#TangkapAzamBaki: Restore the Integrity of MACC
How does the Malaysian Anti-Corruption Commission (MACC), the very institution entrusted with the task of weeding out corruption have a leader without "clean hands"?
SUARA MANDIRI Issue #12
2022 started off with a bang with all eyes on the Malaysian Anti-Corruption Commission (MACC) chief commissioner Azam Baki and his alleged involvement in a share-trading controversy. It has been revealed that he owned stocks of public-listed companies worth RM330,000, above the RM100,000 threshold for civil servants.[1] Malaysians can only prepare themselves to watch another tiresome corruption saga unfold, eclipsing the new year and its false promise of pristine politics.
The disgraced official’s scandal is truly the height of irony as it once again reminded us of the weaknesses inherent within the operation of the MACC, the very institution entrusted with the task of weeding out corruption.
Corruption, that is “acts in which an official position is used for personal or private advantage in a manner that contravenes the rules of conduct”, leads to mismanagement of public assets and public resources, and debilitates the quality of public service, as well as may result in socioeconomic disparities and economic stagnation.[2]
Combating corruption: a brief history
Corruption has plagued Malaysian politics for the longest time. In fact, the problem predates the formation of Malaysia, a persistent phenomenon in colonial Malaya. There were thus as many as three anti-corruption units in existence as early as 1952: (1) the Special Crimes Unit of the Criminal Investigation Department of the Royal Malaysian Police, in charge of the investigation, (2) the Anti-Corruption Agency in the Prime Minister’s Department, in charge of prevention, and (3) the Attorney General’s Chambers, in charge of the prosecution.[3]
In 1967, the Anti-Corruption Agency (ACA) was set up in accordance with the Anti-Corruption Act 1967.[4] However, the implementation of the New Economic Policy in the 1970s soon gave rise to increased opportunities for even more corruption, nepotism, and patronage distribution.[5]
When the National Bureau of Investigations (NBI) Act 1973 came into force, the ACA became the NBI.[6] The NBI is placed under the Home Ministry and has greater power to investigate corruption cases of national interest.[7] However, in accordance with ACA Act 1982, the NBI changed its name back to ACA and became a single entity.[8]
The global economic fallout of 1997 further exacerbated the problem of corruption in Malaysia, and the Anti-Corruption Act 1997 was consequently passed to solidify the powers of the ACA.[9] In its latest iteration, the ACA was converted into the “independent” body known as MACC under the MACC Act 2009.[10]
MACC is modelled after Hong Kong’s Independent Commission Against Corruption and has five external oversight bodies, including - the Anti-Corruption Advisory Board (ACAB), the Special Committee on Corruption (SCC), Complaints Committee (CC), the Consultation and Corruption Prevention Panel (CCPP) and the Operations Review Panel (ORP).[11] Under the MACC Act 2009, its functions include: receiving and investigating reports of corruption, detecting and investigating corruption, advising and assisting any person (on the person’s request) or heads of public bodies to eliminate corruption, as well as to educate and garner the support of the public in eliminating corruption.[12] Moreover, it is empowered to conduct investigations and make arrests, as well as to confiscate, freeze and forfeit assets.[13]
MACC has largely been successful in controlling corruption at the lower levels of governance.[14] Yet, it has made a comparatively smaller impact among the higher-ups – only 1.5% in 2016 and 2.9% in 2017 of arrests were made against higher-level suspects.[15] On paper, MACC may be an independent body, but alas it has never been entirely free from the grasps of the executive branch of the government.[16] Malaysia’s global ranking for the Corruption Perceptions Index (CPI) in 2021 is 62 out of 180 countries and scored 48 out of 100 where 0 is highly corrupt and 100 is very clean.[17]
Azam Baki and the blame game
Despite the damning evidence that has come to light, Azam Baki has continued to deny all allegations hurled against him and has instead dismissed them as rumours intentionally spread by "interested groups" with destructive agendas against MACC. Investigative journalist Lalitha Kunaratnam, the brave whistleblower behind the exposé, received a letter of demand from Azam Baki's lawyers, seeking the removal of two articles and an apology from her within 14 days.[18] Her refusal to comply led him to file a defamation suit against her before the expiry of 14 days, demanding that she issue a public apology and pay RM 10 mil in damages for tarnishing his reputation.[19]
Azam Baki's legal intimidation tactics against anti-graft activist Lalitha immediately sparked backlash for contradicting his previous call as chief commissioner to protect informants in alleged corruption cases under the Whistleblower Protection Act 2010.[20] Two years ago, he urged whistleblowers to come forward and provide evidence to assist MACC in the battle against corruption, noting that the commission had protected 290 individuals under the Act since 2016.[21]
Nevertheless, Azam Baki is now singing a different tune in response to fact-based revelations casting doubt on his integrity, making his promotion of whistleblowing on suspected corrupt activities appear selective. His double standards have also raised timely questions on MACC's role in eliminating corruption, as the agency should have investigated the accusations within the report, instead of investigating the reporter.
