Anti-bribery provisions are increasingly gaining the attention of international law. In some countries the anti-graft body is invested with constitutional safeguards as to tenure and terms of office.
LIKE the periodic overflow of filth from a septic tank, our society is besmirched now and then with disturbing news of corrupt practices in high places.
Corruption is like a cancer. In every society a large percentage of national expenditure and national resources is swallowed up by corrupt practices.
Citizens who have the desire and the means to give bribes gain an unfair advantage.
Public officials who seek or receive unlawful gratification contribute to the diminishing of respect for the government and loss of faith in its legitimacy.
Businesses that expend money in giving kickbacks raise prices to recover their expense. A fair amount of money allocated for social welfare projects ends up in the pocket of corrupt officials.
Corrupt practices can occur in many ways. First, there are various offences by public officials, including bribery and the sale of posts, offices and honours.
Then there is the granting of public contracts to favoured firms or individuals and the granting of permits, licences, land or franchises in return for monetary reward.
Second, in politics there may be election fraud.
This may consist of efforts to influence or intimidate the voter or to tamper with the official ballot or election count.
To eliminate these practices, nearly all electoral democracies have passed laws that seek to safeguard the integrity and honesty of political campaigns, elections and officials.
Sadly, the electoral process everywhere remains tainted with bribery and corruption.
A political commentator once described elections as the means for politicians to obtain money from the rich and votes from the poor on the pretext of protecting one from the other!
A third dimension of corrupt practices that has acquired great significance in the modern global economy is the giving, by trading nations or its corporations, of corrupt payments to foreign officials for the purpose of obtaining or keeping business.
Anti-bribery provisions are increasingly gaining the attention of international law.
In 1997, thirty-four countries signed the Organisation of Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
In some countries like Trinidad and Tobago the anti-graft body is appointed under he Constitution and invested with constitutional safeguards as to tenure and terms of office.
We could emulate this commendable practice.
Our Anti-Corruption Agency is a specialised executive agency.
Its powers flow from the Anti-Corruption Act 1997 and section 11 of the Emergency (Essential Powers) Ordinance 22 of 1970.
Its greatest drawback is that in matters of prosecution it lacks an independent power to prosecute.
The consent of the Attorney-General is needed.
A look at the laws in question indicates that the ACA is armed with vast powers to do its job effectively.
Whether its officers have the political will and the moral strength to act fearlessly and without favour is, however, another matter.
As to the cases that end up in the courts, it can be said that the courts are quite forthright in condemning corruption.
In Wong Cheong Kim v DPP the learned judge suggested that an unreasonable delay in granting a licence raised the inference that a bribe was expected.
Besides the Anti-Corruption Act 1997 a number of other laws seek to curb graft.
Under sections 116, 161 and 165 of the Penal Code, illegal gratification can be punished.
Under section 126 of the Local Government Act 1976, all local authority officials are public servants within the meaning of the Penal Code and anti-corruption legislation.
Under sections 34 and 38 of the Local Government Act 1976, all councillors and local authority employees are forbidden from having any interest in local authority contracts.
In addition to investigating cases involving possible corruption, the Anti-Corruption Agency also reports to the relevant ministries or heads of department any cases of misconduct by their officers with a recommendation that appropriate departmental action be taken under the General Orders or the Statutory Bodies (Discipline and Surcharge) Act 2000.
Recently, the Government set up an institute – the Integrity Institute of Malaysia – to study the phenomenon of corruption and to devise measures to combat this ill.
Among other things, the institute will devise an indigenous, context-based Corruption Perception Index to complement Transpa-rency International’s Corruption Perception Index.
The Government also announced a National Integrity Plan in November 2003.
By way of comment on this bane of our social existence, it needs to be said that corruption is deeply rooted in the psychological and social structures of most societies.
Where normative restraints fail, the long arm of the law has to move in.
The difficulty is that many aspects of modern political and social life necessitate or institutionalise corruption.
Structural factors such as competitive politics, privatisation policies and the indirect participation by political parties in trade and commerce are raising fundamental issues of trust and integrity in government.
Legislation should be enacted to require political parties to disclose their sources of funds.
In accordance with the ruling of our Prime Minister, government contracts should be awarded through open tender.
There should be openness and transparency in the commercial transactions of public authorities.
A Right to Information Act will help to create more openness.
Nominee accounts and nominee companies that hide the identities of the account holders should be banned.
Unreasonable delay is the modus operandi of the corrupt official.
The Anti-Corruption Agency should probe unusual delays in processing private sector applications.
The agency should draw adverse inferences whenever an agreement entered into by a public official is grossly and manifestly disadvantageous to the Government.
It should act on its own initiative more often and should not wait till an official report is made to it.
Top government officials should be barred from lobbying private corporations or other government departments for a specified period after leaving office.
Such measures may look like band-aid solutions to a problem of cancerous proportions. But taken as a whole they will constitute a torrent of pressure for more openness and accountability in government.