There has been much confusion over who ought to investigate the corruption allegation that has engulfed the MACC’s Chief Commissioner, Tan Sri Dato’ Sri Haji Azam bin Baki over alleged improper share trading / ownership between 2015 and 2016 involving millions of shares in two public companies.
The Anti-Corruption Advisory Board Chairperson (ACAB), Tan Sri Abu Zahar Ujang was first off the blocks to exonerate Azam Baki of any wrongdoing. Quite apart from the rest of the board members distancing themselves from his statement, Abu Zahar must have overlooked that he (or the ACAB) is not empowered under section 13 of the Malaysian Anti-Corruption Commission Act 2009 (MACCA) to investigate corruption allegations, let alone exonerate anyone.
Note however that MACC’s investigating officers (IO) are empowered under section 29 of the MACCA to investigate corruption allegations. But it would make no sense for this to happen given the embarrassing state of conflict the IO would find him/herself in having to investigate his/her own boss – the same man who would decide on his /her promotion, increment, postings, etc. Bad idea.
Next, the Securities Commission (SC) appears to have commenced investigation. Yes, they can. What is important to note here though is that SC is not investigating Azam Baki for a corruption offence. Instead, SC is investigating offences under sections 25 and 29A of the Securities Industry (Central Depositories) Act 1991 which are offences concerning the use of Azam Baki’s securities account by his brother to trade in the shares.
What about the Police? Well, according to Home Minister Datuk Seri Hamzah Zainuddin, police investigation has recently commenced. And rightfully so because the Police is empowered under Chapter IX of the Penal Code to investigate corruption offences involving a public servant.
If the investigation by the SC or the Police uncovers evidence of wrongdoing, these agencies can exercise enforcement powers provided under the law against Azam Baki. This is the crucial difference when considering the other entities below.
There have also been loud calls for a Royal Commission of Inquiry (RCI) and the Parliament Select Committee (PSC) to jump on the investigation bandwagon. While these entities legally can investigate Azam Baki, they do not possess any enforcement powers. At most, they can only make recommendations for action after which other enforcement agencies (like the Police / SC) would still have to conduct their own investigations. Clearly, this circuitous route is a waste of time and public funds.
Some have called on the Prime Minister Datuk Seri Ismail Sabri Yaakob to put on the investigation hat as well. This is ludicrous. The PM himself has no investigation or enforcement powers. However, the PM has the power, influence, and leadership impetus to direct enforcement agencies, like the Police, to conduct the investigation. In that respect, the PM has called on all quarters to allow the authorities to complete the investigation.
Finally, should the Yang di-Pertuan Agong (YDPA) investigate Azam Baki given that the MACC Chief is appointed by the YDPA under section 5 of the MACCA? Certainly not. Enforcement agencies in Malaysia are statutorily created to act in the name of the YDPA, under the leadership of the PM. Thus, it would be unnecessary for the palace to commence any investigation against Azam Baki. The YDPA can of course be guided by the outcome of these investigations, as well obtain the advice of the PM to determine if Azam Baki should keep his job.
About the Author
Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. He is passionate about the law and finds pleasure in recognizing the application of law in everyday situations.