Apprehensive of this debacle deterring journalists from continuing to carry out the dangerous work of exposing executive wrongdoing in the future, media organisations have rallied behind Lalitha to call for better protection for journalists.[22] Under the current law, whistleblower protection does not extend to journalists who publicly uncover corruption issues, as it can be invoked only if the individual files a report with an enforcement agency or the authorities.[23]
Consequently, journalists whose identities are already revealed through their public disclosures repeatedly become targets of lawsuits, libel, and defamation for merely carrying out their role as the fourth estate of democracy to hold the state accountable for its actions.[24] Thus, the government must widen the scope of protection under the Whistleblowers Act 2010 and repeal arbitrary defamation laws to ensure that freedom of expression and speech are respected and protected.[25]
As Azam Baki comes under closer public scrutiny with many parties urging him to retract his letter of demand against Lalitha, his colleagues at the Putrajaya MACC headquarters have gone on record to throw their support behind their corrupt boss.
In a press conference held on 11 January, ACAB chairman Tan Sri Abu Zahar blamed the media for the controversy by reasoning that misreporting by the media portrayed an "inaccurate picture" of Azam Baki's share trading issue, thus resulting in the public receiving the "wrong perspective."[26] He also condemned the media for failing to fully report his press conference on 5 January, where he declared that the ACAB believed Azam Baki did not commit any wrongdoing and was satisfied with the latter's explanations during an internal investigation in November.[27]
As Abu Zahar continued to point fingers at the media, many journalists were disappointed that he was using media watchdogs as scapegoats after six ACAB members distanced themselves from his previous press conference statement.[28] Neither did his avoidance of media questions assist journalists in obtaining additional clarification or more accurate portrayals of the situation.
“The whole of central Kuala Lumpur was shut down just to save one man - MACC chief commissioner Azam Baki - from protesters calling him to step down. Wow, what an amazing show of “efficiency” by the authorities! If only we had the same efficiency to rescue flood victims in Selangor. Or patrol our neighbourhoods to stop burglars and snatch thieves? Or patch potholes on our roads? What does this show about the “priorities” of this government under Prime Minister Ismail Sabri Yaakob?”
- Andrew Sia
On 22 January 2022, shops, LRTs and roads in Kuala Lumpur were all closed and scheduled to not operate in the effort to obstruct plans for a peaceful public protest against the government’s continued support for Azam Baki.[29] Adding salt to the wound, the authorities have even gone so far as to open investigation papers against the participants of the #TangkapAzamBaki demonstration in Bangsar.[30]
Structural problems inherent within MACC
Issue 1: Lack of independence
It is no secret that MACC is not, and has never been, truly an “independent” body, despite what the MACC Act 2009 intended. Its transparency has been disputed time and time again due to rampant internal corruption. Moreover, members of the executive can easily interfere with the Commission’s activities, and have a long track record of doing just that in several high-profile cases under the guise of “protecting public interest”. Case in point: the 1Malaysia Development Berhad (1MDB) scandal.
“So long as MACC does not directly address the 1MDB scandal, it will never get the trust and confidence of Malaysians and the world that it has finally come of age and become a truly professional world-class anti-corruption agency dedicated to the war against corruption “without fear or favour” of the powers-that-be.”
