|  ©NST
by Aniza Damis
• Fulfilling transparency promises Last Monday, Prime Minister Datuk Seri Abdullah Ahmad Badawi announced that the Anti-Corruption Agency would be revamped into a Malaysian Commission on Anti-Corruption, granting it greater independence. But how does such a commission work? Can it really be independent? ANIZA DAMIS speaks to Roy Waldon, the executive director of the legal division in the New South Wales Independent Commission Against Corruption (NSW ICAC), and finds out what made this Australian state's 20-year fight against corruption successful Q: What is the function of the ICAC?
A: To investigate and expose corruption in the New South Wales public sector, corruption prevention so that corruption doesn't repeat itself, and corruption education for the public sector, the importance of reporting corruption and the importance of combating corruption.
Q: Why does ICAC investigate just the public sector?
A: The ICAC was set up primarily because there was concern about corruption affecting the public sector. We have notions of public trust and the importance of public trust in the integrity of our public systems. If they are undermined in any way, then, it doesn't just affect those agencies where the corrupt activity is occurring, it affects the whole of government, and the delivery of the public service within New South Wales.
The issues of corruption that most concerned people at the time the ICAC was established (in 1988) were allegations involving police corruption, corruption in the judiciary, corruption at ministerial level, and about corruption generally in the public sector.
When the then premier established the ICAC, he talked about some of those issues: the fact that a former chief magistrate was convicted of a criminal offence, and the need to reinforce public confidence in the way government and government agencies were being administered.
The police couldn't look into it because at that time the police themselves were part of the problem, rather than the solution, and the police have other things to do, like criminal investigations to conduct. There were also concerns they didn't have the powers to do what needed to be done.
The ICAC, on the other hand, has been given quite wide and extraordinary powers.
Q: Do you have jurisdiction over politicians?
A: Absolutely. We have powers over everyone in the public sector, ranging from the garbage collector to politicians, our head of government and our head of state.
Q: Who do you report to?
A: We don't really report to anyone, as such. We report to parliament, in a sense.
Q: ICAC doesn't have a prosecutorial function?
A: Yes. We're not set up to focus on prosecutions. We make findings of fact.
If someone's accepted a bribe, we can make that a finding of fact. If the conduct comes within our definition of corrupt conduct, we could make a finding that that person had engaged in corrupt conduct.
And it doesn't have to be limited to a criminal offence. It can also be a disciplinary offence, or other grounds for dismissal of a public sector worker.
I think the idea was we ought not to be burdened by having a prosecutorial function because our focus is on investigation and exposure. The type of evidence and the way we investigate is quite different from how a prosecutorial agency would go about doing what they do.
We are not subject to the rules of evidence, nor limited to evidence which would be admissible in a court of law. Very often the evidence we rely on can also be evidence which may not be admissible in a court of law.
We have a very important power in our hearings, of being able to require people to answer all questions even though the answers may incriminate them. You can't do that in a court of law.
That means if someone objects to answering those questions, they must nevertheless answer those questions. But the fact they have objected means their answer can't be used against them in a subsequent criminal prosecution.
This power is very similar to the sort of powers a royal commission would have -- we're often described as being a standing royal commission.
The prosecutorial function needs to look at what is the admissible evidence -- whether there is sufficient evidence to prosecute.
Some times prosecutions can take quite a long time, whereas, hopefully, our investigations will take maybe a few months, maybe a couple of years.
But once we've conducted a public inquiry, our report is usually out within three months. And then, apart from following up and seeing how our recommendations are being implemented and sending off our material to the director of public prosecutions (DPP), that's usually the end of it for us.
Even once prosecution has been implemented, there are various reasons why it may be dragged out. It could go through a committal proceeding before it could get to court, there may be a conviction in the first instance, there might be an appeal -- it'll certainly be a long-running thing before you get to the end.
With the ICAC, the idea was that in exposing corruption, there ought to be a fairly immediate result, and that result is the public report -- the findings of fact, and the findings of corrupt conduct.
What happens after that is still important, but because it's likely to be some time away from when the actual conduct occurred and the actual investigation was conducted, I think it's important to have a result closer to the actual event.
Q: Would you recommend that the DPP prosecutes?
A: Under our act, we recommend that consideration be given to refer the matter to the DPP to consider prosecution for a particular offence.
Basically, we can say: "This person has engaged in corrupt conduct," but we are precluded from saying: "This person has committed a criminal offence". We're not allowed to say that because only the courts can determine that.
All we can say is: "Here's some evidence, we think the DPP ought to give consideration to prosecuting this person for this offence." The DPP then gets the evidence we send to him, considers the evidence, and then makes a decision.
Similarly, in matters that may involve a disciplinary offence, we can't say someone has engaged in a disciplinary offence. All we can say is the relevant agency ought to give consideration to taking disciplinary action against them in relation to specified conduct.
