The Malaysian Anti-Corruption Commission (MACC) and Judicial Appointments Commission (JAC) personally presented in Parliament for first reading yesterday by the Prime Minister, Datuk Seri Abdullah Ahmad Badawi both fall far short of expectations and the promise of anti-corruption and judicial reforms.
The 15th anniversary today of the Highland Towers tragedy in 1993 which killed 48 people and over 1,000 people were made homeless, preceded five days ago by the Bukit Antarabangsa landslide disaster which killed four, with one missing while displacing some 5,000 people, should serve as wrenching reminders of the necessity for urgent and meaningful anti-corruption and judicial reforms.
Even the mainstream New Straits Times yesterday editorialized that “Everything from the loss of faith in national institutions, as measured in both the electoral vote and the rising crime rate, to the catastrophic failure of developed hill slopes seems at least partly attributable to the corrosion of corruption – of corners cut, blind eyes turned, and money paid for benefits unseen”.
The New Straits Times editorial could have cited as another recent example of the far-reaching consequences of the corrosion of rampant corruption – the road carnage in the express bus North-South Expressway (NSE) crash in Tangkak which killed 10 and injured 14 on Sunday.
The Highland Towers tragedy is also a case study of the urgent need for judicial reforms – with the indefensible and unconscionable Federal Court judgment of Feb. 17, 2006 in the Highland Tower case that local authorities are not legally liable for landslides, collapsed buildings and people dying when it should have struck a just and middle ground to hold the Ampang Jaya Municipal Council liable where negligence is established while taking into account the interests of the ratepayers for essential basic services.
Abdullah’s claim after the first reading yesterday that the MACC and JAC bills will restore public and investors’ confidence in the country’s battle against corruption and the judicial system is too premature, as this will depend on whether the two bills can result in meaningful and effective reforms in these two jurisdictions.
Can the MACC and JAC bills wipe out the negative perception, finally admitted by the Prime Minister himself, that the government is not committed towards tackling corruption or addressing the suspicions of investors about the integrity of the judiciary?
The MACC purports to create an independent anti-corruption agency, taking it out from the Prime Minister’s Department to be answerable to Parliament.
However, from the MACC bill, the Prime Minister’s influence and even control through the various provisions of the Malaysian Anti-Corruption Commission Bill are still over-powering and sufficient to undermine its independence and autonomy. For instance, it is the Prime Minister who will decide the appointments of the Chief Commissioner of the MACC as well as the two important “check-and-balance” mechanisms – the Anti-Corruption Advisory Board and the Special Committee on Corruption.
The Special Committee on Corruption is supposed to be the Parliamentary Committee to exercise oversight of the MACC, but who decides on its composition? The Prime Minister, who will advise the Yang di Pertuan Agong on the appointment of seven members from the Dewan Rakyat and Dewan Negara, based on the nomination of the “Leader of the House of Representatives” who is none other than the Prime Minister himself!
Clause 58 of the Bill providing that an offence under the new law may only be instituted by or on behalf of the Public Prosecutor undermines the claim that the Chief Commissioner of the MACC will have absolute discretion to decide on prosecution on corruption.
The JAC Bill is also a letdown. I share the disappointment of Dato’ Param Cumarawamy, former UN Special Rapporteur on the Independence of Judges and Lawyers who have pointed out two salient points:
• Without amending article 121 of the Constitution to restore the doctrine of separation of powers and conferring the judicial power on the courts, judicial independence cannot be secured by merely conferring on the chief executive of the government the duty to uphold judicial independence.
• The power of the Prime Minister to remove the eminent persons in the Judicial Appointments Commission at any time without giving reasons pursuant to clause 9(1) virtually gives legal legitimacy for executive dominance over the judicial arm of the government.
From the Bill, the Prime Minister can finally ignore the recommendations of the Judicial Appointments Commission to recommend his own candidates for judicial appointments and promotions, which makes a mockery of such a judicial reform.
A meeting will be held to decide on the a common stand on the two bills to be taken by the Pakatan Rakyat MPs next week.