Misconduct in public office: What more can we do? — Akhbar Satar

FEBRUARY 22 — In 2017, the former Hong Kong chief executive Donald Tsang, 73, the highest-ranking ex-official to be charged in the city’s history, was jailed for 20 months for misconduct in public office. In Hong Kong the common law offence of Misconduct in Public Service is a key weapon in fighting against corruption. He had accepted a tycoon’s favour of a free redecoration of his Shenzhen penthouse which cost HK&3.35 million paid by a company. The maximum penalty for this offence is 7 years.

In Hong Kong Misconduct in Public Office involves an allegation that a public servant has wilfully neglected to perform his duty or otherwise has done something wrong in the conduct of his official duties. This will justify disciplinary action taken against such a person by the employer, the government or a public authority.

In Malaysia, the key legislative change in the fight against corruption in or by the private sector is the recent insertion of the new Section 17A in the Malaysia Anti Corruption Commission Act 2009 (which comes into force in June 2020), which imposes criminal liability on commercial organisations for their failure to prevent corruption.

Following from this something more should also be done to deter ‘any person’ which include corrupt government servants and politicians from corruption such as to introduce Misconduct of Public Office provision in the MACC Act 2009 to address misconduct which results in financial losses of tax payers’ money, as practiced by the Hong Kong government.

The proposed provision would help to check cases when the government incurred losses due to negligence, to cause negligence, non-compliance with requirements or procedures in government departments and agencies. The offence of misconduct in Public Office provision is an important prosecutorial asset to allow prosecution of offences which is an alternative to the other existing laws to prosecute them for misconduct and hold them responsible for the losses to public coffers they might have caused.

The country need this provision for both punitive and deterrence purposes.

Any such proposed provision should fairly apply to “everyone” involved in the decision making process and that includes politicians.

Some public servants, ministers and politicians are vulnerable to corruption due to power, opportunity, pressure and rationalisation factors. The public sector needs to be aware of these risks and should consider strengthening the existing internal control policies and best practice in place to address these problems.

Very often the corrupt politicians and the public servants are actually pawns in a game being played by the bigger fish. In those cases, such persons should also be brought to book especially if they are the mastermind in the whole corrupt transaction.

It is quite common in some instances where orders or instructions come from corrupt politicians or persons in elected positions. For the offence of Misconduct in Public Office provision to be prosecuted, including politicians and public servants, who make bad decisions or a degree as to amount to an abuse of the public’s trust in his office, without having a reasonable excuse or justification that cause the government to lose its funds will be held accountable for their poor decision-making.

Such development in the law will reduce the exposure of those holding public office to corruption and abuse of power as they will be afraid of the consequences. The plan is to hold both public servants and politicians accountable and share the blame for bad decisions that could cause loss of government funds. They should also be held liable if proven to be involved in malpractices or wrong doings or corrupt practices.

The MACC has been reported saying that each year, the Auditor-General’s Report revealed a litany of malpractices among government departments and agencies, some of which were outrageous, for which those public servants responsible should be charged with criminal offences instead of facing merely disciplinary action under the domestic rules applicable to public servants.

Datuk Sri Azam Baki, the Deputy Chief MACC stated that often public servants responsible for causing financial losses had taken orders from their higher-ups including politicians. However, when these public servants run into trouble their bosses who gave the orders to the expenditure in question are often nowhere to be seen, leaving them to fend for themselves. Such public servants are torn between doing the right thing and taking orders from their superiors.

It is a lesson to a public servant on accountability and impetus to carry out his duties with responsibility and integrity. Being a public servant, even though nobody can prevent politicians from trying to interfere, but he or she can exercise his or her right of ignoring them, especially when the request is not in accordance with the law.

A few years ago, the former Auditor General Ambrin Buang himself stated that giving oral warnings to erring public servants is not sufficient. In the absence of the culture of accountability, no one will bear the responsibility or feel embarrassed by their wrongdoings while corruption would get further aggravated.

At the moment even the guilty is not punished and escaped punishment or disciplinary actions.

The World Bank estimated that 20-30 per cent of budget for public contracts is wasted. This finding matches what Tan Sri Ambrin Buang, the former auditor-general predicted i.e. that up to 30 percent of Malaysia’s public projects’ value was lost owing to mismanagement and corruption. Consider the amount of savings the government would have obtained if it paid 30 percent less for goods and services the contractors and vendors provide.

The new measures proposed by MACC and hopes that the Government will also fully support the same by effecting the necessary changes in the law. There are enough compelling reasons as to why this should be done with minimum delay and ensure that we plug these existing loopholes in our anti-corruption laws.

Public servants will discharge their duties more effectively where the environment in which they operate has clear and robust internal accountability arrangements and a strong culture of personal and organisational integrity.

All employees have to report misconduct and not to turn blind eye to unacceptable behaviour. It is an offence if any person who knows and fails to report an act of giving and offering of bribes under Section 25 (1) and (2) of the MACC Act 2009. Section 25 (1) and (2) of the MACC Act 2009 impose a fine not exceeding one hundred thousand ringgits; and/or imprisonment not exceeding 10 years or to both. Any person who knows and fails to report an act of soliciting and obtaining of bribes is committing an offence under Section 25 (3) and (4) of the MACC Act 2009 Section 25 (3) and (4) of the MACC Act 2009 which carry fine not exceeding ten thousand ringgits; and / or imprisonment not exceeding 2 years or to both

There are ‘consequences’ which they may face if they refuse to act accordingly and then there are also consequences they face when they are caught. Obviously, as public servants they are concerned about their future and livelihood. Sometimes one wonders whether bribery is actually extortion on those who actually did not want to participate in such immoral acts.

Hence, the law should get to the root of the case and nail both the master and the executor. It is only fair that those who had ordered such expenditure to be held responsible and face the consequences too. All such loopholes should be plugged when framing the law on this.

It is high time we deal with corruption at all levels and in every sector. It has to be dealt with holistically and we need to do it fast, before corruption takes even deeper root in our society.

*Datuk Seri Akhbar Satar holds HELP University’s Institute of Crime & Criminology Professorial Chair and is President of Malaysia Association of Certified Fraud Examiners.

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

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