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

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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

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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