A Malaysian corruption amnesty looks unlikely, but the idea deserves a fair hearing

19 June 2019 00:00

Just over a year since Malaysian Prime Minister Mahathir Mohamad was elected to office on an anticorruption platform, reforms are well under way.

His government has created the Governance, Integrity and Anti-Corruption Centre, or GIACC, which has been tasked with recommending and implementing nationwide anticorruption policies and monitoring all anti-graft agencies. In addition, a bill is being drafted to establish the National Financial Crime Centre, a multi-agency taskforce that hopes to pool the individual expertise of various authorities to tackle complex organized crime cases.

The GIACC has published its National Anticorruption Plan, outlining the country’s anti-graft reforms for the next five years.

The Malaysian Anti-Corruption Commission, or MACC, meanwhile, is taking on the big-ticket cases. Former Prime Minister Najib Razak is on trial for his role in the massive scandal involving 1Malaysia Development Berhad, or 1MDB, while Isa Samad, the former head of Felda Global Ventures — Malaysia’s agricultural and commodities giant — has been charged with corruption offences and is awaiting trial.

It is too soon to judge whether these and other efforts can be labelled a success.

But a key question remains: after prosecuting the high-profile cases, how does Malaysia rid itself of the endemic corruption that pervades every level of society?

Mahathir said last week that the country lacks the manpower to investigate everyone in the previous government suspected of wrongdoing.

In reaction, one senior Malaysian lawmaker suggested last week that a corruption amnesty program could be the solution to finite investigative resources.

“The time may have come … to give thought to an amnesty program for those involved in corruption, provided they return their ill-gotten gains, as a strategy to help curb the scourge of corruption in Malaysia,” said Lim Kit Siang, a senior figure in the Democratic Action Party, which makes up part of the Pakatan Harapan coalition government.

Could this radical solution to a gargantuan problem work?

— The case for amnesty —

Ambiga Sreenevasan, who was head of the Malaysian Bar between 2007 and 2009, has been a champion of amnesty for some time. “I’ve been talking about it for a few years and no one’s really bothered too much about it,” Sreenevasan told MLex.

For starters, like Kit Siang, she said she doesn’t believe the likes of Najib should be suddenly let off the hook. The most egregious cases of corruption must be prosecuted, she said.

But she argues that because corruption is endemic in Malaysian society, prosecuting everyone accused of corruption with the limited resources available, even if they are increased, is an impossible task and an amnesty is something that the government may well be forced to consider at some point.

“I think more resources are needed within the MACC even to deal with current cases that are going on. But, if you had to prosecute every single person, it’s not just the MACC that would grind to a halt … the whole legal system could be bogged down by this, when in fact there are alternative ways of dealing with it,” said Sreenevasan, a founding partner at Sreenevasan Advocates & Solicitors in Malaysia.

But as well as tackling the resource problem and easing the burden on prosecutors and investigators, an amnesty is the best way to get civil servants — particularly middle- and lower-ranking staff — who may have acted corruptly under the former government, to properly support the country’s anti-corruption drive, she said.

Pockets of the public sector will undoubtedly feel uncomfortable with the new government, after having served under governments led by the United Malays National Organisation, or UMNO, which has dominated the Malaysian government from independence in 1957 until Mahathir’s shock election victory last year.

“It will stop resistance against anti-corruption programs, because you will now find that those who have been corrupt will fight the new system all the way. They have no reason to cooperate, because their heads could be on the chopping block. So, in a sense, [amnesty] then brings them on board in the anticorruption efforts,” Sreenevasan said.

In addition, an amnesty program could provide another avenue to recoup ill-gotten gains, including the harder-to-reach overseas funds, and could even be used as means to receive new information about past corrupt schemes involving senior government and public-sector officials.

— What would amnesty look like? —

Sreenevasan suggests that a “tiered system” with different categories of leniency on offer depending on the seriousness of misconduct might work best.

But how long should the period be for which you are willing to pardon crimes? What counts as “low level” corruption? Drawing lines like this is tricky and could become political.

“Because everything is political in this country, it is very possible we may get into problems like that, but it doesn’t mean you don’t start,” Sreenevasan said.

Alternatively, a very simple system could be implemented where no acts of corruption will be prosecuted prior to a given date. This is what the Hong Kong colonial government effectively did to deal with corruption in the city’s police force in the late 1970’s. The policy has widely been regarded as a success.

Another key aspect of such a program is confidentially, Sreenevasan said.

“If there is no confidentiality, it’s not going to work in Malaysia. I can guarantee you that,” she said. “What is the benefit to them if you’re not going to keep it confidential? Why should they do what you’re suggesting?”

— Politically unpalatable —

The policy, however, goes against traditional lawyerly instinct. In Malaysia, there is no statute of limitations for criminal offences, including corruption.

Also, if the policy is aimed at dealing with lower-level corruption, the purported advantage of the policy acting as a shortcut to recovering significant sums in corrupt funds might be over emphasized.

Ultimately, however, a corruption amnesty is an incredibly hard sell to the electorate.

Even for the partial amnesty in Hong Kong, the public’s confidence in the government’s anticorruption drive was “somewhat shaken,” as the city’s Independent Commission Against Corruption, ICAC, put it in one of its past annual reports. Only following a strong public relations campaign, and with the gift of hindsight, was it deemed a success.

More recent experiences have also proven controversial.

In 2017, Tunisia passed a new law affording amnesty to officials suspected of corruption working under former President Zine Al-Abidine Ben Ali. While it was put forward as a plan to help restore trust in government, the move instead triggered mass protests.

Over the last few years, leading anti-corruption NGO Transparency International has condemned moves to afford amnesty to corrupt officials in Tunisia, Romania, Moldova and Mongolia.

“Amnesties are sometimes proposed in situations where there is a major societal or political change, e.g. from a dictatorship to a democracy, and the well-being of society or the functioning of the government is at stake," a spokesman from Transparency International’s central headquarters told MLex in an emailed statement. "However, these cases are of course exceptions, and amnesties for corruption should be a last resort. There should never be impunity for grand corruption.”

Sreenevasan concedes that such a policy is unlikely to be warmly received, but says the government should set up a taskforce involving the Attorney Generals Chambers and the MACC to analyze the idea. “It’ll take several months to work out the nitty-gritty,” she said.

“The public will not easily accept this,” Muhammad Mohan, President of Transparency International Malaysia, told MLex. Mohan said, however, it is an option that should still be studied more closely, although, like Sreenevasan, he said an amnesty for the most serious cases would be out of the question.

— Unlikely to happen anytime soon —

It seems unlikely that the new head of the MACC, Latheefa Koya, would entertain such a radical policy option just days after being appointed to the post. Furthermore, she has a reputation for being fearless and taking a no-nonsense approach, according to local press reports. Put bluntly, she won’t get any points for suddenly deciding to let lots of suspects walk free.

The policy would create extra work for Attorney General Tommy Thomas, who is already busy overseeing the mammoth corruption case that is 1MDB and working to reform the country’s judiciary.

It also isn’t something that is explicitly mentioned in the National Anti-Corruption Plan.

For now, the policy looks unlikely to garner widespread support. But there is no harm in taking the time to examine the idea further.

“My view is; nothing ventured, nothing gained,” Sreenevasan said.

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