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MACC and JAC Bills – postpone second reading from 4-6 weeks to allow fuller study/greater consensus by concerned stakeholders

The Prime Minister, Datuk Seri Abdullah Ahmad Badawi wants to fulfill three reform pledges on anti-corruption, restore the independence of the judiciary and establish an efficient and professional world-class police service before he steps down from office next March.

Tomorrow, Parliament is slated to start debate on the first of two of these reforms, the Malaysian Anti-Corruption Commission (MACC) Bill and the Judicial Appointments Commission (JAC) Bill.

DAP, just like the other component parties in Pakatan Rakyat, would want to give as much support as possible to ensure the accomplishment of these three reforms. However, we cannot give blanket support or endorse proposals which are inimical to these reform objectives.

MPs saw the MACC and the JAC Bills only on Wednesday and there have been increasing concerns and reservations about the provisions in these two Bills as to whether they would be able to further the objectives of having a truly independent anti-corruption body to spearhead an all-out war against corruption and the restoration of the independence, impartiality and integrity of the judiciary.

I have given notice to move five amendments to the MACC to provide greater fire-power in the battle against corruption, strengthen the independence of the MACC from the Executive and reinforce the oversight powers of Parliament.

For instance, I am proposing that we should emulate the Hong Kong anti-corruption law by making it an offence per se for a public officer to have possession of unexplained property, viz: new Section 16A on “Possession of unexplained property”:

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

(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.

I am also proposing amendments to Sections 5 and 58 of the Bill to make it very clear that the Chief Commissioner of the MACC shall have all the powers of a Deputy Public Prosecutor under the Criminal Procedure Code and that a prosecution for an offence under the Act shall not be instituted except by or with the consent of the Chief Commissioner, instead of the Public Prosecutor as provided in the Bill.

I also propose that one of the five check-and-balance bodies for the MACC should be a Parliamentary Committee, whose membership should be appointed by Parliament rather than by the Prime Minister and that such a committee should be headed by an Opposition MP.

These are not the only concerns about the defects of the MACC Bill. Former Court of Appeal judge Datuk Shaikh Daud Shaikh Mohd Ismai, in an interview in New Sunday Times, have pointed to reservations in other provisions in the MACC Bill, in particular with regard to Sections 47 on “Legal obligation to give information”, Section 53 on “Admissibility of statements by accused persons” and Section 62 on “Defence statement” which greatly undermine the rights of an accused charged with corruption.

The JAC Bill also raises a hosts of questions and concerns, including the strong objection that (i) the Prime Minister can disregard the recommendations of the JAC; and (ii) the appointment procedure of judges in the new bill violates the Federal Constitution, particularly with regard to the appointment of judges for Sabah and Sarawak in Articles 122B and 161E(2).

Furthermore, there is the question as to why the MACC and JAC are not being created by way of constitutional amendments so that they are given constitutional status and importance.

These are all very weighty issues and the second reading of the MACC and JAC Bills should not be rushed through next week but should be deferred for four to six weeks till mid-January or early-February to allow for fuller study and greater consensus by all concerned stakeholders.

I agree that the MACC and JAC Bills should be passed by Parliament before Abdullah steps down as Prime Minister in March. This deadline can still be met with the second reading and passage of the two Bills by Parliament deferred for four to six weeks.

For this reason, I call on the Prime Minister to stand down the second reading of the MACC Bill when Parliament meets tomorrow, and this should apply to the JAC Bill as well. There are other government bills for Parliament to debate for next week’s Parliament.

(Speech at the opening of the Perak DAP State Convention at Heritage Hotel, Ipoh on Sunday, 14th December 2008)

34 Replies to “MACC and JAC Bills – postpone second reading from 4-6 weeks to allow fuller study/greater consensus by concerned stakeholders”

  2. Is this new Section 16A proposed by you retrospective ie. applying backwards in time before coming into force of the MACC?

    The more I think of it, the more it appears to me that this MACC Bill is, whether due to accident or design, a suberb instrument by which the ruling parties could consolidate their power rather than subject it to restraint.

    Taking a bird’s eye view, the MACC bill, in present form, has two major and broad shortcomings:-

    1. the MACC does not meet the criteria of independence from executive interference when (a) by Section 58, prosecution needs Public Prosecutor’s consent, which is a conflict of interest since the Public Prosecutor or Attorney General is the government’s lawyer; (b) any decision not to prosecute a “big fish” is protected by immunity provisions of section 72 of the MACC Bill.

