COMMENT | MACC - Happy 53rd anniversary
COMMENT | Last week MACC celebrated what it calls its 53rd anniversary. Even the king sent his congratulatory message. Many of us also would like to wish MACC well and hope MACC becomes an institution that will be cherished by the public for years to come.
MACC was founded in 2009, so it is not accurate to describe the event as 53rd anniversary. The precursor to MACC was an agency far different from the present one.
Our earlier Anti-Corruption Agency (ACA) was smaller and less imposing, their top officers do not wear uniforms like the military. They prosecute corruption offences under the Penal Code, always guided by the provisions of the Evidence Act and Criminal Procedure Code (CPC). Those were the days when criminal laws were a lot simpler and fair.
Now the MACC Act has openly watered down and altered the presumption of innocence, and burden of proof, which for hundreds of years had been the cardinal principle of our criminal law. In almost all the offences under the act, the presumption of guilt is a standard approach, it's up to the accused person to prove his innocence.
For offences under Sections12, 18, 20, 21, 22, and 23 it is immediately considered that the gratification is presumed to be corruptly done unless the contrary is proved by...
COMMENT | Last week MACC celebrated what it calls its 53rd anniversary. Even the king sent his congratulatory message. Many of us also would like to wish MACC well and hope MACC becomes an institution that will be cherished by the public for years to come.
MACC was founded in 2009, so it is not accurate to describe the event as 53rd anniversary. The precursor to MACC was an agency far different from the present one.
Our earlier Anti-Corruption Agency (ACA) was smaller and less imposing, their top officers do not wear uniforms like the military. They prosecute corruption offences under the Penal Code, always guided by the provisions of the Evidence Act and Criminal Procedure Code (CPC). Those were the days when criminal laws were a lot simpler and fair.
Now the MACC Act has openly watered down and altered the presumption of innocence, and burden of proof, which for hundreds of years had been the cardinal principle of our criminal law. In almost all the offences under the act, the presumption of guilt is a standard approach, it's up to the accused person to prove his innocence.
For offences under Sections12, 18, 20, 21, 22, and 23 it is immediately considered that the gratification is presumed to be corruptly done unless the contrary is proved by the accused.
As if that is not enough, we now have Section 17A Act 2009 which introduces corporate liability to organisation and persons associated with it should anyone in that organisation commits corruption offences. Its a strict liability provision where the court can impute criminal conduct on anyone by association. It's no longer necessary that crime must have mens rea (criminal intent). You have just to be in the same organisation.
Look at the way MACC embarks on the forfeiture of assets against those they suspected of receiving monies and goods from persons who allegedly were involved in "serious crimes" like money laundering. What is a serious crime? It is whatever crime the investigation officers aver to by way of an affidavit.
The actions against some Umno/BN political leaders receiving sums of money from Najib Abdul Razak comes to mind. It's impossible for Umno and the division heads to know where the source of the funds originate, so it's difficult for them to mount an adequate defence that will satisfy MACC and the court.
Why did our parliamentarians approve such a law? They might want to show their enthusiasm to fight corruption (which is laudable) but surely not at the expense of sacrificing established principles of criminal law.
The irony of it all is that the current batch of Umno/BN leaders facing these harsh MACC laws was responsible for passing these laws when they were in power. They obviously did not scrutinise carefully the laws drafted by some people in government. Or they did not care because they did not think these laws would be applicable to them since they were in power.
Ministers and MPs must be vigilant and thorough when passing laws. Harsh laws can bite them one day when they are no longer in Putrajaya. Look at what happened to a certain former prime minister who was responsible for amendments to the Societies Act in 1987, where provisions were inserted to disallow members of any political society from taking the society and its leaders to court. If they do, they will lose their membership.
To make the incumbents doubly safe the court is not allowed to adjudicate on the matter. This same former PM was recently ousted from Bersatu, the party he founded because he took them to court. The 1987 laws bite him.
As if the MACC Act is not enough, we also have money laundering legislation (namely the Anti-Money Laundering Act known as Amla) to deal with. This law was passed way back in 2001 (after 9/11) because the US was going after those who finance terrorist organisations, such as human and drug traffickers.
Regulations were tightened all over the world to curb money laundering. We now use Amla on anyone, including suspected corrupt civilians, civil servants, Umno/DAP leaders and MPs. It is perhaps not right to use Amla in this manner, just like it was not right for us to use Internal Security Act (ISA), at one time, against political dissenters and anyone who opposes the government of the day.
For 60 years we did that, and ordinary Malaysians were incarcerated for years in Kamunting when they were not terrorists or communists. When laws that were meant for terrorists and communists were used against ordinary people, injustice is the outcome. Are we witnessing another era when the laws specially tailored for terrorists and traffickers are used against those who are not?
There was no prosecution of money laundering cases for 15 years that went to trial until the general election of 2018. This is probably because they could not find any traffickers during that period. Something happened after GE14. With gusto and the fire of the crusaders, the government embarked on prosecuting Najib for money laundering. Not to mention against his lawyers and his colleagues in Umno and BN.
Amla takes way all the salient features of our CPC, such as the right not to incriminate oneself, and the protection of client-lawyer privilege. In addition, now the accused persons must declare and provide statements/documents to MACC which the prosecution could use against him.
What a contrast from the longstanding rule that statements given to the investigation officer can be used as part of the defence but not as evidence for the prosecution.
On the occasion of this anniversary, I call on the parliamentarians and criminal lawyers at the Bar to speak out. They need to seek amendments to these harsh laws that inevitably will do injustice to many innocent people.
Members of the public do not have the means to get a Gopal Sri Ram as counsel, so they can only get a fair fight in court if the provisions of the law are fair and evenly keeled in the first place.
MACC must not be allowed to act without any oversight and control from Parliament. Judges can pass whatever verdicts they deem fit based on the law before them, but the public acceptance of the verdict and fairness of the system is equally important.
MACC must earn public trust and confidence in its impartiality if it is to be successful in curbing corruption effectively. They can't get that trust if they are aided by laws that favour them.
MACC has five "independent" advisory panels, but even if they have ten, is no comfort to the public. Independence has little relevance when it has no real authority to act in changing the laws and regulations that are used by the commission.
On this anniversary of MACC, my hope is that in our fight to curb corruption and abuse of power, we do not go overboard and dispense with the established universal principle of the presumption of innocence.
The crusade against corruption can only be won with the trust and integrity of the system and the enforcers. For this, we must always have a system of justice that is evenly balanced between safeguarding the interests of the prosecution and the defence.
ZAID IBRAHIM is Kelantan DAP chief and former de facto law minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.
