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The Malaysian Anti-Corruption Commission wants to introduce a Deferred Prosecution Agreement mechanism (DPA) which it claims could prevent complex, high-profile corruption cases from being dragged out in court for years, at significant cost to taxpayers. However, civil society groups warn DPAs send the message that corruption is a negotiable offence for those with means. On this episode of #ConsiderThis Melisa Idris speaks with lawyer Ngeow Chow Ying, Convener of Projek SAMA, and Pushpan Murugiah, CEO of The Center to Combat Corruption and Cronyism (C4 Center).
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00:00Music
00:00Hello and good evening. I'm Melissa Idris. Welcome to Consider This.
00:15This is the show where we want you to consider and then reconsider what you know of the news of the day.
00:20The Malaysian Anti-Corruption Commission wants to introduce a Deferred Prosecution Agreement Mechanism or DPA
00:27which the MACC claims could prevent complex high-profile corruption cases from being dragged out in court for years
00:36at significant cost to taxpayers.
00:39However, we have civil society groups who are warning that DPAs send a message that corruption is a negotiable offence for those with means.
00:50So joining me on the show to discuss this concern further is Niao Chow Ying who is a practicing lawyer and convener of Project SAMA.
00:58I also have Pushpen Murugaya who is the CEO of the Centre to Combat Corruption and Chronism, better known as C4Centre.
01:05Welcome both of you to the show. Thank you so much for joining me.
01:08I'm curious to learn more about this Deferred Prosecution Agreement, the DPA.
01:13What do you think, if I may begin with you, Chow Ying, what problem do you think MACC is trying to fix by proposing DPAs?
01:23Is it a significant problem? What's your take?
01:26I think, first of all, DPA is a mechanism where the prosecutions will suspend or delay the prosecution process in court
01:35but with an agreement with the accused persons on the terms that they need to satisfy.
01:43So mostly it was used on the justifications, I would say, for this DPA is to, like you said earlier, save a lot of resources and court time.
01:56A lot of time the accused will want to pay the fine.
02:01It will encourage corporations to self-report.
02:06So these are really the justifications for DPA mechanisms.
02:11It was introduced in the UK, it was introduced in the US, I think Singapore is also pushing it.
02:17But we, of course, do have some concern about whether it is suitable or is it time for Malaysia to implement DPA.
02:27Just to clarify, so DPAs typically abroad, what kind of cases are they applied to?
02:35Is it when MACC looks at corruption cases, right?
02:38Yes, it's actually mostly corruption cases, some anti-competitions law as well, applicable to mostly corporations, not individuals.
02:49Okay, and when you say, so it's suspend or delay with terms, so it's likely a fine?
02:55Yes, so the prosecutions will do investigations once they found that there is sufficient evidence to charge.
03:04But they will charge them, but before it goes to the court for the whole proceeding, calling of witnesses and everything,
03:12they will negotiate for a deferred process. So this proceeding will be deferred later.
03:19During this period of time, you have to comply with certain conditions in the agreement.
03:24Does that mean it will eventually go to court?
03:26So if you did not comply with the DPA terms, it can eventually go to court.
03:31But if you comply, then the prosecutions can actually withdraw the case.
03:35So it's a private negotiation. It's a term between the accused persons and the prosecutions.
03:42Okay. Pushpen, talk to me about your concerns.
03:45I think the concern here is, going back to the first question, in terms of what MACC wanted.
03:50But we need to make a distinction there.
03:52There was a call by Azambaki to actually extend it to individuals, right?
03:57So we need to first demark that positioning because in the first place, DPA is designed specifically for corporations.
04:04In which it's designed, as you said, to actually reduce the back laws and making it more faster.
04:10Because corporate crime is complicit where you have so many layering involved.
04:14You have cross-border transactions. So it's extremely difficult to actually go to court.
04:19It takes a long time. So the rationale is, let's cut it short.
04:23We know you're guilty. These are the terms and conditions.
04:26You have to admit guilt. You don't have to pay fines. Let's settle that this way.
04:30If you default, we go after you.
04:31But when you extend it to an individual, I don't see where it's a justification or the rationale to actually do it.
04:38Because you already have AMLA, which has got compoundable and fine offences.
04:44Then you have non-conviction for features as well, which are also trying to get back assets.
04:50So why would you want to use a DPA mechanism which is designed specifically for corporations
04:56to extend to individuals when you have other mechanisms?