- Lim Kit Siang in 2017
In August 2015, two MACC directors, Datuk Bahri Mohamad Zin and Datuk Rohaizad Yaakob were transferred to the Prime Minister's Department with immediate effect and subsequently roped into conducting the investigation on accounts belonging to SRC International Sdn Bhd, an entity linked with 1MDB.[31] This naturally raised significant doubt of MACC’s independence at that time, prompting a public backlash that eventually led to the cancellation of the transfers.
In the aftermath, then-Minister in the Prime Minister's Department, Datuk Paul Low acknowledged the need to undertake structural reforms in order to give MACC more autonomy, such as appointing the Chief of Commissioner via a panel of reputable individuals within the society.[32] Currently, the King is obliged to appoint the Chief Commissioner on the advice of the Prime Minister.[33]
Moreover, the Attorney General (AG), who has the ultimate power to prosecute, is also appointed based on the discretion of the Prime Minister. This arrangement significantly diminishes their ability to pursue cases against high-profile government officials, considering the AG is, more often than not, an advisor to the individuals in question.[34] For instance, in 2019 former AG Tommy Thomas lied to the public stating that MACC had yet to complete their investigations on the 1MDB Heist when the full report had already been finalised.[35]
Issue 2: Ineffective oversight committees
Similar to the Chief Commissioner position, the King appoints the members of MACC’s oversight committees like ACAB and SCC on the advice of the Prime Minister.[36]
According to former ACAB chairperson, Tunku Abdul Aziz Tunku Ibrahim, the board is not empowered to conduct its own investigation. Hence, MACC is in dire need of an oversight committee that is not only directly answerable to the Commission but is also subject to its directions with regard to policy and operations.[37]
The Securities Commission (SC) and the CC are currently the authorities tasked with investigating Azam Baki’s scandal, with the former having returned a finding of no conclusive evidence of wrongdoing. However, any finding by the SC, which is itself currently being investigated by MACC, might not have been conducted impartially and independently if Azam did not take leave or was not suspended during the process.[38] PM Ismail Sabri, who has the power and discretion to order the suspension, appeared to be reluctant to do so.
The only hope left for an impartial investigation of Azam Baki’s alleged misconduct lies with the Parliamentary Select Committee (PSC). The powers of the PSC are detailed in the Houses of Parliament (Privileges and Powers) Act 1952 (Act 347): every PSC shall have the authority to call individuals to have their statements taken, or to gather opinions and views on matters related to the field stated in the respective PSC’s terms of reference.
Subsequently, inquiry reports prepared by the PSC will be tabled in the Dewan Rakyat which is then debated in accordance with Standing Order 86(1). Nevertheless, based on the terms of reference, the PSC cannot act in its own capacity except with the reference of the Dewan Rakyat or minister through a motion, petition, report and document affecting the affairs of Sabah/Sarawak, Parliament, law or religion under the Prime Minister’s Department.[39]
Evidently, even the legislature has limited powers to perform its check and balance mechanisms against the activities of the executive in this regard, therefore yielding enormous discretion to the latter over the investigation of corruption scandals.
Demanding better: the struggle to uphold the integrity
The events of the past two decades have proven that the MACC in its current form is not a viable solution for eradicating corruption. In truth, anti-corruption commissions have been "weaponised to punish opponents of corrupt regimes" in numerous nations, making them ineffectual”.[40]
This begs the question - what utility does a non-independent MACC have left in the battle against corruption, if it has only ever been manipulated to serve the interests of the powerful?
The following are proposed:
1. Complete separation from executive bodies
With the ease of access to the MACC that members of the executive possess, the likelihood of internal cover-ups in the interest of powerful figures increases. For this reason, government officials should be strictly prohibited from exerting any undue influence on the Commission’s investigations, irrespective of who is being investigated.
Complete separation from the executive has a high potential of restoring MACC’s integrity as the same doctrine has worked with the judiciary. Federal judge Raja Azlan Shah (as His Highness then was) famously declared in the renowned case of Loh Kooi Choon v Government of Malaysia: “The Constitution is not a mere collection of pious platitudes... the third is that no single man or body shall exercise complete sovereign power, but that it shall be distributed among the executive, legislative and judicial branches of government, compendiously expressed in modern terms that we are a government of laws, not of men.”[41] Accordingly, the same approach should be adopted for MACC as the gravity of their role in championing anti-corruption amounts to an essential service to the public.
