The MACC and JAC Bills - a disappointment

The JAC is completely different from that proposed by Zaid Ibrahim

By Wong Choon Mei

Opposition MPs and many analysts continued to express disappointment over new law proposed by Prime Minister Abdullah Ahmad Badawi to curtail corruption - warning the lack of substance may spark a backlash from both the people and investors who had been expecting much better.

In particular, they pointed to the Judicial Appointments Commission Bill - which they said completely differed from the one proposed in July by former de-facto Law Minister Zaid Ibrahim.

Zaid, who resigned in protest of Abdullah’s use of the oppressive Internal Security Act to block out political dissent, had proposed that an independent commission be established to select the Chief Justice and other judges.

“Zaid had proposed a proper constitutional amendment so that appointments are made by an independent commission, thereby limiting the power of the prime minister,” said Sivarasa Rasiah, MP for Subang and KeADILan vice president.

“What is being proposed now by the PM does not involve any constitutional amendment which requires two-thirds parliamentary majority, and which we would have been prepared to support, because it would have brought about real change.

“But what is being proposed now does not interrupt the prime minister’s prerogative at all and requires only a simple majority at parliament. It is a complete disappointment because it maintains the status quo. Nothing is changed, it is the same old situation.”

PM to retain influence on judicial appointments

Currently under Section 122B of the federal constitution, the prime minister is pivotal in the selection of judges because it is on his advice that the King makes the appointments.

Under the proposed JAC Bill, a nine-member commission will be set up to advise on selections but the prime minister has final say over the choice of judicial candidates.

The PM will also be empowered to revoke the appointment of any of the nine JAC members at any time without having to give any reason.

“This means the PM or minister in charge will have a lot of sway over the JAC, which is supposed to be independent,” said political analyst Gavin Khoo.

“It doesn’t make sense. How can it be free of political control when the prime minister has final say over the appointments, if unilateral ministerial decisions cannot be challenged.”

People are not fools

The Malaysian Anti-Corruption Agency Commission (or MACC) Bill drew similar flak when the 75-page document tabled by Abdullah confirmed the fears of civil and human rights groups that the Attorney-General would remain in ultimate charge of the anti-graft body.

The only marginal improvements were in the formation of three new committees - an anti-corruption advisory board, a special committee tasked to table an annual report to Parliament and a complaints committee, lawmakers said.

“The biggest flaw is again the lack of independence to prosecute,” said Sivarasa.

“If you look at the set-up of Hong Kong ICAC, which the MACC is supposedly based on, they do not have to refer back to anyone on which case to proceed with or to prosecute.”

However, the MACC Bill tabled by Abdullah states that power to prosecute will continue to be held by the public prosecutor, who is also the attorney-general. The AG’s Chambers report to the Prime Minister’s Department.

“Prosecution for an offence under this Act shall not be instituted except by or with the consent of the public prosecutor,” the document presented by Abdullah read.

“If you don’t want to change, the people are not fools,” said Ramon Navaratnam, president of Transparency International. “Sooner or later, they will vote you out.”

Unattended grouses and double standards

Malaysians have been calling for change for many decades and in March this year, they voted in the country’s first significant opposition led by former deputy prime minister Anwar Ibrahim’s Pakatan Rakyat alliance.

Among long-entrenched grouses include the alarmingly endemic corruption etched across both government and private sector systems.

The use of brute political force to blunt opposing views and the selective prosecution of criminals, while many corporate bigwigs and top government leaders escaped questioning, also contributed to voter disenchantment during the landmark March 8 general election.

But despite promises to listen to the people, little actual progress has been made.

Nevertheless, Abdullah, who is due to step down in favour of his deputy Najib Abdul Razak in March 2009, believes his government is pushing the right buttons.

“We are responding in many ways. We have received many views and different groups have different requests,” he told reporters earlier this week.

Down spiral continues

Malaysia continued to slip in the world corruption rankings, falling to 47th place in 2008 from 43rd the previous year. As a gauge of where the benchmark is, Singapore came out 4th in the same Transparency International survey.

According to economists, the situation has continued to worsen with graft spreading across the economy and dragging down the competitiveness of the business sector at the worst of times.

They said nations worldwide were already scurrying to attract investments to help fend off what could be the worst-ever recession to hit, but the Malaysian reaction was defensive rather than pro-active.

“Both bodies (the MACC and the JAC) will benefit the general public and investors from the private sector,” said Abdullah, adding that he expects investor confidence to spike up once the new legislation is in place to
squeeze out graft.

Investor confidence and trust

In the 2008 Bribes Payers Index just released, 73 percent of Malaysian businessmen had said the government was ineffective in tackling graft. They pointed to the police, politicians, and the judiciary as among the most
corrupt institutions in the country.

Their views appear to back those of Opposition Leader Anwar Ibrahim, who late last month tried to file a debate in Parliament to find out the cause for the country’s shrinking foreign direct investment.

“If this is not serious, then what else is?,” said Anwar, who added that in 1995 Malaysia ranked sixth in the world in terms of FDI inflow but was now ranked in the 60s.

“Let us look at Asean. There was an increase of 81% in FDI from RM116 billion in 2006 to RM209 billion in 2007. But Malaysia got the smallest share, which is only 13% of the total amount. If the minister said it is a global crisis, then why is Malaysia more affected than the rest?” said Anwar, who was also finance minister during the 1990s.

Foreign direct investment outflow in Malaysia exceeded inflow for the first time ever in 2007, underscoring fears that investors might be losing confidence in the government and its economic policies.

According to the United Nations Conference on Trade and Development World Investment Report 2008, FDI outflow in Malaysia surpassed inflow by RM8.99 billion.

While Malaysian outflow had surged by 81.9 percent to RM38 billion in 2007 from RM20.89 billion the year before, inflow increased by only 39 percent to RM29.07 billion versus RM20.91 billion in 2006 - causing the RM9 billion shortfall.

“Everything is connected and inter-related because when we talk about investments, we are talking about confidence,” said Azrul Azwa, senior economist at Bank Islam.

“How can we instill confidence if we cannot provide an environment that is conducive to investors, whether foreign or local, how do we gain their trust?.”

Sumber: Suara Keadilan