    2. It is draconian and curtails civil liberties & legal rights of an accused. Eg., it substitutes the time honoured presumption of innocence with that of guilt; it infringes banking secrecy and professional privileges; it authorises otherwise illegal wire and email tapping in violation of privacy; it encourages entrapment by agent provocateurs; it takes way time honoured principle against self incrimination as elaborated by Former Court of Appeal judge Datuk Shaikh Daud (in NST interview today).

    On what could happen:

    Features in 1. will enable the wielders of power to buttress political allegiance and loyalty by selective prosecution. Supporters will be shielded thanks to control over factors under 1 .; and detractors will be converted to allegiance or at least intimidated to silence because factors in 1. could assure prosecution, whilst factors in 2. almost certain conviction.

    And yet at the same time, the MACC could, with draconian powers under 2. be used to haul all the ‘ikan bilis’ to give the “image” of political will to combat corruption in hope of regaining lost votes from electors, whilst in reality the “whales and sharks” are of course free to roam to defeat of the fundamental object of this MACC Bill.

    YB, you would understand that Pakatan Rakyat controls 5 state governments. With the discretionary powers to selectively prosecute under 1. and draconian powers under 2., it is so easy to prosecute and convict Pakatan Rakyat’s state councillors on the slightest pretext or the slightest lapse of probity.

    This means a very dexterous and deft manipulation of this MACC Act could shift the onus to prove probity against PR’s state councillors – that they have to be squeaky clean, and even then they could be harrassed under this law – whilst on the ruling parties’ side, the ‘ikan bilis’ are sacrificed just so for the sharks and whales to thrive notwithstanding the intent of MACC to catch the big fish.

    And all these problems for the OIpposition kick in after the MACC Bill, in its present form, comes into operation.

    However even in the situation before its ation – as for eg. now when you asked for a deferment of four to six weeks to study the Bill, it will be used by ruling parties against the Opposition – that it is opposing a bill’s stringent powers to tackle corruption, thereby undermining the Opposition’s moral ground of attacking BN (for corruption) as hypocritical.

    To sum: it looks like its a “heads they win and tails you lose” situation here with this MACC Bill.

    So I don’t understand why some MPs within the BN are having reservations about this Bill.

    They should quickly and unreservedly support it since its cleverly crafted to buttress and consolidate (with dexterious and deft manipulation) the ruling parties’ perpetuation power under the banner of fighting corruption. It is damn smart move. :)

  4. In other words if you oppose MACC’s wide powers against civil liberties and rights of accused, Opposition will portrayed as not sincere in war against corruption. If Opposition supports the pasage of this bill in the present form, its wide powers could be used by those who wield it with absolute discretion against the Opposition’s state councillors in all 5 states, decimating the Opposition in the process.

    The Opposition is therefore caught between the hammer and anvil or the rock and a hard place, either case disadvantaged.

  5. Postponement of 4 – 6 weeks is not enough. It should be 4 – 6 months. People like Nazri would have had the past couple of years to look at the various drafts, and you can be sure that when thieves push for some legislation to be approved, that legislation would directly or indirectly benefit them and no one else.

  6. ///(a) by Section 58, prosecution needs Public Prosecutor’s consent, which is a conflict of interest since the Public Prosecutor or Attorney General is the government’s lawyer;///–Jeffrey

    The single most important defect of the present ACA regulations was it depends on AG office to prosecute. There is no change to the most important defect if AG’s concurrence is required for prosecution. The bill should make the commissioner of MACC prosecute the accused without any excuse not to do so. The government does not require more power to selective prosecute. In fact in persecution, UMNO government has been most ingenious.

    In government services it used to be that promotion was based on seniority. When the entry qualification are comparable, and selection criteria were uniform to all candidates, any successful application appointed to the post has the potential, with equal opportunity for training such as on the job through rotation, or external courses to be promoted to the next higher level. Eventually every officer in line for promotion is ready to take on the next higher position. Certainly some officers might be born to be more efficient than the others. But in all probability, we have a fair share of efficient and not so efficient persons promoted to the highest position. Nevertheless, they would be able to perform the role expected of them. Consequently, when all level of promotion has been consistent with suitability in terms of dedication to the role they play, they can be promoted to the highest office. A suggestion for example by the Lord president should be good enough for the PM to endorse for promotion, unless he has independent information to veto such appointment.

    The problems we face in the appointment to the important posts of government departmenst and institutions are due to the fact that recruitment has not been based on merits. Promotion along the career of officers in civil services has also been based on the so-called merit rather than on seniority. In the process the culture of who you know overtakes what you know, and as the rampant corruption in civil service shows, people who know how to create benefits for themselves in official positions get up the promotion ladder. It is difficult to legislate to make human conform to good behaviours.

