The Clamour

The recent appointment of the MACC Chief Commissioner has come under severe criticism for various reasons.

The Parliamentary Select Committee complains that the PM had not consulted it.

The Bar Council complains that the candidate lacks relevant qualifications.

There are concerns the appointee has close political links to those in power.

Then there is the view that the appointment flies in the face of Promise No. 16 of the PH Manifesto, 2018.

A Roman General could put to death anyone under his charge

Rome was an empire that ruled half the world with the wisdom of its emperors, the might of its arms, and the counsel of its Senate.

A time came when all these institutions could be bought.

Thus Roman Empire came to be ruled by capricious kings, maintained by mercenary armies alongside the cloying sycophancy of its Senate.

Edward Gibbon describes it in his ‘Decline and Fall of the Roman Empire’.

We have much to learn from the Romans – especially what not to do.

The Roman Empire gave executive powers to its consuls. There was not, in the Roman Empire, much of a civil service – that was an entirely ancient Chinese invention – but similar powers ended up in the hands of Roman Generals.

They controlled vast swathes of land and people; and thus enjoyed almost absolute power, which they wielded quietly – and without control.

They could put to death anyone under their charge.

And they did not need to explain their decision to anyone.

Almost like our senior civil servants.

Think on this: it is the civil servants who run the country: not the politicians…

The Immense Power of Senior Public Servants – Who controls them?

Leaders of bodies like the MACC exercise immense power.  An American case says that heads of the civil service are people who ’exercise a significant authority’ under the laws of the nation.¹Buckley v. Valeo, 424, U.S., 1, 126 (1976)

The situation in the public services has changed very little over the last six decades.

Mostly, senior civil servants do as they please.

Their conduct and decisions do not have adequate supervision.

You do not have to look far for proof.

So they need to be chosen with the utmost care.

The MACC and its Head are not defined in the Federal Constitution

The Malaysian Constitution defines only 8 classes as ‘public services’.²These encompass the Armed Forces, the Judicial and Legal Service (not to be confused with the Judiciary), the General Public Service of the Federation, the Police Force, the Public Service of each State, the Education Service, and the Joint Public Services: Articles 132 and 133. This definition does not cover the MACC Chief, the Attorney General, or indeed a State Legal Advisor of any State appointed outside the Judicial and Legal Services, or a member of the personal staff of the King, or the Ruler of any State, or in the case of Malacca and Penang, various religious officers.

The MACC is not one of them.

The head of the MACC is a creature of the MACC Act.

The Chief Commissioner is appointed by the King ‘on the advice of the Prime Minister’.³Section 5(1) Malaysians Anti-Corruption Commission Act 2009

Where the King is required to act ‘in accordance with the advice’⁴Article 40(1A), the Federal Constitution., His Majesty is required to ‘accept and act in accordance with such advice’.⁵Article 40(1A), the Federal Constitution.

In this, the King has no choice.

The Commissioner can be fired at any time

The question is, by whom?

The MACC Act stipulates that the Chief holds office ‘at the pleasure of’ the King, ‘subject to the advice of the Prime Minister’.

So, it is the Prime Minister who decides on the appointment – and removal – of the Chief of the MACC.

Because the Act allows the head of the MACC to be appointed within – or without – the public service⁶Subsections (1) and (2) of Sec. 5, Malaysian Anti-Corruption Commission Act 2009., the PM has an untrammeled discretion to choose any candidate.

Thus, where the Prime Minister suggests a candidate, it is not within the constitutional power of the King to refuse that suggestion or to delay its implementation.

… Which brings us to the Pakatan Harapan Manifesto

It’s opening words are rather promising:

“Restore the dignity of Parliament”.

The Manifesto starts with a well-established idea: –

“Parliament is an important institution to check Executive powers.”

Further down, it promises that,

“We will institutionalise the Select Committee system in [the] Dewan Rakyat and Dewan Negara…”.

It continues:

“A Dewan Rakyat committee will be established to monitor every Ministry, with the power to call Ministers and senior officials to testify.”

The passage – by  which the opposition is now beating PH’s head – is almost at the end:

“Key national positions such as appointments to … the Malaysian Anti-Corruption Commission, and [the] Judicial Appointments Commission must be approved by a suitable Parliamentary committee. This will reduce the ability of the Prime Minister to intervene in these important appointments.”⁷Page 45, PH Manifesto, 2018.

What this ‘suitable parliamentary committee,’ is – is not clear.

This mechanism – promises the Manifesto –  ‘will reduce the ability of the Prime Minister to intervene in these important appointments’.

Such a promise has much to compliment it.

Public Service appointees draw their wages from the public coffer.

It would be fair to argue that their nomination and selection requires public participation, and their expenditure, close public scrutiny.

Arguments Raging in Social Media

In recent days, several arguments have flooded local social media.

The First view is that the ruling government should have complied with its Election Manifesto.

That this requires the intervention of an Act of Parliament to make it work, has been little spoken about.

The Second view is that of the Parliamentary Select Committee.

