September 28, 2012
Granting MACC Chief security of tenure is not enough
by Gobind Singh Deo@http://www.themalaysianinsider.com
The bipartisan committee on corruption has called for a constitutional amendment to provide the MACC chief security of tenure. This, according to them, will make him “like a judge, then he can’t be dismissed at whims and fancies”.
The committee also seems to suggest that the current arrangement isn’t good enough. According to them, “at the moment, the appointment of the chief (is as such that) he can be dismissed by anybody, so if he is trying to investigate people, and I am a head of somewhere, I propose to change him, he can be changed just like that.”
Whilst such a move may help the MACC, it will not to my mind make any significant inroads if the ultimate goal is to strengthen the independence of the MACC.
First, the MACC head doesn’t personally investigate cases. Cases are investigated by the investigating officers assigned to a particular file after a report is lodged.
As such, the argument that he can be transferred to stifle an ongoing investigation is somewhat misplaced.
Second, the MACC head does not have prosecutorial powers like the Attorney-General (A-G). The A-G is given such powers under the Federal Constitution. It is because of this presumably that he is put into the same category as a judge which means he can only be removed from office by a tribunal specifically constituted for that purpose.
From the above, it will be seen that elevating the MACC chief to a similar position would really serve no useful purpose.The committee is therefore picking on the wrong end of the stick.
If the committee wants to see real effect in affording the MACC chief such
security of tenure, it should first propose that he be given the power to prosecute as well. He should have powers independent of the A-G and he should have full control over all investigations in the MACC without interference from anyone, be it the Police, the A-G, political or otherwise.
If this were the case, then the need for his security of tenure becomes all the more compelling. The laws should then be amended to make sure he is beholden to nobody except the Constitution which would demand that he carry out his duties without fear or favour and with independence.
But to do this alone would not be enough. There are always risks in giving absolute powers to one single person who cannot be removed unless tribunalised.
Experience has shown that the safeguard which such security of tenure seeks to provide could well be used not just as a sword alone but also as a shield.
It is because of this that the committee should go one step further to set up a system where the discretion to prosecute given to the MACC chief is made subject to review.
This can take place in numerous ways. It may be by way of an advisory commission consisting of persons experienced such as retired judges who may, upon a complaint which meets a set criteria, review a decision either to prosecute or not to prosecute or for laws making this discretion subject to judicial review.
The committee should also be commended for recognising that there indeed exists interference in investigations today and the need for it to stop. There can really be nothing more heinous than interfering in lawful investigations as prescribed by law.
Such has been and still is one reason why the criminal justice system in our country is failing and corruption thriving of late.
If we are going to move Parliament for a constitutional amendment, let’s make sure it is in respect of something worth our while, something with great impact which would yield real results.
In this regard, giving the MACC chief security of tenure alone would certainly not be enough.
* Gobind Singh Deo is the MP for Puchong.
Din Merican: the Malaysian DJ Blogger 
Yes, total revamp and reimaging MACC is urgently required. By all means give the MACC Chief all the power he needs to do his job of fighting corruption, subject to judicial review. But first make MACC an independent institution.–Din Merican
Fully agreed DM 😉
MACC is Mana Ada Corruption Commission. The official stamp of approval by the government to clear their corrupted of corruption charges.There should be no tenure but based on performance.
Yes, I fully agree with the proposal suggested by YB Gobind Singh Deo.
Unless MACC reports to Parliament, the rest are cosmetic reforms by tinkering at the edges. The truth is there are so many skeletons in the closet so UMNO/BN simply do not have the political will to do so despite the imminent threat of losing the GE 13 (IF and this is a BIG IF the EC is intructed to be fair and transparent). In this sense we are still a long way in tackling the root causes of absue and corruption.
Let me add alittle space to express my view that MACC must come under the cabinet before changes can take place. MACC can only then be answerable to parliament. MACC has become a lame duck in view of politicians sitting in Putrajaya are holding the keys to MACC door.
he has to show performance first. what he promised at the beginning of his tenure and what he has achieved should be compared first.
yes Dato, a complete revamp is necessary therefore it is unnecessary to talk about tenure security at this stage.
the primary problem is the pervasive corruption in the gov. maschinery.
the corruption begins with the top leaders and permeates to the poor rat at the bottom.
on the otherhand how about revamping the EC first – free and fair election – new government – then revamp all govenment institution?
The problem is rooted in the way our system is organized. To begin with the executive arm of the government has powers that would tend to make and has made a mockery of the doctrine of the separation of powers. There are no checks and balances. After some five decades. it has reduced the third pillar of government to a shadow of its former self, an appendage of the political party that runs the government. You guys can’t even stop the rot. Talk about giving prosecutorial power and then limiting it, to an investigative agency like MACC created by subsidiary legislation as opposed to the Constitution.
Gobind does well to take advantage of the attempt to reform and perhaps re-structure this national investigative agency. The problem is Malaysia already has some of the best legislation there is. What is lacking is the will to make it work the way it is supposed to work.
Article 145 of the Constitution is said to give the country’s top prosecutor the Attorney General power “available to him at his discretion” to institute and conduct and discontinue proceedings which is interpreted to mean just that. “Available at his discretion” is taken to mean personal discretion. “Personal discretion” is given its literal meaning. So says the government? So says the Chief Judge? “Personal discretion” is a term of art. Here we are talking about the head of a national agency created not by the Constitution but by subsidiary legislation, by statute. Whichever way you want to flip it, he is political fodder.
But good try Gobind. Do you think they will buy it?
For comparison with some of the best system there is. In the United States, Supreme Court justices, Court of Appeal and District Court judges (collectively referred to as Article 3 judges) are appointed by the U.S. President and confirmed by the U.S. Senate and their tenure is for life i.e. until they drop dead or impeached by the Senate.