I am proposing that Anti-Corruption Agency (ACA) should be renamed "Independent Anti-Corruption Agency", both in the Preamble, Part I and Part II of the Bill.
However, the ACA must not only be independent in name, but even more important, independent in fact in every operational sense, so that it could command the confidence of the Malaysian populace.
This is why I am proposing new Section 3 (10), which is in fact to be found in Section 5(1) of the Anti-Corruption Agency Act 1982, namely:
"Section 3(10): The Director-General shall have all the powers of Deputy Public Prosecutor under the Criminal Procedure Code and all the powers of an officer of the Agency."
There is general concern among jurists, former judges, former prosecutors and academicians that in the new anti-corruption law, the position of the ACA Director-General has been downgraded, removing from him not only the powers of prosecution but even subjecting his operational independence to the Attorney-General in his capacity as Public Prosecutor.
This is a very important issue as one of ACA's greatest problems is the lack of public confidence in its independence, impartiality and as a result, professionalism.
Yesterday, the MP for Alor Gajah, Datuk Abu Seman Yusop, former ACA officer, proposed that in any talk or seminar on corruption, opposition parties should not only invite former high-ranking ACA officers such as its former Director-General Tan Sri Harun Hashim but should include the ACA's officers with first-hand experience in combating graft.
He said the ACA was famous in its early days not because of Tan Sri Harun Hashim but for the sheer hard work and commitment of all its officers and that their vigour had boosted ACA's credibility by catching a lot of "big fish", particularly in the 1970s.
Datuk Abu Seman has at least acknowledged the point which I had made in the debate, that it was during Tan Sri Harun Hashim's time as its first director-general between 1967-1971 when the ACA's public standing as an independent anti-corruption agency was highest in the 30-year history of the ACA and that after Tan Sri Harun Hashim's tenure, the ACA had not been able to build on the public confidence enjoyed by the ACA.
Otherwise, the ACA should have become a premier anti-corruption body in the world instead of allowing the Hong Kong International Commission Against Corruption (ICAC) which was formed seven years after the ACA in 1974 to establish the international reputation as one of the best known and successful organisations dedicated to addressing issues of corruption in both the public and private sectors, to the extent that the Malaysia has to learn from ICAC, when it should be Hong Kong having to learn from the ACA! This was why the Deputy Comissioner of the Hong Kong ICAC, Tony Kwok Man-wai was regarded as such a "catch" at the Consensus Against Corruption Conference on July 19. The time has come however for us to create the conditions whereby other countries wanting to fight corruption would regard it as a "catch" to be able to invite top ACA officers to speak at their anti-corruption conferences and seminars.
I can agree with Datuk Abu Seman that all the ACA officers under Tan Sri Harun Hashim must be credited for the ACA's high public standing through their hard work and commitment (although I do not know whether Datuk Abu Seman was an ACA officer under Tan Sri Harun Hashim or not), for it was clearly impossible for one man - even if he was an outstanding director-general - to singly establish an organisation's credibility and reputation without a dedicated and committed team.
However, by arguing that the the reason the ACA had the highest public respect during the tenure of the first director-general was not because of Tan Sri Harun Hashim but because of the hard work and commitment of the ACA staff, Datuk Abu Seman was guilty of doing a great injustice and disservice to all officers who served after him in the ACA as he was in fact casting aspersions on their commitment, diligence and even ability.
Was Datuk Abu Seman implying that after he had left the ACA - after he had his finger bitten when he tried to stop a person being investigated from swallowing the money he had obtained through corruption - ACA officers had not been able to show similar "sheer hard work and commitment" and that was the reason why in the past quarter of a century, the ACA had not been able to maintain or enhance public confidence in its independence, impartiality and even professionalism?
I think Datuk Abu Seman should publicly apologise to all the ACA officers who had dedicated their lives to the battle against corruption under very difficult circumstances in the past quarter of a century for casting such uncalled for aspersions on their commitment, diligence, capability and even integrity.
I do not question Datuk Abu Seman's commitment and diligence when he was ACA officer, but I dare say that in the past 25 years since he had left the ACA, there was no shortage of ACA officers who could match or even out-match Datuk Abu Seman's commitment, diligence and capability.
The question is why with ACA officers who have equal if not more commitment, diligence and capability than Datuk Abu Seman, the ACA had not been able to maintain or enhance the public respect and confidence it had achieved under its first director-general?
Datuk Abu Seman had failed to give the right answer as to why the ACA had commanded the highest public confidence and respect when it was under Tan Sri Harun Hashim which it was unable to maintain or enhance in the past quarter of a century.
Datuk Abu Seman was grievously wrong when he said Tan Sri Harun Hashim was not the reason for the ACA's public confidence during his tenure, for Tan Sri Harun Hashim was indeed a vital and critical factor.
This was not just because of Tan Sri Harun's personal integrity, as the long line of his successors as ACA Director-General like Tan Sri Zulkifli Mahmood are also men of impeccable integrity.