04:59So that's our biggest concern.
05:01So that's a really great distinction to make.
05:04So DPAs were designed for corporations and now MACC wants to propose extended for individuals.
05:10Let's talk about what risks first and then we'll talk about the justifications later.
05:15What risks arise if prosecutorial discretion is extended to individuals suspected of corruption?
05:27Let's ask the lawyer.
05:30So I think coming back to the questions, just as I said, this is not like a mechanism that we totally disagree.
05:38I think there are many countries that use these mechanisms to, you know, that there are advantage to today.
05:46But my concern is really, is it suitable at this moment of time in Malaysia?
05:51I will point out three things.
05:54One is that we are already struggling so much with good governance and accountability issues,
06:00especially the accountability issues.
06:03We want the governments, which the rakyat actually elected and put them there,
06:10to be accountable of what decisions that they have made,
06:14to be accountable to the decisions they have made.
06:16And we also want politicians who are elected, again, representative,
06:20to face the law if they have committed an offence.
06:24But at the moment, I think there is a big issue of accountability here in Malaysia.
06:30Secondly, I think that goes to a perception of double standard.
06:35Now, Project Salma conducted an Enid Relation Survey in 2024, two years ago.
06:42And one of the questions we asked is whether do you think that Malaysia governments treated everybody equally?
06:50The underlying question is whether there is a double standard.
06:53And more than half of the respondents said that the government did not treat everybody equally.
07:01And interestingly, the percentage of the reason why they think it is not treated equally
07:09is because from a lens of a class instead of communal,
07:14which means that they think that government did not treat everyone equally
07:18because the rich and the powerful will get advantage than us.
07:22That's the dual darjah, right?
07:23Exactly.
07:24Instead of like because of the skin colour.
07:27So if DPA is implemented, it actually double down that perception
07:34that rich and powerful people can pay, negotiate the private agreements
07:41to avoid accountability.
07:43It just clicked to me that Project Salma, equality and sameness.
07:49What a wonderful survey to do for Project Salma.
07:53It's befitting the name.
07:54Pushpan, when we think about the rationale for MACC proposing this,
08:02they say, OK, we want to cut down the lengthy trials.
08:06We want to prioritise financial recovery.
08:09So, you know, they're paying the fines.
08:11So that means we get some money back.
08:12Is that adequate enough justification?
08:15No, I think we have to, again, be very clear.
08:17The function of MACC.
08:19MACC works as an enforcement agency.
08:21It is not a debt collector or a collection centre.
08:25So I think the priority is they have to go after criminals
08:28to ensure justice is delivered, you know, and the mechanisms is there.
08:33And if you don't do that by just saying, OK, I caught you,
08:37I don't want to go after you, but you pay a fine, you get off scot-free,
08:40I think it goes back to your point.
08:42The equality of law is missing.
08:44A person still sardine and rise back, has to go to jail,
08:48but the bigger crime that you make, the larger amount of corruption
08:51that you do, you have a way out of.
08:54And again, this is where I think if you look at all the DNAs, the NFAs,
09:00it gives a very, very negative perception where justice is not equally applied.
09:05I think that is not good in the long term for our judicial system as a justice system.
09:09And that's where I think that logic of MACC saying, OK, I'll get some money back at least,
09:14which you already have other mechanisms, should not apply in DPAs for individuals.
09:19And I want to add on that, you know, if we have this DPA,
09:23where is the deterrence of high crime black corruptions?
09:28You know, people will think that, oh, it's OK, I can just sign an agreement,
09:33pay my way out.
09:34I can negotiate the outcome.
09:35I can negotiate the outcome.
09:37So where is the deterrence, where is the accountability
09:40that we are so, you know, important for our democracy?
09:44I also want to quickly ask, sorry, we need to also see the framework.
09:48DPA has a very stringent framework.
09:51What do you mean?
09:51For example, in order to qualify for DPA, if you use the UK example,
09:56there's two tests you have to qualify.
09:58One is you need to ensure that whatever that you collected,
10:01the information and the evidence is sufficient enough to get a conviction.
10:06That's the first test.
10:06Second thing, you need to ensure that there is public interest element.
10:12DPA plays a very strong issue there because, for example,
10:16Boeing and Siemens, right?
10:17If you shut them down, they have operations around the world,
10:21thousands of employees.
10:23They are not complicit, but they get affected, you shut it down.
10:25So those are rationale that you do, rationale why you need to DPA.
