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©New Sunday Times (Used by permission)
by Aniza Damis and Santha Oorjitham

WHAT would you do if you had fewer than five months to complete your mission?

What would you seek to achieve with your life in your last few months so that you could say, "My life was well-spent"?

For Datuk Seri Abdullah Ahmad Badawi, his time as prime minister ends in March when he steps down from the post.

When he became prime minister, he promised that he would fight corruption and strengthen integrity in the country.

Unlike former prime minister Tun Dr Mahathir Mohamad's achievements in building the country physically and economically, Abdullah's plan was much less tangible.

Yet, both types of "growth" are essential to a developing country. The lack of one or the other would make it deficient.

Subsequently, the National Integrity Plan was launched, and the Integrity Institute of Malaysia (IIM) was established to realise the plan.

Fast forward five years later, and Abdullah is making an early exit.

But not before pledging to see through the setting up of the Judicial Appointments Commission (JAC) and the Malaysian Anti-Corruption Commission (MACC) to ensure transparency in the appointment of judges and strengthening the anti-corruption initiative.

While some politicians are looking to December for an even earlier transition, and others to March's Umno elections, for the ordinary citizen, the most valuable thing that is expected to happen in December is the tabling, and perhaps passing, of the JAC and MACC bills in Parliament.

The parliamentary sitting, supposed to end on Dec 11, has been extended to Dec 18 to accommodate these bills.

But does it matter if these bills see the light of day?

Opposition member of parliament Sivarasa Rasiah said: "These bills aren't important in themselves.

"They are only important because they are the means to make the two institutions (JAC and MACC) a reality."

JAC aims to place the responsibility and process of selecting, screening and recommending the appointment and promotion of judges into the hands of a panel of eminent persons.

This, it is hoped, would make the appointments and promotions process more transparent than the current system, in which the chief justice recommends names to the prime minister.

IIM president Datuk Dr Mohd Tap Salleh said: "The question has always been: can the judge be influenced by the individual who's got the power to recommend his appointment or promotion?"

Domestic Trade and Consumer Affairs Minister Datuk Shahrir Samad said: "If you are tried in court, wouldn't you want the case to be heard by someone who is impartial?"

He said the new system would be better than before, because it involved more people, rather than it being just between the chief justice and the prime minister.

"As we know, there have been cases where there wasn't even consultation bet-ween the head of the executive and the head of the judiciary. And then, sometimes, the consultation was with people who were not even related to the matter.

"If you put it just between the PM and the CJ, and yet, in some instances, the CJ is not even consulted, then the question is: who is consulted?"

That was why, he said, when you formalised the procedure and required consultation between the judicial commission, then the names that the prime minister put forward to the Council of Rulers would have gone through the commission.

Shahrir said it was better for people of good standing to be involved in the process, rather than having a situation that was unclear.

"You have to give confidence to the public that you are taking steps to improve the system."

The perception that the judiciary was not independent started in the late 1980s, said Shahrir, when the judiciary was weakened by the impeachment of the lord president (as the chief justice was known then).

Since then, there had been the perception that judges were no longer independent because they could be "helped" by people in power.

Shahrir said: "Between that time and now, it wasn't easy to change the system.

"But it's better to make the change now when it's possible to do so. Earlier, nobody wanted to make the changes happen. And people were not willing to let it happen."

Dr Mohd Tap said that besides the common man, mixed views on the independence and integrity of the judiciary also had an impact on the nation's competitiveness.

"Right now, legal arbitration involving multinationals in Malaysia is done in Singapore. They have that in their contract. This is because they don't have confidence in the judiciary.

"This is shameful and should not be allowed to continue.

"If the independence of the judiciary was undisputed, then people who wanted to set up business in this country would be confident that, if they had to go to court, the case would be judged according to the law, and not according to other issues.

Shahrir said: "You have to have a judiciary that can arbitrate and decide on issues between the people and the government, and between individuals and other parties in society.

"Our history has shown that a political leadership that's bent on taking on the rulers can succeed. A leadership that's committed to weakening the judiciary can succeed. So, you have to build in these safeguards to make them strong and independent.

"Otherwise, the process will continue, and the situation will continue. It has happened in the past, where the judiciary could be controlled and cowed by a political leadership."

Likewise, the MACC bill was important because it would give the Anti-Corruption Agency the independence to perform at its best and act impartially on corruption.

Shahrir said: "The ACA should have minimal or no political interference."

