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Sunday June 8, 2014 MYT 12:00:00 AM
Sunday June 8, 2014 MYT 9:17:53 AM
by shahanaaz habib
MACC chief commissioner Tan Sri Abu Kassim Mohamed talks to The Star about the challenges in fighting corruption and the need to get public support in the battle.
Q: It has been 5 years since MACC has been set up, what is your assessment how MACC has been doing?
When we started to transform the organisation from ACA to MACC in 2009, the objective was to make MACC more transparent. The clear difference between ACA and MACC was the establishment of 5 committees (the Anti-Corruption Advisory Board, the Special Committee on Corruption, the Complaints Committee, the Operations Review Panel, and the Corruption Consultation and Prevention Panel) to oversee MACC. This makes our organisation more transparent and involves the public too in terms of our own operations.
An anti corruption agency must get public support and win public confidence. This is very important to ensure that it has performed their duty effectively.
The ACA is older than Hong Kong’s ICAC (Independent Commission Against Corruption). The ICAC actually modelled their agency after the ACA. They then rectified, modified and included civil society and the public to play a role.
That is why when we started to transform ACA in 2009, we went back to Hong Kong to study ICAC and how they have taken it further. There is a lot that needs to be done in terms of catching up with the expectation of the public.
Q: Has the public started to ‘embrace’ MACC?
Back in 2009 and 2010, the level of public confidence towards MACC was at its lowest. An independent study by a university showed the level was 30 to 31%. That was very bad.
Last year, the study showed the level of confidence has increased to more than 60%. The survey was a demographic representation of society including people in the cities, rural areas, government and private sectors. The criticism and negative tone being used against MACC too has reduced compared to in 2009 with the Teoh Beng Hock case.
(Teoh was questioned at MACC’s office in Shah Alam on July 15 2009 for nine hours. He was found dead the next day on the rooftop of the 5th floor) Frankly, I am not sure if there is a 60% public confidence in KL. It may be lower.
We found many members of the public do not even know the difference between the old ACA and MACC. And because of this, their perception and confidence level might also be different. Our own target is to get more than 80% public confidence Then you can see and feel the difference and real change of the public towards MACC. But right now some people don’t know they are five different committees overlooking our operation and that these bodies represent the public.
Q: How overwhelemed is MACC? It seems like everything and anything from compensation paid to a parent by a restaurant owner who raped an underaged girl, to political corruption, government tenders, money politics in party election, corruption in the private sector, smuggling are all now being referred to MACC.
I discovered that whatever the issue, because of the trust and expectation of the public towards MACC – we are the first organisation they would refer to.
As for the cases referred to us, some are outside our legal framework. Also for an anti- corruption agency, we need evidence. For example, people say such and such thing happened because of corruption or question why a particular loan was given to a person with a restructuring that is so beneficial to that person and conclude it has to do with corruption.
What they show to us is only the symptom or outcome of corruption. What we need to know is who paid the bribe, when was it paid, how it was paid, was there any witness or is there any evidence that will help us bring those people involved to court.
Alleging a person is corrupt without evidence carries no weight for us to bring him to court. The standard of proof needed by the court is high.We must have a strong case where we must have sufficient evidence.
When the public reports a case, they want us to go and get evidence from people who don’t want to co-operate.
That is why is criminology, corruption is sometimes termed as a ‘victimless crime’ because the one giving gets something in return and the one receiving gets something he wants, so both parties involved in corruption are happy. They are not the ones who came forward to report it.
So when we ask them, they deny a bribe was paid. And when we go through their accounts, we cannot see a trace of where a bribe payment has been made. They know and understand that bribes should not be documented.
This is one of the biggest problems when we investigate corruption. For me, corruption is not victimless because the victim is society.
Sometimes, people report corruption based on hearsay. I had a situation where this person said ‘I have to pay a bribe to get this job done in dealing with government agencies’. But when I sent my officers to his office to get more details, he said; ‘No, I heard it from somebody’ or ‘I am very sorry I have my business and I don’t want to jeopardise it.’ So how can we bring somebody to court if those involved do not want to cooperate?
