Will Corruption Amnesty Work? [Part-2: Proposals]

This is Part 2 of the article entitled, ‘Will Corruption Amnesty Work?’ You’ll find part 1 here.

We saw, in Part-1, how if we sack every corrupt person, we’d lose a substantial number of people in enforcement agencies, local governments, courts, and the Government.

This is because corruption in Malaysia is deep-seated. So what?

Corruption and State Capture

Corruptions infects and emaciates a nation, its institutions and its people.

It kills a just and efficient government. It murders meritocracy. It increases the cost of raw materials. It intensifies inflation. It escalates the price of basic materials like rice, oil and bread.

But it is far worse than you think. When were we last invaded?

When a foreign country bankrolls another country, it has but one aim – to advance its own interests. The recipient government distorts the use of that money. And has to repay the debt out of the national coffers. It is as if the foreign power has captured the recipient country.

The United Nations Handbook recognises that where,

‘external interests illegally distort the highest levels of the political system to private ends, it results in State capture’.

The situation is so serious for Malaysia that, uncharacteristically, six federal ministers were despatched to a foreign country to set matters right. They had to practically get on their knees, beg and scrape. Do you think it is fair on a 93-year-old man?

Institutionalised corruption is lethal. There are two kinds of corruption. The first is ‘Grand Corruption’. It pervades the highest levels of government. It engenders,

‘major abuses of power. [An] erosion of the rule of law, economic stability and confidence in good governance quickly follow’:

It causes the ‘distortion of central functions of government by senior public officials’; and it is ‘systemic’ – ‘where it has become ingrained in an administrative system.’

‘Petty Corruption’ is corruption at the lower levels.

And here is a chilling, but timely, reminder the UN gives out to its Corruption Investigators:

‘When patterns of petty corruption are uncovered, investigators should consider whether it is possible for them to track how the proceeds are dispersed. Frequently, the front-line officials are not the principal villains, but are being manipulated by their superiors.’

Is this not what has happened to Malaysia?

Isn’t it true that the previous regime and its cohorts have been – as recognised by the UN all those years ago – ‘manipulating’ public officials? Does that feel all too familiar?

So, if we want to be serious, then the punishment has to be serious.

What choices confront us?

In Part-1, it was suggested that we should go easy on the corrupt so that illicit funds can be brought back. Is this treatment to be given to everyone? So the worst can come and say, ‘Sorry,’ hurl RM 10 Mil into the hot little hands of the Corruption Amnesty Department, ‘cop a plea,’ and walk away, whistling, knowing that RM100 Mil is sitting quietly in three accounts: one in British Virgin Islands, one in Argentina, and one is Switzerland?

The answer is ‘No’.

If you were a public official, minister, deputy minister, parliamentary secretary, a division leader of the leading political parties, major shareholder of public listed companies who spooned out the money, or NGOs controlled by politicians which sucked out the people’s money, whether in the name of religion, education or welfare, ex-regime allied businessman, or NGO leader— there is a ready-made answer for you.

It was written by Ahmad Nawab in 1978 and sung by Sharifah Aini. In Royal Military College, it was sung at every corridor. It is entitled, Tiada Maaf Bagimu’ (‘There is no forgiving you’).

The hard-core corrupt must of course be taken through the whole hog of legal process.

But we cannot apply the law to everyone in this way.

It is one thing to bay for the blood of the corrupt, and another to bring a complete stop to the corruption at every level.

Leaving those upper crust crooks aside, most of the corrupt can be rehabilitated.

But it takes time: a long, long time.

What if the corrupt could be purged, and a new system of clean Government be re-established – in stages?

Who would argue that this will take anything less than a decade?

So how is this proposal to work?

The Proposal for Corruption Amnesty relies on volunteers: mostly the rakyat. Were we mobilise the citizenry to assist, like we did during GE14, there will be a flood of human resources, talent, skill, and importantly, information.

To stamp out corruption, what the country needs are first, a new, a short-term, specialised law, a greater number of competent investigators, able prosecuting lawyers, and experienced judges to hear corruption cases.

What legal structure should be put in place to make it effective?

There are legal templates we can use

The first thing that we need is an Act of Parliament legitimises corruption amnesty. It has to work in combination with existing laws and regulations: e.g. MACC Act, AMLA, Penal Code, Income Tax Act, Foreign Exchange Controls laws, Immigration Act, laws dealing with banking and financial services, capital control, exchange rate stability, monetary independence, and free capital mobility.

Taking all these into consideration, the proposal is that Parliament passes an act called the ‘Corruption Amnesty Act’ [‘CAA’]. It must form a body called the ‘Corruption Amnesty Department’.

