Azam Baki fiasco: An invitation or a subpoena to appear before PSC?

Dr Kassim Noor Mohamed, Astro Awani

THE recent allegations made against the Chief Commissioner of the MACC and the resulting defamation suit filed by him has certainly captured not only the interests of the public but my own interest. This is due in no small part to the investigation that was commenced by a Parliamentary Select Committee. The particular Committee carrying out the investigation is the “Special Select Committee on Agencies under the Prime Minister’s Department” or (PSSC).

I also read with speechless curiosity and utter disbelief at the way many interpreted the call by Special Select Committee to have the Chief Commissioner of MACC face the committee. The likes of Lim Kit Siang stresses that Tan Sri Azam Baki could be jailed for contempt of Parliament if he defies its notice to appear before the Parliamentary Special Select Committee (PSC) on the Agencies under the Prime Minister’s Department on January 19” (READ Here). And that Tan Sri Azam “could be jailed for contempt if he defies the parliamentary subpoena to appear before the Parliamentary Select Committee (PSC) on the Agencies under the Prime Minister’s Department…” (READ HERE).

The question here whether it was a subpoena or was it an invitation to attend? The last time one can check, in layman’s term, is that if it is an invitation and not a subpoena, anyone who received an invitation is not compelled to attend. Has anyone had sight to the “letter of invitation” or purported subpoena?

From my understanding, the PSC was established under Order 76(1) and Order 81(1) of Dewan Rakyat Standing Orders. On 11.11.2020, Parliament has passed a motion to established 9 PSCs for the 14th parliament, which are; (a)Special Select Committee on Finance and Economy; (b) Special Select Committee on Security; (c) Special Select Committee on Agencies under the Prime Minister’s Department; (d) Special Select Committee on Agriculture and Domestic Trade; (e) Special Select Committee on Infrastructure Development; (f) Special Select Committee on Education; (g) Special Select Committee on Health, Science and Innovation; and (h) Special Select Committee on Women and Children Affairs and Social Development

On hearing of the Parliamentary Special Select Committee (PSSC) investigation, I have also been looking into its role, powers and as well as jurisdiction. For those uninitiated, including myself previously, the powers of the PSSC are detailed in the Houses of Parliament (Privileges and Powers) Act 1952 (Act 347). Under Order 83(2) of Dewan Rakyat Standing Orders, PSSC shall have power to send persons, documents or papers and shall have leave to report its opinion and observations, together with the minutes of evidence taken before it to the House. In short, each of the PSC shall have the authority to call individuals to have their statements taken, or to gather opinions and views on matters related to the field stated in the respective PSC’s term of the reference. Subsequently, inquiry reports prepared by the PSSC, would be tabled in the Lower House which then could be debated in accordance with Dewan Rakyat Standing Order 86(1).

Based on the terms of reference it is clear that the PSSC cannot act in its own capacity except either with the reference of the Dewan Rakyat or Minister through a motion, petition, report and document affecting the affairs of Sabah/Sarawak, parliament, law or religion under JPM. Here the question remains. Firstly, the issue that arises is whether the PSSC has received any referral from the Dewan Rakyat/ Minister? Secondly, whether the PSSC has the authority to investigate matters related to the Chief Commissioner. So far, the matter of Tan Sri Azam is regarding the use of his CDS account in the purchase of shares. This is now the subject of investigation by the Securities Commission (SC). One needs to wait for the conclusion of the SC’s findings on the matter. Another question that needs to be asked and for the PSSC to clarify on the matter is on the terms of reference of the Committee. Otherwise, could it be that the Chief Commissioner can opt not to attend the proceedings of the PSSC as the Committee may have exceeded the powers conferred to it by the terms of reference it was established in the first place?

It is also noteworthy to highlight that the current situation of the PSSC investigating the Chief Commissioner of the MACC in light of the recent articles published may not have been commenced lawfully, in that it is highly doubtful and suspect if a referral was made by the whole House to the PSSC to investigate. This is a necessary requirement of Order 83(4) of the Standing Orders of the Dewan Rakyat. If no such referral from the whole House was made, then the PSSC’s investigation into the Chief Commissioner of the MACC is unlawful and must stop, and only commenced following the correct procedures.

One could argue that these sorts of knee-jerk reactions stemming from articles that were published before verification are reckless and dangerous to say the least. This is why as I have highlighted before that journalist must verify any allegations before going to print, and procedures to investigate must be followed correctly. Failure to do so is highly likely to result in a miscarriage of justice and has the effect of tarnishing the good standing of not only high-ranking public officials and the organisations they lead but other civil servants thus opening a Pandora Box? For all we may know, the only offence that the Chief Commissioner committed was not committing any offence at all.

Dr Kassim Noor Mohamed is a criminologist base in United Kingdom.