The Malaysian Bar is now over 20,000 lawyers, and Resolutions of the Malaysian Bar passed at Annual General Meetings, where all member lawyers can attend, is the expression of all lawyers. This is stronger that even Bar Council statements, that is decided by the Council members only.
Resolution Adopted at the 76th Annual General Meeting of the Malaysian Bar (Held Virtually on 19 Mar 2022)
Resolution on the Malaysian Anti-Corruption Commission and its check and balance mechanisms.
Where as
1. Something is amiss in the Malaysian Anti-Corruption Commission, and it is not just about Azam Baki, the Chief Commissioner, but also the workings of the check and balance bodies created by the the MACC Act, being Anti-Corruption Advisory Board (ACAB), the Special Committee on Corruption (SCC) and Complaints Committee (CC), Operations Review Panel (ORP) and the Consultation and Corruption Prevention Panel (CCPP).
2. When Prof. Dr. Edmund Terence Eric Boniface Gomez, a member of the Consultation and Corruption Prevention Panel (CCPP) tried to get the Chairman of the Panel, Borhan Dolah, to meet despite repeated attempts, the Chairman seems to have decided unilaterally not to call and have a meeting of the Panel. This ultimately led Terence Gomez to tender his resignation On December 27 in disappointment and express the reasons for his doing so. The resignation letter was not to the Prime Minister as required, and so the question remains as to whether Terence’s resignation was accepted or not.
3. This case highlights a failure of the Board/Committee/Panels by reason of its inability to function effectively if the Chairperson seems to have the absolute power to decide when to call the meetings of these respective check and balance bodies. This is very wrong, for all decision making should be by the entire membership of the Board/Committee/Panels, and not by just the Chairperson. Chairpersons should call for a meeting at the request of any member of the Board/Committee/Panels, and decide on any matters collectively.
4. If the Chairperson of the Consultation and Corruption Prevention Panel had called for a meeting of the Panel at the behest of a panel member, then that panel may have moved to do the needful including moving the Commission and/or the Advisory Board to act including to commence an investigation. Remember, the allegation may be a crime and/or even a misconduct under the PUBLIC OFFICERS (CONDUCT AND DISCIPLINE) REGULATIONS 1993 PU(A) 395/1993
Anti-Corruption Advisory Board (ACAB)
5. On 5/1/2022, The Anti-Corruption Advisory Board (ACAB) was reported having cleared Malaysian Anti-Corruption Commission (MACC) chief Azam Baki of any wrongdoing over his purchase of corporate shares. This was the statement of the Board Chairman Abu Zahar Ujang(FMT,5/1/2022).
6. However, on 8/1/2022, Six MACC advisory board members have distanced themselves from the statement made by the board’s chairman Tan Sri Abu Zahar Ujang.
In a statement on Saturday (Jan 8), the six comprising Tan Sri Ismail Omar, Datuk Seri Azman Ujang, Datuk Seri Akhbar Satar, Datuk Dr Hamzah Kassim, Datuk David Chua Kok Te and Prof Datuk Dr Mohammad Agus Yusoff, said that board members were not satisfied with the explanation provided by Malaysian Anti-Corruption Commission chief Tan Sri Azam Baki, despite Abu Zahar saying otherwise during a recent press conference.
“Abu Zahar said that the Board was satisfied with the explanation given by Azam. He further said there was no crime committed or conflict of interest in the matter.“We categorically wish to state that the board members at that meeting or at any time thereafter did not express such opinion as Abu Zahar attributed to,” they said.They added that the comments were Abu Zahar’s personal view and a separate discussion was held on the matter where several proposals were given.Among the proposals were for the issue to be brought to an independent committee, Parliamentary Special Committee on Corruption or the MACC’s complaints panel.“However, our views and proposals were not raised at Abu Zahar’s press conference. The ACAB has no investigation power as it is established as an advisory board.’ (Star)
7. This is another problem, when the Chairperson makes a statement, that is not the decision/views of the Board for which he/she is the Chairperson. The 6 were all the Board members, besides the Chairman.
8. There is a problem if the Chairpersons of these Board/Panel/Committee acts on their own, and not as the Board/Panel/Committee.
Azam Baki, Malaysia’s chief graft-buster
9. The highlighting of the issue began in October 2021, when it was highlighted online by Edisi Siasat, and thereafter was highlighted again on October 26, 2021, when journalist and Human Rights Defender Lalitha Kunaratnam wrote an article titled “Business Ties Among MACC Leadership: How Deep Does It Go?” on the Independent News Service (INS) website.(Malay Mail, 14/1/2022)
10. ‘...On December 9, 2021, Edisi Khas posted a shareholding analysis of Gets Global Berhad (formerly known as KBES Berhad) that detailed the equity of its top 30 stakeholders as of March 31, 2016. This appeared to show Azam as the owner of over a million shares and his brother, Nasir, as that of 3.7 million more. It also posted further documents that appeared to name Azam as the owner of 2.1 million warrants in Excel Force MSC Berhad…’(Malay Mail, 14/1/2022)
11. On December 14, 2021 PKR MP Sivarasa Rasiah filed an urgent motion for Parliament to discuss the allegations against Azam but this was rejected by the Speaker.Two weeks later, six federal lawmakers proposed an independent investigation by a parliamentary select committee into the controversy.(Malay Mail, 14/1/2021).