10:29And the terms and conditions.
10:30One of the main terms that we must insist on, which should be applied,
10:34is the admission of guilt.
10:36That's the first criteria.
10:38You have to admit that you did something wrong, something is wrong.
10:41I admit, now I'm going to make remedial actions and I'm going to pay you a fine.
10:45So the whole discussion about using this mechanism just to get a fine and get away with it doesn't work.
10:51It's not even in the context of DPA.
10:53The admission of guilt is so important, isn't it?
10:55Yes, exactly.
10:56Can I just come back very quickly to something you said, deterrence.
11:00Currently, are our laws enforcement enough of a deterrence without having this DPA hanging over us?
11:09Well, I know recently we also released a report.
11:12The title of the report is, do politicians still get away with corruptions after 2018?
11:17So we have studied corruptions, criminal bridge of trust and also money-rendering charges
11:24on elected representatives after 2018.
11:29So its elected representative doesn't cover unelected officials or related persons.
11:37So how many people were you looking at?
11:3821 persons.
11:3921.
11:40There are 28 charges.
11:41and the result of this report is that 9 of the cases is still ongoing in the court,
11:52so we will not comment on that.
11:5419 of the cases has been concluded with either DNAA or total acquittal or convictions.
12:02So there are four cases that have resulted in convictions in the high court.
12:08One, appeal, which turned around, become acquittal.
12:12Two, conviction is still ongoing in the federal court.
12:16But there is only one case that has sustained the conviction guilty from the high court court of appeal
12:23to the federal court.
12:24That's only one case.
12:25Out of the...
12:26Four convictions.
12:27Oh, wow.
12:29And the rest of it is withdrawal by the prosecution mid-trial or abandon of appeal,
12:39acquittal appeal.
12:40The prosecution abandoned the appeal after they have filed the appeal.
12:43And there are two cases that the prosecution has delayed for so long that there's no choice,
12:50but the court uses interim power to grant a DNAA.
12:54The prosecution delays?
12:56Yes.
12:57Oh.
12:57Yeah.
12:58So I think this report goes to show...
13:01We want to see what happened to all the corruption, CCM, corruption, commercial trust,
13:08and money laundering cases that have gone through the court process.
13:11So you can see there's only one case that actually sustained all the way to the federal court.
13:17It's like what Pushpan said, right?
13:18When you said, you know, the public perception, I think this study is important because then
13:24you're tracking it.
13:25There's data.
13:26So we can just add a little bit.
13:27One of the concerns that CFO has always been saying is the MACC Act was established in 2009.
13:33So it's almost 10 over years already.
13:35There has not been any review of the whole law.
13:38And one of the problems we feel that there is an issue to solve is the fact that MACC requirements,
13:45Section 16, 17, 18, 23, is very narrowly interpreted in terms of...
13:51It normally leads towards the issue of gratification in terms of bribery issues.
13:56Whereas Malaysia's corruption, whatever you put it that way, but it's a very sophisticated way of doing corruption.
14:04It involves ecosystem, government apparatus, control of GLCs.
14:09So it's so difficult and sophisticated and opaque that the adequacy of MACC is suspect.
14:16So whether you actually can capture all these people without a political donation act is extremely difficult
14:24because of the shortcomings of the extension of the act itself.
14:27Is that what you would propose?
14:29Yes.
14:29If not a DPA?
14:33No, our purpose, yes.
14:34Definitely one of the reforms is to reform the MACC Act, ensure that it's updated.
14:38It covers enablers of corruption, different aspects of corruption.
14:41Because corruption has many kinds of manifestations.
14:45So each country has its own peculiarity.
14:48We have our own one.
14:49So we need to find ways to capture the loopholes.
14:52What are the peculiarities?
14:53So you alluded to it just now a little bit that it's a very complex way.
14:58Corruption happens in Malaysia in a very complex way.
15:01Does that make it very difficult then to prosecute?
15:06And if that's the case, how do we get over that hurdle?
15:09I think one way is basically you have, first of all, there are a few elements.
15:13That goes into the issue of reform agenda.
15:15But I do feel that MACC provisions need to be expanded so that you can cover much broader aspects of corruption.
15:23And then of course that comes to our reform agenda.
15:25You know, the AGPP, the PP must also be independent.
15:28And that kind of reform comes into play.
15:30Where you create an ecosystem that actually disrupts the corrupt ecosystem that we have now.
