Could the law prevent accountability in the TH fiasco?

 Existing laws give ministers unlimited powers and make proving ill-intent difficult.

“Let the games begin,” cries the emperor as the gladiators, dressed to the hilt in their suits of armour, descend to the arena watched by an expectant bloodthirsty citizenry out to cheer at the first spilling of blood as gladiators face their adversaries.

Such massive public spectacles were held at the Colosseum as a grand display of Roman splendour.

In Malaysia, we have none of this but the recent release of the royal commission of inquiry (RCI) report on Tabung Haji (TH) has raised the ire of some with calls for “heads to roll”. It is fair game in the interests of governance and integrity.

The word “sakau”, roughly translated as embezzlement, has entered the discourse. This adds a completely different dimension, and some quarters have challenged this inference, demanding “show me where is the sakau”.

A young MP, who has had a torrid time facing the judiciary, on various criminal charges and who was vindicated recently, literally by the skin of his teeth on a two-to-one majority Federal Court decision, has rightly focused on “accountability”.

Unfortunately, accountability to the rakyat is not always in the vocabulary of certain political leaders as party loyalties and settling old scores take precedence.

To be fair, much remedial work has been undertaken by TH since 2018, and proper governance frameworks have been put in place to make the institution stronger.

The “strategy” to release this report after a four-year hiatus just prior to a recent state poll, appears not to have had any effect. If there was a hidden agenda; which is vehemently denied, it has not been fruitful given the results.

Back to the RCI. According to the declassified report, apparently four police reports were lodged and six matters referred to the Malaysian Anti-Corruption Commission (MACC) over allegations including misrepresentation, concealment of information, corruption, abuse of power, forgery and manipulation of investment reports.

However, the reports failed to yield court charges from the Attorney-General’s Chambers. This was prior to the release of the now declassified RCI report.

Now why was this so? Were the investigation papers not detailed enough to level charges or alternatively, in essence, possibly there was no case that could withstand judicial scrutiny.

Nonetheless, it should be noted that there were internal investigations within TH with unverified “punishments” centred on demotions and “severe warnings”.

The question is, why are we so hot under the collar now given that the report has been declassified?

Since the report’s declassification, it appears that both these investigators have been given an adrenalin booster jab with an intended effect, hopefully, to get them started again on investigations.

MACC has assembled, ala Mission Impossible style, a special task force/team to investigate. This, after the horses have bolted. It is superfluous. Surely the archives of the MACC will bare all.

At the core is the Tabung Haji Act 1995 which gives unparalleled authority and free rein to the minister in charge of the entity under his purview. This is true of TH and more recently, of another institution which was in the limelight for the wrong reasons: HRD Corporation.

This authority includes appointing, reshuffling and if required terminating the services of board members and by default the senior management, including and not limited to the CEO, if they did not dance to the piper’s tune.

The investigators will hit a brick wall given that the respective Act grants authority to the minister. Hence, charging someone with “abuse of power”, as provided for in Section 23 of the MACC Act, presents an uphill battle through the judicial pathway.

It takes even more to prove it in a court of law. This is reality.

Case in point, the RCI found that the minister invoked Section 6(5) of the Tabung Haji Act to terminate the appointments of then TH chairman Md Nor Yusof and then CEO Nik Hasyudeen Yusoff, months before their terms ended, without giving reasons.

Coincidentally, Nik Hasyudeen and I were appointed in the first cohort of independent MACC oversight panel members — the Operations Review panel (in his capacity as the president of the Malaysian Institute of Accountants and I as president of the Institute of Internal Auditors, Malaysia).

Another MP has called for authorities to investigate financial deception, falsified accounts, unlawful hibah payments and criminal breach of trust. This is easier said than done especially when one espouses that on asset valuation as an example: “there was insufficient clarity on such valuations … so what was done was in our minds ‘correct’.” The list goes on.

At the end of the day, one cannot be prosecuted for being either ill-advised, ill-informed or outright stupid! Malice or ill-intent has to be proven. This unfortunately is the biggest hurdle.

This is what happens consequentially when legislations are drawn up which give “unlimited” powers to ministers. Following on, ministers are inevitably politicians. Therein lies the dilemma.

Some may recall many years ago, the Port Klang Free Trade Zone (PKFZ) court case involving a minister and purported abuse of power. It fell flat on its face with no recourse.

In the end, accountability, governance, integrity and trust are good to behold but without a changed mindset, we are still wallowing in the cesspool, waiting for the next new drama.

History has a way of repeating itself. Perhaps in this instance, there was an element of “pukau” in the “sakau”. It should be investigated!

The views expressed are those of the writer and do not necessarily reflect those of FMT.