Are Malaysia’s Reforms Humbug?
If there is one lesson that we can learn from Malaysia's just-concluded parliamentary debates on the prime minister’s much hyped "reform" bills, it is that the only way to reform a corrupt autocracy is to get rid of it, not to reform it.
In three days of intensive debates from December 15 to 17, the Barisan Nasional (BN), the nation’s ruling coalition, ran rough-shod over vehement objections from the opposition Pakatan Rakyat to get the Malaysian Anti-Corruption Commission and the Judicial Appointments Commission bills approved. With that, Prime Minister Abdullah Ahmad Badawi declared victory for having finally fulfilled his promise to clean up the judicial system and wipe out corruption.
But the truth is the opposite of what the prime minister said had taken place. Instead of freeing the judiciary and the anti-corruption agency 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 has in fact legally formalized the executive’s hold on these institutions.
Take the judicial appointments legislation. The rationale was to restore independence to a system that has been critically maimed since a 1988 judicial crisis when top judges were unjustly sacked for political reasons and the constitution was amended 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 free the judiciary from parliament’s jurisdiction.
But the bill to achieve these objectives was not accompanied by an amendment the constitution to reverse the power transfer. It continues to empower the prime minister to appoint and sack at will the majority of members of the commission the legislation creates, and to change at will the provisions of the bill by gazette notification within the first two years of its operation. Thus instead of relinquishing power, the prime minister has strengthened his hold on the system of judicial appointment.
Nor does the legislation contain enabling language to amend the constitution, meaning Malaysia has now two parallel systems that conflict and overlap each other. De facto law minister Nazri Aziz claims that the task of the appointments commission is merely to compile a list of candidates for the prime minister to choose from. Nazri’s explanation is tantamount to a confession that the appointments commission is merely a dispensable accessory to the prime minister’s decision-making process, as nothing in the bill binds the prime minister to choose the appointee from the list produced by the commission.
It is clear that the 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.
As for the anti-corruption legislation, is admittedly an improved version over the present act, 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 always crippled this corruption buster. These flaws are:
a)The ACA lacks independence as it operates under the dictates of the prime minister’s department. As a result, the ACA has often been abused as henchmen to unjustly persecute opponents of the ruling party while showing no zeal to pursue corruption cases against the ruling elite.
b) The agency 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, with successive AGs showing loyalty to the incumbent power, over-riding allegiance to the constitution and the country. And the present scandal-ridden attorney general, 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 reporting to Parliament, but instead selected at the discretion of the prime minister, and reporting 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 clamored 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?
Prosecuting power continues to stay with the attorney general. So how do we expect the legislation to overcome this final stumbling block to net the big fish, without transferring prosecuting power from the attorney general to the anti-corruption commission ? 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.
Immediately after passing these two “reform” bills, the prime minister expressed confidence that they would restore public confidence, thereby “increasing the country’s competitiveness and attracting investors to come.” Noting that “negative perceptions with the judiciary and the anti-corruption agency were very strong before this,” Badawi told Malaysiakini: “With the setting up of these commissions, we won’t have any corruption and even if there is, it will be very little.”
While giving credit to Badawi 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 naïve, and at worst dishonest and deceiving. In fact, even if these two bills had 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 – the 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.
Corrupt political leadership does not attractive 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.
Kim Quek comments regularly on Malaysian political affairs.