AG’s report: Charge the culprits for CBT — Ravinder Singh

NOV 10 — To tackle the problem of “stupid” people in the public service who have been enriching certain people with their not so stupid purchases of laptops for RM40,000.00 a piece and wall clocks for RM3,800.00 a piece, the MACC has proposed that Integrity Management Units be set up in each ministry to help the MACC prevent corruption. Is it not the duty of each and every head of department to ensure their own integrity and that of all others below them?

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Sorry to say so, but this whole idea looks stupid. The best way to deal with stupid people is to educate them using the most effective means of doing so. In this case, the educational process has to take the form of ENFORCEMENT. If stupid people begin to be charged for CBT, you will see how fast they change without the need for any Integrity Management Units.

The Auditor General has already done most of the job. He has identified the stupid things that were done. The MACC and the commercial crime police should take it to the next stage of tying up any loose ends and filing appropriate court cases.  For the MACC to declare that stupidity is not a crime and no action can be taken against anyone for being stupid, itself looks stupid. Civil servants in charge of government procurement are bound by rules and regulations.

The introduction to a directive from the Government Procurement Division of the Ministry of Finance on Malaysia’s Government Procurement Regime states:

“The prime objective of the Malaysian Government procurement is to support Government programmes by obtaining value for money through acquisition of works, supplies and services. To meet this objective close attention is given to price factors as well as nonprice factors such as whole life cost, quality, quantity, timeliness, maintenance and warranty. The benefits or value from procurement should commensurate with the costs involved and that the best procurement is well and thoroughly evaluated, reasoned and justified. In this context, the Malaysian Government procurement is based on the following policies, principles, objectives and procedures.”

One of those principles is “fair market prices”. This puts responsibility on those responsible for government procurement to educate themselves about fair prices of the goods they are purchasing, e.g. is RM40,000.00 a fair market price for a laptop, or RM3,800.00 a fair market price for a wall clock?

There are provisions in the Penal Code for Criminal Breach of Trust (CBT):

Sec. 405: Criminal breach of trust

“Whoever, being in any manner entrusted with property, or with any dominion over property either solely or jointly with any other person dishonestly misappropriates, or converts to his own use, that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.

Sec. 409: Criminal breach of trust by public servant or agent

“Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which shall not be less than two years and not more than twenty years and with whipping, and shall also be liable to fine.

Sec. 409A: Defence not available

It is no defence for any offence prescribed in sections 403, 404, 405, 406, 407, 408 and 409 to show that the property was openly appropriated or that the appropriation was duly recorded and entered in the books and accounts of any company or association or body of persons whether incorporated or not.

Sec. 409B (1): Presumption

Where in any proceedings it is proved ... [list of offences including the above], it shall be presumed that he had acted dishonestly until the contrary is proved.  So why is it not criminal breach of trust for public servants to purchase laptops at RM40,000 a piece, wall clocks at RM3,800 each and make a myriad other purchases at prices that are inflated from tens to hundreds of times?

Under these sections what has to be proved is that there was an abuse of the trust placed in the person(s) concerned, or failure to comply with the direction of law. Do the regulations about making purchases only say that the lowest tender must be accepted regardless of the prices quoted as compared to the market prices? I don’t think so. The Auditor General should clarify this.

When public money is put at the disposal of public servants for them to make purchases for their respective departments, is there no element of “trust” that such money must be used honestly?

Do the rules and regulations pertaining to the use of public funds for purchases not amount to a “direction of law prescribing the mode in which such trust is to be discharged”?  When the purchasing officers sign Local Orders for the purchases, are they not “entering into legal contracts, express or implied, touching the discharge of such trust”?  The Attorney General, on whom the burden falls for charging people with CBT should explain why the purchasing of goods and services by civil servants at prices from tens to hundreds of times higher than the market prices does not fall within the ambit of the offence of CBT.

If there is a duty of care on the civil servants to ensure that tender prices are competitive as compared to market prices, and this was not done, then a wrongdoing should be proven, i.e. non-compliance with the direction of law. If this is proven there is no need to prove it was done with dishonesty as this is now presumed. Let the accused prove his honesty or “stupidity and carelessness”.

Or is reluctance to prosecute because the Penal Code on CBT offenders is too harsh for civil servants (who are said to be the ruling party’s vote bank), as it provides for imprisonment of not less than two years and not more than twenty years, whipping and also liability to a fine? Therefore “tak sampai hati” (no heart to) to send the offenders to prison as they have families and children to take care of! And therefore again, the government must take care of their rice bowls for them. So, find an excuse to let them off the hook - they are stupid and stupidity is not a crime!

** This is the personal opinion of the writer or organisation and does not necessarily represent the views of The Malay Mail Online.