The answer lies in the independence with which Tan Sri Harun could act as Director-General. As Tan Sri Harun said at the Round Table (II) Conference on the Anti-Corruption Bill in Kuala Lumpur on Sunday, he was given full independence by the then Prime Minister, Tunku Abdul Rahman, where he had unfettered powers not only to conduct investigations but to decide on prosecutions.
I have no doubt that if all the other ACA Director-Generals after Tan Sri Harun Hasim had also been given the same unfettered freedom and independence in corruption investigations and prosecutions, some of them would have acheived greater distinction in their service as ACA Director-General, possibly even outshining Tan Sri Harun.
Under the existing law, the ACA Director-General have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code.
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 Public Prosecutor under the Criminal Procedure Code and all the powers of an officer of the agency."
These powers of the ACA Director-General as Deputy Public Prosecutor were not given just by the ACA Act 1982, but were also in the Biro Siasatan Negara Act 1973, which was repealed by the 1982 ACA Act in order to effect a change in the name 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 six sections mentioned whereby the rights and powers of the Public Prosecutor must be exercised personally and cannot be delegated to the Deputy Public Prosecutor 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 prosecution, but in full operational sense, such as investigations, search, seizure or arrest.
The question is why on the 30th anniversary of the ACA, the important powers of the ACA Director-General as Deputy Public Prosecutor is being removed and his position downgraded at a time when a Bill is being introduced to declare an all-out war against corruption?
The argument advanced for removing the powers of the Director-General is that this is to ensure adequate check and balance, with investigations fully in the hands of the ACA Director-General while prosecution is decided by the Attorney-General in his capacity as Public Prosecutor.
I had never suggested that the ACA Director-General should be immune from a system of checks and balance to ensure that there is no abuse of power. This is why I have also proposed an amendment to Section 3 of the Bill to add a new section 11, which reads:
"3(11). The Director-General shall be answerable only to Parliament and shall submit an annual report to Parliament."
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.
This the reason for the batch of nine amendments to Part IV and V of the Bill to give the ACA Director-General full operational independence in corruption investigations, without having to be subject to the Attorney-General, whether in terms of search and seizure; inspection of bank account, share account, purchase account, expense account, safe deposit contents; issue notice to explain possession of property in excess of emoluments; seizure of movable or immovable property or interception of postal articles, telecommunication messages and to listen to any conversation.
Those who talk so much about the need for checks and balance on the powers of the ACA Director-General, justifying the separation of powers between investigation and prosecution, with the former fully in the province of the ACA while the latter the sole responsibility of the Attorney-General, should therefore support my amendments to Part IV and V of the Bill to remove the Public Prosecutor from playing any role whatsoever concerning the operation and investigations of the ACA.
While I concede that there should be a system of checks and balance on the powers of the ACA Director-General, I do not find a similar concession from these same MPs that there should also be a system of checks and balances on the exercise of the discretionary prosecutorial powers of the Attorney-General 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 will come to this when I move an amendment to Section 51, incorporating one of the 16-Point Declaration of the Consensus Against Corruption Conference on July 19, for the establishment of an oversight committee to review cases submitted by the Anti-Corruption Agency to the Attorney-General but never prosecuted.
During the debate, several MPs expressed unhappiness at the reference to the ICAC of Hong Kong as an internationally-recognised effective anti-corruption body, as if any such admission is an insult to national pride, not realising that what we should be ashamed of is the fact that although the ACA was formed earlier than the ICAC by seven years, the ACA has not been able to acquire a better international recognition as one of the world's premier anti-corruption organisations than the ICAC. Otherwise, Hong Kong should be learning from Malaysia rather than Malaysia having to learn from Hong Kong.
In the 1996 Transparency International corruption perception index (CPI), Malaysia was placed No. 26 out of 54 countries as compared to Hong Kong, which was placed No. 18 in the ranking.
I can gather that underlying some of the remarks during the debate, there is the cynical assumption that with Hong Kong's handover to China, the ICAC will not be able to be an effective anti-corruption body.
Whether these assumptions are right or not, let time tell. However, so long as ICAC is able to maintain a high international reputation, there is nothing to be ashamed of learning from Hong Kong in the war against corruption, especially as the country's leaders, particularly the Prime Minister, Datuk Seri Dr. Mahathir had repeatedly reminded Malaysians about the Prophet's saying that knowledge should be pursued even to China! P>Let us learn from the example of the ICAC in Hong Kong. Twenty-two years ago before the establishment of ICAC, corruption was a way of life in Hong Kong.
The success of ICAC in reducing corruption in Hong Kong in the past 22 years can be seen from public opinion surveys in Hong Kong, one in 1977 in which 38% thought corruption to be widespread and another in 1994 in which only 7.8% thought so. In a more recent survey, only 2.9% of the people of Hong Kong indicated they would tolerate corruption and 68% indicated that they would report it if they became aware of it. In the 1996 opinion survey, 96% of all respondents thought that the ICAC deserved their support.
