LETTER | A model for MACC to be independent, effective and respected

LETTER | It is curious that the MACC chief commissioner should say that it was not necessary for the MACC to be given the power to prosecute.

There are success stories out there of institutions with both powers of investigation and prosecution, one of which is the United Kingdom’s (UK) Serious Fraud Office (SFO).

Established under the Criminal Justice Act 1987, the SFO became operational in 1988. The act creates the SFO whose core purpose is the investigation and prosecution of serious and complex fraud, bribery and corruption.

The director of the SFO is empowered to investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud - Section 1(3).

The director is also empowered to (a) institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud, and (b) take over the conduct of any such proceedings at any stage - Section 1(4).

The SFO’s investigation and prosecution of cases are done by multi-disciplinary case teams of lawyers, investigators, forensic accountants, external counsel and other experts. This joint investigatory and prosecutorial case-team structure is known as the ‘Roskill’ model.

(See the SFO Annual Report and Accounts 2021-2022 here. Section 1(15) and Paragraph 3 of Schedule 1 to the Criminal Justice Act 1987 require the Annual Report to be to Parliament)

The ‘Roskill’ model is named after Lord Roskill, who was the chairperson of a committee set up in the 1980s to look at ways to improve the investigation and prosecution of complex fraud cases. Bribery and corruption are types of fraud, and the two very often go hand in hand.

The report recommended that investigators and prosecutors be brought together under one roof to get the benefits of both professions throughout the life of the investigation and prosecution.

The SFO is unique in that its officers are integrated into the investigation at the outset. It both investigates and prosecutes its cases. While the SFO is superintended by the UK attorney-general (AG), there is a protocol which sets out the relationship between the AG and the SFO and other officers in the Law Officers’ Departments in the UK.

The protocol may be viewed here.

Using the Roskill model, an anti-corruption agency (ACA) like the MACC too can be empowered to investigate and prosecute its cases, without having to take instructions from the Attorney-General. That’s what being independent is about.

The model has also been adopted by New Zealand whose Parliament passed the Serious Fraud Office Act in 1990 to establish an SFO of its own to be the lead law enforcement agency for investigating and prosecuting serious financial crimes.

The New Zealand SFO was established as a response to the fallout from the 1987 share market collapse and the ensuing economic recession in New Zealand, which exposed fraud on a scale not previously seen in the country. The SFO also works to prevent financial crime and corruption in the public sector by providing guidance and raising awareness.

According to its official website, public sector corruption is a type of case which is a high priority for the SFO. The country takes pride that its public sector’s corruption-free reputation delivers to the economy a competitive advantage, through business confidence, as the real and perceived cost of doing business here is lower than for many of our trading partners and competitors.

It is not surprising that the island country in the southwestern Pacific Ocean has always been ranked at or near the top of the Transparency International (TI) Corruption Perceptions Index (CPI), with its low levels of public sector corruption contributing much to the success. Last year, New Zealand was ranked joint first with Denmark and Finland with a score of 88/100 on the CPI.

On its 55th anniversary, the MACC chief commissioner Azam Baki said that the graft-busting body should emphasise prevention, enforcement and education as the high-impact focuses in its fight against corruption over the next five years.

Perhaps the MACC should also look at, and propose penambahbaikan (improvements) to, the legal framework within which it operates.

As Azam himself said, many things had to be looked into for the MACC to be feared and become a respected ACA. One of the many things is the successful model that the SFO in the UK and New Zealand offers by adopting the Roskill model that is respected internationally.

If New Zealand’s bill to outlaw the sale of tobacco products to anyone born from 2009 onwards has inspired our own Generational End Game bill - the Tobacco and Smoking Control Bill 2022 - why not its SFO?

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.