ABDULLAH'S REFORMS PASS PARLIAMENT, BUT WILL THEY

C O N F I D E N T I A L SECTION 01 OF 03 KUALA LUMPUR 001116 SIPDIS FOR EAP/MTS AND INR E.O. 12958: DECL: 12/24/2018 TAGS: PGOV ECON KDEM KJUS MY SUBJECT: ABDULLAH'S REFORMS PASS PARLIAMENT, BUT WILL THEY MAKE A DIFFERENCE? REF: KUALA LUMPUR 609 - UMNO RESISTS REFORM Classified By: Political Counselor Mark D. Clark, reason 1.4 (b and d). Summary and Comment -------------- ¶1. (SBU) Malaysia's Parliament has hurriedly passed two judicial reform bills personally championed by outgoing Prime Minister Abdullah Badawi as his parting legacy. The Malaysian Anti-Corruption Commission (MACC) bill replaces the existing Anti-Corruption Agency (ACA) with a more autonomous Commission that has expanded investigative powers, but remains under significant control by the Prime Minister. The Judicial Appointments Commission (JAC) bill establishes a nine-member body to advise the PM on filling senior judicial slots. Abdullah described the bills as "a major step forward," and ruling National Front (BN) MPs told us these were initial measures to reform the system. With only a few days to debate the bills, Opposition MPs, joined by the Bar Council, expressed reservations that the measures did not go far enough and did not restore judicial independence taken away by former PM Mahathir. In the end, the Opposition, which is unable to block legislation, did not actively oppose the bills. The JAC could face future challenges on constitutional grounds. ¶2. (C) Comment: PM Abdullah pledged to introduce governance reforms when he took over power from Mahathir in 2003 and his inability to do so contributed to the BN's major setback in the March 2008 polls. Abdullah's post-March efforts to craft reforms met with resistance from his own United Malays National Organization (UMNO) party. Although forced by UMNO to step down as of March 2009, Abdullah has insisted on instituting reforms before he departs office. Trumpeted as major achievements by Abdullah, and supported by his heir-apparent DPM Najib, the bills represent modest, positive steps to strengthen rule-of-law, but do not reestablish checks and balances on executive authority destroyed during Mahathir's tenure. The two bills become significant only if they are the first steps in a program of deeper reforms. Fundamental change requires reinstituting judicial independence through constitutional amendment, which Abdullah and UMNO did not pursue. Given UMNO's opposition to reducing executive authority, and the party's resistance to internal reform (reftel),Malaysia's prospects for strengthening the rule of law remain in question. U.S. policies and actions in Malaysia should continue to emphasize the importance of further governance reforms needed for Malaysia's future political and economic success. End Summary and Comment. Abdullah: "I Am Fulfilling My Promise" -------------- ¶3. (U) On December 11, PM Abdullah personally tabled in Parliament the Malaysian Anti Corruption Commission (MACC) and the Judicial Appointments Commission (JAC) bills, two elements of a reform package promised by the PM since taking office in October 2003. While agreeing under pressure from his UMNO party to step down in March 2009, Abdullah insisted he would see through reforms in his final months in office. The MACC will replace the current Anti-Corruption Agency (ACA),while the JAC creates a new body that is intended to make judicial appointments more transparent. The Parliament's lower house approved the bills after only several days of debate. The bills were approved by the Senate on December 22-23, and will become law when they are signed off by the King within the next few weeks. Describing the bills as a "major step forward for the country", the PM added that, "My promise to the people is to institute reforms and I am doing just that. I am fulfilling my promise of reform before I leave." Abdullah is also expected to table the Special Complaints Commission bill, which will mandate watchdogs for law enforcement agencies, in February 2009, just prior to his stepping down as PM. MACC: Broader Authorities -------------- ¶4. (U) According to the government, the MACC is modeled after anti-corruption commissions in Hong Kong and Australia, and is aimed at "promoting integrity in the public and private sector administrations" and "to educate civil servants and members of the public on corruption and its negative impact on public and private sector administrations as well as on the society as a whole." Unlike the previous ACA, the MACC KUALA LUMP 00001116 002 OF 003 will have its own personnel independent of the civil service. The MACC will enjoy some broader authority, including greater scope to investigate public bodies and extended family members; authority to seize properties; provision of anonymity to whistleblowers; and the right to prosecute Malaysians for offenses committed overseas. Depending on the corrupt act, offenders can be jailed for up to 20 years or fined not less than five times the monetary value of the bribe or a minimum of 10,000 Malaysian Ringgit (approximately $2850 USD),whichever is higher. This penalty also applies to any "foreign public officials" who abuse their positions to offer or accept bribes, in line with Article 16 of the United Nation's Convention Against Corruption (UNCAC), ratified by Malaysia in September 2008. ¶5. (U) The MACC will be headed by a chief commissioner appointed by the King on the advice of the PM. The chief commissioner need not come from the ranks