RECENTLY, media reported that Rasuah Busters and its coalition have called for the Anti-Corruption Commission (MACC) to be placed under the purview of Parliament.
They believe there is an urgent need for MACC to be truly independent and free to exercise its function without any interference by the executive body.
A reasonable inference which may be possibly drawn from this call is that MACC is apparently perceived to be not free and independent. At least that has been the perception in the eyes of Rasuah Busters and its coalition.
Whether such a perception is correct or not is beyond the scope of this article.
Anyway, in penning this article, we don’t intend to descend into such a polemic or debate, namely is MACC really free and independent?
It goes without saying that being an important agency which is duly entrusted to prevent crimes of corruption and for matters necessary thereto and connected therewith, MACC, no doubt, must be truly independent or be seen to be truly independent in exercising its powers and functions under the law.
Being truly independent means MACC would be expected to exercise its powers and to carry out its responsibilities and obligations under the MACC Act 2009, at the very least, without fear and favour.
Under the current legal regime, the MACC is not strictly placed under the purview of Parliament. After all there is no legal or constitutional requirement for Parliament to assume a supervisory role for MACC.
Ergo, any call for MACC to be put under the supervision of Parliament may necessarily solicit constitutional or legislative interference in the sense that the relevant laws ought to be duly amended.
The primary amendment, for instance, entails the legal adjustment on the issue of the appointment of the Malaysian Anti-Corruption Commission (MACC) chief.
At present, the MACC chief is appointed by the Yang di-Pertuan Agong who shall act on the advice of the prime minister. The parliament has no say at all for such an appointment.
In other words, unlike in some developed countries – in the United States, for instance, where any public appointment of certain key public posts would be subject to intense scrutiny – in the congress (or Parliament), we may not be able to witness such a scenario in Malaysia.
Perhaps our country is not ready to reach such a level of matured democracy yet.
Apparently, there is no problem in having a legal requirement for such an appointment to be done by the YDPA but the usual debate invariably revolves around the involvement of the prime minister in such an appointment.
The MACC is currently positioned under the jurisdiction of the Prime Minister’s Department which is headed by the prime minister himself. Be that as it may, technically speaking, the MACC would be answerable to the prime minister.
This fact may be perceived to be mind- boggling by many as it is seen to compromise and jeopardise the independence and integrity of the MACC.
But, how about other agencies? Are they really free from such legal encumbrances?
Anyway, if question or issue which is related to the MACC is brought to attention in Parliament – either in the lower or in the upper house – it is the prime minister who ought to answer such a question, though, in reality or in practice, the de facto minister of law or his or her deputy would normally answer such a question.
As Malaysia is not really implementing a strict separation of powers as mooted by A.V. Dicey in his magnum opus “Introduction to the Study of the Law of the Constitution” there is no exact separation of powers between the executive and legislative in particular.
Hence, could MACC’s independence be attained by simply placing it under the purview of Parliament?
Placing MACC under the purview of Parliament may be a good idea in ensuring greater transparency.
Nevertheless, until and unless major reforms are also done in other legal and nonlegal avenues in combating corruption, with due respect, I seriously doubt placing MACC under Parliament’s supervision would be adequate to guarantee its independence. – August 9, 2023
Mohamed Hanipa Maidin is former deputy minister in the Prime Minister’s Department