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Wednesday, November 14, 2007

Forcing Accountability

(Speech delivered at Public Forum on "90 Days After The Auditor General's Report-What Next?" organised by Empower Pusat Janadaya)

90 Days After The Auditor General’s Report: Forcing Accountability

I would like to congratulate Empower for organizing this very important forum this evening. I would also like to thank Empower for having given me an opportunity to share my thoughts with you.

The Auditor General’s Report for the year 2006 is unique not because it details mismanagement of public funds but for the extent of the mismanagement reported. Unlike the reports of previous years that were relatively muted, Malaysians were confronted with an array of damning indictments concerning the way public funds had been misused and wasted. The revelations are shocking, not only for the fact that the wastage pointed to is not easily reconciled with the repeated declarations of budgetary constraints that we hear of even in connection with matters of crucial importance such as education and healthcare, but for the fact that they point to what appears to arbitrariness in the exercise of powers that go far beyond any permissible limits of accountability. These revelations also point to a mindset within government that does not sit easily with any notions of the sustainable development of this nation, an objective that must be a priority when considered against the backdrop of depleting natural resources in particular oil.

The Auditor General must be congratulated for having had the fortitude to issue the report he did.

We hear so much of the three primary organs of the State: the Executive, the Legislature and the Judiciary. And while we tend to think of Parliament as a place of law making, many of us do not necessarily appreciate the crucial role Parliament plays, in theory if not in practice, in controlling the finances of the nation. Chapter 1 of Part VII of the Federal Constitution sets out the framework of parliamentary control. One of the key features of this framework is the office of the Auditor General established by the Constitution itself, by Article 105, and safeguarded by constitutionally entrenched safeguards aimed at allowing for the discharge of a constitutionally mandated function without fear or favour. Seen from this perspective, the Auditor General is not subordinate to any organ of the State. The Auditor General is subordinate only to the Constitution and the law, to the extent the Constitution permits. The reports of the Auditor General as such carry great force and are indisputably decisive of the matters considered in the said reports.

What that means where the 2006 report is concerned is that the shocking revelations are reasons in themselves for the Government to not only act but to act decisively and firmly. The office of the Auditor General being one of high constitutionality, it is both legally as well as morally incumbent upon the Government to take action.

The fact of the report itself is not a matter for which the Government can claim credit. It has been suggested that the fact that the issuance of such a damning report is reflective of the commitment of the current administration to doing the right thing. This could only be correct if the current administration was admitting to having interfered with the auditing process for previous years. If that is not the case, then the credit is entirely the Auditor General’s.

The only credit that the Government could claim to itself would be for having meaningfully acted on the report. This however does not appear to have been the case.
Thus far we have seen, or heard of, very little beyond the usual rhetoric of Government. A grand total of 10 related arrests by the Anti-Corruption Agency have taken place, 8 of civil servants. The civil servants arrested were nowhere near the top of the chain of command so as to justify the fanfare around their arrest. The Prime Minister has, in effect, snubbed the suggestion by the Public Accounts Committee of Parliament that the ACA should go after the “bigger fish”. Leave it to the ACA, the Prime Minister has said. The Prime Minister has apparently overlooked the fact that that the ACA is answerable to the Prime Minister and, as such, an endorsement by the Prime Minister of the suggestion by the PAC would carry great weight.

This state of affairs brings to the fore two crucial and inter-related questions. Does the political will exist for meaningful action to be taken against those responsible for the abuses and mismanagement? And, if political will is lacking, why is this the case?

The state of affairs suggests that there is a great reluctance on the part of the administration to take meaningful action. It is only logical that the person or persons in charge of the various ministries and agencies involved must necessarily be held to account for the wrongdoings of the said ministries or agencies. Being held to account is not necessarily limited to matters of criminality. If there has been neglect or misfeasance, then that is actionable in private law as well. A former Attorney General of Hong Kong was sued by the Government of Hong Kong to recover monies he had misappropriated. Further, legal proceedings are not the only means at the disposal of the Government. Disciplinary measures can be taken. Resignations can be requested.

Sadly, we have heard of no such measures even being considered by the Government, which, it would seem, is satisfied merely with the report itself and the minimal action that has been taken. Even worse, no one has come to the fore to take responsibility of the abuses and no one has been compelled to do so. It would appear that those responsible at the top of the chain of command have absolved themselves, firm in their belief that they will be forgiven. I have no explanation for this apparent belief other than perhaps they are banking on the fact that no one has taken issue in the past and so no one will in the present. Governments have toppled for less in other parts of the world.

