Thursday, September 27, 2012

Giving MACC chief security of tenure not good enough — Gobind Singh Deo

Giving MACC chief security of tenure not good enough — Gobind Singh Deo

September 27, 2012
Malaysian Insider--Side Views
SEPT 27 — 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. 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 head security of tenure alone would certainly not be enough.

* Gobind Singh Deo is the MP for Puchong.

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