2. Continuous accountability in the appointment of chief commissioner
In response to an inquiry by Pengerang MP Azalina Othman during a parliament sitting on whether former PM Muhyiddin Yassin’s office had done their due diligence in appointing Azam Baki as the chief commissioner of MACC, his ex-private secretary stated that the procedural requirements for appointments in civil servants (e.g. security vetting) had been fulfilled.[42]
"As a top government officer who is still in service, I am sure that he was subjected to all these regulations and conditions prior and after he was appointed to the position. Therefore, the question of whether the prime minister at the time (Muhyiddin) had made due diligence to conduct checks of his (Azam's) background before his appointment (as the chief commissioner of the MACC) does not arise,"
- Marzuki Mohamad
Beyond this, Muhyiddin blatantly refused to be “dragged into the ongoing controversy” surrounding Azam Baki[43]. It is deeply concerning to see a former leader dismissing issues of public interest as mere controversies, especially considering the key part he played in the appointment. A deeper sense of shame and accountability must be upheld by leaders who are put in charge of appointing a public servant with so much authority and for an organisation with such essential functions. Transparency and continuous accountability in the appointment of a chief commissioner would not only ease the minds of the public and help restore their trust for MACC, but it would also raise the standards of integrity expected from the Commission and its officials by subjecting the PM’s picks to greater scrutiny.
3. Complete structural revamp
Currently, there are five external oversight bodies in charge of overseeing the progress of MACC. Logically, there should therefore be no room for error, much less any tolerance for cover-ups of botched/sabotaged investigations conducted by MACC officers.
However, in light of the recent Azam Baki scandal, it has become a question of whether these oversight committees have ever done anything to uphold the supposed integrity of MACC. The Malaysian Community Care Foundation has urged the government to establish an independent agency to probe Azam Baki with the contention that such an independent probe is MACC’s best shot at protecting their integrity.[44]
"This matter has become a key concern for the Malaysian public within and outside the country, as can be seen with the various opinions and perceptions shared by netizens on social media (over the allegation levelled against Azam),"
- Datuk Seri Halim Ishak
The Centre to Combat Corruption and Cronyism expressed in a press statement on 23 October 2021 that, due to the many instances of corruption committed by MACC officers themselves, and the extent of internal cover-ups presumably practised, there is an urgent need for “an independent probe to be immediately set up involving experts in financial crime, outside the MACC and the Royal Malaysian Police (PDRM), who are not connected to both institutions”.[45]
At this lowest point of MACC’s history, only a complete structural revamp could possibly restore the public’s trust in the Commission.
Call for action: zero-tolerance for corruption
As a signatory to the UN Convention Against Corruption, Malaysia is obligated to consider incorporating Article 33 which explicitly outlines the parameters of protection for reporting persons:
Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.
In line with international standards, Malaysia must therefore enact stronger and more far-reaching protective measures for whistleblowers under the Whistleblowers Act 2010. Under such stressful circumstances, only bulletproof legal protection will grant them the peace of mind, security and courage they need to come forward with their findings of corruption.
That said, corruption itself is a social ill that must be urgently addressed – the current state of affairs is unsustainable and frankly downright injurious to the democratic health of our country. At this point, the countless corruption scandals that have emerged under almost all past administrations have left the Malaysian public desensitised and virtually unable to remember a time when the government was not run by crooks deft at sleight-of-hand, covert cover-ups and brokering shady deals for their personal profit. If no changes are made to how MACC is run, and no radical alternatives are found to an anti-corruption commission, the average taxpayer will only continue to suffer as they are slowly bled dry by the greedy elite.
HAKAM Youth believes that the road to accountability must start with #TangkapAzamBaki. There has never been a more opportune time in Malaysian politics to re-examine our tolerance for corruption and to demand better from our leaders.
References:
[1] Soo Wern Jun, “Law minister: Azam Baki’s shares only RM330k, affordable and not expensive” Malay Mail (8 January 2022) <https://malaysia.news.yahoo.com/law-minister-azam-baki-shares-121202535.html> accessed 18 January 2022.