Q: Are your findings made public?
A: Not only is the finding made public, but the hearing is made public -- it is open to the public, people can attend, and it gets reported widely by the media if it's an interesting hearing.
Q: How can you make something public when it's not a court decision, and at the same time avoid being sued?
A: Our legislation provides that nothing we do is capable of being regarded as being defamation.
Secondly, we conduct ourselves in accordance with our act (the Independent Commission Against Corruption Act). As long as we abide by that, then we can't be taken to court.
The act specifically provides we have the power to make findings of fact and findings of corrupt conduct, and other things. We can also make recommendations of reform to systems.
An important part of our function is not just to say: "This is the conduct that occurred and these are the people to blame." We also want to look at the system and why that conduct was able to occur so that we can make recommendations for change to the system. Hopefully, either it won't occur again, or the likelihood of it occurring again is reduced.
Q: So, the effect you have is actually of a moral "outing"?
A: Yes. And it's a great deterrent effect, I think.
No one likes to be labelled as corrupt, and once you're labelled as corrupt that sticks with you for the rest of your life.
Reports also go on our website and all our reports going back to when we first started in 1989 can be found online. So, anytime someone wants to see if someone was named in an ICAC inquiry, they can do a Google search, and they'll come up with a report and see that there might have been a finding of corrupt conduct.
Q: What if a case that you have reported is lost by the prosecution in court? Is there then a conflict between ICAC's findings and the court's findings?
A: There's no conflict because, first of all, the evidence that may be before the court could be quite different from the evidence before us.
Let's take the hypothetical example of a public official.
If he comes into ICAC, goes into a hearing and says, under objection: "I've accepted A$20,000 worth of bribes last year." That's a fact. We can make that finding a fact and a finding of corrupt conduct based on that person's admission.
But we cannot use that admission as evidence for criminal prosecution because that evidence was given under objection, so it's not admissible.
Secondly, we are not bound by the rules of evidence, and we are not bound by issues of admissibility. The basis on which we make our findings is the civil standard, which is the balance of probabilities.
A court of law is bound by the rules of evidence, so they may not have all the evidence we had. They are concerned about issues of admissibility.
Thirdly, they determine guilt or innocence based on the Beyond-Reasonable-Doubt test and not the Balance-of-Probabilities test.
That's an issue that has been raised in Australia -- particularly in NSW -- we've made a corrupt conduct finding, the person's prosecuted, and they're found not guilty. Does that mean we then have to revisit your corrupt conduct finding? The answer is "No".
Q: Do you get interference by the executive?
A: No. In NSW, if we were investigating someone in government -- say a minister -- and the premier was walking down the street and saw our commissioner walking down the same street, I think the premier would cross to the other side because he wouldn't want there to be even a suggestion that he in any way interfered with or compromised an ICAC investigation. That would be political suicide.
The ICAC has investigated the conduct of a premier and made a finding of corrupt conduct against that premier (Nick Greiner, who, incidentally, was the premier who set up the ICAC). We've also investigated the conduct of ministers. There has never been any attempt by a premier or any other member of government to interfere or influence the outcome or the conduct of those investigations.
I think they (the government) understand that we are independent, we're not subject to ministerial direction or direction by the premier.
I also think they understand what the political realities would be if there was even a whiff of a suggestion, and if that found its way into the media, it would be political suicide for them.
Our commissioners have always been independent. They are well-versed in the law, and I don't see any circumstances in which they would even tolerate or entertain that level of interference.
Q: Who appoints the commissioner?
A: The commissioner is appointed by the governor of New South Wales on the recommendation of the premier.
These appointments are open to public scrutiny. There is a criteria in our legislation for who is eligible to be appointed as a commissioner. It needs to be someone with a legal background. Usually it's a senior judge or a former judge of the Supreme Court (the highest court in the state of NSW) or someone who has a reputation for integrity within the public sector.
It would be very difficult for a premier to manipulate the system to appoint someone he or she thought would be favourable to them -- not least of all since we have a very active opposition in each state parliament, and they would soon highlight that.
And not only would such an arrangement bring our organisation into disrepute, it would bring the government of the day into disrepute -- because there is a very strong interest of the public in what the ICAC does, and how it does what it does, and who leads it.
I don't think there would be any tolerance for a situation to arise where there was even a perception someone was being appointed not because they were independent and qualified, but because it was thought they might be favourable to the government of the day.
Q: What's the annual budget of ICAC?
A: Roughly A$15 million (RM44 million) .
We get about 2,000-2,500 complaints a year. But we only take on what we regard as serious and systemic corrupt conduct. In 2006 and 2007, we commenced 78 investigations. We may do between six and eight public inquiries a year.