The CAA should have a specified lifespan. By the time investigators get access to documents in one jurisdiction, illicit assets will be removed to another.

Coercive investigative powers in civil proceedings are necessary. Express provisions must allow the freezing of assets not only within but also out of jurisdiction. However, simultaneous recoveries should be enabled anywhere in the world, in several jurisdictions at once.

The CAA should also grant the officers of the Corruption Amnesty Department greater investigative and prosecutorial powers, establish special Corruption Amnesty Courts to try prosecutions, and be given powers of punishment, including imprisonment and forfeiture of citizenship –not only of the corrupt but every person who enjoyed the fruits of it.

Without negating their right to due process, the CAA should set out the mechanisms for ‘easier’ prosecutions. It should cater for greater flexibility in investigation, recovery, entry search and seizure, discovery of evidence, recovery of assets.

It should legitimise arrangements made with foreign countries to repatriate purloined funds.

UN Convention Against Corruption

Dealing with foreign countries is not as difficult as it might appear. A singular landmark development was the UN Convention Against Corruption. Nearly 100 States signed the Convention.

It was adopted by the UN General Assembly by its Resolution 58/4 dated 31 October 2003.

Malaysia signed the Convention on December 9, 2003. We ratified it on September 24, 2008. As of August 2013, 167 countries are parties to the UNCAC.

You may think that this is all an extreme measure. Look at the countries suffering from corruption.

This disease is deeper than you think.

If we do not start now when will we?

Where would we find investigators, prosecutors and judges?

First, we need qualified investigators. They are a rare commodity. The Act may allow retired MACC officers, police officers, or other enforcement officers, to participate in investigations.

Second, nothing will work without evidence – especially ‘inside’ evidence. To allow people to sing like canaries, ‘whistle-blowers’ – those who have credible evidence and information, should be rewarded: (say) 1.0% of all monies recovered should be paid to them, less expenses in the recovery.

This should be openly publicised.

Third, we need qualified prosecutors. The available prosecutors now at the AG’s Chambers are far too busy with corruption trials of the Big Boys.

Of the 18,00 advocates and solicitors in Peninsular Malaysia, there are at least 1,958 lawyers who practise criminal law. This number increases when we include the lawyers from Sabah and Sarawak.

Assuming only 50% from the Malaysian Bar are eligible for this duty, then at least 900 lawyers will be available to the Attorney General. That is twice as many as the team of prosecutors he now has.

Two categories of lawyers: prosecutors and judges

These lawyers can be divided into two categories – prosecutors, and temporary judges who will be given power to preside over Corruption Courts.

And their tenure can be limited to, say, 5 years.

Once a prosecution starts within the 5 years, the appointment of all those officers will continue until they conclude the trial and any subsequent appeals, even if it takes 10 years.

Fourth, the Act should have an ‘extension clause.’ The AG controls the Prosecuting lawyers.

Setting up of Corruption Courts

We have Admiralty courts, Divorce courts, Information Technology courts and so forth—why not Corruption Courts?

Who will decide who these judges are? That is the sole decision of the Judiciary.

Corruption Court Judges should be invited from the pool of retired judges, retired judicial officers, retired AG lawyers, and experienced members of the Bars from Peninsular Malaysia, Sabah and Sarawak.

Every one of these judges should be vetted, approved, and be trained directly by the Judiciary. They must work under and be answerable to it. That will ensure compliance with the rule of law, quality of the judges, their discipline, and procedural uniformity.

Trial and Punishment

If the corrupt are willing to admit their wrongdoings, they can go away quietly. So long as they get punished under the law, the rakyat should let it go. That is the deal. So some hearings should be secretive – for those who cooperate.

For those who are recalcitrant, their proceedings should be telecast live. This is a form of ‘naming and shaming’.

Paying the whistle-blowers, prosecutors, and judges

How are we to reward these lawyers?

Initially, they should be paid a small deposit to cater for their expenses, and their daily needs.

Once the case is concluded, and if there is an acquittal – or no recovery of assets — they should be given a fixed sum based for duration of work done.

This could follow a statutory scale, e.g. the Rules of Court 2012.

That scale sets out how much lawyers should be paid for, depending on the value of the case.

Additionally, lawyers should be paid a percentage of any monies recovered.

Assured that their efforts will be rewarded, this set of 1,958 lawyers would work hard for the Government.

For us.

And we can get rid of this cancer that has been eating away at our vitals.

Are you prepared to call your MP and ask him to push this agenda?

If there is a will, there is a way.

 

 

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