We are therefore compelled to consider why the Government has taken such limited measures.

The nature of the mismanagement involves at its essence, serious breaches of trust. The Government, and as such its servants and agents, are trustees of the nation for the rakyat. They are trustees over public funds. These funds belong to the nation. They are not the property of the Government. A mismanagement of these funds is an injury to the nation and to the rakyat. It is a matter of national interest. It therefore defies logic that not only does the Government not appear to be taking any urgent, concrete and meaningful action, it also appears to not want to take such action. Why this is so is a matter of speculation, though Malaysians could not be faulted for drawing inferences. Politics has become the raison d’etre of Government at the expense of governance, it would seem. Institutions, and the processes underlying these institutions have been subverted for vested interest, political or otherwise. The continued refusal by the Government to recognize that the Judiciary is in a state of crisis, and as such the administration of justice and the national interest, serves to illustrate that the Government interest is not necessarily the national or the public interest.

The intentional enshrouding of bureaucratic process through the use of laws such as the Official Secrets Act, the Printing Presses and Publications Act and the Internal Security Act, as well as the seemingly insurmountable levels of officiousness, compound the problem. Malaysians are kept in the dark about, told that they have no right to know of, matters which are crucial to their ability to make informed choices, to decide what they want as Malaysians.

It would appear therefore that to rely on the Government to do what is right and what is best may be a luxury that Malaysians can no longer afford. It is evident that it falls to the rakyat to take the lead. How this is to be achieved is a complex question that calls for us to question ourselves. We must confront the realities of our existence. We must acknowledge that that it is our fault that we have the Government that we do, a Government that believes it can act with impunity no matter the scandal, no matter the revelation. We must decide whether it is safer for us to leave things as they are or whether if we do not start acting responsibly, for ourselves and for our children, it may be too late.

As far as I am concerned, we no longer have the luxury of time. We must act and we must act quickly.

The matters disclosed by the Auditor General and the apparent reluctance of the Government to act meaningfully are, in my view, election issues. Malaysians must show that they have had enough by voting, and voting responsibly, at the next General Election as Malaysians. Not as Chinese, Malay, Indian or other. As Malaysians, concerned for the welfare of their country.

To prime ourselves, we must identify who those responsible are. We must educate ourselves on the issues at hand. NGOs such as Transparency International are on hand to lend assistance in developing the knowledge base necessary for us to take this challenge on. Other civil society groups are poised to act collectively and coherently to spearhead the way. Civil society groups have been exploring citizens’ movement initiatives as a means for effecting change. I would like to believe that these explorations have resulted in a greater insight into the nature of the beast and what it is that we must do to attack it. They have also shown us how crucial it for us to come together as Malaysians to single-mindedly deal with issues of this nature, firm in the belief that the harm we suffer is a collective harm. The BERSIH initiative shows us just how far citizen movements can take us if we have the passion to declare ourselves Malaysians first, above everything else. Mismanagements and abuses of the nature disclosed by the Auditor General recognize no boundaries, be they religious, racial or economic.

We must at the same time find means to call to account those who have occasioned these abuses and those who are charged with the responsibility of acting in the interests of the nation. We must start at the top. Consider the Ministers, the Deputy Ministers, the Director Generals of Ministries. Consider the Prime Minister if we must. As the saying goes, the buck has to stop somewhere. And, as unpleasant as it is to think, it is with these individuals that responsibility lies.

We must embark on what some are referring to as audit activism. If the Government is not prepared to account then let us force an accounting on the Government. It is only through this that we can begin to make inroads into the fortress of in-accountability that has been built on the votes that we gave to the Government.

Malik Imtiaz Sarwar
President, National Human Rights Society, (HAKAM)
13th November, 2007


Anonymous said...

The House is Leaking
so need some plugging!

AG has done the auditing
and all concerned should be explaining.
Who cares when no one can do the punishing!
when majority of the MP are roaming
on what they should be performing!
No minister is answering
or AG be sending
mandamus to everyone concerning.
or which Court or Judge will do the endorsing?

The MP should do the questioning!!
But even figures from MOF are missing or confusing.
so, is it kidding or humiliating?

From where Accountability be enforcing?


wong san said...

The Auditor General report is shocking, but there isn't seem to be enough pressure applied from the all quarters for some action.

If this happen in any other country, many head would have been rolled. China actually dished out death sentence for corrupt official.

Perhap the fact that the Malaysia are so used to corruption being so pervasive nowaday, it become second nature to accept this kind of news. People are so Scare of ISA and the rest of the oppressive act waving around by the government.