Many other countries are successful in fighting corruption because their society do not tolerate corruption. When the tolerance level is very low any attempt at a bribe that person will go to the enforcement agency to report it.
But in our society, people don’t want to get involved. They don’t want to go to court and be a witnesses.
Q: Recently you were quoted as saying the conviction rate was 54% in 2009 but now it’s gone up to 85% How do you come to that figure?
In many countries if they can get 10% to court it is good. That is quite standard.
In Malaysia we investigate corruption by several levels and there is overt and covert investigations.
The overt or open investigation is where we call you, take your statement, go to your house, raid your office and all that. In 2013, there were 976 open cases of which 509 people were arrested.
There are also a lot of people who send letters and emails but this is so general and we don’t initiate an open investigation for this.
The letter says for example ‘The law enforcement officer or government servant in this place is so corrupted. Please go and check. I paid them.’ but the letter does not mention who paid the money and when he paid the money’.
If someone alleges that a police officer is so corrupt and takes bribes from those in illegal activities like gambling dens, we need to know which one. Because if we go and ask these people ‘Did you pay a bribe, from experience, I don’t see any possibility they will say ‘Yes’ .
So for this purpose, we cannot go for an open investigation so we do it covertly. We need to do observation and it takes a longer time. We have to really verify.
We have started to use a modern and a more sophisticated approach in dealing with corruption and bringing people to court now. This is part of our transformation. And there is a great improvement in terms of being able to detect and bring people to court.
The covert investigation doesn’t go to court immediately. We will investigate it covertly first, then change it later to an open investigation and only from there it goes to court. That is the process. Covert investigation takes time, money and hours and it is not easy.
For example, if a local authority is said to be involved in corruption to approve a development order, it is not easy to get co-operation from the developer to admit that he got the order because he had paid a bribe. That is where the covert operation takes longer time. We have to take time to be close to people in the industry and to get people who want to co-operate with us. Most of the time when people say they will cooperate with us and give us information, they don’t want to go to court and testify.
Q: Now with all sorts of trivial matters also being referred to MACC , wouldn’t it be better to for MACC to focus on big cases or issues and leave it to the police to deal with the smaller and trivial corruption cases?
I’ve got no problem with that. I would be very happy if there was that kind of policy. But under the law, MACC is required to investigate all cases regardless of the size and even if the bribe is as small as RM50. I would be very happy if the government says ‘focus on just big cases’. But there are many experts in the world who say that corruption is not about how big it is! What is more important is its impact to society.
For example it may cost only RM500 to smuggle things across the border but the cost to society may go beyond the money has been paid. Just take a kg of drugs being brought in and how are you going to calculate that against a RM500 bribe given to the authority at the border when the cost to society and the youth is huge? What if it is firearms they are smuggling in? It may cost lives. So a lot of experts in the world are of the view that people should not look at only the big cases because sometimes the small cases are more damaging.
Q: Lahad Datu is a hub for smuggling activities and those implicated are often police and enforcement officers. How easy is it to investigate this?
The first thing is to get information. In all investigation, the crucial part is to get as much information as possible regarding criminal activities. The more information we get, it is much easier for us to investigate. For this reason , we need the other enforcement agencies to cooperate with us. People can tell us that that area is so corrupted and all - but only those people involved know who they are and what kind of corruption and so on. If enforcement agencies don’t give us information and don’t tell us what is going on and who is involved and all that, we can’t proceed. We can but we can’t be so effective in getting the people involved.
Q: What has been the greatest achievement of MACC thus far?
It depends on how you look at it. For the past 5 years, there are big cases, We have charged a number of “big fish” if you want to call them that.
We charged the former CEO of the Sime Darby group, a former CEO of the Iskandar Development Authority (Medini) the Immigration Department deputy director-general, These are very senior people and big fish whom we have charged. But people only remember the few big cases that we have not been able to charge in court and that becomes an assessment of our performance.
Q: What is the main weakness of MACC?
The legal framework we have now. When we investigate, we are governed by the legal framework. The law passed by parliament allows us to investigate the offences that have been drafted and passed in parliament. We discovered that we have relook at some of the offences. Which is why we have recommended to the government that we need to have a few amendments and need new offences to be included in tackling corruption in the country. We need to look at corporate liability among other things.
