Where there is inequality (or the perception of inequality) in the application of the law, this may lead to dissent among the people. Of course, certain quarters tend to exploit this to further their own agenda. But nevertheless, as long as there is inequality in the application of the law and more and more people are becoming aware of the injustice, the voices of anger grows louder and louder.
It is an open secret that we have corrupt people in the government administration. I believe that there are some who are not corrupt and do things by the book in for the service of the people, i.e. literally be a Civil Servant. Unfortunately, these people form the minority. Most of them, would have no choice but to be part of the corruption either directly or indirectly. Directly by taking a cut and indirectly by keeping silent on what they know, since the corruption may go all the way to the top!
Theoretically they can report the act of corruption by their superiors directly to the MACC. But the trouble is that based on the majority (or rather the public's perception) of the MACC's findings of an investigation is that there is 'insufficient evidence' to prosecute the accused. And what would happen to the whistleblower? He or she would be transfered to the 'cold storage' and that would be the end of their career in the department.
Yes, now we have the Whistleblower Protection Act, 2010, to 'protect' the witnesses. But its effectiveness is yet to be seen. We have very good laws in Malaysia, unfortunately we have very poor enforcement. Come to think of it, we don't need more laws. We need more enforcement. Equal enforcement to be exact. Not just enforcing the law on the 'little fish' but the 'big fish' as well.
The trouble with the Malaysian 'system' is that we have no confidence in our agencies. Say for example, I'm just a lowly Constable in the Police force and I have information that the Assistant Commissioner is engaged in corrupt or improper practices. And let's say that I put my faith on the Whistleblower Protection Act, 2010 and report the Assistant Commissioner's practices directly to the Commissioner or the Inspector General of Police or the MACC.
Theoretically speaking, such complaints should be taken seriously and investigated upon. But practically speaking, chances are, whoever the report goes to (or someone along the chain of custody of the report), is going to give a 'courtesy call' to the Assistant Commissioner just to inform him that he is being investigated. And the Assistant Commissioner, being in the department for so many years would have his own network to find out who exactly made the report and be able to get the identity of the Whistleblower.
The Whistleblower Protection Act, 2010 will not keep people's mouth shut. It won't prevent the leaking of information even if the document is stamped 'RAHSIA' under the Official Secrets Act. Yes, officially it is a secret, but then there is always the 'unofficial secret' which is kept between those within the chain of custody of such reports.
I find it difficult to belief that such reports can be kept confidential in Malaysia. Say if I want to trace a mobile phone number to the owner and get his or her address. Is it possible? Officially no, the mobile phone company's policy is not to give such details to anyone unless the police is involved. You can try asking yourself at the customer service centre. This is what the person at the mobile telephone operator customer service officer said. But I was still able to get the information unofficially since I have friends working in the management. This is the Malaysian way.
So coming back to our Constable, he's going to end up being transfered to cold storage and kiss his career prospects goodbye.
The trouble with corruption cases involving the 'big fish' is that most of the time there are 'insufficient evidence' to prosecute them and in the end, the 'little fish' are prosecuted, as they are the proxies used by the big fish, i.e. the paper trail would end with the 'small fish' and the trail goes cold, hence the big fish would be let off.
It is pretty obvious, if someone were to be involved in corrupt practices, he or she would think of how not to get caught. And the best way is by using proxies who get a small cut for their 'services'.
I think many Malaysians are sick of reading news of people accused of corruption, only to be set free due to the lack of evidence. I am just wondering, why don't the MACC collaborate with the Inland Revenue Board (IRB) in ALL the corruption cases?
I am no lawyer, but, I am aware of the concept of 'burden of proof' in the rule of law. In order to prosecute someone and send them to jail for corruption, the burden of proof lies with the MACC to proof that the gains were from the alleged corrupt practices. Where the MACC fails to prove that the the wealth and gains accumulated were through corrupt practices, the accused goes free.
And most of the time, this would be the case, since the paper trail just dies with the 'small fish'. However, if the IRB were to be involved in every corruption case, the burden of proof shifts to the accused!
When the IRB conducts a Tax Investigation on the individual accused, they would prepare something called a Capital Statement. This is a list of assets and liabilities of the accused, normally spanning over 7 years. The concept is pretty simple, any increase in net assets from one year to another would be due to the revenue earned during that year. This revenue would then be compared with the income declared by the accused in their tax returns. The difference would be income under declared.
Say for example, if the net asset in 2007 is worth RM1million and in 2008 is worth RM1.5million. The difference would be RM500,000, this (plus estimated living expenses of say RM50,000) would be the income for year 2008, i.e. RM550,000. If the actual income declared was RM150,000. The difference of RM400,000 would be the under-declaration of income. This would be subjected to tax of say 28% and a further penalty of 45% to 100% on the tax liability!
Where a Capital Statement is prepared, the burden of proof lies with the tax payer to explain the 'increase' in the net asset. If it can't be explained, therefore it is an under-declaration of income, therefore the tax liability and penalty need to be paid.
So, even if the MACC is unable to convict these people, at least the government is still able to collect the taxes due to them by these corrupt individuals.
In this case, double jeopardy would not apply, MACC is investigating for corrupt practices while IRB would be investigating for under-declaration of income. One may argue that since the income was due to illegal means it is not subject to tax. However, as decided by the case law of Partridge vs Mallandaine, the word 'income' is not limited to only legal 'vocation', therefore income from illegal means are also subject to tax.
Just like how Elliot Ness was able to prosecute and send the famous mafia boss Al Capone to jail. Not by all the illegal activities he conducted, since there was 'no evidence' to link him. In the end Al Capone was sent to jail for evading taxes. I think if the government is serious in getting the corrupt, they should assign a team of IRB officers to conduct a simultaneous investigation with the MACC.
If the MACC can't get them, the IRB will. And in a good case, they both will get the corrupt and the government will gain from the tax revenue recovered. So in terms of cost benefit, this is a win - win situation for the government in terms of revenue and perception that they are serious in fighting corruption. It is also a win for the people because justice is served one way or another!
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