Jaipragas, Bhavan & Azmi, Hadi, “Malaysians to protest after Securities Commission probe into claims of improper stock trading by anti-corruption chief Azam Baki is ‘inconclusive’” South China Morning Post (18 January 2022) <https://www.scmp.com/week-asia/politics/article/3163811/malaysians-protest-after-securities-commission-finds-claims> accessed 18 January 2022.
[2] Noore Alam Siddiquee and Habib Zafarullah, “Absolute Power, Absolute Venality: The Politics of Corruption and Anti-corruption in Malaysia”. (2020). 0(1), Public Integrity, 1-17. <https://www.tandfonline.com/doi/full/10.1080/10999922.2020.1830541?needAccess=true> accessed 18 January 2022.
[3] ibid.
[4] “Organization”. Malaysian Anti-Corruption Commission (MACC). <https://www.sprm.gov.my/index.php?page_id=75&articleid=235&language=en#:~:text=In%202008%2C%20the%20Parliament%20and,1997to%20the%20MACC%20Act%202009> accessed 18 January 2022.
[5] Siddiquee and Zafarullah (n 1).
[6] “Organization”. Malaysian Anti-Corruption Commission (MACC) (n 4).
[7] ibid.
[8] ibid.
[9] Najih, Mokh., & Wiryani, Fifik. “Learning the Social Impact of Corruption: A Study of Legal Policy and Corruption Prevention in Indonesia and Malaysia”. (2020). 11(4), Journal of Social Studies Education Research, 175.
[10] “Organization”. Malaysian Anti-Corruption Commission (MACC) (n 4).
[11] Mohd Jamil SB, “MACC Panels Enhance Transparency: New Straits Times” NST Online (24 June 2021) <https://www.nst.com.my/opinion/columnists/2021/06/701628/macc-panels-enhance-transparency> accessed January 20, 2022
[12] “Function”. Malaysian Anti-Corruption Commission (MACC). <https://www.sprm.gov.my/index.php?id=21&page_id=75&articleid=399> accessed 18 January 2022.
[13] Siddiquee and Zafarullah (n 1).
[14] ibid.
[15] ibid.
[16] ibid.
[17] “Corruption Perceptions Index”. Transparency International <https://www.transparency.org/en/cpi/2020> accessed 18 January 2022.
[18] Austin Camoens, ‘Media Groups Want Better Protection for Whistleblowers’ The Star (7 January 2022) <https://www.thestar.com.my/news/nation/2022/01/07/media-groups-want-better-protection-for-whistleblowers> accessed 12 January 2022.
[19] Mazwin Nik Anis and Arnold Loh, ‘Azam Proceeds with Defamation Suit’ The Star (13 January 2022) <https://www.thestar.com.my/news/nation/2022/01/13/azam-proceeds-with-defamation-suit> accessed 13 January 2022.
[20] Charles Ramendran, ‘MACC Chief Commissioner 'Singing a Different Tune’ The Sun Daily (10 January 2022) <https://www.thesundaily.my/home/page-6-lead-jan-10-azam-CA8741051> accessed 12 January 2022.
[21] ibid.
[22] ‘When Whistleblower Protection Doesn't Apply’ The Star (11 January 2022) <https://www.thestar.com.my/news/nation/2022/01/11/when-whistleblower-protection-doesnt-apply> accessed 12 January 2022.
[23] ibid.
[24] ibid.
[25] Camoens (n 20).
[26] Mazwin Nik Anis and others, ‘Abu Zahar Takes Media to Task over 'Inaccurate Picture' The Star (12 January 2022) <https://www.thestar.com.my/news/nation/2022/01/12/abu-zahar-takes-media-to-task-over-inaccurate-picture> accessed 12 January 2022.
[27] ibid.
[28] Mazwin Nik Anis and others, 'Stop Blame Game on the Media' The Star (12 January 2022) <https://www.thestar.com.my/news/nation/2022/01/12/stop-blame-game-on-the-media> accessed 12 January 2022.
[29] Alhadjri A, “#Tangkapazambaki: Cops Divert Six KL Roads, Halt Rail Service Ahead of Rally” Malaysiakini (21 January 2022) <https://www.malaysiakini.com/news/607842> accessed 20 January 2022.
