by Lim Kit Siang in Parliament on
Thursday, 11th December 2008:
MACC and JAC Bills – both fall far short of
expectations and promise of anti-corruption and judicial reforms
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
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.
Kit Siang, DAP
Parliamentary leader & MP for Ipoh Timor