As our new Prime Minister Anwar Ibrahim has pledged to fight corruption, there is a need to strengthen laws against corruption, abuse of power and even money laundering.
It is common for any prime minister and political parties to take a position against corruption and abuse of power, but what they then do is more important.
Abolition of compounds
Malaysians Against Death Penalty and Torture (Madpet) calls for the abolition of compounds for corruption and related offences including offences under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Amla). These are serious offences, more so when they involve ministers and politicians.
Section 92 of Amla now sadly allows for all offences in this act to be ‘compounded’. It states:
…(1) The competent authority or relevant enforcement agency, as the case may be, may, with the consent of the Public Prosecutor, compound any offence under this Act or under regulations made under this Act, by accepting from the person reasonably suspected of having committed the offence such amount not exceeding fifty per centum of the amount of the maximum fine for that offence … to which that person would have been liable if he had been convicted of the offence….
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Such offences should be dealt by the court, and not by the finance minister or the minister-appointed competent authority or enforcement agency.
The decisions regarding compounds are now administrative decisions of the minister or enforcement agency, not judicial decisions. It puts ‘pressure’ on ministers especially when it comes to a fellow party or coalition member.
Any accused, after being charged in court, can always plead guilty, and this plea will mitigate the sentence imposed. It is best when such accused, especially ministers and politicians, are dealt with by the independent judiciary.
The effect of an offer and the acceptance of an offer of compound means an end to investigations and thereafter “no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made” (Section 92(4), Amla).
Avoidance of trials and convictions
When it comes to sitting MPs and senators, it must be noted that Article 48 of the Federal Constitution, states that an MP or senator will be disqualified if:
(e) he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or Sarawak or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon….
There is nothing said about compounds.
Thus, the administrative compound can wrongly be used to prevent a fellow politician from being charged, tried, convicted and sentenced by court, thus saving this current or maybe future MPs or senators from being disqualified as MP or senator due to a conviction, as is now provided in Malaysia’s Constitution.
It is reasonable to say that generally, no innocent person will accept a compound offer and pay the compound amount, more so when it is a large sum. An innocent person would rather go to court to prove his or her innocence than ‘admit guilt’ by accepting a compound offer. For small offences, a person may choose to pay the small compound to save time and effort in having to go to court.
The availability of compounds for small offences, like road traffic offences and violations of movement control order requirements may be acceptable.
However, compounds should not be available for Amla offences, corruption, abuse of power offences and some other offences like occupational safety and health violations. Charge them and let the courts decide.
On 21 September, the then Pontian MP, Ahmad Maslan, was acquitted of charges of money laundering and giving a false statement against him after he agreed to pay a compound of RM1.1m. The oddity in this case was that he had already been charged, when the compound offer was taken up. The prosecution will generally never charge any person unless they are confident that they can prove guilt beyond reasonable doubt.
When this happened, Ahmad Maslan not only escaped a trial, the risk of conviction and potential disqualification as MP or senator. He also obtained protection from being further investigated, and charged for the same offence ever again. Sadly, Ahmad Maslan can be said to have also missed the opportunity to prove himself innocent in court. Doubts will remain in many minds.
Deterring corruption by PM, cabinet
At present, there is no law or regulation that governs the conduct and discipline of the prime minister and cabinet members. Though cabinet members are public officers, they are excluded from disciplinary provisions that apply to Malaysian public officers.
Therefore, Madpet proposes that Malaysia’s new government extend the application of the Public Officers (Conduct and Discipline) Regulations 1993 to also include members of the cabinet and maybe even MPs. Alternatively, a new law.
That public officers regulations even deal with “presents”, where it says that public officers:
…shall not receive or give nor shall he allow his spouse or any other person to receive or give on his behalf any present, whether in a tangible form or otherwise, from or to any person, association, body, or group of persons if the receipt or giving of such present is in any way connected, either directly or indirectly, with his official duties…
There are many provisions in the regulations that will deter corrupt practice.
It will be best if members of the cabinet and even MPs are also governed by such regulations or better still, laws which will also deter corrupt practices and keep our cabinet members clean.
Following former Prime Minister Najib Razak’s conviction for abuse of power, criminal breach of trust and money laundering involving RM42m of funds, crimes committed whilst holding government power, trust in the PM and members of cabinet has diminished, and we need laws and regulations that will also deter such crimes. Trust in the PM and cabinet needs to be restored.
Corruption and abuse of power
When a person or corporation contesting for a government contract or project pays money or provides benefits to a minister or persons connected with the power to decide or influence contract awards, before or after the awarding of the tender, it is corrupt practice.
It should not matter whether the money or benefits flows directly into the politician’s or public officer’s pocket or to his or her family members, his or her related ‘political funds’ or political party, NGOs or charities which has links with the politician or public servant, it will still be corruption. We are fed up, when we hear some politicians argue that the money was not for themselves but some political funds or charity.
Annual asset declaration laws
A law on regular asset declarations that provides for regular declarations, preferably every year, is needed. Asset declarations are not for the public to know how rich or poor a minister or MP is, but they really are a means for the public to be sure that an MP or minister has not used his or her position power to accumulate wealth wrongly.
This can only be done by comparing subsequent declarations with the first declaration made immediately when he or she gets elected or appointed. It is sad that previous governments did not understand the reason behind asset declarations, and chose to only require one asset declaration – making it impossible for the people to be able to determine whether there was abuse and wrongful personal enrichment; there was no subsequent asset declaration which they could compare with.
Making a false declaration must be made a criminal offence.
Political funding law
The law on political funding, which was earlier reported to be tabled in October, must also be speedily tabled now. It must cover not just political parties, but also individual MPs and senators.
For years, Malaysian MPs received large additional funds, sometimes millions of ringgit annually for expenditure in their constituencies, but alas there was no transparency as to how these public funds were used; that was never disclosed.
Many wonders how much of the people’s money went into the MPs’ own pockets directly or indirectly, or wrongly flowed to their party or their supporters. Accountability and transparency is needed.
Walk the talk
Madpet calls for Prime Minister Anwar to walk the talk – to demonstrate that his pledge against corruption and abuse of power will be followed by speedy real concrete actions, including the tabling of needed amendments to laws and new laws that will also deter acts of corruption and abuse of power among the cabinet and MPs in Malaysia.
The PM needs to act fast, remembering how prime ministers and governments in recent times changed rapidly – since the 2018 general election, have had three different prime ministers. Delay is no more an option.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture