Currently, much discourse and debates had thrusted law enforcement agencies such as the MACC (Malaysian Anti-Corruption Commission) and PDRM (Royal Malaysia Police) into the limelight, questioning their independence or lack of it.
Political actors, activists and armchair critics form both sides of the divide are demanding for reforms, with some spewing allegations of selective prosecution, persecution ang being tools of ruling political elites.
Much has been argued and highlighted on social media and vested news portals by those political actors who, essentially, have been investigated for alleged corruption and abuse of power, raising the question if their accusations and attacks against law enforcement agencies were merely to save their own skins for their own political survival.
For instance, the MACC, a key enforcement agency has been accused of selective prosecution and some groups have urged for the anti-graft agency to be reformed or restructured.
Notwithstanding, the core of the issue comes down to fortifying its capacity to investigate without interference - to act without fear or favour. Hence, we need to critically discuss how the independence of key enforcement agencies like the MACC is paramount and must be strengthened.
Firstly, how far is the truth in the allegations that the MACC is being used as a tool of the government and engaging in selective prosecution? As I have suggested earlier, much of the accusations of selective prosecution come from parties whose leaders or members have been investigated, charged and facing court trials.
In all fairness, the MACC recently investigated the former Perlis Menteri Besar who has been charged for providing false claims and money laundering. Now, he is from the party in the ruling coalition.
Over the past several weeks, a few high-ranking officers from the Human Resource Ministry were also being investigated for possible graft in the recruitment of foreign workers. And, if you look at the people who are undergoing trial for corruption and abuse of power – they are high profile politicians from both the ruling party as well as the opposition.
Even the former Prime Minister has been convicted, based on the thorough investigation by the MACC. One issue that we tend to omit in our arguments is that our nation's laws follow the principle of separation of powers.
That means that the MACC is empowered only to investigate and does not have the power to prosecute. The consent and power to prosecute belongs to the Attorney General and the Public Prosecutors.
Hence, to say that the anti-graft commission is selectively prosecuting one group of people is not factually correct, rather it is based on manipulated perception rather than facts.
The MACC as an enforcement body is empowered by the law, the MACC Act 2009, which means, it cannot arbitrarily investigate anybody it fancies. There are regulations and procedures to ensure that its powers are not abused.
Any investigations and charges must be supported by facts and evidence, or else it will not pass the scrutiny of the Attorney General's Chambers. Without strong evidence, it will not obtain consent to prosecute. Furthermore, our courts are robustly strict, and any charges must be proven beyond reasonable doubt. In fact, beyond a shadow of doubt.
Interestingly, the track record of MACC cases' conviction rate is very high compared to other countries globally - at over 90 per cent in the last few years. That is not easy to achieve if you have shoddy or trumped-up evidence just to fix someone.
Secondly, how important is it for law enforcement agencies like the MACC and the police to conduct their investigations freely and without interference, and to be perceived as doing so?
To his credit and about time too, the Prime Minister is seen to be on a crusade to root out corruption within the government and has pledged not to interfere in the investigations of enforcement agencies.
It is obviously important that enforcement agencies like the police and the MACC are independent to conduct their investigations without interference from the executive powers or any other branch of the government for it to be truly effective.
Furthermore, people need to have the confidence in law and enforcement in order to become whistle blowers when they encounter corrupt activities. To do so, the masses need to know that no one should be above the law or immune from the being investigated and prosecuted for corruption nor any other offences.
Thirdly, what measures can be taken to fortify the independence of key enforcement agencies like the MACC and the police? For one, security of tenure of the Chief Commissioner or the Inspector General needs to be established.
The position should be like key positions in the state, such as the Chief Justice and the Attorney General. In that way, their positions are not threatened every time there is a change of government.
If these key positions are changed every time there is a change of regime, inadvertently, they will be railroaded into being subservient to the Prime Minister and his government.
It is enlightening to know that the current Prime Minister, upon taking office in November 2022 did not act in the same way like his predecessors who had replaced the Chief Commissioner and Inspector General to men or women of their liking.
The Prime Minister broke the convention that a change of guard in in these institutions was necessary when a new chief is appointed.
He boldly stated there was no need to replace the MACC chief as the anti-graft agency is an independent body, adding that the MACC is being monitored by five independent bodies, namely the: Special Committee on Corruption; Anti-Corruption Advisory Board; Operations Evaluation Panel; Complaints Committee and; the Consultation and Corruption Prevention Panel to provide checks and balances.
Additionally, key enforcement agencies like the MACC must have its own Service Commission. Meaning, it must not depend on the Public Service Department for the recruitment of its staff.
It must have within its power to hire and fire its own staff so that it can be truly independent to perform its functions and duties.
Finally, the MACC's annual budget should come from a percentage of the country's GDP. In this way, it is not dependent upon the Ministry of Finance which is helmed by a Minister. At the moment, the Finance Ministry portfolio is held by the PM which raises the perception that the MACC is controlled by the Prime Minister.
The enforcement body must have its budget independent of the control of the government-of-the-day. If these three steps are taken to fortify the independence of the key enforcement agencies, they will undoubtedly command more respect from politicians, corporate members and rakyat alike.
Fourthly, should the MACC be placed under the Parliament to ensure its independence?
There is much clamour that the MACC should be free from the interference of politicians, especially those in power. The question is how does placing the MACC under the Parliament allows this when the Parliament is the politicians' den?
A lesson we need to learn here is that not too far away from us, a neighbouring country has her anti-corruption agency which was once touted to be independent, fearless, and effective, brought under its Parliament.
Now a toothless tiger, the organisation faces much obstacles and resistance to open investigation papers without the permission of the Parliament. If the Parliament is controlled by one dominant power, how independent can the anti-corruption body perform its work under this majority power?
In fact, the Corruption Perception Index (CPI) of that country did not improve but nose-dived by many points, comparatively much worse than Malaysia.
Fifthly, the question of how do we ensure that the selection and appointment of the heads of key enforcement agencies are based on merit and not political affiliations? In my opinion, heads of key enforcement agencies must be selected within the agencies according to skills and seniority.
What happened in recent years, in at least two occasions, the Chief Commissioner of the MACC was appointed by persons from the outside. Although they might have performed well, but due to this 'political appointment', their credibility was dented as they were seen to be affiliated or aligned to the government of the day.
It also left a dent on the morale of those in the organisation. Nothing beats experience and the tradecraft skills of those who have intimate knowledge of the inner workings of law enforcement. It is without doubt that we are now at the crossroads in the position we take in enhancing our law enforcement institution.
Potentially, we will face challenges or obstacles that may arise in fortifying the independence of key enforcement agencies in Malaysia. The biggest challenge is political will.
If those in power are worried that a strong independent law enforcement agency created might come back to bite them in the back once they are not in power "then Houston, we have a problem."
However, the brave stance taken by the present Prime Minister in retaining and renewing the Chief Commissioner's tenure and the momentum this creates augurs well for the future.
* The writer is Vice-Chancellor, Enforcement, Leadership and Management University (ELMU)