PUCHONG MP Gobind Singh Deo has questioned whether the Malaysian Anti-Corruption Commission (MACC) and the Securities Commission (SC) can effectively conduct investigations into each other, especially when they involve complaints against their top-ranking officials.
On January 5, MACC chief commissioner Azam Baki admitted in a news conference that he had allowed his brother Nasir to use his trading account to buy millions of shares in two public-listed companies in 2015.
The SC later announced that it would question Azam over alleged violation of stock trading laws.
On January 10, it was reported that MACC was looking into complaints of misconduct against SC board members.
Gobind has raised the possibility of conflict of interest, saying the situation as it stood would cast doubt on the impartiality of the two sets of investigators. He is rightly concerned that Azam remains in office while the probes are under way.
Section 5 of the MACC Act states that the head of the MACC is responsible for the direction, control and supervision of all matters relating to the commission. More so when three senior officers have issued a statement offering their full support to their chief.
Gobind has therefore called on the attorney-general to state whether there was a conflict or likelihood that the investigations would be compromised or seen as compromised in such circumstances.
Perhaps the Attorney-General’s Chambers (AGC) should look at section 5(4) of the MACC Act. It states that the MACC chief commissioner “shall, during his term of office as such, be deemed to be a member of the general public service of the Federation for purposes of discipline.”
All officers and junior officers of the MACC are also members of the general public service of the federation.
The general public service of the Federation is listed as one the public services under the Federal Constitution – Article 132(1)(c). Article 132(2) then stipulates that the qualifications for appointment and conditions of service of persons in the public services – other than the public service of each state – may be regulated by federal law and, subject to the provisions of any such law, by the Yang di-Pertuan Agong (YDPA).
Now, in exercise of the powers conferred by Article 132(2), the YDPA has indeed made regulations called the Public Officers (Conduct and Discipline) Regulations 1993 – PU(A) 395/1993, which came into force December 15, 1993.
Public Service Commission (PSC), established under Article 139(1) of the constitution, has jurisdiction over the general public service of the federation. The PSC is the Disciplinary Authority defined under regulation no. 3 of Regulations 1993.
It looks like Regulations 1993 have been overlooked, particularly regulation no. 43 on “Interdiction for the purpose of investigation”.
Regulation no. 43(1) states that “if an officer is alleged or reasonably suspected of having committed a criminal offence or a serious disciplinary offence”, the Disciplinary Authority having the jurisdiction to impose a punishment of dismissal or reduction in rank on such officer may interdict the officer for a period not exceeding two months for the purpose of facilitating investigation against the officer.
“Criminal offence” is defined as any offence involving fraud or dishonesty or moral turpitude.
An officer who has been interdicted under the regulation is entitled to receive full emoluments during the period of his interdiction.
Simply put, an interdiction is an official instruction from the disciplinary authority telling an officer that he or she is to stay away from work during the notice period while still remaining on the payroll.
Perhaps the word is best described in Malay, which is “ditahan kerja”.
In layman terms, the officer is told to go on leave.
Clearly, the PSC is empowered under Regulation 1993 – made by the YDPA under authority of the highest law of the land – to put an officer of the general service of the federation on leave to facilitate an investigation against the officer.
The AGC should advise the PSC to refer to its power to interdict an officer. We hope to hear soon from the PSC. – January 17, 2022.
* Hafiz Hassan reads The Malaysian Insight.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.