Q: How do you get what you need, without putting yourself in a position where you are obliged to the government?
A: The budget generally is fixed, and it goes up each year by a percentage, like most government departments.
A couple of years ago, we were extremely busy. We had a number of investigations -- one of which involved issues of the activities of one or two members of the government -- and we were running out of money.
So, all we had to do was go to the government and ask for extra money, and we got it. We didn't have to provide any detailed justification; we could show the government we'd spent this much money, and we had to spend this much more money in order to complete the investigation.
There was no argument, no debate, no issue about getting the money.
Everyone knew we were very busy because we were doing a number of investigations, including the Orange Grove investigation, which involved the conduct of a couple of members of the government.
Because public perception is very important in a democracy, and particularly in NSW, I think the government would have been concerned about saying: "No, sorry. Go away."
Even if the government had said this for fiscal reasons, I think everyone would have said: "This is not for fiscal reasons, it's because you don't want the ICAC to continue with the investigation." And to the people, it would have been unacceptable.
Q: How much confidence does the public have in being able to complain, without getting into trouble themselves?
A: Our surveys of the public indicate a high level of public confidence in what we do. We've been getting 2,000 to 2,500 complaints for the last 10 to 15 years.
There is legislation that provides that it is an offence for anyone to take detrimental action against someone who has assisted us. There is also legislation which provides protection to a public servant who is a whistle-blower.
Q: Why is it necessary to have a public inquiry?
A: You get to a stage in any investigation where you need to talk to people. You have so much evidence, and maybe that evidence looks fairly conclusive, and maybe it isn't. But you need to actually put it to people, and you need to find out what they've got to say about it.
You can do that in two ways: you can do it in private; in which case it's all closed and no one knows who said what. I think that's difficult because we're promoting public sector transparency and openness.
So, the public inquiry is not a show-trial. It is actually part of the investigation because it's obtaining evidence, while being open and transparent in our processes so that people can see these are the allegations, this is the evidence which supports those allegations, these are the people against whom those allegations are made and what they've got to say.
Sometimes the allegations stick, and sometimes they don't. But people can see and understand that process.
On occasions, there are allegations that this person has done this thing; we investigate, and during the course of the public inquiry, it turns out that that person didn't do it. That clears the air and it clears that person.
But it's the process of having a public inquiry that is important. It's not just that one day this public report emerges, saying: "This didn't happen."
People see the process and are able to understand why it is we have reached this conclusion.
Q: How conscious are you of your independence?
A: It's just taken for granted, I think.
It is sometimes quite difficult to understand. I've been to a number of countries where people have scratched their heads and think: "I don't know that that really works", but it does.
It's one thing to say an agency is independent in isolation, but you've got to look at the surrounding culture, the surrounding political and social environment.
We have a free -- and some would say voracious -- media, and people stand up and voice their opinion. And politics is fairly open -- in each state at the Commonwealth level there's an opposition that's ready, willing, and able, to pounce if they see an issue there.
So, for us, (independence) has never been an issue. When we investigated senior ministers or senior members of the government, there was never even the remotest attempt to influence us. Quite the reverse, actually.
I gave you the example of the Orange Grove investigation where we ran out of money -- even though we were investigating members of the government. The extra money (to complete the investigation) was forthcoming, and there never was any debate about it.
Maybe the government wasn't terribly happy about it -- they never said they were -- but there was no issue about whether we should get the money or not.
Q: And not with an understanding they were going to give you the money, and you were going to stop investigating?
A: No. (laughs) Indeed, any suggestion of that type would be corrupt conduct. That would potentially give rise to an investigation.
Q: Can a member of government ask you to investigate a case?
A: There's a difference between saying: "Here's some information I have. Please consider it," and: "I insist you investigate this matter" -- they can't do that.
Like any member of the public, they can make a complaint to us. In their duties, they often become aware of information which they think may involve corrupt conduct, and they will report it to us. But that's different from attempting to direct what we do or what we don't do.
Our powers are quite extensive. If we thought someone had information about corrupt conduct and that they weren't providing it to us, there would always be a way for us to obtain that information.
We could simply serve them with a notice, asking them to produce documentation, or we could bring them into a hearing and ask them questions, and they would be obliged to answer them.
And if they didn't answer them truthfully, then they would be committing a criminal offence.
Fulfilling transparency promises by Aniza Damis
KUALA LUMPUR: In the last two weeks, the government has announced the setting up of two important commissions: a judicial appointments commission to ensure judges are appointed fairly, and the restructuring of the Anti-Corruption Agency into a commission.
These pledges for change -- although some pessimists say are too late -- are an indication that the government is aware of the need to fulfil its promise to be transparent and accountable, and, its act of setting up these commissions are in keeping with the eighth principle of Islam Hadhari: moral integrity.
