 |
Legal
experts have disagreed with the Malaysian Anti-Corruption Commission's
(MACC) assessment that some laws should be amended before it can be more
effective in nabbing top corrupt politicians.
On Wednesday, Kubang Kerian MP Salahuddin Ayub revealed that the MACC had told the special committee on corruption was hampered by "archaic provisions" in existing laws.
Salahuddin (left)
had cited a case raised by the MACC to the committee in which a wealthy
state leader could not be prosecuted because of flaws in the law,
despite six investigation papers being opened on the said individual.
Among others, Salahuddin said that the MACC had told the committee that it wanted section 23 and 50 (see below) of the Malaysia Anti-Corruption Commission Act 2009 amended.
Meanwhile senior lawyer Baljit Singh Sidhu, who also teaches law, disagreed with MACC on the need for amendments in the two sections.
"In fact, section 23 is taken from, and similar to, the Hong Kong law. Hence, I do not understand why the MACC is claiming the law is archaic, whereas it had only been recently legislated (three years ago).
"Furthermore, you have previous laws like the Anti Corruption Act, the Prevention of Corruption Act 1997, the provisions under the Penal Code and the Emergency Order and the MACC Act. What other legislation does the MACC further need?" he told Malaysiakini.
Archaic methods, not laws, the problem
Instead, Baljit (right) proposed that the MACC should improve its investigation efforts and stop relying on confessions to win a case.
Confessions have not been used in other criminal proceedings and have not been admitted in court as part of the evidence since 2006, he said.
MPs from both the opposition and the ruling BN have also agreed that it confessions be removed from being used in corruption trials, however this has yet to be implemented, he added.
"They cannot merely rely on taking statements to gather evidence as there are other means," he said.
Similarly, senior lawyer CV Prabhakaran said the matter of interpretation of the law should best be left to the courts and the MACC's foremost duty was to charge individuals so long as there is ample evidence.
Prabhakaran said the section 23, which concerns the use of office in receiving gratification, and section 50, which relates to presumptions in certain offences, were "good laws".
While voicing sympathy for the MACC's frustrations, he reminded the commission that its predecessor - the Anti-Corruption Commission (ACA) - had managed to obtain convictions against powerful politicians in the past.
According to him, the ACA had used the Emergency Order to great effect.
MACC making excuses
On an example of weaknesses in the current law given by Salahuddin - that state cabinet members would not dare to reject a project undertaken by relatives of the menteri besar even if the latter excuses himself from a meeting to decide the matter - Prabhakaran said there were other ways around this problem.
"The purpose of a person leaving the exco room is that the person should not be seen as influencing the exco decision. If he sits there, then the person will bring an overbearing influence," said the lawyer.
He added that however if the MACC found that the results of the exco meeting to be doubtful, the entire cabinet could be brought to court and the judge could decide on their innocence.
Former MACC advisory panel member Robert Phang (left) said what Salahuddin had brought up were excuses from the anti-corruption body for its inability to reel in the big fish.
For example, he said many allegations against attorney-general Abdul Gani Pail and former inspector-general of police Musa Hassan were apparently ignored by MACC, at times on grounds that no report was made against the duo.
"You and I know that any media report can be considered as a first information report to initiate investigations," he said.
MALAYSIAN ANTI-CORRUPTION COMMISSION ACT 2009
PART IV
OFFENCES AND PENALTIES
Section 23 - Offence of using office or position for gratification
(1) Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence.
(2) For the purposes of subsection (1), an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative or associate, when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.
(3) For the avoidance of doubt, it is declared that, for the purposes of subsection (1), any member of the administration of a State shall be deemed to use his office or position for gratification when he acts contrary to subsection 2(8) of the Eighth Schedule to the Federal Constitution or the equivalent provision in the Constitution or Laws of the Constitution of that State.
(4) This section shall not apply to an officer who holds office in a public body as a representative of another public body which has the control or partial control over the first-mentioned public body in respect of any matter or thing done in his capacity as such representative for the interest or advantage of that other public body.
PART VI
EVIDENCE
Section 50 - Presumption in certain offences
(1) Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved.
(2) Where in any proceedings against any person for an offence under section 161, 162, 163 or 164 of the Penal Code, it is proved that such person has accepted or agreed to accept, or obtained or attempted to obtain any gratification, such person shall be presumed to have done so as a motive or reward for the matters set out in the particulars of the offence, unless thecontrary is proved.
(3) Where in any proceedings against any person for an offence under section 165 of the Penal Code it is proved that such person has accepted or attempted to obtain any valuable thing without consideration or for a consideration which such person knows to be inadequate, such person shall be presumed to have done so with such knowledge as to the circumstances as set out in the particulars of the offence, unless the contrary is proved.
(4) Where in any proceedings against any person for an offence under paragraph 137(1)(b) of the Customs Act 1967, it is proved that any officer of customs or other person duly employed forthe prevention of smuggling has accepted, agreed to accept or attempted to obtain any bribe, gratuity, recompense, or reward, such officer or person shall be presumed to have done so for the neglect or non-performance of his duty as set out in the particulars of the offence, unless the contrary is proved.
