Back in mid-2018, Malaysia looked like it might have finally reached a turning point in its fight against corruption, following the country’s first democratic transfer of power. The winning parties in 2018 promised significant anticorruption reforms, including swift action to respond to the 1MDB scandal that had led to the ruling government’s defeat. Unfortunately, the hoped-for clean-up of Malaysian politics has not occurred. Part of this is due to the fact that, since the 2018 elections, Malaysia has been embroiled in seemingly unending political turmoil, with two governing coalitions collapsing in fairly rapid succession as a result of shifting party alliances. But part of the problem concerns longstanding problems with Malaysia’s main anti-graft body, the Malaysian Anti-Corruption Commission (MACC).
The MACC was created by statute in 2009 as an “independent” body. But like far too many anticorruption agencies around the world, in practice the MACC suffers from a lack of genuine independence from the executive branch. This leads to the public perception, and possibly the reality, of improper political bias. (Indeed, the MACC’s lack of true independence may explain its slack response when investigative journalists and opposition politicians first raised concerns about the 1MDB fund.) Even if Malaysia’s politics stabilizes, it will not be possible for the country to make genuine progress against corruption without reforming the MACC’s structure in order to ensure that it is truly independent of the executive, and seen to be so.
The MACC has two main structural features that make it susceptible to excessive executive influence:
- First, the executive branch has extensive influence the MACC’s personnel, including its senior leadership. The MACC’s personnel matters are administered by the regular Public Service Commission, which is highly dependent on the executive given that its Commissioners are appointed on the Prime Minister’s advice. Moreover, the Chief Commissioner of the MACC is selected on the advice of the Prime Minister, and can be discharged at the discretion of the regular Public Service Commission under the provisions for disciplining members of the public service.
- Second, the MACC is overseen, and its decisions reviewed, by the Malaysian Parliament’s Special Committee on Corruption, composed of members of the Senate and the House of Representatives. (In fact, there are five separate bodies that have the power to review MACC action, but the Special Committee is the most important.) As a formal matter, the Special Committee is a mechanism to give the legislative branch the ability to oversee the MACC. But because Parliament is virtually always dominated by the members of the governing coalition, it is unlikely that the Special Committee would press the MACC to take actions disfavoured by the executive.
This lack of structural independence from the Prime Minister and his governing coalition is especially problematic in Malaysia, given the widespread—and likely accurate—perception that many senior executive branch officials and Members of Parliament are corrupt, and given the importance that Malaysian citizens place on genuine anticorruption reform. If the MACC is not genuinely independent and seen as such, it will be dismissed as a “political weapon” deployed selectively against opposition politicians. For this reason, Malaysian civil society organizations have emphasized reform of the MACC as a pressing priority.
Indeed, a coalition of civil society groups—including the Malaysian Bar, the Institute for Democracy and Economic Affairs (IDEAS), the Centre to Combat Corruption and Cronyism (C4), Citizens’ Network for a Better Malaysia (CNBM), and Transparency International Malaysia (TI-M)—have proposed replacing the MACC with an Independent Anti-Corruption Commission (IACC), to be established by constitutional amendment rather than by statute, with similar standing as other “service commissions” such as the Judicial and Legal Service Commission and Public Service Commission. The IACC would determine strategy, policy, and resource allocation in anticorruption efforts. In the execution of its policy, it would oversee a statutorily-established body called the Anti-Corruption Agency (ACA), which would operate as the IACC’s investigation arm. This proposed anticorruption architecture would have two key features that would give it the genuine independence that the MACC lacks:
- First, as a constitutional service commission, the IACC’s selection and recruitment processes would be formally independent of the executive branch. Commissioners would be nominated by Members of Parliament through the Parliamentary Select Committee on Corruption, rather than selected by the Prime Minister. Additionally, following the example of some foreign anticorruption commissions such as the Republic of Korea’s Anti-Corruption and Civil Rights Commission, a minimum of 40% of the Commissioners would need to be suitably experienced individuals drawn from civil society (e.g., academics and certified professionals). Additionally, the Commissioners, rather than the Public Service Commission, would recruit employees for the ACA’s investigative functions, according to the size and expertise needs of its determined programs and policies.
- Second, as a constitutional body, the IACC and its senior officials would have job security that the MACC Commissioners lack. This is principally due to the fact that the discipline of Commissioners would not be administered by the Public Service Commission. Instead, the Commissioners would have the same security of tenure as a Federal Court Judge. Any decision to remove an IACC Commissioner would be preceded by a hearing before a special tribunal drawn from the Parliamentary Select Commission on Corruption, with due process requirements. And even if the special tribunal recommends removal, removal would still require a two-thirds majority vote of Parliament.
Establishing an IACC of constitutional status would be a step in the right direction. But creating it will not be easy, especially given that a constitutional amendment requires a two-thirds majority in Parliament. Political will is clearly lacking, given that calls to set up the IACC were first made seven years ago, and have been renewed each time there is disappointing news about the MACC’s failures. Given this practical reality, NGOs have focused their efforts on more piecemeal recommendations such as setting up inquiries in response to individual scandals as and when they arise.
But this can’t be the way forward for ever. If the political independence of the anticorruption framework is not established, all future anticorruption efforts, well-meaning as they are, will be hamstrung from the get-go. Therefore, political rivalries should be put aside to overhaul the MACC and set up the IACC. Will rival parties agree to do this? It may seem unlikely, especially given that whichever party or coalition that controls the government at any given moment may see little advantage in giving up its influence over the MACC. But activists must to what they can to get politicians on all sides to realize that an overly dependent, ineffective MACC disadvantages all sides over the long term. As the transitions in 2018 and subsequently demonstrate, incumbent politicians today can be opposition politicians tomorrow. More importantly, without genuine action to reform its institutions, Malaysia will continue to be viewed as corrupt, marring its global reputation and deflecting foreign investment. A politically independent IACC, whatever its challenges, is the deep and dramatic reform that Malaysia needs.