The Judicial Appointments Commission (JAC) and Malaysian Commission on Anti-Corruption (MCAC) Bills tabled for first reading in Parliament on Wednesday elicited mixed reactions from BN and opposition parliamentarians.

These are comments on the Bills, with the most contested provisions relating to the jurisdiction of the prime minster in deciding the appointment of commissioners for the MACC and judges for the JAC.

Gobind Singh Deo (DAP-Puchong)

gobind singh deo The JAC Bill says its purpose is to uphold the continued independence of the judiciary. However, the entire scheme of the proposed Act is to place the commission in the grip of the prime minster.

Firstly, the chief justice of the Federal Court, president of the Court of Appeal and chief judge of Malaya and of Sabah and Sarawak, all of whom are appointed upon the advice of the prime minister, are members of the commission.

Then, the other members are a Federal Court judge appointed by the prime minster and four eminent persons, again appointed by the prime minister.

It would be better for the sake of independence, that at least one of the commissioners are selected by the Bar Council or by the Conference of Rulers or other independent bodies.

Next we have Section 9 which clearly provides that the prime minister may at any time revoke the appointment of the four members and without assigning any reason.

Surely, this provision clothes the prime minister with ultimate powers and an iron fist over members of the commission.

This blanket provision gives the prime minister ultimate powers to intervene in ordinary functions of the commission as he thinks fit.

Further, it gives the prime minister powers to amend the Act without the need to consult Parliament, which is totally unacceptable.

These provisions cannot and must not be allowed to remain in this Bill as it would defeat the very concept of independence advanced by the Bill to begin with and serve as a very dangerous precedent for future Bills.

The other grey area in the Bill is the one regarding the selection of candidates. Section 26 speaks about the report which the commission must forward to the prime minister in which the names of those selected must be stated, the reason for their selection and other materials relevant for consideration.

And Section 27 speaks about the power given to the prime minister to call for suggestions to fill vacancies for the posts (of judges in the commission).

However, Section 28 seems to suggest that it is up to the prime minister to accept or not those candidates selected by the commission.

This should not be. The prime minister should not be given the right to choose judges as he pleases. This again defeats the idea of independence of the judiciary by removing it from the grip of the executive.

Mukhriz Mahathir (BN-Jerlun)

mukhriz mahathir 290508 I think the checks and balance issues are well addressed (in the MCAC Bill) because we have a number of committees including the advisory panel.

This exceeds what is being implemented in Hong Kong and New South Wales to the extent where we even have a provision for lawyers who represent clients to divulge information about the client if compelled by the commission.

I think it would be interesting to get comments of lawyers about this, because the client-lawyer relationship is privileged.

I cannot compare it to the Independent Commission Against Corruption (ICAC) in Hong Kong but I would be surprised if they had that provision in the ICAC.

There is no such thing as a totally independent body. I mean if you want a truly independent one then we need to get a foreign body to come in and do the investigation but even then questions will arise.

I understand to some extent why the prime minister is involved in selecting candidates for the MCAC, but still the advisory panel has its say and then the select committee under Parliament.

So there are a few levels to go through before the names are approved. From my part, it seems that the government is letting go of quite a lot of authority over the commission.

I am in support of anything that works in eradicating corruption in the country.

Lim Kit Siang (DAP-Ipoh Timor)

lim kit siang 201108 Abdullah's claim that the MCAC and JAC Bills will restore public and investors' confidence in the country's battle against corruption and the judicial system is too premature, as this will depend on whether the two Bills can result in meaningful and effective reforms in these two jurisdictions.

Can the MCAC and JAC Bills wipe out the negative perception, finally admitted by the prime minister himself, that the government is not committed in tackling corruption or addressing the suspicions of investors about the integrity of the judiciary?

The MCAC purports to create an independent anti-corruption agency, taking it out from the Prime Minister's Department to be answerable to Parliament.

However, from the MCAC Bill, the prime minister's influence and even control through the various provisions are still over-powering and sufficient to undermine its independence and autonomy.

For instance, it is the prime minister who will decide the appointments of the chief commissioner of the MCAC as well as the two important check-and-balance mechanisms - the Anti-Corruption Advisory Board and the Special Committee on Corruption.

The Special Committee on Corruption is supposed to be a parliamentary committee to exercise oversight of the MCAC, but who decides on its composition? The prime minister, who will advise the Agong on the appointment of seven members from the Dewan Rakyat and Dewan Negara, based on the nomination of the 'Leader of the House of Representatives', who is none other than the prime minister himself!

Clause 58 of the Bill - providing that an offence under the new law may only be instituted by or on behalf of the public prosecutor - undermines the claim that the chief commissioner of the MCAC will have absolute discretion to decide on prosecution on corruption.

The JAC Bill is also a let down. I share the disappointment of Param Cumarawamy, former United Nations Special Rapporteur on the Independence of Judges and Lawyers who has pointed out two salient points:

- Without amending Article 121 of the constitution to restore the doctrine of separation of powers and conferring judicial power on the courts, judicial independence cannot be secured by merely conferring on the chief executive of the government the duty to uphold judicial independence.

- The power of the prime minister to remove the eminent persons in the JAC at any time without giving reasons pursuant to clause 9(1) virtually gives legal legitimacy for executive dominance over the judicial arm of the government.

From the Bill, the prime minister can finally ignore the recommendations of the JAC to recommend his own candidates for judicial appointments and promotions, which makes a mockery of such a judicial reform.

R Sivarasa (PKR-Subang)

r sivarasa 270208 The MCAC Bill does not seem to be taking any step forward on the question of independence. The problem with the ACA today is that it is not effective, not independent and it is a political instrument, and there is enough evidence of that.

The basic problem is because prosecutions are in the hands of the AG, and as long as that is the case, prosecutions have to go back to the AG, and if one has issues about the AG's office, how then do you deal with it?

They say they are modelling the Bill after the ones in Hong Kong and New South Wales. In Hong Kong, their ICAC is completely independent. They do not have to refer to anyone to make a prosecution.

Our concern is this - you are calling it a comprehensive reform, but you are not dealing with the fundamental issue of independence. If you are just going to have these three committees, you could have just easily amended the ACA Act.

It is more like window dressing... any other country would have spent months on this Bill; it would have gone to select committees, and interested parties would have given their views.

There is no provision that the Special Committee will be like a Select Committee which has a provision in the Standing Orders that it will reflect the composition of the House. So, in theory, it could just be filled with government backbenchers.

The JAC you are seeing now is like a committee. People are appointed by the prime minister and not by the Agong. The prime minister appoints five out of the nine members of the commission, so it could be a legitimising exercise, and that is the problem, creating a façade of legitimacy where none exists.

From what you can draw of this, you can say it's being done for someone's legacy.