Give MACC power to prosecute

IN LINE with the spirit of tackling corruption in the country, more power should be given to Malaysian Anti-Corruption Commission (MACC) to carry out its duties without any interference from anyone.

MACC is the main body investigating cases related to corruption, and having the foremost role in anti-corruption initiatives nationwide.

It was established in line with the Malaysian Anti-Corruption Commission Act 2009 (Act 694).

The functions are clearly defined under Section 7 of the MACC Act 2009 as follows:

to receive and consider any report of the commission of an offence under this Act and investigate such of the reports as the Chief Commissioner or the officers consider practicable,

to detect and investigate
(i) any suspected offence under this Act,
(ii) any suspected attempt to commit any offence under this Act; and
(iii) any suspected conspiracy to commit any offence under this Act,

to examine the practices, systems and procedures of public bodies in order to facilitate the discovery of offences in Malaysian Anti-Corruption Commission under this Act and to secure the revision of such practices, systems or procedures as in the opinion of the Chief Commissioner may be conducive to corruption,

to instruct, advise and assist any person, on the latter's request, on ways in which corruption may be eliminated by such person,

to advise heads of public bodies of any changes in practices, systems or procedures compatible with the effective discharge of the duties of the public bodies as the Chief Commissioner thinks necessary to reduce the likelihood of the occurrence of corruption,

to educate the public against corruption, and

to enlist and foster public support against corruption.

Though MACC has the power to investigate corruption cases, it would be weird if it cannot put forward its cases for prosecution in court.

Article 145 (3) of the Federal Constitution provides that the Attorney-General (AG) has absolute power to institute, conduct or discontinue any proceedings for an offence other than proceedings before a syariah court, a native court or a court-martial.

In this regard, Section 376 (i) of the Criminal Procedure Code provides that “The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions under this Code”.

Such power given to AG is also clearly stated in court cases like the case of Long bin Samat v PP (1974) 2 MLJ 152 and Karpal Singh & Yang Lain v PP (1991) 2 MLJ 544.

Under Malaysian administration of criminal justice the investigation of crimes is primarily the responsibility of the police.

The MACC is also empowered under the MACC Act 2009 to investigate corruption offences and to arrest suspects.

The preliminary investigation of any offence is carried out by an officer of the commission.

Such investigations may commerce as a consequence of a complaint received for an offence alleged to have been committed, or in certain circumstances as a result of information obtained by MACC.

Upon completion of investigations, the relevant investigation papers will be sent to the AG's Chambers.

If the AG is satisfied that sufficient evidence is available to prosecute a person for a particular offence, then he will sanction the prosecution.

To give MACC prosecutorial powers, it will require an amendment to be made to Article 145 (3) of the Federal Constitution and provisions of the Criminal Procedure Code that vest the power to prosecute lies solely in the hands of the AG as a public prosecutor.

If this option too difficult to be realised, we can also consider creating a separate office for the AG and a public prosecutor with the public prosecutor being granted the mandate to act independently in accordance with public interest.

By doing this, it can improve perceptions of the public on the impartiality of the prosecution cases.

Dr Muzaffar Syah Mallow is a senior lecturer at the Faculty of Syariah & Law, Universiti Sains Islam Malaysia (USIM). Comments:

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