Written by: Averroes
(1.0) Introduction
Ladies and Gentlemen, recently there has been talks and recommendations that the Malaysian Anti-Corruption Commission Act 2009 (MACC) should be amended, while there are also been meticulous confabulations among stakeholders that there should be a Asset Declaration Act or Bill.
Transparency International Malaysia President, Muhammad Mohan advocates that there should be accountability for elected representatives to declare their assets, income and relevant financial information to be recorded into public registries. This registry would then be accessible to the public and updated regularly.
Similarly, the Centre to Combat Corruption & Cronyism (C4 Centre) echoes the same sentiments for a obligatory declaration of assets law, to prevent inundation and the abuse of power as well as to probe into illicit enrichment of representatives.
Many trials had been ongoing which have witnessed the plundering and exploitation of the country's money, stolen from the rakyat. C4 even in collaboration with the Malaysian Bar devised a legal framework document for a proposed Asset Declaration Bill and alluded four recommendations.
This insinuates that this proposed statute could obligate members of parliament or senates to disclose all of their assets to ensure transparency and integrity, as they are the ones carrying the mandate of the people and responsible to forge a better Malaysia and her rakyat.
Needless to say, we do not have a law or statute specifically for that purpose. However, what may be shocking for many is that, there is this one provision or law that may be instituted against those, who do not disclose their assets.
(1.1) MACC or SPRM and international recognition
Malaysia ought to follow her neighbours such as Indonesia and Thailand whom are already way advanced in their legislations pertaining to asset declaration.
SPRM through their development and progression received recognition from international organisations, such as South East Asia Parties Against Corruption, the United Nations Convention against Corruption and the International Crime Police Organisation.
Furthermore, the United Nations Office on Drugs and Crime which they evaluate checks and balance mechanisms in exercising duties for an independent, transparent and professional conduct also recognised SPRM.
(2.0) The Relevant Laws
(2.1) Parliamentary Motion
Back in 2019, the Dewan Rakyat unanimously agreed to a motion whereby, it is compulsory for all MPs to declare their assets to the Speaker of the Dewan Rakyat. Also, a copy of the declaration has to be submitted to SPRM.
Afterwards, the MACC would display the disclosed asset on the Asset Declaration Portal within three months after it is declared. If the MPs refuse, then they may be suspended from Parliament and lose their income, wages or remunerations.
This is proven when in Yang Dipertua, Dewan Rakyat & Ors v Gobind Singh Deo [2014] 6 MLJ 812, section 9 of the Houses of Parliament (Privileges and Powers) Act 1952 provides for acts amounting to 'Contempt of the House', together with power to punish offenders.
Therefore, if Parliament decides to punish the MPs, courts do not have jurisdiction to interfere. Contempt of House depends on the facts and circumstances of the case;
"Contempt of the House is proven as to whether any act or omission, which obstructs or impedes either House of Parliament in the performance of its function, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as contempt of the House..."
A MP may be suspended if he does not adhere to disclose or declare his assets, income or other properties when he is required do so in Parliament and may be suspended, which may take up to months, depending on the discretion of the Speaker of Dewan Rakyat.
In our current impasse and connecting with the Gobind Singh case, the respondent was suspended for 12 months when he in the capacity as the Puchong MP made disparaging remarks against the Deputy Prime Minister being implicated for murder.
Not just that, he also derided that Deputy Speaker of Dewan Rakyat to leave. Subsequently, the respondent was removed as under Order 27(3) of the Standing Orders of the Dewan Rakyat and committed 'Contempt of the House'. This came effective through the resolution and affirmed by the Setiausaha Dewan Rakyat.
However, if the MP does not want to disclose his assets still, depriving him of allowances, remuneration or wages is not allowed as a punishment for 'Contempt of Court' as article 64 of the Federal Constitution guarantees that MPs are entitled to it. The Federal Constitution and its provisions are outside the jurisdiction of Parliament.
If not, it is difficult for any MP to sustain themselves and it is against public policy and the Constitution itself, as demonstrated in Datuk Ong Kee Hui v Sinyium Anak Mutit [1983] 1 MLJ 36.
(2.1.1) Statistics
According to MACC Deputy Chief Commissioner (Prevention) Datuk Seri Shamshun Baharin Mohd Jamil (Shamsun Baharin), as of July 6th 2021, only 97 members of administration, 198MPs and 39 senators have declared their assets. 6 members of administration, 22 MPS and 26 senators have not.
Muhammad Mohan also states that, the online Asset Declaration Portal only contains income and net assets of only 57 out of 70 Cabinet members, which stunningly does not comprise of important figure heads, such as key ministers and deputies. The website does not even mention lawmakers in organisations outside the State and Federal Government.
(2.2) Section 36 of MACC
This is the provision that we all have been waiting for. According to Shamsun Baharin, since there is no distinctive law for MPs to disclose their assets, MACC or SPRM (Malay acronym) may still conduct investigations.
This basis is supported based on section 36 of the MACC, in which "Investigations are only conducted on individuals who are seen leading extravagant lifestyles beyond their income level."
However, section 36 is only a procedural law and not a substantive or offence provision per se. If a person were to suddenly live excessively too expensive, or suddenly becomes a multi-millionaire over night (which is really weird and illogical), that can be used as circumstantial evidence to prove any of the offences under sections 16 to 28 of the MACC.
So, those flexing their sports cars or raining money in the sky, or showing some of their fortnight dance skills, we have been warned. Malaysians are known to be hardcore toxic media social users and may make a posting go viral in matter of seconds. People will begin to question and suspicions will arise as to how we manage to accumulate that much wealth which does not reflect our social background and financial background.
(3.0) Conclusion
To conclude, be careful if we post any pictures on social media because as humans, definitely we are going to receive some backlash, haters and controversies. Most of the MPs who did not disclose their assets were from the previous opposition before the Sheraton Move.
The PAS President, Abdul Hadi Awang and Ismail Sabri Yaakob from UMNO said that there is no written law or nothing in the Federal Constitution states that MPs are obligated to declare their assets.
Taking into consideration of the motions and resolutions of parliament, as well as section 36 of the MACC, we may still invoke this to take those onerously responsible. Also, Malaysia should one day pass an Asset Declaration Bill to mitigate the lethal impacts of corruption and despotic abuse of power in Malaysia and restore harmony and balance for our beloved country.
(4.0) References;
Bernama (July, 2021) MACC recommends Act for mandatory declaration of assets. Retrieved from, https://www.nst.com.my/news/nation/2021/07/707999/macc-recommends-act-mandatory-declaration-assets
FMT Reporters (July, 2021) Asset declaration law needed for greater transparency, says TI-M. https://www.freemalaysiatoday.com/category/nation/2021/07/19/asset-declaration-law-needed-for-greater-transparency-says-ti-m/
Malay Mail (July, 2021) Mandatory Declaration of Assets Act needed now! — C4 Centre. Retrieved from, https://www.malaymail.com/news/what-you-think/2021/07/14/mandatory-declaration-of-assets-act-needed-now-c4-centre/1989908
Chung, N. (December, 2019) Opposition MPs defend decision not to declare assets. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2019/12/06/opposition-mps-defend-decision-not-to-declare-assets/
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