Crimes without criminals: Fighting Corruption in Malaysia

“You can install all the traffic lights you want in a city, but if no real mechanism is in place to enforce the “stop” when the red light is on, then they will only be part of the urban landscape, mere decoration…… Similarly, anti-corruption measures like transparency laws, anti-corruption plans and agencies, codes of ethics, the signing of international anti-corruption conventions, registers of interest and asset declarations by public servants constitute fundamental infrastructure for preventing corruption. They have limited effect if one feel that they can get away with breaking the law and go unpunished (sic) (Salas, 2013)

Like many of the global south countries, there remains a vexing problem of fighting corruption at the individual, business and political levels in Malaysia. In this respect, the Auditor General Report 2013 has implicitly highlighted the extent of the increased cases of corruption, overspending and wastages by public servants, government linked companies and ministries.

In a large scale of study of 177 countries, Transparency International studies had found that since 2003, Malaysia’s ranking in the Corruption Perception Index (CPI) has dropped 16 places, contributing to its fall from the 37th to the 53rd country in the overall ranking, as least public sector corrupted countries. How did we get to this point?

Malaysia is one of the first countries in the Global South to have established Anti-Corruption Agency (ACA) and anti –corruption law 1967. Malaysia signed UN Convention against Corruption (UNCAC) in 2003 and ratified it in 2008. “A number of significant measures have been implemented since 2004, inter-alia, the establishment of 14 special anti-corruption courts with the mandate to adjudicate all corruption cases within 12 months; the enactment of the Whistleblower Act; the signing of Corporate Integrity Pledges and Integrity Pacts; and the acceptance of open tenders publicised through the media for procurement exercises thus enhancing transparency and accountability” (Muzaffar, 2013).

Indeed, over the past few decades increasing importance has been given to the development of anti-corruption mechanisms, policies and strategies. While this is warranted, however, if insufficient emphasis is being paid to strengthen the enforcement and prosecution, with specific reference to high level corruption, then the pendulum might have swung a bit too far. There is widespread consensus that a combination of a disproportionate emphasis on the establishment of more anti-corruption commissions, integrity agency at the expanse of a stronger focus on prosecution, has reduced the effectiveness of anti-corruption initiatives in Malaysia.

First, a review into alleged cases of corruption among high ranking officials and ministers found in general, that successful prosecution of powerful individuals had only been effective in a minority of cases. As Performance Management & Delivery Unit (PEMANDU, 2009) puts it, “a lack of transparency and openness on the action taken against these high profiles has led many to believe that the government is protective of politicians as well as politically linked individuals”.

Establishing an empirical relationship between conviction rates by offender category is generally possible, but ruling out explanations as to the statistical data on the numbers of high level government officials, ministers and political appointees who were charged and convicted can often be difficult, particularly when information at that level of analysis is unavailable. Turning to the (PEMANDU) findings, there is some evidence that that the largest proportion of offenders who were charged and but not convicted are the politicians (91%) and this is followed by the local authorities (80%). The correlation to charge and convict seems to be significantly higher for the general public and the private sector (54%). This appears that the gap between the ability to charge and convict decreases with the local authorities and politicians. This suggests that to the extent that these correlations are causal effects, they do not seem to carry over to an increased number of political appointees being convicted; despite the fact that political parties are perceived as one of the most corrupted institutions as indicated in the 2013 Global Corruption Barometer (GCB) by Transparency International.

Herein lies the dilemma: whereas it may be desirable to enact policies and develop mechanisms to reduce corruption, with regard to the past years, how many examples of conflict of interest cases were prosecuted; implicating high level government officials, ministers and political appointees? To what extent is the symptom of the “revolving door” (i.e. executive officials moving back and forth between big business and government positions) a concern? Are existing provisions on whistle blower protection effective in practice?

My aim here is to problematise the impact of power centralisation at the executive branch of the federal government; and how it contributes to a less conducive environment for prosecution of high level corruption. This despite the fact that major legislations such as the Judicial Appointment Commission Act and the Malaysian Anti-Corruption Commission Act were passed in 2009, with an objective to strengthen the independence of anti-corruption commission.

A moment of thought should make it obvious that the centralisation of power lies at the executive branch, which represented by the cabinet of ministers. Yet to agree that making corruption a “high risk and low reward” activity is necessary, is to acknowledge that limits on some form of reinforcement are inevitable-in particular the anti-corruption agencies that comes under the jurisdiction of the Prime Minister’s department. The judiciary is the country’s most important check and balance institution but yet it is the weakest institution, with a lesser power than the executive branch. Lim (2002) and Yaacob (2009) concede that the ‘”executive dominance” has weakened the legislative and the judiciary accountability3. Executive power is vested in the cabinet led by the by the Prime Minister4. For much of this, under the Federal Constitution, the Attorney General (AG) is exclusively authorised to instate, conduct and discontinue proceedings for an offense; and no other authority is lawfully empowered with this function (Vohrah, K.C, 2012).

