The year 2008 is coming to an end. I remember that I had described 2007 as an “annus horribilis” in my 2008 New Year message on 31st December last year.
Malaysians had heaved a sigh of relief at the end of 2007, a year which had opened with such great promise as it was to celebrate the 50th Merdeka anniversary of the nation.
But 2007 proved to be an “annus horribilis” (a horrible year) for Malaysians.
Despite the 50th Merdeka anniversary costing over RM100 million of taxpayers’ money in public celebrations, 2007 proved to be one of the most divisive and troubled year in the half-a-century of Malaysia’s nationhood as well as one of great disappointment as the Prime Minister, Datuk Seri Abdullah Ahmad Badawi failed in his four-year report card to fulfill the great pledges of reform for which he was given the landslide historic 2004 general election victory in winning over 91 per cent of the parliamentary seats.
The result is the March 8 political tsunami in the last general election nine months ago and the belated promise by Abdullah to fulfill at least three reform pledges before he steps down as Prime Minister in March.
Yesterday, DAP and Pakatan Rakyat MPs supported the passage of the Malaysian Anti-Corruption Commission (MACC) Bill with great reservations and considerable unhappiness, as nobody in government is really convinced that when the bill is implemented, the MACC can rival the Independent Commission Against Corruption (ICAC) of Hong Kong or Corrupt Practices Investigation Bureau (CPIB) or that Malaysia will catapult to be among the world’s ten or second least corrupt nations in the world from the lowly 47th place in the 2008 Transparency International (TI) Corruption Perception Index.
Today, we are debating the Judicial Appointments Commission (JAC) Bill, representing the second of the three reform packages – but however much we want to support long-overdue efforts to restore the independence, impartiality and integrity of the judiciary, we do not find it possible to support this second reform Bill as it fails to address the root causes of the series of judicial crisis and scandals in the past two decades.
The third “reform” legislation is to be tabled in Parliament next February to fulfill Abdullah’s pledge to create an efficient, incorruptible, professional, world-class police service for which the Dzaiddin Royal Police Commission was formed and whose key proposal was the establishment of an Independent Police Complaints and Misconduct Commission.
If the Billl to be tabled in February is the same as the Special Complaints Commission Bill (SCC) which was tabled and withdrawn in Parliament last December, where instead of an IPCMC “lion” with teeth and claws, there is instead a toothless and clawless Special Complaints Commission, I must give notice that we will have to reject the third reform bill.
The JAC Bill before the House is totally unsatisfactory and unequal to the task to restore national and international confidence in the independence, impartiality and integrity of the Malaysian judiciary, which was held in high international esteem two decades ago.
I do not want to repeat the many cogent reasons which had been advanced by DAP and Pakatan Rakyat MPs in the debate why the Judicial Appointments Commission as proposed by this Bill is completely unsatisfactory.
Just before this debate, I received the following SMS which emanated from a judge – “whole of KL, shah alam, kelantan, terengganu, pahang perils, johor not even one Chinese magistrate and sessions court judge. Chinese officers all put in AG Chambers in law reform or drafting division! Why like this?”
I leave it to the Minister to respond to this SMS complaint. I just want to note in passing that for close to two-and-half years, there has been no proper multi-racial representation in the Federal Court with not a single Chinese Federal Court judge – which had never happened in Malaysian judicial history before.
I had raised this issue in Parliament before and after the March general election but it has still to be rectified.
The JAC Bill raises a hosts of questions and concerns, including the strong objection that (i) the Prime Minister can disregard the recommendations of the JAC; and (ii) the appointment procedure of judges in the new bill violates the Federal Constitution, particularly with regard to the appointment of judges for Sabah and Sarawak in Articles 122B and 161E(2).
Furthermore, why the JAC is not being created by way of constitutional amendment so that they are given constitutional status and importance.
In fact, JAC Bill, if passed in its present form, risks being challenged as to its constitutionality in the courts.
But the greatest objection to the JAC Bill is the failure to grasp this golden opportunity to address the root causes of the loss of national and international confidence in the independence, impartiality and integrity of the judiciary in the last two decades.
I share the disappointment of the former United Nations Special Rapporteur on the Independence of Judges and Lawyers, Dato’ Param Cumarawamy with the JAC bill and who made 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.
(Speech on the Judicial Appointments Commission (JAC) Bill in Dewan Rakyat on Wednesday, 17th December 2008)