15:35And the whistleblower as well.
15:37Yeah, of course.
15:37Because you do need whistleblowers to actually provide information to lead to our convictions actually.
15:44Okay.
15:44Just how exactly should MACC's provisions be expanded?
15:50And I'm asking because in Parliament we have the Yandip Tua Agung's speech opening and focusing a lot on corruption, saying we really need to tackle this.
16:02I think there's a special court now that's been fast-tracked to fast-track corruption cases.
16:07Are those things going to help?
16:10I think actually CFO and you've been calling for that.
16:14The special court.
16:15The special court for many years.
16:16How would it work and why is it a good thing?
16:18Okay, it's good because you have specialised people who understand how corrupt practices work.
16:25And the multitude of definitions comes with it.
16:28So they're able to see the nuances.
16:31Not necessarily the direct connections but how everything is linked back to a person getting a benefit or how a party gets a benefit.
16:37So they have the skill to dissect the problem.
16:41A normal judge has so many cases to manage.
16:44It's difficult for them to focus on corruption issues.
16:46So that's why it's a good thing.
16:48But even then, I do think the scope of the MECC still needs to be reviewed to allow a broader scope of interpretation of how corruption actually is and appropriate sanctions on that as well.
17:02So I think that's important.
17:04Court is definitely a yes for us.
17:06But also we need to stock it up with people who are experts, who have knowledge on corrupt issues and how to manage those cases as well.
17:13Just based on your experience, observations, watching out for corruption and cronism in C4, what have you observed about the way corruption takes place in Malaysia?
17:28Okay.
17:29I might get in trouble.
17:31That's okay.
17:32This is the platform to do it on.
17:33Yeah, I think we are not too worried about the practical option, whether the bribery, the customs, the police kind of issue.
17:38I think that's enough loss.
17:40But the problem that we are facing, we're seeing the complicity of political actors, of political institutions, as well as government institutions, which are being used as tool to carry out corrupt activity or siphon out natural resources for our country.
17:54So again, to explain how it works, I have to draw a diagram for you to visualize and all that.
17:59But in essence, it's using the ecosystem to actually extract resources from us.
18:04Okay.
18:04There is a state element here that needs to be addressed as well.
18:10Systemic, right?
18:10Yes.
18:11I find that survey or that study that Project SAMA did quite fascinating.
18:16I'm curious to know what your conclusion was.
18:21Yeah, so if let's say we want to take away, one take away with the paper, I think the biggest message is that prosecutional discretions, we do acknowledge that the prosecutions need to have the discretions to decide whether to take up a case or not, because they are the ones who assess the evidence, right?
18:40The evidence threshold.
18:41But I think the exercise of this discretion is with very little transparency, very few accountability safeguards.
18:51When there is big corruption cases involving politicians and involving public interest, and the prosecution decide to either do not charge, no further actions, or withdraw the charge halfway, or just abandon the appeal without giving a solid reason, I think that is a real question.
19:13It's a real issue here.
19:14You're right.
19:15I mean, even as a private citizen, I see this, I wonder, eh, what happened?
19:20Yeah.
19:21Why?
19:21And then in the vacuum of information, speculation fails.
19:25Exactly.
19:26So when there is a secrecy built suspicious, transparency built trust.
19:32I think this is a very important frame that we should really hold on to.
19:38And if this secrecy and this non-transparent leads to really eroding of the public trust on the system, on the institutions, even though there might be one or two cases that is justified, the withdrawal, people don't trust.
19:55Can I ask you from a legal perspective, is it typical in maybe other countries, or is it good practice to explain why there is a DNAA or a no further action, or is that sensitive information?
20:11Can that information be made public?
20:13Yes.
20:13It can.
20:14Yes.
20:14So in the UK, I think there is a code of conduct.
20:18The code of prosecutors are of conduct.
20:19Exactly. And then they will submit annual reports to the parliaments for debates, you know, things like that. There's really none of this oversight.
20:29So nothing to stop the AG's chambers from explaining decisions.
20:34Yes. You can't just say misdiscretion, you know. At the end of the day, it's public interest and you need to actually explain.
20:39But even before that, let's have a prosecution code. What cases fall under DNA, NFA? Do we not have that?
20:47No, we do not have that. We have been calling for that.
20:49Okay. Okay.
20:52One of the many things that you're calling for, and I appreciate that you're highlighting this to us.
20:57I think for many of us who are outside of the kind of legal system, we're not sure how things are right.
