THE anti-graft busters were startled when a senior federal counsel, previously attached to the Penang prosecutor’s office, who accepted bribes totalling RM700,000 on three occasions had been fined RM130,000 and jailed only for a day by the sessions court in August 2021.
The one-day jail time was a result of the leniency in sentencing by the judge that corruption case and the weakness of the penalty provisions in the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act 2009”).
This is in contrast to the case of a labourer in Terengganu who was jailed 15 months for stealing some petai and an unemployed man who was sentenced to a 10 months’ jail time for stealing RM50 from a fund belonging to a local mosque.
Another classic case is that of Shashi Kumar Selvama, an unemployed 22-year-old youth who stole some rice and sardines from a grocery shop who was sentenced to a 10 years’ jail time.
In September 2015, Dr Mohamad Khir Toyo was sentenced to a 12 months’ jail for using his position as Selangor menteri besar to obtain two plots of land and a bungalow in Shah Alam worth RM6.5 mil, for himself and his wife.
After serving six months he was released on parole.
According to Donald Black, a criminologist in his book The Behaviour of Law: “An offense is more likely to be punished if the rank of the victim is higher than that of the offender but is more likely to be dealt with by compensation if their ranks are reversed”.
Judges have been alleged and appeared to be influenced by the offender’s societal and political hierarchy and power before sentencing.
The perception of the objectivity of our judicial system may be in question.
The penalty provision under the MACC Act 2009, needs to be reviewed and revised to reflect the rule of law and fairness as the MACC Act 2009 only sentences offenders to a minimum jail term of one day and a maximum of 20 years.
Unlike the previous Anti-Corruption Act (ACA) 1997, it carried a more severe punishment with a mandatory jail sentence of not less than 14 days and not exceeding 20 years and fines amounting to five times the bribe amount or RM10,000 (whichever amount is higher), if found guilty.
It is more appropriate for the penalty under the MACC Act 2009 impose a mandatory jail time of at least two months with a minimum of two strokes of the rotans (“whipping or cane”).
Even offences of criminal breach of trust (CBT) under Section 409 of the Penal Code carries a mandatory jail term of between two years AND 20 years, mandatory whipping AND a fine.
As for the penalty for cheating under Section 420 of the Penal Code, it is punished with a mandatory jail term of not less than one year and not more than 10 years, whipping and be liable to a fine.
If the Malaysian Anti-Corruption Commission (MACC) finds that the evidence of investigation does not fulfil the criteria of the MACC Act 2009 offences, they can consider charging under the Penal Code offences like criminal breach of trust (CBT) and cheating.
Corruption is a cancer and serious crime if compared to other crimes.
For example, in a homicide case, it only involves the offender and the victim’s family whereas in a corruption case, it involves the public money and deprives the rakyat of what they should be receiving.
The corrupt money could have been used for healthcare, clean water and building of new schools and building of new rural roads.
The theory of deterrence that have been developed by Hobbes, Beccaria and Bentham stated that “the more severe a punishment, the more likely that offenders will desist from criminal acts”.
Theories of punishment can be divided into two general philosophies: utilitarian and retributive.
The utilitarian theory of punishment seeks to punish offenders to discourage, or ‘deter’ future wrongdoing and lesson for others.
The retributive theory seeks to punish offenders as they deserve to be punished.
A heavier sentence coupled with a longer imprisonment term with whipping or rotan will open the eyes of the public that receiving bribes will surely lead to the ruin of not only the bribe-taker but his or her entire family as well.
The media must also play their role to highlight the effects of such sentences that have been served on the bribe taker’s and bribe giver’s families.
The judicial and legal institutions are important mechanisms of checks and balances. These institutions should be independent from the other branches of the government, so that they are trusted by the people.
They are appointed based on integrity, honesty and experience, regardless of political interest.
Socrates once said, “A judge should hear courteously, answer wisely, consider soberly and decide impartially”.
The essential qualities of a good judge must decide cases based on merit and make decisions without fear or favour.
They must conduct fair hearings so that justice will be determined by the law in an unbiased manner even if it leads to making unpopular decisions.
Otherwise there is no meaning to the “rule of law”. – Sept 17, 2021
Datuk Seri Akhbar Satar is President, Malaysia Association of Certified Fraud Examiners.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.