    The way government services perfected the utilization of merits in the promotion process was for Malays to overtake non-Malays in their career, as part of NEP. This art is now applied in the selection among the bumiputras. The constitution provides very well the process for the appointment of personnel into the institutions. It worked quite well until TDM came into the scene. AAB could not even stop outsider TDM from overthrowing him, how can we expect that he would able to leave something that would be good for the country, and yet get the support of his party underlings. We do not have to go into details of the wordings of the bills to judge. AAB is simply doing all he does either to justify ‘give me three more months’ or providing something to benefit his successors who might not be able to pull through, given their notorious reputation.

  7. Something tells me that the next Administration will be on a permanent campaign mode. These goons will not be interested in anything but winning the next elections. They pass laws which are another ploy not only at consolidating power but to win votes. Real work can be expected to take not more than 20% of their time.

    We have the best laws on our books. There’s no need for more laws to right what is wrong. Just don’t do what is wrong and there won’t be this need to churn out more laws.

  9. We have an AG who is a civil servant. We have an IGP who is a civil servant. If we follow the doctrine of civil service neutrality the way we should, the AG prosecutes because that is his job, and the IGP works to enforce the law because that too is his – and the head of the ACA? Isn’t that all spelt out in the letters?

    The lawmakers work in a biparisan nature to pass laws which are consistent with the will of the people, and the judges interpret such laws (rather than make their own) in accordance with the intent of the legislature.

    We are a constitutional monarchy and we have a constitution – and a fourth pillar of government, if you will, in the form of the Conference of Rulers to resolve issues not only involving the Malay rulers, but also the official religion which is Islam, and Malay customs and special privileges for thte Malays. We don’t need to tell the sultans to step up to the plate.

    We can have the best Constitution in the world but if unjust and unfair laws are being passed, we need to plug the holes in our Constitution that is allowing our lawmakers to make more of such laws – and not make more laws to undo the bad laws.

    What is missing is the ‘will’ to enforce the laws that we already have.

  10. So far….not one bill by UMNO is working…simply because ..all the small lines…are written to protect themselves.
    Lets hope….there are improvements where oppositions can agree to support them.
    However…….credit must be given….when credit is due….and whatever the short falls that Dollah have….he did try to give more freedom of speeches as sincere as he can.
    But UMNO is so used to playing dirty politics…he is one of them.
    I guess Dollah have no choice…….but to find ways and means to win votes.
    Najib said….a win in Terengganu by-election…..is a win for Dollah. That’s smart double cunning talk!
    What if UMNO loose? Dos that mean…the lost is due Malaysians..rejecting Dollah or rejecting UMNO?

  11. YB Lim,

    It would be much better if you move that Clause 58 is deleted altogether. This requirement of consent is a colonial legacy and has its root in the Prevention of Corruption Enactment 1937 and later Ordinance 1950. Its sinister objective is to prevent the corrupted colonials from being prosecuted for corruption.

    Those days most of the Penal Code offences and corruption offences are investigated by the police. Without a requirement of a consent, the police after investigation would charge the offender in court. In those days there were no Dpps. With the requirement of a consent, the police has to refer their I/paper to the Mat Salleh PP before they could charge the corrupted Mat Salleh.

    Just consider this. Most Penal Code offences like Criminal Breach of Trust involving RM10million, doesn’t require consent of PP for the offender to be charged. The same goes with a sect. 39A drug offence which provides a punishment of life imprisonment. Why should then corruption offences involving mostly bribery of RM2000 or even RM50 or RM200 require a consent. It makes no sense lah. It is nonsense.

    Just have it removed from the bill altogether. And it would allow the proposed MACC to charge corrupt offender without getting consent from the PP provided that they have enough and sufficient evidence to prove the corrupt offence. Administratively, all the investigation papers are being scrutinized by legally qualified personnel. They have to be certain that the evidences are sufficient before giving their legal opinion and approval to charge a corrupt offender.

    Another amendment would be to ask the candidate for the Chief Comm to appear bf a Parliamentary Select comm to be interviewed bf the PM tender his advice to the King. No Umno president would recommend a person of repute and integrity to hold such an important post. Mostly the one recommended are questionable personality; those that could be politically used and misused by Umno corrupt ministers including the PM

  12. Some wannabe lawyers here should know better. We have too many laws in Malaysia that give discretionary power to the ministers and AG. Laws can not be applied without fear and favour precisely because OUR laws allow discretion and arbitrariness. Tell me Undergrad2, if a person is caught with a firearm without permit, how many different laws (and each with different punishment) can that person be charged? This itself I think can give rise to lots of corruption.

