If there is one lesson that we can learn from the just concluded parliamentary debates on the prime minister’s much hyped 'reform' bills - that the only way to reform a corrupt autocracy is to get rid of it.
In three days of intensive debates (Dec 15 to 17), the Barisan Nasioanal (BN) rammed rough-shod over vehement objections from Pakatan Rakyat to get the Malaysian Anti-Corruption Commission Bill (MCAA) and the Judicial Appointments Commission Bill (JAC) approved in Parliament. With that, Prime Minister Abdullah Ahmad Badawi (Pak Lah) declared victory for having finally fulfilled his promise to clean up the judicial system and wipe out corruption by pushing through these two bills.
But the truth is: the opposite to what Pak Lah said has taken place.
Instead of freeing the judiciary and the Anti-Corruption Agency (ACA) from the clutches of the executive, whose abusive manipulations of these institutions have been the root cause of the crisis of public confidence, the passing of these two bills have in fact legally formalised the executive's (in the form of the prime minister) hold on these institutions.
Take the JAC. The rationale for this bill is to restore independence to a judicial system that has been critically maimed since the 1988 judicial crisis when top judges were unjustly sacked for political reasons and the Constitution also amended (Article 121) to subject the judiciary to parliamentary authority. So the obvious solution to overcome this excessive executive interference in the judiciary is to transfer the power to appoint judges from the prime minister to an independent panel, as well as to reverse the amendment to Article 121 so as to free the judiciary from the jurisdiction of Parliament.
But how can the JAC Bill achieve these objectives when it’s introduction not only was not accompanied by an amendment to Article 121, but the bill also empowers the prime minister to appoint and sack at will the majority of members of the Commission (Clauses 5 & 9), and also to change at will the provisions of the Bill (by Gazette notification) within the first two years of its operation (Clause 37)? Thus instead of relinquishing, the prime minister has strengthened his hold on the system of judicial appointment.
Further, the introduction of JAC without amending Article 122B of the Constitution has rendered the bill ultra vires the Constitution. At present, the appointment of superior court judges are governed under this article, which provides for an elaborate system of consultations with various office-bearing judges (heads of various courts) by the prime minister before he advises the king who shall then appoint the judges, after consulting the Conference of Rulers. In the case of appointing the chief judge of Sabah and Sarawak, the chief ministers of these two states must also be consulted.
Systems that conflict and overlap
Hence, without amending Article 122B to accommodate the JAC Bill, we have now two parallel systems that conflict and overlap each other. De facto law minister Nazri Abdul Aziz refuted such claims of constitutional conflicts by contending that the task of JAC is merely to compile a list of candidates for the prime minister to choose from and the prime minister is still free to act as provided for under Article 122B, and hence JAC does not impinge on the former. This argument is flawed and self-defeatist. First, when two parallel and different systems of consultation are on-going, potential collisions and conflicts are inevitable, in which case JAC must give way to Article 122B, as the Constitution must take precedence. Second, Nazri’s explanation is tantamount to a confession that JAC is merely a dispensable accessory to the prime minister’s decision-making process (to appoint judges), as nothing in the bill binds the prime minister to choose the appointee from the list produced by JAC.
It is clear that the JAC Bill is unconstitutional and it not only defeats the purpose for which it is enacted but also worsens the judiciary’s present precarious position as an independent institution.
If Barisan Nasional is sincere in wanting to restore independence to the judiciary, it should simply supplant Article 122B with a Commission appointed by the king in consultation with the Conference of Rulers (without advice from the prime minister) just as the Election Commission is appointed by the king under Article 114. The JAC should of course include all the relevant stake-holders. In addition, Article 121 must also be amended to re-instate the principle of separation of powers between the parliament, judiciary and executive.
The MACC bill
As for the MACC, it is admittedly an improved version over the present ACA, having now a wider scope of operation under a more elaborate bureaucracy of new advisory and overseeing panels. However, it lacks crunching power where it counts and does not address the fundamental flaws that have been crippling this corruption buster. These flaws are:
a) ACA lacks independence as it operates under the dictates of the Prime Minister’s Department. As a result, it has often been abused to unjustly persecute opponents of the ruling party while showing no zeal to pursue corruption cases against the ruling elite.
b) ACA does not have prosecuting power, which is vested with the attorney-general. The latter has been turned into an institution that famously practices selective prosecution since the reign of Dr Mahathir Mohamad, with successive AGs showing loyalty to the incumbent power over-riding allegiance to the Constitution and the country. And the present scandal-ridden AG (Abdul Gani Patail), who is himself under investigation for falsifying evidence in the persecution of Anwar Ibrahim 10 years ago, has proven to be no exception, having been seen as a major stopper to many a corruption investigation and prosecution against the ruling elite.