21:03So then we take things, I guess, at face value often. But you're right. Public perception is so important. Trust in the judiciary, trust in the system is important.
21:13So I want to ask both of you in the time that we have left, what are you hoping for? Because there's been a lot of talk about the lag in institutional reform.
21:26So from your perspective, taking all of this into account, what are you hoping, what reform commitments are you hoping to see this year to be prioritized before GE16?
21:37Well, I think the government have announced the fall reform, which is good reform. But I think we need to go a bit deeper than that.
21:44AGPP separation is one really like pushing and on the table.
21:50But I think apart from the separations, how the PP, the prosecution work in the future is also important.
21:58Now, coming back to today's discussions about DNAA, about NFA, a very central role is the prosecution.
22:04Because the prosecution decides DNAA, they decide to withdraw. The prosecution also decides whether they actually want to enter into an NDA.
22:13Okay. So if the prosecution's discretion is not monitored, if there is no safeguard on how he exercises this discretion, this power, it can be...
22:27What kind of safeguards? Are you talking about parliamentary oversight?
22:30Parliamentary oversight, I think first of all is the appointment process of the prosecution's team, oversight mechanisms, whether judicial or parliamentary.
22:45And transparency, I would really advocate for annual reports, publicized statistics in a website, so that people can see how many DNAA for these kind of cases.
22:56Right. So that kind of reform is important. And I think also, like for example, this deferred prosecution agreements, it was a talk by the MECC, but we don't see any detail.
23:10In the UK, the law has safeguard, have a very heavy judicial oversight.
23:18Right. So before the prosecutions negotiate with the accused or the corporations, they have to go to court for approval.
23:28And the court has to consider whether it's the interest of justice, whether the proposed term is proportionate.
23:35Do we skip that?
23:36So we don't know.
23:37Oh, we don't know.
23:38The problem is we don't know. So if the government is really pushing for that,
23:42and I think we want all this stringent oversight to be in the law.
23:48So it's much more detailed than just a separation of powers between the AG and the PP.
23:54There are nuances to how the public prosecution works.
23:58So even in the UK, you can see each DNA agreement, the RTPA agreement.
24:05Oh, wouldn't that be wonderful?
24:06Each agreement. You can go through all the terms so that there will be no hanky-panky.
24:11There's no, you know, horse trading. There's no, it's all open.
24:15Is it sensitive information for us to share here?
24:18No, I think maybe...
24:20Admissions of guilt, they have already...
24:22Correct.
24:23So let me just add a little bit.
24:24I think it's important for the viewers to understand how DPAY works in the first place.
24:29So you have four processes.
24:30One is you get caught and then there's prosecution getting all the evidence done.
24:34So you prepare that, you have enough evidence to go to court,
24:37then you negotiate with the defendant.
24:38This is the situation.
24:40You must admit guilt, you must pay fines, you must make reforms,
24:44you must ensure that this continues.
24:45You go to court, the court says, okay, it's balanced, it's right.
24:49Okay, we approved it.
24:50There's still a process.
24:51You need to monitor that they actually do the activities.
24:55So that monitoring process are by independent auditors, institutions who monitor
25:00did that company do what it's supposed to do.
25:04And the event, if they don't do the terms and conditions breach,
25:08then they can go back to court and charge you again.
25:10And one more important point, DPA is although they don't charge individuals,
25:16they go for a corporation, but those individuals who are complicit in doing
25:20the criminal act will also normally be charged as an individual.
25:24So there's no such thing as getting off the hook.
25:27They'll be charged, the corporation is in a way protected,
25:31but they're charged, they'll be fine.
25:32But the individuals who are involved, they will be charged.
25:35So there's still accountability?
25:36Yes.
25:37That is the key element that we must have in our DPA, the accountability.
25:40We don't know the details of this DPA.
25:42We just make sure that they're there.
25:44I mean, if they want to push, then we have to make sure all this is there.
25:47This is why the Voices of Civil Society is so important, particularly for this.
25:52Thank you so much for educating us about this a bit more and highlighting some of the concerns.
25:57I think this was a really important conversation to have with all the nuance and all the details
26:02that I think is missing from public discourse.
26:05Thank you for both of your time.
26:06Thank you for having us.
26:07That's all the time we have for you on this episode of Consider This.
26:10I'm Melissa Idris, signing off for the evening.
26:12Thank you so much for watching and good night.
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