The Judicial Appointment Commission – A Deformed Reform

I have said it a million times before and I will say it again. Abdullah Ahmad Badawi just loves establishing committees and commissions just as he loves leaving, and probably living, in a jet plane! At a whiff of an issue or matter which has the minutest semblance of a complication, no matter how simple the solution to that perceived issue or matter would be, Abdullah would instantly establish a committee or commission.

When he was asked why he would want to resign only in March next year, instead of immediately (as wanted by the UMNO warlords who had smelled Abdullah’s blood running down his nose by August this year), Abdullah looked into the camera, and earnestly (as earnest as the time when he said “work with me and not for me” mantra in 2004) said that he had wanted to complete his reform before he retires. In political lingo, Abdullah wants to leave a legacy. He wants to be remembered, among others, as the Prime Minister who had cleaned up the judiciary which was groped, molested, raped and sodomised beyond recognition by the administration of Mahathir Mohammad. He wants to be remembered as an honest, goody-two-shoes PM who had selflessly and bravely – successfully too, mind you – fought against corruption.

If there had been a Bapa Kemerdekaan, Bapa Pembangunan, Bapa Lebuhraya, Bapa Independant Power Producers, Bapa Formula 1, Bapa Le Tour de Langkawi and this and that, Abdullah wants to be remembered, not only as Bapa Mertua KJ, but also Bapa Pembebasan Kehakiman or perhaps, Bapa Reformasi (although the last one is of course a sensitive phrase, for one reason or another!). And so, he wants only to leave in March next year and not in December 2008. As if a 3 month period could achieve what was not achieved in 5 years!

The Malaysian judiciary, as we know, is the only judiciary in the whole Commonwealth, if not in the whole Milky Way, which does not have judicial powers unless specified by the Parliament in writing! (my rants on this issue is here). Since the Executive (meaning, the Government) controls the Parliament, it then goes without saying that the Judiciary will only have powers as and when given it by the Government! This is Barisan Nasional’s idea of democracy and separation of powers. They make the laws. They administer the country. They implement the law. And they decide on what the Courts could or could not do (more often, they would decide on what the Courts could not do, as in the ISA for example, where the Courts supposedly could do nuts but to count full stops and comas while reviewing a detention order issued by the Government. This of course, bears resemblance to the Majlis Fatwa, which, as we all know, only barks when there is something which it thinks the Muslims should not do).

So, first thing first. The Courts in Malaysia do no have any judicial power unless specified in writing by the Parliament which is, in current times, some sort of a nominee for the present day Government.

Abdullah of course does not have the ability to comprehend the above issue. He is the kind of person, who, after being fed up with ASTRO’s programs on TV (my rants on ASTRO is here), for instance, would go out and buy a new TV set to solve the “problem”. It doesn’t take a lobotomised infirm monkey to know that that would not in any way solve the problems of ASTRO re-running “Death Wish” to bloody death, but to Abdullah, that is the perfect “solution”. If only life is that simple.

And so, after the passing of the Judicial Appointment Commission bill, Abdullah proudly declared victory for his reforms. Or rather he proudly declared victory for his so-called reforms. When that bill receives Royal assent (well, actually, Mahathir Mohammad has also ensured that the Royal assent to any bill is not necessary anymore before that bill becomes the law of the country. Royal assent is, courtesy of Mahathir Mohammad, just the Constitutional equivalent of a cheap lipstick, mind you!) soon, our Judiciary, which has been besieged with problems all these while, would magically transform itself into an independent and a well respected Judiciary the next day. That is Abdullah’s idea of a reform.

Well, it is not the aim of this post to highlight the various weaknesses of the bill. Tonnes have been written about that (see here for a google list of all the articles and comments about the bill) and I am not about to repeat them.

I have asked this a million times and I will ask it again. How in heaven do we solve problems when we do not know what the problem is? How, for instance, are we going to build a nuclear powered nano-turbine-subpreonic-thermocaster-decompructorised-submarine when we do not have a bloody idea of what that thing is? (for those whose curiosity have been tickled by that “thing”, please do not waste time researching or googling it because it is just my invention, just to make my point!).