12. ‘....On December 27, Professor Edmund Terrence Gomez announced he was resigning from the MACC Consultation and Corruption Prevention Panel, alleging inaction over the allegations surrounding Azam. Gomez said his three emails to panel chairman Borhan Dollah and MACC Anti-Corruption Advisory Board chairman Tan Sri Abu Zahar Nika Ujang failed to elicit any response…’ (Malay Mail, 14/1/2022)
13. ‘...On January 5, Azam responded to the allegations at last but did not deny the stock transactions.Instead, he claimed the trades had been executed by his brother using Azam’s share-trading account. He further claimed he previously explained this to Abu Zahar{Chairman of the Advisory Board], who accepted his explanation…’(Malay Mail, 14/1/2022). Question remains whether the matter was even raised in the Advisory Board.
15. On 19/1/2022, ‘...The Securities Commission clarified today that it found no evidence of proxy trading by Tan Sri Azam Baki as the Malaysian Anti-Corruption Commission chief commissioner was in full control of a share trading account he claimed he let his brother use.The clarification was for its statement yesterday in which it said Azam did not breach Section 25(4) of the Securities Industry (Central Depositories) Act 1991.The commission said this conclusion was because Azam was named as the account holder and had control of the said trading account…’(Malay Mail, 19/1/2021).
17. The Parliamentary Select Committee (PSC) overseeing Agencies in the Prime Minister's Department and The Parliamentary Select Committee (PSC) on Finance and Economy have started to act, when it really should have been on the move since October 2021. There is no indication in the Parliament website as to what these Committees have done or are doing. Reasonably, all proceedings/inquiry of such Parliamentary Committees should also be telecast live and/or be open to the public.
18. One must not forget that the MACC Act had created a Special Committee on Corruption (chaired by Rais Yatim and entirely made up of Parliamentarians), and this is the Committee that advises the Prime Minister and even monitors the Advisory Board. They are supposed to be advising the Prime Minister on any aspect of the problem of corruption in Malaysia. Noting the issue came to light in October, we are unclear as to what this Special Committee has been doing. This Special Committee is not bound by Parliament rules and regulations.
19. This is the Code of Conduct that applies to all Public Officers, and Azam Baki is a public officer.
20. Article 10 on Ownership property states that, ‘...(1) An officer shall, on his appointment to the public service or at any time thereafter as may be required by the Government, declare in writing to his Head of Department all properties owned by him or by his spouse or child or held by any person on his behalf or on behalf of his spouse or child….(3) Where, after making a declaration under subregulation (1), an officer or his spouse or child acquires any property, either directly or indirectly, or any property acquired by him or by his spouse or child is disposed of, that officer shall immediately declare such acquisition or disposal of property to his Head of Department…’
21. On the acquisition of new property, there is a need for a DECLARATION in writing to the Head of Department. Azam Baki, being the Chief Commissioner of MACC, head of MACC, will have to submit his declaration to the Head of Department - which reasonably must be the Prime Minister, and most unlikely Abu Zahar{Chairman of the Advisory Board].
22. Now, there is also misconducts relating to 11 Maintaining a standard of living beyond emoluments and legitimate private means, 12 Borrowing money, 13 Serious pecuniary indebtedness, 14 Report of serious pecuniary indebtedness, 19 Making public statement - did Azam Baki violate any of this?
23. To date, we have not heard about any Disciplinary Board investigation or inquiry.
24. Is the Public Officers (Conduct and Discipline) Regulations ineffective when it comes to heads of Departments, Commissions, Agencies of the Government when their effective head of Department is the Minister or Prime Minister?
26. The issues surrounding the Malaysian Anti-Corruption Commission (MACC) chief and the MACC needs speedy closure. Azam Baki must be presumed innocent until proven guilty. For Malaysia, the uncertainties now are certainly unsettling and it may affect the credibility of MACC.
27. ‘...Azam had argued that the committee discussions might be considered sub judice as he had filed a defamation suit against a whistleblower who wrote about his shareholdings…’(FMT, 18/1/2022). This is not right, as this allows any alleged perpetrator to escape public inquiries, Parliamentary inquiries, investigations, disciplinary proceedings by simply filing a suit in court, and claiming sub-judice. This will hinder the administration of justice, or halt it for a long time as court cases can take even 10 years to complete, including the appeals.
28. The issues concerning the MACC, and also its chief commissioner is a matter that concerns all in Malaysia, and it is absurd to suggest that it should not be inquired or investigated until the court case ends. This matter is a matter of public interest, for fighting corruption, money laundering and other violations should never be ‘suspended’ by reason of a suit initiated by the alleged perpetrator.
29. Public Officers and Cabinet Members shall not be allowed to sue whistle blowers and human rights defenders that highlight alleged wrongdoings, misconducts and/or abuse of power whilst they are in public office. If a crime is committed, then there are adequate laws that the Public Prosecutor can use to bring any law-breakers to justice.
30. The fact that Azam Baki is suing a journalist and human rights defender who highlighted possible misconducts/crimes is a bad precedent, which may deter others from exposing wrongs of those in public office, including the Cabinet, which may allow criminals to go scot free. Was this a reason why no public officer or others in Malaysia failed to highlight wrongs of those in public office - were they worried of retaliation from their ‘bosses’, and even being sued for millions of ringgit by these ‘bosses’?
A. That a Royal Commission of Inquiry be set up immediately to investigate and conclude whether the allegations made with regard to the commission of a misconduct and/or crime against the Malaysian Anti-Corruption Commission (MACC) chief are baseless or not. The RCI should also look at the workings of the 5 existing check and balance bodies in MACC.
B. That Malaysia should investigate and act to ensure that justice is done to restore the credibility of the Malaysian Anti-Corruption Commission (MACC).
C. That public officers, including members of the Cabinet should not be allowed to sue those who highlight alleged misconduct, crimes and/or abuse of power done whilst in public office. Such allegations should be investigated and addressed by the State.
Source: Malaysian Bar Website
(The motion was proposed by Charles Hector Fernandez, and was adopted as a Bar Resolution by an overwhelming majority.)
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