  13. There is lesson to be learnt from Nigeria rated by Transparency International consistently as having levels of corruption amongst the highest in the world, permeating every level of society. Nigeria, a failed state, having frittered its oil moneys, too has strong anti corruption legislation (abrogating due process, rule of law and rights of the accused) but did that fix the corruption problem?

    In the beginning some Nigerian legislators were allegedly even demanding bribes to pass the draconian anti-corruption law and after it was passed, the law was not used against corrupt senior officials of ruling party but against opposition instead to harass as well as disqualify them from contesting. The draconian powers of such a legislation of course help – little by way of tackling corruption as supposedly intended – but more to reinforce power of the ruling party.

    As what Undergrad2 said, “what is missing is the ‘will’ to enforce the laws that we already have.” So if there were no political will to enforce the adequate anti corruption laws that we already have, would there be stronger will to enforce a tighter and more draconian anti corruption legislation like MACC?

    Arguably not. It is the attitudes, culture and values that present the problem: not the lack of laws.

    The crux of the war against corruption is to end unfair advantage due to power leverage.

    In other words, the society must change attitudes and value level playing field. It is condition precedent for investment esp from outside. In terms of local attitudes and values, where is the desire for level playing field? In fact an unequal level playing field is sanctioned – and institutionalized as sacred cow – based on some nebulous historical premise.

    Unless with majority support of populace, a draconian anti graft legislation will achieve little, only putting oil wine in new bottle.

    There is however a strong downside : a draconian anti corruption legislation riding roughshod over due process and civil liberties and constitutional rights of the accused could like the ISA be abused for maintenance of power and perpetuation rather than amelioration of corruption!

    Which of course puts the Opposition in a profound dilemma: because if it opposes such a law, it will portrayed as not sincere in its lobby to curb corruption, diffusing the moral foundation of its argument that the ruling parties need to pull up their socks in this area. However if the Opposition supports the legislation in its present draconian form, its selective enforcement based on wide discretionary powers will not only not ameliorate the scourge of corruption but will spell the marginalisation if not death knell for the Opposition instead.

  14. In a word, a draconian anti corruption legislation such as MACC Bill in its present form, riding roughshod over due process and civil liberties and constitutional rights of the accused and conferring wide and arbitrary powers of discretion on the very people whose sincerity to fight corruption is suspect by reason of them having a stake in it, will, far from mitigating corruption, in fact exacerbate and entrench it further.

  15. “Tell me Undergrad2, if a person is caught with a firearm without permit, how many different laws (and each with different punishment) can that person be charged.” limkamput

    How would I know? I’m only an undergrad in his second year for the last five years. I failed my law at five different universities. I’m fast running out of universities to attend.

    You tell us what are the relevant offences in the country’s Penal Code; what are the various Acts pertaining to the possession, carriage and use of fiirearms.

  16. “Laws can not be applied without fear and favour precisely because OUR laws allow discretion and arbitrariness.” limkamput

    It is unfair, to say the least, to have to sentence a visiting tourist who is caught with a certain amount drugs on him to death simply because the law deems it to be trafficking. I do not know of any other country that makes death by hanging a mandatory sentence for any crime.

    Our lawmakers have tied up the hands of the trial judge. It makes a mockery of the judiciary.

    So what disretionary powers are you talking about Mr. Lim Ka Put??

  18. Too little, too late. I guess Pak Lah is trying to push these through ASAP so that he can say he fulfilled his promises?! Then again, the BN never does anything unless it’s to strengthen themselves!
    Basically, nothing will be changed.

  19. monsterball,

    The reality in Malaysia is

    most of those chinese ah long of mafia and those unemployable chinese are from chinese schools. They are the products of chinese schools.

    and

    most of those professional chinese who worked in established organisation are the products of SK schools.

  20. The only way to get more time on this is to find something that is against the BN component party interest namely what LGE suggested which is it violates Sabah and Sarawak rights OR that it threatens the corrupt activities of BN politicians. Weakness of the bill is not going to do it.

  21. We can’t even enforce laws that are much easier to enforce like preventing landslides so don’t expect proper enforcement of laws that can reduce corruption when most people perceive that such corruption now permeates all the major institutions of the state.
    Better to focus on winning the next GE and change the government.

  22. Trengganu is getting RM10 billion for its sovereign wealth fund which would be initially seed-funded by the federal government. Why only Trengganu? Every state must be given its own sovereign wealth fund to establish development projects for the benefit of its people. I, for one, do not want my tax money to be channeled by the Federal government towards funding an idiotic tourist to visit space. Why can’t he use his own money as the other space tourists in the world do? And where are the papers on his scientific discoveries which he had promised to deliver a year ago? Don’t tell me that his dog has eaten them

  24. I believe the whole thing boils down to implementation and enforcement. Do the enforcement officials have the guts to catch big
    fish, especially ministers and top civil servants link to BN ?
    I doubt it. In order to be the top best anti-corruption agency the enforcemnet official concern must show no mercy even to his own family members if found to be corrupted. That will be a good starting
    point.

