Dato’ Ahmad Rosli Mohd Sham
Chairman of the MACC Operation Review Panel
Former Head of Prosecution, Attorney General Chambers

One of the major issues besetting the MACC is that of the perception regarding its independence in investigating corruption cases and abuse of power. The MACC has been criticized for allegedly practicing “selective investigation” or “closing cases” that involved high profile individuals.

Discussions on monitoring the MACC so that it can perform its primary function of investigating corruption effectively without fear or favour, range from placing the Commission under the Enforcement Agency Integrity Commission (EIAC) or under the Parliament.

In my opinion, we need to look at the issues faced by the Commission before we propose ideas that may not be useful, realistic or even counter-productive in the long run.

As the chairman of the Operation Review Panel (ORP), one of the five external oversight panels of the MACC, I can assure the public that cases investigated by the MACC must go through this panel with a fine tooth comb.

The Chief Commissioner cannot just open an investigation or close a case without any justification. He will be questioned thoroughly by my panel and other oversight bodies as well.

Check and Balance Mechanism

The ORP consists of five members who are professionals and experts from various fields to monitor the implementation of MACC functions and operations. They are former Deputy Chief Executive Officer (Compliance), Inland Revenue Board Dato ’Abdul Manap Dim, former deputy director of Financial Intelligence and Enforcement Division, Bank Negara Malaysia Dr. Haji Mazlan Haji Ahmad, Former Deputy Director General (Enforcement and Compliance), Royal Malaysian Customs Department Dato ’Indera Azimah Abd Hamid, and Former Kelantan State Secretary Dato ’Mohd Faudzi Hj Che Mamat.

As an external oversight panel, the ORP provides a check and balance mechanism to ensure that the commission performs its duties in an independent, accountable and professional manner to prevent malpractices in its investigations.

This year, we have completed two out of three review sessions with the MACC, in which my panel have reviewed a total of 26 Investigation Papers (IP) involving cases of public interest since January. Out of that, we requested for 4 to be relooked with our proposals.

During the review meetings, the MACC must present the status of the cases, and if they are slow, they must give explanation on what the reasons are and offer convincing answers that they have done everything in their power to complete the investigations in good order.

Reviewing the cases, my panel proposes recommendations that must be answered and acted upon by the next meeting. This robust inquiry into the status and process of investigation, however, was done closed doors. And because it was unreported, few know about this monitoring oversight process that keeps the MACC on its toes.

Having external oversight bodies like ours is a best practice, benchmarking against the highly successful model of the Hong Kong Independent Commission Against Corruption (ICAC). But while they have three oversight bodies, we have five.

In my opinion, these external oversight bodies are enough to provide the check and balance mechanism needed and having the Parliament to take over this task is not only redundant but can be counter-productive.

Separation of Powers Contravened

Firstly, putting the MACC under the supervision of the Parliament may contravene the principle of separation of powers. It is akin to putting the executive under the monitoring of the legislative when there should be a separation. The danger is that the MACC will need the permission of politicians to open an investigation or to conduct certain processes necessary in an investigation.

This has in fact been the case of a neighboring country which anti corruption commission has been put under the Parliament and a ‘Supervisory Board”, when it had enjoyed full organizational and functional autonomy before.

Furthermore, by putting the anti-corruption agency under the Parliament does not guarantee an increase of the Corruption Perception Index (CPI), using again the example of the neighboring country.

On another proposal to place the MACC under the supervision of another government body such as the EIAC, begs the question of who then will monitor this monitoring body if questions arise on its independence and its capacity to play that role?

Putting the MACC under the supervision of the EIAC will also make the existing external oversight panels redundant. For example, the Complaints Committee (Jawatankuasa Aduan) is an independent external oversight body that monitors and checks the action or outcome of investigations on complaints of misconduct committed by MACC officers. It also takes note of disciplinary action and recommends preventive measures and improvement to work procedures.

If the officer is found to have committed a criminal offence, the case would be handed over to the respective enforcement body to be dealt with.

Hence, there is already a working mechanism to deal with recalcitrant MACC officers. In my opinion, it is better to have independent external oversight bodies to provide the mechanism of check and balance then a government body like the EIAC whose officers are also civil servants.

If there are questions as to the efficacy of these external oversight bodies, then the membership of these entities must be shown to be individuals of high caliber, experts in their fields, respected by the community and chosen from both the public and private sector.

A Case for Public Inquiry

This brings me to my proposal on how to increase public confidence in the MACC. Investigations on corruption involving cases of public interest and politically exposed persons (PEP) often invite extra scrutiny.

Such cases can often be easily manipulated by those with political interest to create the perception that the MACC is either selectively investigating individuals, or dragging its feet on some cases and will close them when interest dies down. These kinds of speculation were rife, for example, when the MACC was investigating former Prime Minister over the 1MDB case and the probe into the controversial Littoral Combat Ships (LCS) project.

Speculations like these undermine the legitimacy of MACC’s investigations and their outcome.

In this vein, I would like to propose the practice of public inquiry so that the public can see for themselves the stages of investigation and the kind of challenges these investigations face.

Public inquiries can be used to establish facts, to learn lessons so that mistakes are not repeated, to restore public confidence and to determine accountability.

A note of caution is that public inquiry cannot be conducted for all cases. This is for cases that involved national security and cross border investigations that involve international diplomacy based on international laws and mutual agreements.

In other countries, public inquiries on selected corruption and cases of misconduct in public service have been practiced in United Kingdom, Canada, Australia and New Zealand.

In these experiences, it has been found that public hearings increase public confidence and trust that allegations of corruption are being investigated fairly and professionally. It may also encourage witnesses to come forward with new evidence.

Furthermore, public inquiry raises the profile of investigations and can serve as a deterrent, in addition to educating the public and community about corruption and issues of misconduct and abuse of power.

The government also benefits from this exercise as it shows that it is transparent and accountable to the people. At the same time, it can foster more transparency in governance and raise the integrity of the public sector.

I raise this matter as a proposal and a challenge for lawmakers to enact laws that enable public inquiries to be held as a way to raise public confidence and trust in the independence of enforcement agencies.