In 2017, the former Hong Kong chief executive Donald Tsang, 73, the highest-ranking ex-official to be charged in the city's history, was jailed for 20 months for misconduct in public office.
The common law offence of Misconduct in Public Service is a key weapon in fighting against corruption in Hong Kong. Tsang had accepted a tycoon’s favour of a free redecoration of his Shenzhen penthouse which cost HK$3.35 million (RM1.80 million) paid by a company. The maximum penalty for this offence is 7 years.
Misconduct in Public Office involves an allegation that a public servant has wilfully neglected to perform his duty or otherwise has done something wrong in the conduct of his official duties. This will justify disciplinary action taken against such a person by the employer, the government or a public authority.
In Malaysia, the key legislative change in the fight against corruption in or by the private sector is the recent insertion of the new Section 17A in the Malaysia Anti Corruption Commission Act 2009 (which comes into force in June 2020), which imposes criminal liability on commercial organisations for their failure to prevent corruption.
Following from this, perhaps we should introduce Misconduct of Public Office provision in the MACC Act 2009 to address misconduct which results in financial losses of tax payers’ money, as practiced by the Hong Kong government. The proposed provision would help to check cases when the government incurred losses due to negligence, non-compliance with requirements or procedures in government departments and agencies.
The country need this provision for both puninitive and deterrence purposes. It should fairly apply to “everyone” involved in the decision making process and that includes politicians.
Some public servants, ministers and politicians are vulnerable to corruption due to power, opportunity, pressure and rationalization factors. The public sector needs to be aware of these risks and should consider strengthening the existing internal control policies and best practice to address these problems.
It is quite common in some instances where orders or instructions come from corrupt or persons in elected positions. For the offence of Misconduct in Public Office provision to be prosecuted, politicians and public servants who make bad decisions without having a reasonable excuse or justification that cause the government to lose its funds, will be held accountable.
Such development in the law will reduce the exposure of those holding public office to corruption and abuse of power as they will be afraid of the consequences. The plan is to hold both public servants and politicians accountable and share the blame.
The MACC has been reported saying that each year, the Auditor-General's Report revealed a litany of malpractices among government departments and agencies, some of which were outrageous, for which those public servants responsible should be charged with criminal offences.
Datuk Sri Azam Baki, the Deputy MACC Chief stated that often public servants responsible for causing financial losses had taken orders from their higher-ups but when they run into trouble their bosses who gave the orders are often nowhere to be seen, leaving them to fend for themselves.
Being a public servant, even though nobody can prevent politicians from trying to interfere, but he or she can exercise his or her right of ignoring them, especially when the request is not in accordance with the law.
A few years ago, the former Auditor General Tan Sri Ambrin Buang stated that giving oral warnings to erring public servants is not sufficient. At the moment even the guilty is not punished and escaped punishment or disciplinary actions. The World Bank estimated that 20-30 percent of budget for public contracts is wasted.
This matches what Ambrin predicted i.e. that up to 30 percent of Malaysia's public projects' value was lost owing to mismanagement and corruption. Consider the amount of savings the
government would have obtained if it paid 30 percent less for goods and services the contractors and vendors provide.
The new measures proposed by MACC gives hope that the Government will also fully support the same by effecting the necessary changes in the law where all employees have to report misconduct and not turn a blind eye to unacceptable behavior.
It is an offence if any person who knows and fails to report an act of giving and offering of bribes under Section 25 (1) and (2) of the MACC Act 2009. Section 25 (1) and (2) of the MACC Act 2009 impose a fine not exceeding one hundred thousand ringgits; and/or imprisonment not exceeding 10 years or to both. Any person who knows and fails to report an act of soliciting and obtaining of bribes is committing an offence under Section 25 (3) and (4) of the MACC Act 2009 Section 25 (3) and (4) of the MACC Act 2009 which carry fine not exceeding RM10,000; and / or imprisonment not exceeding 2 years or both.
Hence, the law should get to the root of the case and nail both the master and the executor. It is only fair that those who had ordered such expenditure to be held responsible and face the consequences too. All such loopholes should be plugged when framing the law on this.
The writer holds HELP University’s Institute of Crime & Criminology Professorial Chair and President Malaysia Association of Certified Fraud Examiners