On Wednesday, Kubang Kerian MP Salahuddin Ayub revealed that the MACC had told the special committee on corruption was hampered by "archaic provisions" in existing laws.
Salahuddin (left)
had cited a case raised by the MACC to the committee in which a wealthy
state leader could not be prosecuted because of flaws in the law,
despite six investigation papers being opened on the said individual.Among others, Salahuddin said that the MACC had told the committee that it wanted section 23 and 50 (see below) of the Malaysia Anti-Corruption Commission Act 2009 amended.
Meanwhile senior lawyer Baljit Singh Sidhu, who also teaches law, disagreed with MACC on the need for amendments in the two sections.
"In fact, section 23 is taken from, and similar to, the Hong Kong law. Hence, I do not understand why the MACC is claiming the law is archaic, whereas it had only been recently legislated (three years ago).
"Furthermore, you have previous laws like the Anti Corruption Act, the Prevention of Corruption Act 1997, the provisions under the Penal Code and the Emergency Order and the MACC Act. What other legislation does the MACC further need?" he told Malaysiakini.
Archaic methods, not laws, the problem
Instead, Baljit (right) proposed that the MACC should improve its investigation efforts and stop relying on confessions to win a case.Confessions have not been used in other criminal proceedings and have not been admitted in court as part of the evidence since 2006, he said.
MPs from both the opposition and the ruling BN have also agreed that it confessions be removed from being used in corruption trials, however this has yet to be implemented, he added.
"They cannot merely rely on taking statements to gather evidence as there are other means," he said.
Similarly, senior lawyer CV Prabhakaran said the matter of interpretation of the law should best be left to the courts and the MACC's foremost duty was to charge individuals so long as there is ample evidence.
Prabhakaran said the section 23, which concerns the use of office in receiving gratification, and section 50, which relates to presumptions in certain offences, were "good laws".
While voicing sympathy for the MACC's frustrations, he reminded the commission that its predecessor - the Anti-Corruption Commission (ACA) - had managed to obtain convictions against powerful politicians in the past.
According to him, the ACA had used the Emergency Order to great effect.
MACC making excuses
On an example of weaknesses in the current law given by Salahuddin - that state cabinet members would not dare to reject a project undertaken by relatives of the menteri besar even if the latter excuses himself from a meeting to decide the matter - Prabhakaran said there were other ways around this problem.
"The purpose of a person leaving the exco room is that the person should not be seen as influencing the exco decision. If he sits there, then the person will bring an overbearing influence," said the lawyer.
He added that however if the MACC found that the results of the exco meeting to be doubtful, the entire cabinet could be brought to court and the judge could decide on their innocence.
Former MACC advisory panel member Robert Phang (left) said what Salahuddin had brought up were excuses from the anti-corruption body for its inability to reel in the big fish.For example, he said many allegations against attorney-general Abdul Gani Pail and former inspector-general of police Musa Hassan were apparently ignored by MACC, at times on grounds that no report was made against the duo.
"You and I know that any media report can be considered as a first information report to initiate investigations," he said.
MALAYSIAN ANTI-CORRUPTION COMMISSION ACT 2009
PART IV
OFFENCES AND PENALTIES
Section 23 - Offence of using office or position for gratification
(1) Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence.
(2) For the purposes of subsection (1), an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative or associate, when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.
(3) For the avoidance of doubt, it is declared that, for the purposes of subsection (1), any member of the administration of a State shall be deemed to use his office or position for gratification when he acts contrary to subsection 2(8) of the Eighth Schedule to the Federal Constitution or the equivalent provision in the Constitution or Laws of the Constitution of that State.
(4) This section shall not apply to an officer who holds office in a public body as a representative of another public body which has the control or partial control over the first-mentioned public body in respect of any matter or thing done in his capacity as such representative for the interest or advantage of that other public body.
PART VI
EVIDENCE
Section 50 - Presumption in certain offences
(1) Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved.
(2) Where in any proceedings against any person for an offence under section 161, 162, 163 or 164 of the Penal Code, it is proved that such person has accepted or agreed to accept, or obtained or attempted to obtain any gratification, such person shall be presumed to have done so as a motive or reward for the matters set out in the particulars of the offence, unless thecontrary is proved.
(3) Where in any proceedings against any person for an offence under section 165 of the Penal Code it is proved that such person has accepted or attempted to obtain any valuable thing without consideration or for a consideration which such person knows to be inadequate, such person shall be presumed to have done so with such knowledge as to the circumstances as set out in the particulars of the offence, unless the contrary is proved.
(4) Where in any proceedings against any person for an offence under paragraph 137(1)(b) of the Customs Act 1967, it is proved that any officer of customs or other person duly employed forthe prevention of smuggling has accepted, agreed to accept or attempted to obtain any bribe, gratuity, recompense, or reward, such officer or person shall be presumed to have done so for the neglect or non-performance of his duty as set out in the particulars of the offence, unless the contrary is proved.
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