Saturday, December 13, 2008

JAC and Maca. A reality or dream.

A man who has been starving for days would have welcome a small morsel of food flung contemptuously his way I suppose.

In a country where many thoughtful citizens have been dreaming of an independent judiciary and a powerful body to curb endemic corruption, the tabling of the Judicial Appointments Council Bill (JAC) and the Malaysian Commission for Anti-Corruption Bill (Maca) by the prime minister himself a few days ago would tend to arouse elation that eventually something good is going to be done.

Source of write-up : Malaysiakini
By right, such important bills should have been published long before they are tabled in Parliament, to invite public discussion from all stakeholders, which in this case, is the entire population of Malaysia. But our patriarchal arrogant BN government would never dream of consulting the rakyat, so that is that.

I do not have a copy of the bills, so I can rely only on the information and views given by experts. One such expert is Param Cumaraswamy, prominent lawyer and former UN Special Rapporteur on the Independence of Judges and Lawyers.

He calls the JAC Bill disappointing, especially when there was no effort to amend Article 121 of the Constitution. The original Article 121(1) of the Constitution conferred the judicial powers of the Federation on the courts, thereby ensuring the independence of the judiciary from any possible intervention from the other two branches of government, the executive and the legislature.

In a bill tabled to amend the constitution in 1988, following the infamous judicial crisis that saw many excellent and respected judges sacked from office, this article was replaced by “judicial power vested” in the courts “as may be provided by federal law”. That amendment subjugates our judiciary to the legislature, and hence the prime minister’s office which controls both House of Parliament.

The Doctrine works well

I remember this particular amendment well. I voted against it, in a house flooded with Barisan MPs, while a number of my parliamentary colleagues were enjoying a coerced vacation in Kamunting following that much hated Operation Lalang.

If Zaid Ibrahim were still the de facto law minister, he would probably amend Article 121(1) and restore full independence to our judiciary, but by now we should know that a competent and conscientious man would not last long in a BN cabinet.

The Doctrine of Separation of Powers is now ascribed to the Enlightenment political philosopher Baron De Montesque. Simply stated, the executive, the legislative, and the judicial branches of government must be independent from one another, so that they can check and balance one another to prevent and remedy any abuse of power by any branch.

This idea evolved out of Europe a few hundred years ago, following a historical revolt in many countries against the tyranny of the dictatorship by an absolute monarch. Since then, the Doctrine has been zealously guarded and entrenched in Western liberal democracies.

That this principle has worked so well does verify Lord Acton’s famous and often misquoted words: “Power tends to corrupt, and absolute power tends to corrupt absolutely.” It does confirm a truth about human nature: no fallible and feeble human individual should be entrusted with too much power, and hence, the need for checks and balances. With the Doctrine, it is possible to replace the Rule of Man with the Rule of law.

When Malaysia achieved independence, we had chosen the Westminster style of parliamentary democracy, and so the Doctrine of Separation of Powers was incorporated into the supreme law of the land, the Federal Constitution. The original Article 121(1) was included precisely to ensure the independence of the judiciary, which was corroded, reduced, and subverted by the events of 1988.

That is itself indicative of the dire state to which Malaysian democracy has sunk.

In an article entitled Is the Malaysian Constitution a Piece of Garbage as We Continue to ‘cari makan’? and published in Malaysia Today on November 20 2008, my friend Raja Petra Kamarudin had this to report:

“The Constitution is a document that sets out the rules of how a country must be run by setting out the systems of the government, protecting its citizens and the principles that protect the laws of nature and the laws of the land.

The United States has amended their Constitution 27 times since it was ratified in 1788.

According to Constitutional Scholar Shad Saleem Faruqi, the Malaysian Constitution has been amended 42 times over the 48 years since independence as of 2005.

However, as several amendments were made each time, he estimates the true number of individual amendments is around 650. He has stated that "there is no doubt" that "the spirit of the original document has been diluted".

The persistent trend in our 50 years of constitutional dismemberment has been a shift of power from the courts and the legislature to the executive branches, threatening to reduce our judiciary and our two Houses of Parliament to mere subordinates under the jurisdiction of the prime Minister’s Department. We may not have a dictatorship of an absolute monarch, but we have been moving towards a dictatorship of the prime minister.

So, an amendment to Article 121(1) of the constitution would be fundamental towards judicial reform, and ought to have been done hand in hand with the JAC Bill. But here, we have a problem; the BN government lacks the two-third majority to pass such an amendment bill.

Missed opportunity for greatness

This problem is also an opportunity, for the prime minister to rise above partisanship and reach for support across the floor from the opposition parties in his final days in office. He would then indeed have left a lasting legacy of unprecedented statesmanship in Malaysia, and establish a historical precedent in our country for the entire parliament voting for the same critical bill in the interest of the future of democracy of the country. In a mature democracy, such bipartisan co-operation is not rare in the business of working for the common good of the rakyat.

Instead, Pak lah has missed his opportunity for greatness. His hold on power is probably too weak within the political class to do something as radical as that.

By now, we should be familiar with the criticism hurled by Param and other critics against the JAC and the Maca Bills. In essence, the two proposed Commissions are still very much under the thumb of the prime minister. The tendency towards the dictatorship of the PM continues unabated, and so these bills can hardly qualify as ‘reformist”.

Param Cumaraswamy has this to say with respect to the JAC: “The prime minister has the power to appoint and remove any or all the non-judicial members (eminent persons) of the commission at any time without giving any reasons.”

“In essence, this means that the independence of the judiciary would be dependent on the personality of the premier in power - in effect the executive arm of the government.”

While granting that Pak Lah may not abuse the power given under these bills, Param opined aloud that there is no guarantee future prime ministers will not be guilty of such abuses.

Why should the independence of the judiciary be dependent on the personal character of the prime minister? That it is so reflects that Malaysia may have the veneer of a parliamentary democracy boasting of Rule of Law, our country is still mired in the feudalistic Rule of Man.

It all goes to show that those who wield power that they do not deserve will not surrender their awesome power willingly. Power has to be pried from their finders through democratic force. We still need a change of government at the federal level.

Perhaps I will refuse the tiny morsels of food, even if I have starved for days. As RPK will tell you, there are more important things in life than just ‘cari makan’. -- Malaysiakini

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