It argues that the nation chooses MPs.  Since a citizen cannot exercise his rights of choice personally, his representatives – meaning Parliament – must do it for him.  Parliament – it says – should have taken part in the selection and nomination of the MACC Chief.

This argument presupposes that members of the Parliamentary Special Committee have the qualifications to select the right candidate.

Yet we do not know what exactly are the qualifications of the members of the Parliamentary Select Committee that will enable it to choose the MACC Chief.

Its detractors say that ‘MPs have already spoken’, in that collectively they have chosen a Prime Minister.

The PM has chosen the candidate.

‘We should leave it to the PM’, they say, ‘and go home’.

And so the Home Minister says the PM’s decisions ‘should not be questioned’.

Does that not, somehow, sound familiar?

The Third Argument is that the Chief of the MACC is not a ‘public officer’ of a ‘public service’ – as defined under the Constitution.

This is true: yet the MACC Act states that the Chief Commissioner is ‘deemed to be a member of the general public service of the Federation for the purposes of discipline’.⁸Section 5(4), MACC Act

The Fourth is more of an observation than an argument: it is that in the Westminster model, those who control Parliament also control the Executive.

Both are indistinguishable in their respective interests and loyalty.

The Government of the day is comprised of politicians.

Their allegiances and philosophy are no different from those of a majority of the members of the Parliamentary Select Committee.

Thus Parliamentary Select Committee’s decision would – in practical terms – be no different from that of the Government.

The experience here and overseas has shown that this is a valid point.

The Fifth View is that we must allow each service ‘to choose its own candidates’.  Candidates’ names should be forwarded to the Cabinet. The Cabinet’s decision is then communicated to the King, who would approve it.

All across the Commonwealth, this system works, but does it work in Malaysia?

The nominee is only as good as the Selectors and the Selection Process.

If the Selectors make bad choices – or are motivated by less than patriotic motives – the nation ends up with a poor candidate.

Examples of this bad practice are legion: there are thousands of such appointees littered across the country.

Do they all uphold the Constitution?

Are they all brilliant, upstanding citizens?

Do they function with transparency and integrity?

What do you think?

These appointees did the bidding of the previous regime without so much as a squeak.

‘A Fish Rots from the Head’

CMI is a Norwegian development research institute.⁹https://www.cmi.no/about/who-we-are: It addresses ‘issues that shape global developments and generate knowledge that can be used to fight poverty, advance human rights, and promote sustainable social development.’  In a paper written for CMI in May 2015, Sofie Arjon Schütte dealt with the very point in the discussion.

She calls it,

‘The Fish’s Head: Appointment and Removal procedures for Anti-Corruption Agency leadership’.

Shared Institutional Responsibility

She starts with a bang.

Commenting on the proverb ‘A fish rots from the head’, she observes that,

“… if an ACA head can be appointed and removed at will by a political stakeholder, the appointee has an incentive to defer to the will of the appointer. Some countries have therefore made such appointments the shared responsibility of several institutions to avoid potential misuse of the ACA by the government or a particular political group.”

Questions that really matter

She argues that the questions that really matter – in the appointment of the Head of an Anti-Corruption Agency – are:

Who is responsible for the appointment of the head of the ACA?

What are the criteria for a leader’s eligibility?

Is there transparency in the selection process?

An Independent Arbiter?

Schütte postulates that these crucial matters ought to be reduced into – and implemented by – an ‘inter-institutional check and balance’ system.

She recommends that an appointment to an essential institution like the Anti-Corruption agency requires “an independent arbiter”.

The Schütte Recommendations

Schütte makes four recommendations:

(1).  There should be broad consultation by more than one branch of the government. Civil society should be asked for its views. These consultations offer greater safeguards unlike direct appointments or removals by “a single power holder – typically the head of the Executive”.

(2).  There should be an Open Appointment Process.  This will broaden support for the ACA’s work and lead to the selection of an effective Chief Commissioner.

(3).  This she argues, “should be combined with clear, transparent criteria for candidate eligibility”.

(4).  As for any dismissal procedure, she proposes that “a clearly defined removal process will make it difficult for those in power to terminate the head of an ACA for the wrong reasons”.

As a nation, we would do well to follow the recommendations of Miss Schütte. The benefits are obvious.

This is an Educational Moment in the Nation’s History

There was a time when the Malaysian enforcement services were known for their professionalism, unbending integrity, and institutional effectiveness.

Six decades of misrule and endemic corruption have laid waste to those halcyon days.

Corruption has become the bane of this nation.

This is the first time a popularly-elected Government has had the opportunity to remove that international miasma of disgrace.  It should not squander it.

The Government should put in place the Schütte system in the appointment of top civil servants. The right place to start is the immediate enactment of the Malaysian equivalent of the UK’s Constitutional Reform And Governance Act 2010.

[The next article is: ‘How should we choose our Top Civil Servants?]

[The author wishes to thank Ms. KN Geetha, Mr. JP Kirat Singh, Mr. GS Saran, and Miss KP Kasturi for their assistance.]