Like I said, it is very difficult to get the cooperation of those people who paid or took a bribe so we have to go beyond that.
We need to amend the law. We discovered many companies pay bribes . When they pay bribes, this has been allowed and discusssed in the company but the company’s Board of Director are not accountable and don’t have to answer to this. And we can’t charge a company in court because then who goes to jail?
The law says anybody can be considered including organisations but in reality we want to charge not the company but the person. So by having corporate liability as a new offence, we hope that the culture and behaviour of the private sector will change. Rather than saying that it is the culture to pay the government a bribe, they have to remember that if they pay and the company allows this, they too are liable. Then it would reduce the possibility of companies paying bribe without any fear of enforcement of the law.
Other than that, we should also tighten some of the offences that we have now. I prefer not to say more. If the government agrees and approves it, it is better to talk after that. That is one of the challenges. Second is building up the capacity of MACC in investigating more complex cases.
The corruption cases of today are more complicated than before. The mode of payment have changed, It involves not one but involves multiple countries. So it needs more officers to understand the complexity of the investigation and getting cooperation from the countries involved. These are new things that we need to look into.
We are also the signatory of the UN Convention against Corruption. We need to look at the convention and see how to fully comply with it.
Q: One of the proposal being looked at for amendments is to allow MACC to investigate people with assets which is more than their income. But how fair is it to look at people’s assets versus their income because there are many different ways to make money these days?
This is one of the issue. The public expects MACC to investigate anybody who has a lot of money but the law doesn’t say that. Section 36 of the law says that we only investigate if we have reason to believe that an offence of corruption has been committed.
Only then can we ask a person to declare their assets, look at it and ask them to justify how they got it. But without having the first element - a reason to believe that an offence of corruption has been committed - we cannot simply proceeed with the investigation. It is not that we don’t want to investigate. But the law states that we cannot simply ask someone to declare their assets.
And Article 13 of our Federal Constitution gives a person the freedom to acquire assets as long as they do it legally. But the public has certain expectations and they think ‘Come on MACC how come you cannot investigate this person? He has just been in office for five years and in that time he has gotten a huge house and a big car what more you want?’
Yes, we want to investigate but the law says you can only do so if we have reason to believe that he has committed a corruption offence.
And we have to abide with the requirements of the law. This is something that the public may not understand about the difficulties we are facing. They perceive that MACC purposely does not want to investigate big cases that they think has to do with corruption.
Q: So you are in favour of changing the law to allow MACC to investigate people having a lot more assets more than their income would justify?
We are law enforcement. Whatever helps us in our investigation is good for us. But I also respect that we cannot contradict the fundamental right in the federal constitution which is the right to acquire assets.
Q: How much political resistance is there to MACC because politicians would want to keep MACC weak because they fear they will be the target of investigtion of corruption?
It is an overstatement to say politicians want to keep us weak.
Corrupt politicians might but a lot of politicians are supporting a stronger MACC.
At the end of the day, the public and society should request that politicians give more facilities and a better legal framework in fighting corruption.
This must come from society. Society is important. Politicians work based on public needs and demands, so if public is united in demanding this of their politicians then I think the politicians will comply with the public demand and expectation. The public must voice their concern. They must demand this of those whom they elected.
Q: What are the lessons MACC has learnt about the Teoh Beng Hock and Sarbani cases?
That we must document and make sure that every visitor especially those under investigation are monitored closely especially by having CCTVs so that the truth prevail if any incident occurs.
Q: Right now MACC has revamped interrogation room and style, how effective has that been in extracting information?
All accused person under investigation must go through the process where their statatement must be made in a video interview in the video interview room where all the movement will be recorded. This is very crucial for many reasons. Because it reduces allegations against MACC officers.
In quite a number of occassions, people come into the MACC office and they confess to the offence they have committed. But when they leave and meet their counsel or any other person – they may be advised by their counsel, friend or other person to lodge a police report saying that the confession was made under duress.
