The Essentials Against Graft

Dealing with the ICAC is an appreciation and honour that is not found in my own country who is only good at talking and planning. So I am happy to share this with you.
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For a solid strategy to wipe out corruption, enforcement must work in tandem with prevention and education. That’s the experience the Hong Kong ICAC is sharing with the world.

WHEN its Independent Commission Against Corruption (ICAC) was set up in 1974, Hong Kong was said to be a sump of corruption. In just three years, it had smashed all the corruption syndicates in the government and prosecuted 247 civil servants, including 143 police officers.

"Anonymous reports we want. We don’t mind the motive. We get some of our best information from the discarded mistress" BERTRAND DE SPEVILLE
But for many years, 90% of investigations that were initiated did not end up in court, said Bertrand de Speville, who served as the ICAC commissioner from Feb 22, 1992, to Jan 21, 1996.

In Malaysia, public perception is that the Malaysian Anti-Corruption Commission (MACC) is not doing very well and many are thinking the only way to kill corruption is through government reform. However, de Speville believes this to be “a gross fallacy”.

He was in Malaysia for the launch of his book titled Overcoming Corruption, The Essentials (in English and Bahasa Malaysia) by the not-for-profit think-tank Research for Social Advancement last month.

The book has also been translated into several European languages as well as Arabic and Pashto (spoken primarily by the Pashtuns in Afghanistan).

While he was here, the MACC took the opportunity to share his experience and that of the ICAC’s in tackling corruption.

In an exclusive interview with Sunday Star, de Speville spelled out the clear difference between government reform and anti-corruption measures, and the importance of community support.

He pointed out that the media focused mostly on the enforcement aspect of anti-corruption and not on the prevention and education elements. These are equally important, he said.

He also talked about the importance of accepting anonymous reports; why the MACC should not prosecute; and why it should be allowed to investigate other crimes as well.

Challenging the prevalent opinion of most international donors that the way to “snuff out” corruption is by government reform, he said: “It is a gross fallacy. Any such reform that you try to put in will be promptly undermined by the existing corruption. It will fail to take root.”

While agreeing that many countries need governance reform, he said it was crucial to focus on the fight against corruption also, as in the ICAC model, because they were two different things.

The former British barrister who went to Hong Kong in 1981 as legal adviser to the government there said 15 years of international donor interventions had made virtually no progress against corruption worldwide.

Without mincing his words, he said: “The World Bank’s economists and political scientists had little to show for their experiments except a huge industry dedicated to churning out expert opinions.”

Governance, he stressed, is about running things. “Anti-corruption is about upholding a value, one we all share, a value like all our important values that we find in our criminal law, a value that says bribery is wrong.”

de Speville acknowledged, however, that prevention work (where one is looking at a system for awarding multi-million dollar contracts, which involves looking for opportunities for corruption and eliminating them as far as one can) and government reform could look very similar.

He emphasised that if Malaysia did not keep the conceptual difference in mind, Malaysians would “fall into the trap of thinking you can cure corruption by government reform, and the anti-corruption body would get saddled with all sorts of things which are not its area of work”.

He has seen several such examples, said de Speville, who set up a consultancy in Britain that advises corporations, governments and international bilateral donor agencies on corruption risks.

“And then they wonder why they are not succeeding in their fight against corruption. That is crazy!”

de Speville said Hong Kong and the world had found to their cost in the 20th century that enforcement (investigation, prosecution, and sentencing) must work in tandem with prevention (eliminating opportunities for corruption) and education (changing public attitude to corruption).

The three, he stressed, are inter-dependent and the success of one enhanced the other two, as Hong Kong had discovered.

Although all are equally important, it was difficult for many to accept it at first, even the media, he said. “(News about) the other two branches don’t sell newspapers. It’s the enforcement side that sells newspapers because people look there to see whether the anti-corruption body is making any headway or not.”

While many in Malaysia have been pushing for the MACC to decide on prosecutions, de Speville does not believe it is the right thing to do. “Prosecution should be carried out by the prosecution authorities.”

No matter how serious the problem, he said, “We maintain our basic criminal justice principles, one which says investigators investigate, prosecutors prosecute, and judges try, convict and sentence.”

de Speville added that it was the Attorney-General’s constitutional role to decide whether to prosecute. “It’s not the constitutional role of the MACC. If there is an allegation that decisions are being wrongly made by anybody, that is a corruption matter and should be looked into by the anti-corruption body with a view to prosecution, and justice should take its course.”

Touching on the investigation policy of an anti-corruption body, he cited five reasons why it must investigate all allegations, small or big.

While it could appear small, like the end of a ball of wool when tugged at, it could get bigger and bigger, he explained.

And if the body dismissed the person who’s picked up the courage to report it, warned de Speville, he and his friends would never return even if they had something important to reveal later.

As a result, he said, the public would perceive that the body only investigated certain cases.

It is important that the MACC commissioner and officers constantly explain and emphasise what their investigation policy is and their reasons for it, he added.

“People are not stupid. Sooner of later, the message comes through and they understand why we do so,” he said, adding that an independently commissioned survey every year showed public support to be running at 98% to 99% for the ICAC, which practises this policy.

Asked whether an anti-corruption body should only investigate offences prescribed under the anti-corruption law, he replied: “No. It must have the mandate to investigate other criminalities like fraud (an offence under the Penal Code) in order to get at the suspected corruption.”

He urged people to come forward and not be afraid, and cited an example in Hong Kong where the ICAC employed a common sense approach to the requirement that a report must be made before investigations commence.

“Sometimes, we see a story in the newspaper and call up the editor and ask to interview the reporter. Sometimes we are told, ‘Sorry, no way. We’d like to help but we have to protect our reporters and our source of information.’ We respect that you can’t be persuaded as good citizens to tell us what is going on because of your professional ethics. So what do we do?

“The officer will now make a report to the report centre. What he says will be recorded, together with the article, and it goes into standard operating procedure for dealing with complaints that come into the office.

“That’s the same as a member of the public coming to us and telling us what he knows or suspects.”

Once it is recorded in the system, the senior management will look at it and decide on further action.

“If it’s a matter for the police or social welfare or marriage counsellor, we refer to the relevant agency,” said de Speville.

Yes, he said, smiling.

“People come to complain to us all the time about their marriages. We don’t discourage that. We regard it as a mark of trust in us. It’s a compliment.”

“People could call the ICAC 24 hours,” he added.

“You don’t have to identify yourself. We deal with anonymous reports; you get very valuable information that way.”

When the ICAC started out, he said, 70% of the reports were anonymous and only 30% were identified. And it’s taken 36 years for the proportions to switch around.

“Anonymous reports we want. We don’t mind the motive. We get some of our best information from the discarded mistress,” he said, chuckling quietly.

Under the ICAC law, it is an offence to lodge false reports.

“But you have to be very careful about using that provision because you can see what effect it has on the rest of the community. You would only prosecute that very rarely and only in the grossest case.”

If investigations do not end up in court, the community needs to be satisfied that they have been thoroughly looked at, he said.

“This is where that Investigations Review Panel that you’ve started here has an important role to play,” he stated, explaining that the panel can either agree with the recommendations of the officers or ask that the matter be looked at further.

“And you have to preserve confidentiality if it’s not going to court.”