Monday, October 14, 2013

Principle of “Check and Balance” needed between MACC and AGC

Prosecution power should continue to be placed under Attorney-General Chamber (AGC) despite all the weaknesses in the delivery of the chamber.

The Malaysia Anti Corruption Commission (MACC) recently in an open forum urged the government to give MACC the prosecuting power which is not proper as it will create conflict of interest and violate the principle of “check and balance” between MACC, an investigation body, and the AGC which is a public prosecutor.

MACC is responsible to investigate corruption case whereas prosecution task is done by AGC. That means both of these two government agents have their own separate functions to avoid overlap and centralization of power in either one of the two agencies.

Another reason for this is to ensure that the prosecutor’s cases in the court are “water-tight” cases which mean the cases have strong foundation to win in court. This can only be achieved if the AGC can view and check comprehensively, objectively and professionally the entire MACC’s investigations. (AGC’s capability to do this is another issue that should be discussed separately).

Actually when comes to prosecuting a defendant in a court charged under anti-corruption ac, both MACC and AGC are not operating separately as it also depends on the existing anti-corruption law in Malaysia.

One of the most glaring weaknesses of our anti-corruption law is that a person is not considered as corrupt if he/she and/or his/her family members who owns property or asset disproportionate with his income level.

This is very different compared with the anti-corruption law in other advanced countries such as Hong Kong, in which the Hong Kong Department of Justice can immediately charge any civil servant in court for corruption if he/she owns property or asset disproportionate to his/her income level.

There are also other factors that determine if the fight against corruption succeeds or fails in a country, such as the salary scheme of the civil service and the value and attitude of the civil servants.

Therefore, the real problem is not about passing the prosecution power to MACC but to ensure that both MACC and AGC work within their scope to the best of their capacity independently, efficiently and professionally.

Lau Weng San

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