And they say they were tortured into making the statement by MACC. There are about 26 such complaints against MACC from 2009. But after we have gone through the new process, the number of complaints has reduced tremendously. Last year, there was no complaints that MACC had used force or tortured people to get confessions.
Q: But what about the effectiveness in getting a confession compared to old way of trying to gertak (shake them up) people into confessing?
We use two methodology based on the Royal Commission’ of Inquiry’s recommendations. And we have called experts from overseas who re-trained our officers using new methods during the questioning. Those using the new method say it is very effective in getting people to tell the truth.
And I can see a difference.
The number of people who have confessed and the conviction rate has increased. These are all the indicators. If people confess and it is on video. They cannot say anything else so they would go to court and say ‘yes’ they did it. That is also an indicator of the success of using the new method.
Q: Should MACC have the power to prosecute because when it goes to court and public prosecutors don’t do a good job and the accused is acquited or found not guilty, people would blame MACC for it?
How can we change the public ‘s level of understanding of the system? The only thing is we have to educate the public. It is not about the system. It’s about understanding how the criminal justice and legal system in the country works. We are investigators and the prosecutors are the DPPs and it is the judge who makes the judgement whether to convict the person. It is not necessarily that a case is thrown out due to the lack of our prosecutor’s ability.
Sometimes it is because the standard of proof needed by the court is higher which makes the job difficult.
And there are instances where an important witness who is supposed to give evidence to help the prosecutor get conviction unfortunately turns hostile during the proceedings. This is something that needs to be highlighted to the public. It is not because of the prosecutor and not because of the investigator but a witness in court can say whatever they want as long as it is the truth.
And there have been cases where witnesses turn hostile or do not help us in build up our case although they have given us their statement during investigation. There are also cases brought to court in which the witness says something different from what they have told us. This is something you cannot control. And you can’t blame the investigators or the prosecutor.
If MACC is given the power of prosecution how are we going to manage the issue when witnesses turn around during the court and are hostile and not want to help us?
Q: MACC met with NGOs recently like Bersih, Sisters in Islam, C4, Empower to mention few. What was that about?
There are two things which are needed in fighting corruption - public support and public confidence.
You can get public support through NGOs who are representing some segment of society and who are with you to combat corruption. Regardless of their ideology, as long as they want to fight corruption, they are our friends.
When we transformed MACC, we relooked at the way we do work. I admit that previously we were not close to NGOs because we thought we shouldn’t get involved with NGOs because we just want to do our work. But this policy has changed. We found that without the NGOs help in fighting corruption, we may not be effective. We need them.
Q: What about Barisan-friendly NGOs? Would MACC meet with groups like Perkasa?
There are a lot of other NGOs engaging with us now. We have no problems meeting with them as long as they want to fight corruption regardless of their ideology. But they must state clearly that they want to help in fighting corruption. Every organisation represents a respective group and if they want to help us, there is no problem.
Q: How effective are groups like MyWatch who go public with their allegations? Does it help or disrupt when they go public with the information they have?
I don’t want to interfere with how they do work. But I would like to request that they channel the information to us first before making the public announcement.That is important because in an investigation you need the element of surprise.
So it would be good if we have the evidence first before the accused knows he is being investigating. We are not saying they shouldn’t make it public. We are just saying inform us first and let us get the evidence first. And if they want to inform the public, they can. That is their right.
Q: The former Sarawak Chief Minister Tan Sri Taib Mahmud was quoted as saying MACC was being ‘naughty and disobedient’ and he won’t co-operate with their investigation. How do you respond to this and what is the status of his case?
The Chief Minister’s office has clarified in the media that he (Taib) did not say that. He wasn’t referring to the MACC but the person who made the allegation against him. That is what we were told when we tried to get clarification from his office.
That is a huge investigation and it takes time to complete. What is important is that there is a team dedicated to that investigation. And the investigation will be brought to the Operations Review Panel. Any attempt to protect anybody will be scrutinised by this panel which represents the public. And the panel has a track record of requesting us not to close a case and to proceed with it. We want the public to understand that we are an organisation that will investigate without fear.
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Government, Politics, macc, corruption, abu kassim
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