  25. We definitely do not need MACC as put up by Sleepy Head.As stated very clearly
    by undergrad2 we certainly have adequate laws to deal with corruptionThe MACC in its present form could only be used by the goons to advance their interest.A dragonian anti corruption legislation such as the proposed MACC,riding rough shod over due process,civil liberties and constitutional rights of the accused
    could present itself as a convenient weapon to employ to perpetuate UMNO’s grip on power,much in the same way they have resorted to the use of the ISA to further their cause.

    What we need really is what HJ Angus says—-a change in government.Saving this country from the grip of these goons is the onus of its rakyat,and we have to collectively act to boot them out at the next GE (better still give the current opposition a 2/3rds majority win) for this is the only hope to give this country a free press,a 2-party political system,a return to origin status of the 3
    pillars of government with all 3 acting independently and perhaps revert the very much amended Constitution back to its original form.That must be the wish of all of us to keep that hope of a much better Malaysia burning.To be sure nothing good can come out from these goons as shown in their track record of raping this country.Worse still if they talk of reform for it can only mean another method to feed their greed and consolidate their grip on power.

  27. Malaysia can have the perfect laws on anti corruption, but bottom line is still the simple PDCA (Plan, Do, Check & Action) with the right people!!! Without proper PDCA and the right people who are without fear (except fearing God) & favour, incorruptible etc. . Malaysia wont be able to stand the test of time!!! Anyway, it is better to have a good system than nothing!!! It may be misused, but it is still necessary!!! Else why should we have all the laws???

  28. When those BN-UMNO cronies are still getting APs the legal way without effort except proper connection, do you expect the “hardworking” govt servants to not ask for from as little as few cups of kopi ‘O’ money to few millions cups here and there???
    We must be joking here!!!

  30. Whatever laws and acts which are enacted and promulgated is one thing. How those legal instruments are enforced down the line, from the highest offices to the local councils, municipalities, townships, and even the villages is another issue altogether.

    The overall will, consciousness and strict adherence to principles and rules in the fairest and most accountable manner would make the difference between failure and success in the true sense of the words.

    Malaysia and Malaysian cannot go on wanting something better for themselves and expecting others other than themselves settling for something of a lesser substance. There must also be personal accountability and integrity.

    The nation must move forward as one. No one should be left behind in the quest for a better future.

    The notion of special privileges should apply only to those who are truly underprivileged and lagging behind due to their unfortunate conditions and circumstances. The truth of the matter and the necessity and form of aids should be established by a council or committee consisting of impartial and respected personalities from across the spectrum of society, irrespective of their ethnicity, religious and political ideologies and allegiance. With no quotas or preconditions set. Fairness should be the name of the game.

    Malaysians should come to terms with one another and accept the reality that politics are to be seen as the platform to choose leaders who are sincere, capable, accountable, truthful, and of the highest integrity. Hostility and animosity should be abandoned. If such a situation exists, then it can be said that Malaysia and Malaysians have arrived.

    When the situation and stage is set, the rest will follow suit as a matter of course. Nothing is impossible.

    With corrupt practices being minimised and sentenced to being a frowned-upon culture at all levels of society, we can then have more time and resources for better and more meaningful uses. Let’s be optimistic that a better future awaits us all, notwithstanding the present somewhat gloomy and less than desirable scenario.

    Moreover, Malaysia is a land well endowed with natural resources and human capital. Just consider the number of capable and resourceful Malaysians who are contributing immensely to the world. If the brain drain could be contained and reversed, Malaysia would be the envy of the rest of the world. And that would set the nation on a course of distinction par excellence.

    Come on guys, we do love our nation, don’t we? It is because of our concern that we are willing to invest so much time and energy to discuss and debate and opine in the blogs, and elsewhere. If it is not then we are just making a mockery of ourselves and ought to be considered as the biggest hypocrites of all!

    God bless Malaysia and her peoples.

  33. undergrad2,

    Still an undergraduate, year two? Moved to five different universities? :D I’m rolling in laughter!

    On BN be ‘acquited’ from its responsibility to govern, I agree. That’s what I had been saying all along – UMNO/BN has lost the political will to ‘govern’. They are more interested in how deep their pockets can go, and how many more layers they are able to add!

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