Should the Anwar Government implement Corruption Amnesty?
Corruption is enmeshed throughout the Government. It cannot be ripped out without damaging the nation. Can kleptocrats be allowed to return what they stole, and let off with a minor punishment? Could only the recalcitrant and the greedy be subjected to naming, shaming? Should their family and friends, who helped in corruption, be punished?
. What is corruption?
Corruption is the abuse of public office for private gain.
The concept of ‘gain’ could either be money, or some other advantage, e.g. an appointment into a fat position in an NGO.
This article is directed at preventing corruption.
. Have you heard of the story of Ali Baba and the 40 thieves?
This story is relevant because of the way Malaysian politicians have behaved.
. We are a wealthy nation
Malaysia is flush with natural resources, and therefore, money.
Politicians used to control every artery of the Malaysian government.
Corruption became a tradition – even an entitlement – for rent-seeking behaviour.
For a long time, the civil service was complicit in it; or its senior officers looked the other way.
The Civil Service used a magical invocation: ‘Saya yang menurut perintah’ (‘I follow orders’).
To apply for a licence or a government contract, you had to pay everyone; all the way: from the bottom to the top.
These kleptocrats held the nation for ransom. The United Nations researchers call this ‘State capture’.
Until recently, some politicians used the State Treasury as if it was the Cave of the Thieves in the Ali Baba story.
Once in power, they wielded a magical incantation to open the doors of the Treasury: these words are, ‘Majority in Parliament’.
Encouragingly, a few days ago, the Civil service promised total integrity and professionalism.
. There are two kinds of corruption:
‘Grand Corruption’ involves Ministers and top civil servants.
UN researchers claim that if investigators follow corruption money, they will discover that it moves upwards, into the hands of senior civil servants and ministers.
‘Petty Corruption,’ on the other hand, occurs at the lower levels.
The government cannot hope to eliminate police bribery if it lets off thieving ministers.
Why bother with little fries when we can go after the big fish?
. ‘Grand Corruption’ has two effects on the nation
First, it causes a ‘distortion of the central functions of government.’
It becomes imbued within Government agencies: and it becomes ‘systemic.’
The second effect is worse. It lasts longer.
Corruption erodes the Rule of Law.
It causes economic instability.
It kills good governance.
. Is the traditional method of charging kleptocrats in court, and securing a difficult conviction, the only way?
It is one thing to bay for the blood of the corrupt, and another to completely stamp out corruption.
Corruption has become a way of life in Malaysia.
If we went after every corrupt person, we would lose a huge number of people in enforcement agencies and civil service.
Is there a more effective technique to combat corruption?
. What if we gave the kleptocrats a chance to come clean, and pay back everything?
What if the corrupt could be purged, and a clean Government is re-established in stages?
What if kleptocrats return everything they stole, so they get off with a rap on their knuckles?
If the corrupt, and their hangers-on – their enablers, civil servants who help them, family and friends who enjoyed the fruits of this sin – do not admit to their crime, then we should we put them and their co-conspirators in prison.
But this may take a long time.
. Fortunately, we are not the only ones fighting corruption.
In 2003, nearly 100 states signed the landmark UN Convention Against Corruption (‘UNCAC’).
The UN General Assembly adopted it.
Malaysia signed the Convention on December 9, 2003, and ratified it on September 24, 2008.
As of November 2022, 187 countries are parties to the UNCAC.
. So how would this proposal work?
What legal structures are needed to make corruption amnesty effective?
. History: Look at examples of how foreign politicians have abused Corruption Amnesty laws
Here are some bad examples.
In 2015, Mongolia granted amnesty to corrupt politicians.
It was widely criticised as an excuse to protect politicians from corruption offences.
Under pressure, the President of Mongolia conceded that the amnesty would ‘not apply to those accused of corruption’.
In 2017, Romania did the same for convicts sentenced for corruption crimes.
It angered the populace: and it was dropped.
In 2017, Tunisia granted amnesty to corrupt officials who had served under former President Zine El-Abidine Ben Ali.