Regrettably, the MACC Bill does not provide remedies to any of these shortcomings. The newly created Special Committee on Corruption, which is made up of parliamentarians, is not determined by Parliament and does not report to Parliament, but instead selected at the discretion of the prime minister, and reports to the prime minister. So do the other four newly created bodies – Anti-Corruption Advisory Board, Special Operations Review Panel, Corruption Prevention and Consultative Council and Complaints Committee - all beholden to the prime minister. So where is the independence so earnestly clamoured for by the public for this corruption fighting body? And without independence, can we really expect MACC to declare war on the corruption that is evidently raging out of control now among the hierarchy of the ruling party?
Similarly, under the MACC Bill, prosecuting power continues to stay with the attorney-general. So how do we expect MACC to overcome this final stumbling block to net the big fishes, without transferring the prosecuting power from the attorney-general to MACC? (It is pertinent to note in this respect that out of the numerous cases of big time corruption among the top hierarchy of the ruling coalition and its cronies, none has been successfully convicted in recent memory).
Optimism unwarranted
Immediately after passing these two “reform” bills, Pak Lah expressed confidence that these bills will restore public confidence, thereby “increase the country’s competitiveness and attract investors to come”. Noting that “negative perceptions with the judiciary and ACA were very strong before this”, Pak Lah added: “With the setting up of these commissions, we won’t have any corruption and even if there is, it will be very little” (Malaysiakini, Dec 17).
While giving credit to Pak Lah for at least admitting that our judiciary and anti-corruption efforts are in bad shape, his optimism over the effectiveness of these reform measures is at best naive, and at worst dishonest and deceiving.
In fact, even if these two bills have been properly drafted to address the present flaws of these institutions, there is still the question of integrity of the key office-holders who helm these institutions – chief justice, attorney-general, inspector-general of police and director-general of ACA. It is often said that one may have the best laws in the world, but if we have crooks to implement them, the good laws may come to nothing.
In the case of Malaysia, none of these key office-holders is spared of the taint of scandals and improper conduct. Neither do we expect them to be otherwise, knowing the low integrity and caliber of our political leadership.
Corrupt political leadership does not have men of outstanding integrity; neither can it be expected to enact effective laws to maintain high integrity in government. That truism has practically reduced our options to only one - a change of political leadership. That is, if we are still serious about restoring the rule of law and the pursuit of excellence for the country.
In three days of intensive debates (Dec 15 to 17), the Barisan Nasioanal (BN) rammed rough-shod over vehement objections from Pakatan Rakyat to get the Malaysian Anti-Corruption Commission Bill (MCAA) and the Judicial Appointments Commission Bill (JAC) approved in Parliament. With that, Prime Minister Abdullah Ahmad Badawi (Pak Lah) declared victory for having finally fulfilled his promise to clean up the judicial system and wipe out corruption by pushing through these two bills.
But the truth is: the opposite to what Pak Lah said has taken place.
Instead of freeing the judiciary and the Anti-Corruption Agency (ACA) from the clutches of the executive, whose abusive manipulations of these institutions have been the root cause of the crisis of public confidence, the passing of these two bills have in fact legally formalised the executive's (in the form of the prime minister) hold on these institutions.
Take the JAC. The rationale for this bill is to restore independence to a judicial system that has been critically maimed since the 1988 judicial crisis when top judges were unjustly sacked for political reasons and the Constitution also amended (Article 121) to subject the judiciary to parliamentary authority. So the obvious solution to overcome this excessive executive interference in the judiciary is to transfer the power to appoint judges from the prime minister to an independent panel, as well as to reverse the amendment to Article 121 so as to free the judiciary from the jurisdiction of Parliament.
But how can the JAC Bill achieve these objectives when it’s introduction not only was not accompanied by an amendment to Article 121, but the bill also empowers the prime minister to appoint and sack at will the majority of members of the Commission (Clauses 5 & 9), and also to change at will the provisions of the Bill (by Gazette notification) within the first two years of its operation (Clause 37)? Thus instead of relinquishing, the prime minister has strengthened his hold on the system of judicial appointment.
Further, the introduction of JAC without amending Article 122B of the Constitution has rendered the bill ultra vires the Constitution. At present, the appointment of superior court judges are governed under this article, which provides for an elaborate system of consultations with various office-bearing judges (heads of various courts) by the prime minister before he advises the king who shall then appoint the judges, after consulting the Conference of Rulers. In the case of appointing the chief judge of Sabah and Sarawak, the chief ministers of these two states must also be consulted.
