well as Malaysians to reflect on a analysis which has been made by Transparency International in its "The TI Source Book - National Integrity Systems" on eight major causes of past failures of anti-corruption efforts made by human societies:

Five-Point Consensus of the Round Table (II) on Anti-Corruption Bill

Let me come to the Bill proper before the House. The Round Table on the Anti-Corruption Bill held in Kuala Lumpur yesterday reached a five-point consensus on the Bill:

Firstly, that it should be referred to a Select Committee to allow for a proper process of public consultation and participation.

Secondly, the need to ensure the the Anti-Corruption Agency is independent and enjoys public confidence in its impartiality and professionalism.

Thirdly, opposition to Section 20 which creates the new offence entailing RM100,000 fine, ten years’ jail or both for any person who makes a false statement on corruption.

Fourthly, the need for Members of Parliament and State Assemblymen to publicly and periodically declare their assets, income and liabilities.

Fifthly, the need for a definitive and clear-cut provision to make it an offence for those holding public office who has pecuniary resources or property or maintains a lifestyle disproportionate to their known sources of income.

It is most ironical that although the importance of enlisting and fostering public support in combating corruption is for the first time given statutory recognition in Section 8 on the Bill, the government has failed to enlist and foster public support for the Bill.

All anti-corruption efforts, whether involving reforming public programmes, reorganising government or strengthening enforcement, need public support if they are to succeed. Anti-corruption campaigns cannot suceed unless the public is behind them. If ordinary people and businesses at all levels of society are used to dealing with the state through a system of "payoffs", it will be difficult to change attitudes.

This is why it is most unfortunate that the government had neglected to enlist public support in formulating the new Anti-Corruption Bill not only to ensure public participation and input, but even more important, to secure public confidence that the Anti-Corruption Bill is a landmark development marking the government’s political will and commitment to wage an all-out war against corruption, whether ikan bilis or ikan yus.

The various new proposals in the Anti-Corruption Bill have in fact given many important quarters the opposite impression - as for instance the provisions undermining the position and authority of the ACA Director-General who already does not enjoy public confidence for his independence; section 20 on false reports with its oppressive sentences which seems to be designed to protect the corrupt rather than encourage expose of corruption; and the public disappointment that there is no clear-cut provision to make unexplained wealth or living standards above that which is commensurate with present or past emoluments of a public officer an offence and the confiscation of these corrupt ill-gotten gains despite an earlier public announcement that this would be done.

ACA should be an independent body answerable only to Parliament and ACA Director-General restored his prosecutorial powers as well as operational independence

All the three civil society initiatives - the two Round Table Conferences and the Consensus Against Corruption Conference - are unanimous in wanting to have an independent Anti-Corruption Agency which enjoys public confidence in its independence, impartiality and professionalism.

The Round Table on the Anti-Corruption Bill yesterday is gravely concerned that far from strengthening the independence of the ACA, the Anti-Corruption Bill has downgraded the independence and authority of the ACA Director-General, making him subservient to the Attorney-General in his capacity as Public Prosecutor, even in matters concerning the operational independence of the ACA.

The Bill, for instance, has removed the powers of the ACA Director-General as a Deputy Public Prosecutor under the Criminal Procedure Code which is currently provided in the Anti-Corruption Agency Act 1982.

Thus, section 5(1) of the Anti-Corruption Agency Act states:

"5(1). The Director-General of the Agency shall have all the powers of a Deputy Prosecutor under the Criminal Procedure Code and all the powers of an officer of the agency."

Section 376(3) of the Criminal Procedure Code provides that a Deputy Public Prosecutor "may exercise all or any of the rights and powers vested in or exercisable by the Public Prosecutor by or under this Code or any other written law except any rights or powers expressed to be exercisable by the Public Prosecutor personally."

Section 376(4) reads: "The rights and powers vested in or exercisable by the Public Prosecutor by subsection 3 and sections 68(2), 184(2), 381, 385 and 386 shall be exercisable by the Public Prosecutor personally."

As the eight sections mentioned whereby the rights and powers of vested in or exercisable by the Public Prosecutor could only be exercised by the Public Prosecutor personally have nothing to do with the anti-corruption laws, this would mean that under the Anti-Corruption Act 1982, the Director-General of ACA had full independence, not only in terms of investigations, search, seizure or arrest, but also with regard to prosecution - as all the powers which are mentioned as exut also with regard to prosecution - as all the powers which are mentioned in the Prevention of Corruption Act 1962 and the Emergency (Essential Powers) Ordinance No. 22, 1970 as exercisable only by the Public Prosecutor are also exercisable by the ACA Director-General because of Section 5 of the ACA Act, which confers on him the powers of a Deputy Public Prosecutor.

The legal powers and position of the ACA Director-General is not in any way altered although in practice, after the tenure of Tan Sri Harun Hashim as ACA Director-General, the ACA Director-General had ceased to decide on prosecutions after the completion of ACA investigations.

If the powers of the ACA Director-General as DPP is to be removed, at least he should have full operational independence, and he should be able to exercise all the powers in Part V of the Bill with regard to investigations, search and seizures without having to seek the approval of the Public Prosecutor, who should only decide at the end of ACA investigations whether prosecution should be initiated.

The argument for the removal of the DPP powers of the ACA Director-General is that it is necessary to have a system of check-and-balance, with investigation vesting in the ACA while the decision on prosecution devolving on the Attorney-General as Public Prosecutor.

What about check-and-balance on the Attorney-General as Public Prosecutor especially in the light of the recent history of selective prosecution by the Attorney-General, which he had not been able to rebut despite very serious allegations being made inside and outside Parliament?

I welcome the proposal by the Consensus Against Corruption Conference on July 19, where one of its 16-Point Declaration called for the formation of an oversight committee to review cases submitted by the Anti-Corruption Agency to the Attorney-General but never prosecuted. I hope all MPs would support this proposal.

I have an amendment proposing that the ACA should be independent and answerable only to Parliament - and this is the only way the ACA can command public confidence in its independence, impartiality and professionalism.

(28/7/97)


*Lim Kit Siang - Malaysian Parliamentary Opposition Leader, Democratic Action Party Secretary-General & Member of Parliament for Tanjong