TRANSPARENCY International Malaysia (TI-M) is concerned over the growing use of compounds, settlements and charge withdrawals in corruption-related cases, saying it may normalise a "pay-to-settle" culture.
This is one argument, though not one to be easily dismissed. The other argument, which is, as some argue, that corruption cases can drag on for years through the courts.
To them, a negotiated settlement may allow the government to recover stolen assets or illicit gains much more quickly, rather than waiting for a final judgment.
This argument, too, is not one that can easily be dismissed either. The fear of normalising a "pay-to-settle" culture is real, but it is not what the debate is all about. The real debate is probably not whether settlements should exist, but when they should be used.
TI-M's concern is over accountability, not the use of compounds and other discretionary mechanisms as these are recognised by Malaysian law.
Malaysians generally share a similar concern. Like TI-M, they feel too much reliance on discretionary mechanisms may eventually erode trust in anti-corruption institutions.
It begins with the perception that the law is not being applied equally, meaning people are beginning to feel that some are subjected to judicial scrutiny while others are not. No nation, especially one where corruption has become endemic, can afford to allow this to happen.
Let's not forget Malaysia's goal of being ranked among the top 25 countries in Transparency International's Corruption Perception Index by 2033. The key is transparency.
Malaysians know the Federal Constitution by virtue of Article 145(3) provides that the attorney-general has the power, "exercisable at his discretion", to institute, conduct or discontinue criminal proceedings.
But what they don't know is how this broad discretion is exercised. While "at his discretion" implies personal judgment, it cannot be exercised arbitrarily.
In May, the Court of Appeal ruled that the A-G's prosecutorial discretion can be reviewed by the courts in exceptional cases. Interestingly, the three-member appellate bench said the A-G's powers under Article 145(3) of the Constitution were broad, but not absolute or beyond judicial scrutiny.
A previous Federal Court ruling had also rejected the notion that constitutional discretion was beyond judicial scrutiny.
One way is to show that those tasked with discretion in criminal matters are exercising it lawfully and rationally, as the Court of Appeal has ruled. For these to be meaningfully carried out, there must be clear guidelines when settlement, withdrawal or compounds are appropriate. These must be published.
Where withdrawal or settlement of corruption cases takes place, the discretion holder must be required to provide detailed public explanations.
Further, settlements must be accompanied by admissions of wrongdoing, full asset recovery and independent oversight. It is not that Malaysians are against settlements, but what they are against is the secrecy that shrouds them.
Malaysians may accept negotiated outcomes if they are convinced the process is transparent, consistent and not influenced by status or political connections. The greater danger is not the mechanism itself, but the perception that justice is negotiable. - NST