The government was also accused of rewarding members of President Essebi’s political party.
It triggered protests.
In 2018, Moldova introduced ‘capital amnesty’, which allowed the legalisation of illicitly obtained money.
That was a different kettle of fish: and did not involve corruption.
. What do we learn from these countries?
A hasty zeal to reform a corrupt state, if accompanied by an imprudent methodology, would be fatal to this government.
Nor should the law pave an escape route to corrupt politicians.
‘Selective prosecution’ of political opponents should be avoided.
. Anti-corruption bodies should be independent
It is not that we do not have proper laws.
The source of the problem is, we have politicians who obstruct the investigations and prosecution of corruption offenders.
All anti-corruption bodies must be placed under a Parliamentary Supervisory Committee, which must report to the Dewan Rakyat.
This creates greater transparency and inhibits government interference.
. An Act of Parliament is needed, e.g. the ‘Corruption Amnesty Act’ [‘CAA’].
First, the law must legitimise corruption amnesty.
Second, it should only last for a brief time: e.g. two years.
It cannot be extended without a two-thirds majority approval in Parliament.
The Act must form a body called the ‘Corruption Amnesty Department’.
These officers should have greater investigative and prosecutorial powers.
The accused must be granted the right to due process.
. It must complement existing law
We already have several statutes: MACC Act, AMLA, the Penal Code, Income Tax Act, and Foreign Exchange Controls laws.
The new law should work within their framework.
. Those who cooperate should have an easier time
The new law should be flexible.
He who repents must be given a break.
But should a kleptocrat be allowed to apologise, throw RM10 million, into the treasury, and walk away – while concealing RM500 billion in a foreign account?
The answer is in the 1978 Ahmad Nawab song entitled, ‘Tiada Maaf Bagimu’ (‘There is no forgiving you’).
The hard-core corrupt must be taken through the whole legal process.
. International recovery of illicit funds is legally possible
Dealing with foreign countries is not as difficult as it might appear.
The law should create greater flexibility in investigation: entry, search, discovery of evidence, and assets freezing and asset seizures, should be made easier.
Because illicit assets are easily transferred between different jurisdictions, flexible investigative powers are needed.
The law must allow assets to be frozen here and overseas.
Investigators must be allowed to ‘trace’ the money into the accounts of relatives and friends in all jurisdictions.
The law should allow illicit money to be recovered in several nations at once.
Investigators must be enabled to work over international borders.
The UNCAC Convention makes it easier to legitimise arrangements with countries to repatriate stolen funds.
. Setting up of Corruption Courts
We have Admiralty courts, Divorce courts, and Construction Courts – why do we not have Corruption Courts?
We should appoint Corruption Court Judges from a pool of former judges, AG Chambers lawyers, and other experienced members of the Bars of Peninsular Malaysia, Sabah, and Sarawak.
. Where would we find investigators and prosecutors?
Investigators may include retired but honourable MACC officers, police officers of good repute, or other enforcement officers.
. Whistleblowers should be encouraged
Yet, without any ‘inside’ evidence, investigators will hit a wall.
So, the law should protect and reward ‘whistleblowers’.
. Punishment: forfeiture of citizenship
The punishment for corruption has to be deadly serious.
If the corrupt will admit to their wrongdoings, they can go away quietly.
For those who are recalcitrant, their proceedings should be telecast live.
It is a form of ‘naming’ and ‘shaming’.
Special Corruption Amnesty Courts should be given extra powers of punishment:
(a). long imprisonment sentences;
(b). forfeiture of assets
(c). automatic loss of citizenship; and
(d). the punishment should apply to every person who was either complicit in the corruption or enjoyed its fruits.
. Corruption Amnesty laws can become a charter for the corrupt, so we need to be careful
Corruption Amnesty needs to be a short-term, specialised law.
It has to be severely limited to ensure it is not abused.
If there is a will, there is a way.
[I express my gratitude to Santhi Latha, VK Raj, Harleena Kaur, KN Geetha, Prabhkirat Singh, GS Saran and RJ Nevina].