Systems that conflict and overlap
Hence, without amending Article 122B to accommodate the JAC Bill, we have now two parallel systems that conflict and overlap each other. De facto law minister Nazri Abdul Aziz refuted such claims of constitutional conflicts by contending that the task of JAC is merely to compile a list of candidates for the prime minister to choose from and the prime minister is still free to act as provided for under Article 122B, and hence JAC does not impinge on the former. This argument is flawed and self-defeatist. First, when two parallel and different systems of consultation are on-going, potential collisions and conflicts are inevitable, in which case JAC must give way to Article 122B, as the Constitution must take precedence. Second, Nazri’s explanation is tantamount to a confession that JAC is merely a dispensable accessory to the prime minister’s decision-making process (to appoint judges), as nothing in the bill binds the prime minister to choose the appointee from the list produced by JAC.
It is clear that the JAC Bill is unconstitutional and it not only defeats the purpose for which it is enacted but also worsens the judiciary’s present precarious position as an independent institution.
If Barisan Nasional is sincere in wanting to restore independence to the judiciary, it should simply supplant Article 122B with a Commission appointed by the king in consultation with the Conference of Rulers (without advice from the prime minister) just as the Election Commission is appointed by the king under Article 114. The JAC should of course include all the relevant stake-holders. In addition, Article 121 must also be amended to re-instate the principle of separation of powers between the parliament, judiciary and executive.
The MACC bill
As for the MACC, it is admittedly an improved version over the present ACA, having now a wider scope of operation under a more elaborate bureaucracy of new advisory and overseeing panels. However, it lacks crunching power where it counts and does not address the fundamental flaws that have been crippling this corruption buster. These flaws are:
a) ACA lacks independence as it operates under the dictates of the Prime Minister’s Department. As a result, it has often been abused to unjustly persecute opponents of the ruling party while showing no zeal to pursue corruption cases against the ruling elite.
b) ACA does not have prosecuting power, which is vested with the attorney-general. The latter has been turned into an institution that famously practices selective prosecution since the reign of Dr Mahathir Mohamad, with successive AGs showing loyalty to the incumbent power over-riding allegiance to the Constitution and the country. And the present scandal-ridden AG (Abdul Gani Patail), who is himself under investigation for falsifying evidence in the persecution of Anwar Ibrahim 10 years ago, has proven to be no exception, having been seen as a major stopper to many a corruption investigation and prosecution against the ruling elite.
Regrettably, the MACC Bill does not provide remedies to any of these shortcomings. The newly created Special Committee on Corruption, which is made up of parliamentarians, is not determined by Parliament and does not report to Parliament, but instead selected at the discretion of the prime minister, and reports to the prime minister. So do the other four newly created bodies – Anti-Corruption Advisory Board, Special Operations Review Panel, Corruption Prevention and Consultative Council and Complaints Committee - all beholden to the prime minister. So where is the independence so earnestly clamoured for by the public for this corruption fighting body? And without independence, can we really expect MACC to declare war on the corruption that is evidently raging out of control now among the hierarchy of the ruling party?
Similarly, under the MACC Bill, prosecuting power continues to stay with the attorney-general. So how do we expect MACC to overcome this final stumbling block to net the big fishes, without transferring the prosecuting power from the attorney-general to MACC? (It is pertinent to note in this respect that out of the numerous cases of big time corruption among the top hierarchy of the ruling coalition and its cronies, none has been successfully convicted in recent memory).
Optimism unwarranted
Immediately after passing these two “reform” bills, Pak Lah expressed confidence that these bills will restore public confidence, thereby “increase the country’s competitiveness and attract investors to come”. Noting that “negative perceptions with the judiciary and ACA were very strong before this”, Pak Lah added: “With the setting up of these commissions, we won’t have any corruption and even if there is, it will be very little” (Malaysiakini, Dec 17).
While giving credit to Pak Lah for at least admitting that our judiciary and anti-corruption efforts are in bad shape, his optimism over the effectiveness of these reform measures is at best naive, and at worst dishonest and deceiving.
In fact, even if these two bills have been properly drafted to address the present flaws of these institutions, there is still the question of integrity of the key office-holders who helm these institutions – chief justice, attorney-general, inspector-general of police and director-general of ACA. It is often said that one may have the best laws in the world, but if we have crooks to implement them, the good laws may come to nothing.
In the case of Malaysia, none of these key office-holders is spared of the taint of scandals and improper conduct. Neither do we expect them to be otherwise, knowing the low integrity and caliber of our political leadership.
Corrupt political leadership does not have men of outstanding integrity; neither can it be expected to enact effective laws to maintain high integrity in government. That truism has practically reduced our options to only one - a change of political leadership. That is, if we are still serious about restoring the rule of law and the pursuit of excellence for the country.
20/12/08
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