The JAC will not, and I repeat, will not, transform our Judiciary into the most independent Judiciary in the world. Nor will it restore public confidence in our Judiciary. Nor will it restore our Judiciary’s position as one of the best Judiciary in the Commonwealth pre-1988. It will not do any of those things. Just as buying a new TV set will not in any way solve your boredom with RTM, TV3, ASTRO, TV9 or whatever.

This Government has the knack of “solving” problems when it does not have an inkling as to what exactly those problems are. When the MRR2 suffered some cracks for instance, they went and wrapped those cracks with super expensive carbon fibre wrapping. True enough, the cracks reappeared. Millions were wasted. The public suffered untold inconvenience. When the public made loud complaints about the public transportation in Kuala Lumpur, they went and cancelled all the Bas Mini licenses and allowed only one bus company to run in KL. They also built LRT and STAR whatnots. Nothing improved. I could go on and on.

Dear Mr Prime Minister, allow me to first say that “confidence” is not a tangible thing. It is a feeling. Some kind of an emotion. You cannot touch it. Neither can you buy or purchase or rent it. It is a perception. It is what the people think it is. The same thing goes with public confidence in the Judiciary. No number of Commissions will improve public confidence in the Judiciary if you do not address the “things” which make the people lose confidence in the Judiciary in the first place. No number of “eminent persons” in any number of Commission will do that either. What more if the said Commission is controlled or going to be controlled, or even if it is perceived to be controlled, by the Prime Minister. I use the word “perceived”. That is because the control by the PM need not be real before the public loses their confidence. As long as the public think so, their confidence would go away. As simple as that.

Secondly, have you found out why there is no confidence in the Judiciary? I am sure you have. Or you think you have. Why don’t you consult some lawyers about it? Why don’t you go and sit in one of the Commercial Courts in the High Court at KL, at the biggest Court Complex in the world (which costs 6 million smakeroons per year just to light it up), for one day and find out? Why don’t you read some of the judgements meted out by some of our Judges nowadays? But then again, you wouldn’t understand, would you? Really, please ask some lawyers, whom you know, to tell you honestly, of what the real problems are.

To begin with Mr Prime Minister, the public confidence in our Judiciary is not there because you had appointed Tan Sri Zaki as the Chief Justice. I am sure Tan Sri Zaki is a hard working towering Malay who earnestly believes in his ability to make the Judiciary better. In fact I personally know that the Tan Sri had done a good job since he was elevated to the Court of Appeal. But what matters Mr PM is “perception” and “confidence”. As I had said, these are intangibles.

It therefore does not matter two hoots that Tan Sri Zaki is the absolute best person to head the Judiciary. What matters is the public’s perception of him, and his past connections with UMNO, the ruling party. I give you an example. Lets say there is a case involving UMNO against PKR in the Federal Court. Imagine okay? Tan Sri Zaki has said that he would not sit in any case involving UMNO. Okay, he does not sit. Other Judges sit and hear the case in the Federal Court (cases in the Federal Court are heard by at least 3 Judges). Then, lets say UMNO wins and PKR loses. What will the public say? Regardless of the fact that the Judges hearing the case have given the fairest of hearing to PKR and UMNO and the fact that they have decided in accordance with the law, the public would say “of course la UMNO wins, the CJ, who is the head of the Federal Courts, was an UMNO man!”. That is what the public would say. Or a section of the public would say. It doesn’t matter what ACTUALLY transpires. It is a matter of perception. See what I mean?

The JAC to me, with respect, is a process of legitimising the PM’s absolute control over the process of appointing Judges. I am sad to say that. But that is what I think. That is what I perceive it to be.

And no matter what you do or say, that perception will remain. And if you ask me why, I would just say, that’s how I feel.

Because Mr Prime Minister, that is what perception is all about.


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Posted on 24 December 2008. You can follow any responses to this entry through the RSS 2.0.

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