Are Malaysia’s Reforms Humbug?

Written by Kim Quek

Friday, 19 December 2008

Page 1 of 2There's less than meets the eye to Prime Minister Badawi's reform bills
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.