RECENTLY, news headlines have centred on claims that Malaysian Anti-Corruption Commission (MACC) chief commissioner Azam Baki had owned corporate shares in 2015 and 2016, and not declared them.

Azam allegedly owned 1.93 million shares in Gets Global Bhd as at April 30, 2015, and 1.02 million shares as at March 31, 2016. His younger brother allegedly owned 3.72 million shares in the same company.

Azam also allegedly owned 2.15 million shares in public-listed Excel Force MSC Bhd.

MACC’s failure to address these allegations has resulted in economist Edmund Terence Gomez resigning from one of its oversight panels last week.

Several MPs have also asked whether the chief commissioner breached any law or regulation by owning shares in public-listed companies.

The Malaysian Insight takes a look into the legal provisions governing civil servants’ positions and their ownership of shares.

The Act

The Public Officers Regulations Act (Conduct and Discipline) 1993 states that civil servants, including top officials, can hold corporate shares, but must declare their assets every five years.

The Act also states that there is a limit and condition to the shares purchased, and failure to adhere to this rule will result in disciplinary action.

According to Section 10, civil servants and their immediate family members must declare all assets, including shares purchased.

This declaration must be implemented when required by the government, when the officer is appointed to the civil service, and when he or she has acquired additional property or disposed of property.

Section 10(4) of the Act states that a superior officer may allow a civil servant to own shares with several determining factors, such as whether the acquisition of the property will cause a conflict of interest of the public service.

Section 10(5) of the Act states that if the disciplinary authority is satisfied with the property declaration made by the officer, it shall direct the head of department to record that a declaration has been made in the officer’s government service book.

Service circular

Then, there is the service circular for civil servants: Service Circular Number 3/2002 – Ownership and Declaration of Assets by Public Officials, which further elaborates on Section 10 of the above Act.

The circular states that all public officers are required to declare in writing all properties owned by them, their husband or wife or children, or held by any person on their behalf or on behalf of their wife or husband or children to their respective head of department.

Section 23 of the circular states that a civil servant can purchase shares that:

- do not exceed 5% of the paid-up capital or RM100,000 at present value, whichever is lower, in each a company incorporated in Malaysia;

- do not exceed 5% of the paid-up capital in every capital company and enterprise established by the state and federal governments; or,

- do not exceed the limit set by the government for each of the unit trusts organised by the government.

The circular also states that a public officer is prevented from owning more than RM100,000 value of shares in any company.

The case against Azam

It is unclear whether the chief commissioner has declared his shares and warrants acquired.

If Azam failed to declare his assets, he should be subjected to disciplinary action by the chairman of the appropriate disciplinary authority based on Section 26 of the Public Officers Regulations Act (Conduct and Disciplinary) 1993.

A government agency legal officer told The Malaysian Insight: “In MACC (Amendment) Act 2018, under section 17A, it is stated that if someone in a commercial organisation has offered a bribe for the benefit of the company, then the directors of the company may be made liable.”

“Azam, being an MACC officer and part of the board of the company that can potentially be charged under section 17A, is in a position where he may be questioned by the anti-graft agency.

“This causes a clear conflict of interest.”

On December 27, Gomez, in protest of inaction against Azam’s alleged crime, resigned from MACC’s Consultation and Corruption Prevention Panel.

Panel chairman Borhan Dolah said the ex-member should forward the “proof” to relevant parties, like the Public Service Department, if the latter wants action taken against the chief commissioner.

MACC Anti-Corruption Advisory Board Abu Zahar Ujang said the board did not found any wrongdoing, while Azam has kept mum since the issue was brought up.

Preventing corruption

Retired top official Ramon Navaratnam told The Malaysian Insight that the practice of declaring assets is to prevent corruption.

“It is a good and accountable way of catching people guilty of corruption when acquiring shares, buying houses and getting assets.

“Civil servants can become corrupt later in life or when they… are tempted; they can illegally acquire funds.”

While there are requirements to declare assets, the enforcement and implementation are sometimes not strictly followed, he added.

“If it is strictly followed, then the authorities will be able to notice the changes in wealth and require those suspected to explain (their newly acquired wealth).

“Those found to have not declared their asset changes must be held up.”

He urged MACC to always follow the circulars and procedures, which are instructions of the government. – January 3, 2022.