Retired Civil Servants Joining Private Sector
In May last year, the Malaysian Anti-Corruption Commission’s (MACC) Consultation and Corruption Prevention Panel (CCPP), which is one MACC’s oversight advisory bodies, called for the Government to implement a law or a rule which prohibits retired Government officers from joining a professional practice or the corporate sector for a period of at least one year after their retirement.
Currently, there is no such law or rule forbidding a recently retired Government officer from doing so.
Because of this, there may be questions raised on whether or not the latter could have used his position in Government to lobby for a position in the private sector.
Malaysian Government Integrity
Questions of integrity and ethics will all the more arise if he joins a company which was awarded a contract or project when he was the Government officer who was involved in the decision-making process, be it in its financial or technical aspects, to award the contract or project to the very company that he later joins.
Since there are no rules or law, which makes this type of behaviour wrong, unethical or illegal, objective people may come to the conclusion that there was impropriety in such a deal, even though in actual fact, that may not really be the case.
In the English case called R v Sussex Justices, Ex parte McCarthy, Lord Chief Justice Hewart said that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
I would paraphrase Lord Chief Justice Hewart’s famous quote and state that “integrity must not only be practised, but must be seen to be practised.”
The other point to make about this cooling-off period is that it can and should be applied to politicians, i.e. there should also be a cooling off period where Government politicians like Federal Ministers, Deputy Ministers, Chief Ministers and State Executive Councillors join a corporation or professional practice after a period of at least one year after retiring, resigning or leaving their respective Government positions.
As per the proposed rule for Government officers, this will also show that their neutrality and independence have been maintained while they are in office.
In fact, this was another point that MACC’s CCPP raised at the same time as the cooling-off period for recently retired ex-Government officers.
The other issue to consider is whether or not the period of cooling-off is sufficient.
To my mind’s eye, if there are improper links between a Government officer and a corporation, that link could last a lifetime, or a long time, especially if the corporation was involved in large projects and lucrative licenses.
Because of this, MACC should perhaps look at making the cooling-off period slightly longer, for example, two years.
SOME OVERSEAS MATTERS
Let’s look at actual cooling-off periods in other countries: as per service conditions, Indian armed forces officers can only join the private sector after a one year cooling-off period. Retiring Indian bureaucrats cannot join the private sector for a year too.
The US has its Honest Leadership and Open Government Act of 2007. It is a wide-ranging Act which details cooling-off periods from one to two years for Senators, Cabinet Secretaries and other very senior executive personnel, senior Senate staff and Senate officers, senior House of Representatives staff and executive & legislative branch employees.
Instead of cooling-off periods, the Act refers to “closing the revolving door” as well as prohibitions on lobbying Congress, the Senate, department or agency where they used to work.
The Act also prohibits lobbyists from giving gifts and offers of travel to members of Congress with knowledge that they may be breaking House or Senate rules.
The Act also requires lobbyist disclosure filings electronically for both House & Senate and requires that a publicly searchable database be created of this information. Lobbyists must also certify that they have not given gifts and/or travel that would be against Senate or House rules. The US Government Accountability Office has the duty to annually audit lobbyists’ disclosure filings.
Even the US Securities and Exchange Commission (SEC) prohibits its ex-staff who earned more than US$155,440.50 a year to appear before it for a period of one year after they leave the SEC.
The organisation’s ethics counsel stated that it puts the organisation on an equal footing with its peer regulators and adds an additional layer of protection against even the appearance of impropriety when former employees take on new jobs.
It is trite to state that the cooling off period will only enhance the perceived professionalism of the civil service in Malaysia.
It will also mean that there will be a practice of governance & integrity on the part of ex-senior Government officers which Malaysians will know about.
This can only be good for the Government as well as Malaysia in general. Perhaps the relevant Minister in the Prime Minister’s Department should look into expediting the concept into actual practice, as it has been more than a year since it was raised by MACC’s CCPP.