Just what kind of structure the ACA would take after the restructuring, is still under construction.
The plan, so far, is that the Malaysian Commission Against Corruption (MCAC) be given the power to hire and fire its staff, and to set its own policies.
According to Prime Minister Datuk Seri Abdullah Ahmad Badawi, two bodies would be set up as a check-and-balance to the commission: an independent Corruption Prevention Advisory Board and a Parliamentary Committee on the Prevention of Corruption.
The Yang di-Pertuan Agong, on the advice of the prime minister, will appoint members to the commission, which will be guided by the advisory board.
The board would review and advise action on cases where evidence was lacking, and it would be given the authority to explain to the public why those investigated for corruption and abuse of power could not be prosecuted.
However, the commission would still come under the purview of the prime minister.
Currently, although the agency comes under the Prime Minister's Department, this is for financial and human resource matters only, and it is free from interference from any party.
But how will the new commission be organised?
When it is said that the restructuring is to accord it more independence, just how independent should it be?
What should the function of the commission be? Should it have prosecutorial powers? Or should its objective be to publicly denounce corrupt conduct?
"The commission must be completely independent," said former Court of Appeal judge Datuk Shaikh Daud Ismail.
"Even though the prime minister has said he will be responsible for the commission, I believe it should not be under any government department or ministry.
"Although the prime minister doesn't interfere, the perception is that there is interference. There should not be interference from any political party."
Instead, the commission should report only to parliament, said Shaikh Daud.
It is significant though, that while the objective of reforming the ACA is to give it more independence, the proposed commission seems to have been assigned the moniker the MCAC, whilst its Hong Kong and New South Wales counterparts known as the Hong Kong ICAC and New South Wales ICAC respectively, retain the "I" for "Independent" as their identity.
The Hong Kong and New South Wales ICACs are taken as examples, not only because they are in operation within the region, but because each has had decades of successful experience and existence.
The Hong Kong ICAC was established in 1974 and the New South Wales ICAC in 1988.
Hong Kong ranked 14 in Transparency International's Corruption Perception Index 2007 compared with Malaysia, which ranked 43.
The larger the number, the greater the perception of corruption. Australia, of which New South Wales is the most populous state, was at 11.
Should, for instance, the commission report only to parliament, like the New South Wales ICAC, or should it report to the executive council on major policy issues, like the Hong Kong ICAC?
What should the function of the commission be?
The Hong Kong ICAC functions in the way Malaysians are used to and understand: it seeks to fight corruption by investigating allegations of corruption, with a view to provide evidence for prosecution.
The New South Wales ICAC, although it passes its investigation papers to the prosecutor's office, believes the way to fight corruption is to investigate allegations of corruption, and, if proved, to publicly shame the person who has been involved in corrupt conduct through its public report.
In this way, regardless of whether the case takes a short or long time to unfold in court, public censure of the corrupt conduct is given almost immediately through the New South Wales ICAC's public report.
Should the Malaysian commission have prosecutorial functions?
Like the current ACA, the Hong Kong ICAC does not have a prosecution function, but with one major difference, said ACA deputy director-general Datuk Abu Kassim Mohamed.
"In Hong Kong, when there is no prosecution, the investigation papers will be given to the operational advisory committee which will review the decision.
"In Malaysia, however, if there is no prosecution, the case is closed."
Shaikh Daud believes that in the early stages of the Malaysian commission, it should not be given prosecutorial powers, which should remain with the Attorney-General's Chambers.
However, he qualified this by saying the commission should be given power to question the A-G on why a case was not being prosecuted.
"If the A-G can give a reasonable answer, then the commission should accept it.
"If not, the commission should come out with a public statement," said Shaikh Daud, who was a former senior federal counsel with the ACA.
Although many issues or criteria will arise as the commission is being fleshed out, consideration should be given to who should police the ACA.
Towards the end of his tenure, former ACA director-general Datuk Seri Zulkipli Mat Noor, was being investigated for alleged corruption (the allegation was not proved). This brought up the question: If the ACA is corrupt, who investigates?
The Hong Kong ICAC has an internal investigation and monitoring unit, known as the L Group, which, according to the Hong Kong ICAC website, investigates "all allegations of corruption and related offences made against the ICAC staff", and the decision to investigate rests with the Secretary for Justice.
"All completed investigations are reported to the Secretary for Justice and the Operations Review Committee."
In New South Wales, the ICAC is policed by the Inspector of the ICAC, whose office is also independent and exempt from ICAC actions.
So much to consider, and so little time.
Whichever direction the Malaysian corruption commission chooses to take, let's hope it will one day have effect on Malaysian criminals the way it seems to in Hong Kong movies, where criminals shudder at the mere mention of "I-C-A-C". |
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