According to a source in the Prime Minister's Department, the ACA wanted more powers, and want them to be delegated to it administratively, as there was a perception that the attorney-general (A-G) was controlling prosecutions.

Although the senior prosecuting officer in the ACA does decide on cases independently, officially, the prosecution team comes from the Attorney-General's Chambers.

The ACA wanted not only to have the power to prosecute, but also to be seen to be doing that independently and not being subject to the A-G.

The proposal from the ACA, said the source, was for the MACC to be answerable to oversight bodies set up under the bill.

MACC would cut down on the time taken from investigation to prosecution of a case.

It would also have the power to hire and fire. And, with up to three times as many additional officers promised by the government, it could carry out more undercover work to root out corruption in government enforcement agencies.

So far, said the source, the police and other enforcement agencies had got away with corruption because there had not been enough undercover work like what the ACA did with Puspakom.

If it did have more manpower, MACC could catch more culprits.

When the public, and investors in particular, know the ACA had the power and meant business, this would boost their confidence when applying for permits, for instance, because they would know that there would be no "extra costs".

Bar Council vice-president Ragunath Kesavan concurred, citing Hong Kong as an example.

"Before the establishment of the Independent Commission Against Corruption (ICAC), Hong Kong was seen as a typical place in which, when doing business in Asia, a lot of corruption was necessary. But ICAC changed that.

"Hong Kong is now an important centre of business in the world, thanks to its clean perception," he said, adding that the MACC model should be something akin to the ICAC.

Dr Mohd Tap said, from what he knew of the bill, the ACA would be given even more independence than the Hong Kong ICAC.

"The MACC Bill is important because of the perception, whether true or not, that Malaysia rates high on corruption."

Indeed, in the National Integrity Perception Survey 2007 done by IIM, the Perception of Corruption Index fared the poorest, at 6.76 out of 10.

"Even at the National Integrity Convention last year, corruption was the critical issue.

"This was at the top of the list of what needed to be tackled by the government."

He added that it was important that the MACC had an oversight body, such as Parliament, to report to.

Dr Mohd Tap said: "Currently, it is under the prime minister's jurisdiction, and this means that the prime minister has the capacity to influence investigations."

Shahrir concurred, and said that if the oversight body was Parliament, then everybody from the government and opposition would have a say in the fight against corruption.

However, one concern about these bills is that they may not be comprehensive enough, or grant the right freedoms or powers to the commissions.

Sivarasa is worried that the bills might be hastily drafted to push them through in time for Abdullah's departure.

"Where is the discussion with civil society? You say you are doing reform, but to neglect to have dialogue and discussion with civil society is contrary to the spirit of reform."

He added it would be wrong to rush the bills through Parliament "for the sake of showing that change has been done, or so that the PM can say that this is what he did during his tenure".

To be sure, the opposition, Bar Council and other stake-holders were consulted during Datuk Zaid Ibrahim's tenure in the Prime Minister's Department.

The rush, Sivarasa said, would be an unfortunate product of Abdullah's early retirement.

"We don't want to legitimise something that's not good.

"We don't mind waiting one to two years for a product that's really good."

Ragunath agreed, and said that if the bills were not substantive in form and manner, it would be better not to have them.

"We must have a system that stands the test of time.

"We have an elected government in power. If the party in power presents a good bill, the opposition should accept it.

"If the opposition says it represents the rakyat and it's a progressive bill, then if the opposition rejected it, it wouldn't go down well with the people."

De facto Law Minister Datuk Seri Nazri Aziz said both bills had been drafted, and had only to be brought before the cabinet for approval.

"Last week, we brought the MACC bill to Cabinet, and it wanted to have two weeks to have a look at it. It will decide on it at the Oct 31 meeting.

"The JAC bill will hopefully be presented to the cabinet on Oct 31 or Nov 7."

With six weeks to go before the bills are tabled, there is still plenty of time for the government to discuss the drafts and make changes, if necessary, and come up with bills that would be acceptable to all.

Shahrir said: "Democracy has to be defined by the strength of the institutions in the democracy.

"Democracy is not just about going to the polls every five years and electing a government. It requires the institution to be strong in itself, and to be able to play its role impartially.

"Without the institutions, then you depend on political leadership. This would then make elections the only democratic institution. So, then, what happens in between elections?

"If these bills are not passed, then we will not have progressed beyond rhetoric. We say we want to change, and we want to improve the system, but then we refuse to change it. We have to rise above the rhetoric and give it a chance to work."

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