Sunday, May 22, 2022

Did PSC exceed its powers in calling Azam?

Based on its terms of reference, the PSC cannot act in its own capacity except with the reference of the Dewan Rakyat or minister.

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The recent allegations made against the chief commissioner of the Malaysian Anti-Corruption Commission (MACC) and the resulting defamation suit filed by him has certainly captured the interest of the public, including myself.

This is due in no small part to the investigation announced by the Parliamentary Select Committee on Agencies under the Prime Minister’s Department.

I also read with speechless curiosity and utter disbelief of the way many interpreted the call by the committee to have the chief commissioner face the committee.

Lim Kit Siang, for example, said Azam Baki could be jailed for contempt of Parliament if he defied the notice to appear before the PSC.

The question here is whether the PSC issued a subpoena or an invitation to Azam. Has anyone seen the letter from PSC to Azam?

If it is an invitation, then the invitee is not compelled to attend.

The PSC was established under Order 76(1) and Order 81(1) of the Dewan Rakyat Standing Orders.

On Nov 11, 2020, Parliament passed a motion to establish 9 PSCs: the PSCs on Finance and Economy; Security; Agencies under the Prime Minister’s Department; Agriculture and Domestic Trade; Infrastructure Development; Education; Health, Science and Innovation; Women and Children Affairs, and Social Development.

The powers of the PSC are detailed in the Houses of Parliament (Privileges and Powers) Act 1952 (Act 347).

Under Order 83(2) of the standing orders, a PSC shall have the power to send persons, documents or papers and shall have leave to report its opinion and observations, together with the minutes of evidence taken before it to the House.

In short, every PSC shall have the authority to call individuals to have their statements taken, or to gather opinions and views on matters related to the field stated in the respective PSC’s terms of reference.

Subsequently, inquiry reports prepared by the PSC will be tabled in the Dewan Rakyat which are then debated in accordance with Standing Order 86(1).

Based on the terms of reference, it is clear that the PSC cannot act in its own capacity except with the reference of the Dewan Rakyat or minister through a motion, petition, report and document affecting the affairs of Sabah/Sarawak, Parliament, law or religion under the Prime Minister’s Department.

Questions remain. Firstly, has the PSC received any referral from the Dewan Rakyat or minister? Second, does the PSC have the authority to investigate matters related to the chief commissioner?

In the case of Azam, the purchase of shares is now the subject of investigation by the Securities Commission (SC). One needs to wait for the conclusion of the SC’s findings on the matter.

Another question that needs to be asked and which the PSC should clarify is on the terms of reference of the committee. Can the chief commissioner choose not to attend the proceedings of the PSC as it may have exceeded the powers conferred on it by the terms of reference for it was established in the first place?

It is also noteworthy to highlight that the current situation of the PSC investigating the chief commissioner of the MACC may not have been commenced lawfully, in that it is highly doubtful and suspect if a referral was made by the House to the PSC to investigate. This is a necessary requirement of Order 83(4) of the Standing Orders.

If no such referral from the House was made, then the PSC’s investigation into Azam is unlawful and must stop, and should only commence following the correct procedures.

These knee-jerk reactions stemming from articles that were published before verification are reckless and dangerous to say the least.

A journalist must verify any allegations before going to print, and the procedures to investigate must be followed correctly. Failure to do so is highly likely to result in a miscarriage of justice and will have the effect of tarnishing the good standing of not only high-ranking public officials and the organisations they lead, but also any person including civil servants.

For all we may know, the only offence that the chief commissioner committed may not be an offence at all.

Kassim Noor Mohamed is a criminologist based in the UK.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.

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