THE recent call for the Public Services Commission to speak up regarding the controversy surrounding the Malaysian Anti-Corruption Commission chief commissioner for the purpose of standing him down while the matter is investigated on the grounds of regulation 43(1) as quoted (the writer quoted the wrong regulation – it should be regulation 45(1) – in The Malaysian Insight article) would not be appropriate and unreasonable for the following reasons:

The said regulation is reserved for facilitating the investigation of an officer alleged or is reasonably suspected of having committed any criminal offence under any written law or having committed a serious breach of discipline.

In the case of the MACC chief commissioner, this all blew up over unconfirmed and unverified allegations of impropriety with regard to share holdings in two companies.

It is important to keep in mind the following when it comes to being able to reasonably suspect the chief commissioner of having committed any crime or breach of any criminal law:

• The only crime or breach of criminal law possible is a breach of section 25 read with section 29A of the Security Industry Central Depositories Act 1991 – this carries a punishment of up to 10 years’ imprisonment;

• There is no evidence to suggest that a crime has been committed;

• It is perfectly legal in Malaysia to hold shares as a nominee with no beneficial interest for someone else (meaning that you are not the beneficial owner of the shares);

• The chief commissioner made it abundantly clear that he is a nominee holder of the shares with no beneficial interest in a press conference on January 5;

• A report was lodged with the police regarding the articles published alleging impropriety, stating that the article contained lies and the matter is currently under police investigation; and

• On January 12, the chief commissioner has filed a defamation case against the journalist for making unsubstantiated claims in the articles.

Now, if there were any truth to the articles or allegations, you can be sure of the following:

• That the evidence would have been published in the articles – yet, to date no such evidence was published;

• That the MACC senior officer and an RTD officer would not have filed a report with the police and instigate their involvement for fear of repercussions; and

• That the chief commissioner, a legally qualified and experienced investigator, would not have so boldly made such public admissions on the record about the share transactions.

It is clear that on the balance of probabilities, there is no evidence whatsoever to reasonably suspect the chief commissioner of committing any criminal offence.

Clearly, the chief commissioner is aware of how the share transactions took place and the procedures were correctly followed for a nominee holding – otherwise, he would not have been so comfortable telling the whole country of this in the press conference.

The Securities Commission (SC) has concluded its investigation into the transactions. It said based on evidence gathered, it was “not able to conclusively establish that a breach under section 25(4) of the Securities Industry (Central Depositories) Act 1991 has occurred”.

So given that there can be no reasonable suspicion of the chief commissioner having committed a criminal offence, should he really be stood down over what appears to be nothing but a defamatory claim made without basis? 

I don’t think so.

As for the allegation aspect, surely any claim must be reasonably certain of being true before standing someone down. 

A perfect example of this is someone from another country that has never set foot in Malaysia could claim a public servant assaulted them. It is a complete fabrication, but they could be stood down if we go by MACC Special Committee on Corruption chairman Rais Yatim and the writer’s call. This is ridiculous to say the least!

You cannot simply make baseless allegation against a high-ranking official and without any proper basis, ask him to go on leave. This sets a dangerous precedent and makes a mockery of the due process of the law.

The second issue raised in the Malaysian Insight article is the apparent “conflict of interest” in the chief commissioner investigating the SC. He simply failed to appreciate the role, powers and processes involved in such investigations.

If the chief commissioner was acting on his own and conducting the actual investigation and able to lay charges on his own, it may be possible. However, that is not the case. The following must be considered:

• There were allegations of wrongdoings against various SC officers. It is important to note that it was not instigated or initiated by the chief commissioner;

• It is the mandate of MACC to investigate such matters and it must carry out this mandate;

• The chief commissioner is not the person who will conduct the actual investigation. It is the investigative team that carries out this work;

• The chief commissioner has no power to demand charges to be laid where there is no evidence of wrongdoing; and

• All recommendations for charges to be laid must go to the attorney-general for his evaluation and final decision.

Given all of the above, any suspicion of a potential or apparent conflict of interest is negated by the processes involved. 

And the final issue alluded to in the Malaysian Insight article is the alleged “cross probing” of investigations between SC and MACC into each other. What a load of nonsense!

Neither entity can simply “start an investigation” without a report being made. In the case of SC investigating the MACC chief commissioner, we all know how this came about – it is due to the unfounded allegations published in the media as discussed above.

As the allegations involved trading in securities, SC is the one entity with the mandate to investigate such matters, however baseless.

The investigation of MACC into SC is not a “tit-for-tat” one. As mentioned, it is because it has received a report, and again, the entity with the mandate for investigating such allegations is MACC.

I am sure MACC will be attacked if it halts the investigation into the matter merely because its chief commissioner is being investigated by SC. It must carry out its mandate without fear or favour and cannot shirk its responsibilities.

Both investigations must be conducted for the public to have trust in the organisations in place. 

What must be remembered however, is that allegations must be proved for charges to be laid and that evidence is passed to the attorney-general for his evaluation and approval.

It is only as a result of the evidence being uncovered that you can have reasonable grounds to suspect that there have been breaches. Where there is no evidence, it is unreasonable suspicion.

We really have to think hard before making such dangerous and silly calls or statements as they have the tendency to mislead the public, create wrong perception and undermine public confidence in the officials and enforcement agencies. Do we really want that? – January 19, 2022.

* Kali reads The Malaysian Insight.