of the civil service. Five bodies will exercise some oversight regarding the MACC's activities. One of the bodies is a Special Committee on Corruption comprised of MPs appointed by the PM from both houses of Parliament. Daniel Li, Deputy Commissioner of Hong Kong's Independent Commission Against Corruption, praised the MACC as a "very comprehensive and forward looking law". The state-dominated media made Li's positive statements front page news, along with Abdullah's remarks describing the MACC as a significant reform. ...but Not Independent -------------- ¶6. (U) Opposition parties and civil society groups generally welcomed the tabling of the MACC bill, but expressed concern that the Commission, like the ACA it replaces, will be totally beholden to the PM and the Attorney General. The MACC reports to the PM, as do the five committees that scrutinize the MACC's operations. Crucially, the Commission lacks independence to prosecute, as the bill states, "a prosecution for an offence under this Act shall not be instituted except by or with the consent of the Public Prosecutor (the Attorney General)." ¶7. (SBU) Poloffs attended the parliamentary debate of the MACC bill on December 15. In the chambers, opposition leader Anwar Ibrahim and Democratic Action Party (DAP) Secretary General Lim Guan Eng expressed concern that the MACC's lack of prosecutorial authority will affect the integrity, independence, and impartiality of the Commission. Opposition MPs, who lack the ability to block legislation, proposed multiple amendments to the bill -- 14 in all -- and made several attempts to delay the vote, but when it became apparent that the vote would go forward, they ceased their delaying tactics. The bill passed without any amendments by a voice vote on December 16. Poloffs met with several opposition MPs at Parliament on December 18, who adopted a different posture since the debates a few days before and described the bill as "a good start." JAC: Adding Structure to Senior Appointments -------------- ¶8. (U) Established under the second bill, the Judicial Appointment Commission (JAC) will manage the appointment of judges to the Federal Court, Appellate Court and High Court, and for the position of Chief Justice. According to the bill, the nine-member JAC will be chaired by the Chief Justice and will be comprised of several prominent judges and four other eminent persons to be appointed by the PM. The PM, however, must first consult with the Malaysian Bar Council and other prominent legal groups before naming his choices for the council. Members are obliged to disclose their relationship with any candidate under consideration during the selection of judges. Failure to disclose their interest with the candidate will make the members liable to a large fine, imprisonment, or both. The Commission will also review and recommend programs to the PM to improve the administration of justice, and must submit an annual report to Parliament outlining its activities. ...but Preserving PM's Authority -------------- ¶9. (U) The JAC bill preserves the Prime Minister's authority over judicial appointments. According to the bill, the PM can revoke the appointment of anyone in the JAC at any time for any reason. If the PM is not happy with the candidates KUALA LUMP 00001116 003 OF 003 recommended by the JAC to fill vacancies in the courts, the PM also can ask for further recommendations before he "advises" the King on his selection. In an unprecedented abdication of Parliament's authority, the bill also provides the PM with the power to change any provisions in the Act during an initial two-year period without reference to Parliament, if he deems changes necessary for "removing any difficulties or preventing anomalies" in executing the Act. Legal Community Expresses Reservations -------------- ¶10. (SBU) Civil society and legal expert views on the JAC ranged from modest encouragement to criticism and disappointment. President of the Malaysian Branch of Transparency International Ramon Navaratnam offered a pragmatic view of the JAC, telling Poloff's, "this is a first step in the right direction...an improvement over the status-quo." In a press statement, Bar Council President Ambiga Sreenevasan appreciated the Government's moves to "introduce a system for the appointments and promotion of Judges with a view to strengthening the Judiciary", but expressed reservation that the bill would "reinforce the control of the Executive over the judicial appointments process." A number of legal experts asserted that the JAC bill contradicted the Constitution's provisions for judicial appointments and could be subject to future legal challenges. ¶11. (SBU) Speaking with Poloffs, former Bar Council President and former UN Special Rapporteur for judicial independence Param Cumaraswamy described the bill as an "utter disappointment." Although the recommendation of appointments may give a semblance of transparency, the PM's power, including to appoint and remove any or all the non-judicial members of the JAC, remained unchecked. "Judicial independence cannot be secured by merely creating this commission," he added, but would require amending Article 121 of the Constitution to reestablish the separation of powers and vest jurisdiction in the courts independent of legislation. (Note: Mahathir amended the Constitution in 1987 to delete direct investiture of powers in the High Courts and instead limit the courts' jurisdiction and powers to those "conferred by or under federal law." End Note.) KEITH