In reality, politics is not isolated. It operates within the boundaries of who regulates the regulators. Consider the case of Malaysia; the government is the custodian and ideally, an enforcer of the rule of law. It, therefore, plays a role as the economic regulator, wealth distributor, and also one of the biggest spenders (Johnston, Hopkinson & Pelizzo, 2006)5. Politically, it is very difficult to face up to the fact that the Malaysia’s Parliamentary System provides very limited space for a stronger and more immediate monitoring of the executive branch. In this regard, the parliament, being an institution of accountability, has no direct powers to sanction corruption; rather, it recommends sanction that is the responsibility of the Attorney General (AG). The issue at stake here is an important one as the AG is sometimes perceived as deferring towards the Executive Branch. The judicial process is often criticised for being unduly influenced by the government. In other words, the parliament is weak to hold the government accountable.

The oversight of the capacity in the Malaysia parliamentary system is weakened when the power rests on the executive branch. One of the implicit dangers is the personalisation of politics through network of patronage. The success to sustain good governance is ultimately a function of politics expressed though the capacity of the head of government to establish and maintain such principles. Calls for prosecution, if any, with a particular focus on the endeavour to finalise prosecution cases, has entirely misses the point of swiftness. PEMANDU’ study has indicated that the average duration for the completion of trial and appeal for corruption case is eight and a half year. The profound dilemma raised by this point is that, the prolonged periods increases the probability for the missing of material witnesses; witness and evidence tampering; failing or fading of witness memory; as well as witnesses getting impatient and lose interest in cases and thus becoming uncooperative6. Such consequences could easily reduce the conviction rate. If the concept of transparency and accountability becomes a formula for glossing over this reality, then it will have been a big step backwards.

Alongside a weak institutional accountability framework, the Malaysia Anti-Corruption Commission (MACC) lacks of complete independence from the Prime Minister’s Office (PMO), makes it an unattractive model to fight corruption. At the heart of the dilemma, MACC is not given the power to initiate prosecution for offenses of corrupt practices. Without giving the MACC the power is likened to having a roaring tiger without its teeth in a jungle where corruption and abuse of power for personal gains is rampant in Malaysia (Transparent International, 2013). This is not to suggest that MACC cannot be effective in curbing all corruption cases at all levels, but when it’s put under severe stress on the conflict of interest, transparency and accountability itself may be overturned or be put under threat. This not only raised important question about the seriousness of the political will to curb high-level corruption, but also reflect excessive concentration of political power in the hands of the Prime Minister. The economics is clear. Will our political processes allow the adoption of even the barest element of full transparency and accountability that is promoted under the Government Transformation Programme (GTP) to fight corruption? This might lead to a reputation for token reforms, which undermines the political leadership‘s credibility.

From the standpoint of transparency and openness, Malaysia still remains as one of the many countries that restrict its citizens the rights and access to significant government-related information. One striking implication of this is that under the Official Secret Act (OSA), the classification of information classified as official secret cannot be challenged in any court of law (Jomo and Tan, 2006). This insulates high level officials from accountability and to be held responsible for their corrupt practices.

As Leftwich(2000) points out, no amount of institutional building, capacity building as valuable as they may be, nor the best trained or best motivated public service will be able to withstand the withering effects of corruption or resists the developmentally pulls of special interests if the politics, autonomy and authority of state do not sustain and protect good governance.

With the hindsight of over 40 years of anti-corruption initiatives, we have seen enough of piecemeal and reactive approach to ensuring the integrity of senior level government officials, political appointees, judges and ministers, including only some of the following elements: enforcement of existing rules, inquiries into alleged misbehaviour but less on sanctioning the misbehaviour. Whether one agrees or not with my view, can the GTP to combat high level crime in much of the world economy be viewed as anything short of utopian? It is difficult specifically to perceive the sociology and political economy of maintaining a status quo of the way in which high level corruption is being addressed in Malaysia. The Transparency International Global Corruption 2009 Report remarked that corruption costs the government approximately MYR 10 billion, annually, equivalent to 1-2% of Malaysia’s annual GDP.

The concern that I’ve outlined runs deeper. Following the proposition of Stiglitz9 (2013), if the rich and powerful are protected from prosecution for corrupt behaviour, the anti-corruption strategies (sic) are defective because it discriminates against those who are weak. Anticorruption measures must be comprehensive to prevent loopholes. In my view, it’s time for Malaysia to stop avoiding all this complex issues and opted instead for a non-revolutionary course.

The complexity of the problems at hand calls for more than just acceptance of policy solutions. These challenges will demand for institutional reform, so that the current governance structures adequately reflect the scale of the problem. The pre-condition is a strong political will to be incorrupt and the necessity of reducing opportunities for corruption. Considering the propensity of political will to unravel, assessing political will is an important undertaking. Such assessment must distinguish between reform approaches that are intentionally superficial and those that are serious (Stapenhurst, Johnston, Pellizo, 2006). Only after these normative issues have been addressed can the GTP promote a smooth implementation of policies, moving closer to the goal of effectively tackling high level corruption. This adds up to a daunting political agenda. This is why exceptional political wisdom and leadership are so urgently required in Malaysia.

“It’s one thing to win in a fair game. It’s quite another to be able to write the rules of the game-and to write them in way that enhances one’s prospect of winning. It is even worse, if you get to choose your own referees. Some may still call it the rule of law but in today world (sic). “Justice for all” is being replaced by the modest claim of “justice for those who can afford it”. The number of people who can afford it is rapidly diminishing” (Stiglitz, 2013).