[30] Camoens A, “Cops Open Probe into Event behind Azam Baki Demonstration in Bangsar” The Star (22 January 2022) <https://www.thestar.com.my/news/nation/2022/01/22/cops-open-probe-into-event-behind-azam-baki-demonstration-in-bangsar> accessed 20 January 2022.
[31] Hakim Rahman, ‘Two MACC’s directors transferred to PM’s Department' Astro Awani (7 August 2015) <https://www.astroawani.com/berita-malaysia/two-macc-directors-transferred-pms-department-6883> accessed 23 January 2022.
[32] Hafiz Marzukhi, ‘’MACC needs to be given more autonomy’ - Paul Low' Astro Awani (10 August 2015) <https://www.astroawani.com/berita-malaysia/macc-needs-be-given-more-autonomy-paul-low-69256> accessed 23 January 2022.
[33] C4 Center, IDEAS and Transparency International Malaysia, ‘Article 13 Review of United Nations Convention against Corruption' Transparency International Malaysia (4 July 2017) <https://transparency.org.my/pages/news-and-events/press-releases/article-13-review-of-united-nations-convention-against-corruption> accessed 23 January 2022; FMT Reporters, ‘PM decides if Azam remains MACC chief, says lawyer' Free Malaysia Today (13 January 2022) <https://www.freemalaysiatoday.com/category/nation/2022/01/13/pm-decides-if-azam-remains-macc-chief-says-lawyer/> accessed 23 January 2022.
[34] FMT Reporters (n 36).
[35] Kamarudin RP, “MACC's Report on the 1MDB Scandal: More 'Hidden' Evidence Surfaces” Malaysia Today (5 December 2021) <https://www.malaysia-today.net/2021/12/05/maccs-report-on-the-1mdb-scandal-more-hidden-evidence-surfaces/> accessed 20 January 2022.
[36] Datuk Seri Shamshun Baharin Mohd Jamil, ‘MACC panels enhance transparency’ New Straits Times (24 June 2021) <https://www.nst.com.my/opinion/columnists/2021/06/701628/macc-panels-enhance-transparency> accessed 23 January 2022.
[37] Malaysiakini, ‘MACC advisory board has no power to probe commission ' Yahoo! News (7 January 2022) <https://malaysia.news.yahoo.com/macc-advisory-board-no-power-013400961.html> accessed 23 January 2022.
[38] Yiswaree Palansamy, ‘Gobind: Did Securities Commission refer its findings on Azam Baki to the attorney general?' Malay Mail (19 January 2022) <https://www.malaymail.com/news/malaysia/2022/01/19/gobind-did-securities-commission-refer-its-findings-on-azam-baki-to-the-att/2036150> accessed 23 January 2022.
[39] Kassim Noor Mohamed, ‘Did PSC exceed its powers in calling Azam?' Malaysia Now (17 January 2022) <https://www.malaysianow.com/opinion/2022/01/17/did-psc-exceed-its-powers-in-calling-azam/> accessed 23 January 2022.
[40] Rotberg RI, The Corruption Cure: How Citizens and Leaders Can Combat Graft (Princeton University Press 2019).
[41] Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, FC at 188.
[42] Aziz IH, “Muhyiddin's Ex-Private Secretary Clarifies Azam Baki's Appointed: New Straits Times” NST Online (10 January 2022) <https://www.nst.com.my/news/nation/2022/01/761790/muhyiddins-ex-private-secretary-clarifies-azam-bakis-appointed> accessed 20 January 2022.
[43] Online TS, “Muhyiddin: I Didn't Appoint Azam Baki, Name Decided by Committee” The Star (10 January 2022) <https://www.thestar.com.my/news/nation/2022/01/10/muhyiddin-i-didn039t-appoint-azam-baki-name-decided-by-committee> accessed 20 January 2022.
[44] Nawawi MH, “MCCF Wants Independent Body to Investigate MACC Chief: New Straits Times” NST Online (9 January 2022) <https://www.nst.com.my/news/nation/2022/01/761565/mccf-wants-independent-body-investigate-macc-chief> accessed 20 January 2022.
[45] “The MACC Needs a Complete Revamp, to Restore Its Credibility and Independence” C4 Center (23 October 2021) <https://c4center.org/the-macc-needs-a-complete-revamp-to-restore-its-credibility-and-independence> accessed 20 January 2022.