These opinion surveys highlight another important aspect if any all-out war against corruption is to succeed - the support of the community itself which must be a driving force against corruption by taking proactive and sustained action to raise the standards of accountability, transparency and integrity in the public service and government, which is why I am proposing the amendment of section 8 of the Bill to specify that the functions and duties of the Director-General should include "8(h) promote a national culture of integrity with zero tolerance for corruption".
To test and establish its success, independence and standing among the Malaysian public, is the ACA prepared to commission regular opinion polls among Malaysians to ascertain whether they perceive corruption to be widespread, whether they would tolerate corruption and whether they regard the ACA worthy of support?
Apart from proposing new section 8(h) for the ACA to "promote a national culture of integrity with zero tolerance for corruption", I am also proposing two other amendments to the section which sets out the powers and functions of the ACA.
One is to broaden section 8 (e) where the ACA Director-General and his officers are duty-bound to "advise heads of public bodies of any changes in practices, systems or procedures compatible with the effective discharge of the duties of public bodies as the Director-General thinks necessary to reduce the likelihood of the occurrence of corruption" to include heads of private sector organisations.
Another amendment is to provide for new section 8(I) to entrust the ACA with the duty to "promote international co-operation in combating transnational corruption". P>The rationales for these three amendments to section 8 are as follows:
Malaysia must aim not only for a clean public service but also a clean private sector. It is instructive here to refer to what the ICAC Deputy Commissioner Tony Kwok Man-wai said in his paper "The Hong Kong Experience in Fighting Corruption" at the Consensus Against Corruption Conference on July 19, under the section: A Vigilant Private Sector.
Thirdly, we now have a private sector that is fully alert to the dangers of corruption and is vigilant against it. This was in sharp contrast to the early years when some parts of the business community were hostile towards the ICAC and were unco-operative in our investigations. Some even branded our work as 'interference with the free market economy'. Since the late 80s, some 54% of corruption reports concern the private sector. More business organisations are now seeking our advice on corruption prevention. They realise that prevention is better, and cheaper, than cure. Over the past ten years or so, some 1,800 of them did just that. A few years ago the ICAC started encouraging some 2,600 publicly-listed and large private companies to adopt corporate codes of conduct to improve their business ethics. 68% have now done so, a healthy figure by world standards."
In contrast, in his paper in the same panel, the ACA Director-General, Datuk Shafee Yahya, under the theme "Eradicating Corruption: The Way Forward" has hardly anything to say about the need to instil a culture of integrity with zero tolerance for corruption in the private sector.
This, I submit, is justification enough for the amendment to broaden the ACA's duties to embrace the private sector. In fact, this has become even more pressing in Malaysia because of the rapid rate of privatisation which has privatised corruption by increasing opportunities for corruption in the private sector.
This section, together with section 8(f) "to educate the public against corruption" and 8(g) "to enlist and foster public support in combating corruption" should be regarded as no less important than the investigative functions and operations of the ACA.
We must realise that the battle against corruption cannot be won only by punishing the corrupt. There is an equally urgent need to improve the bureaucratic systems and machinery and bring about fundamental changes in public attitudes towards corruption.
The ACA should have three broad functions, investigations, prevention and education. I would rate prevention of corruption and education of the public about the importance of having a culture which abhors corruption as important as that of investigations of corruption.
One of the 29 amendments to the Anti-Corruption Bill is to make the ACA answerable only to Parliament and to submit annual reports to Parliament.
In its annual reports to Parliament, the ACA should not only report on its investigative functions, but also on what actions it had taken to promote a climate to prevent corruption.
For instance, it should report on the range of options for changing the government and the national system to prevent corruption, such as:
I am proposing an amendment to provide the ACA with the statutory function "to promote international co-operation in combating transnational corruption". Corruption now knows no boundaries and the ACA must co-operate internationally with other anti-corruption bodies if the battle against corruption in Malaysia is to be waged effectively.
This is why it is important that the ACA should play a leading role in the international arena in the field of promoting international co-operation in the fight against corruption.
I call on the Deputy Prime Minister, Datuk Seri Anwar Ibrahim to seriously consider my proposal that Malaysia should make a bid to host the 9th International Anti-Corruption Conference (IACC) in Malaysia in 1999, and that such a bid should be made at the 8th IACC to be held in Lima, Peru in September this year.
Another area the ACA can make an international contribution in the fight against corruption is to take the initiative to propose an ASEAN Convention Against Corruption. Other regional bodies have adopted such anti-corruption declarations like the Inter-American Convention Against Corruption and there is no reason why ASEAN should not show the way in the world as one of the regions which is very concerned about the destructive effects of corruption on society by endorsing an ASEAN Convention Against Corruption.
(The above is Lim Kit Siang's remarks on nine of 29 amendments he proposed during the committee stage of the Anti-Corruption Bill in Parliament on 31st July 1997)
(31/7/97)