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Wednesday, December 24, 2008

> Why no constitutional amendments?

Just about everybody has been arguing that constitutional amendments are essential for Prime Minister Abdullah Ahmad Badawi's 'reform' bills.

Yet both the Malaysian Anti-Corruption Commission (MACC) and Judicial Appointment Commission (JAC) will now become laws without the accompanying changes to the constitution.

Why?

The answer is simple - the prime minister does not have the numbers in Parliament to push through the much-needed constitutional amendments. 

To change the constitution, Abdullah needs the support of two-thirds of the Parliament, or 148 of a total 222 MPs.

The Barisan Nasional is 10 short of that magic figure, making it necessary for the first time in the ruling coalition’s history to seek backing from the opposition.

Yes, it is likely that the opposition will vote for the constitutional amendments.

But 'likely' is not good enough for the prime minister. What Abdullah feared most is that Pakatan Rakyat would turn the exercise into a vote of no- confidence on his leadership.

Abdullah would hate to end his short stint on that note and be remembered as the leader who was unable to command the necessary numbers for a constitutional amendment. 

For that, he would not risk making amendments to the constitution to support his two bills.

Both laws 'ultra vires' of constitution

The arguments for constitutional amendments are compelling.

Sabah Justices of the Peace Council has argued strongly for constitutional amendments, or the bills could be deemed ultra vires to the constitution.

Take the JAC bill.

According to the federal constitution, a person is appointed a judge by the Agong, who acts on the advice of the prime minister and after consulting the Conference of Rulers.

Before tendering such advice, the prime minister is required to consult the head of the respective courts - either the chief judge of Malaya, the chief judge of Sabah and Sarawak or the chief justice.

The main task of JAC - which comprises a nine-member panel of top judges and eminent individuals - is to make recommendations to the PM on the candidates to be appointed as judges.

Backers of the law may argue that JAC is nevertheless chaired by the chief justice and other top judicial members.

Thus by extension, the PM is meeting his constitutional duties by consulting the "head of the respective courts" given that they are all members of JAC.

This is a disingenuous argument as one could easily point out that consulting a minister is very different from consulting the cabinet.

AG has full control over all prosecutions

The same is true with MACC, where the constitution stipulates that the attorney-general has legal control over all prosecutions.

As all prosecutions must be approved by the AG - and these include complaints of corruption - MACC will have a hard time getting the green light from the government's top legal officer.

In order to give MACC a veneer of independence without having to change the constitution, the bill states that the AG is “delegating” all powers administratively to the commission.

Understandably, this is not good enough to satisfy the bill’s critics.

Abdullah sought to put a positive spin on the issue hours after the two bills were passed by Parliament. 

"We have managed to take an approach to pass the bills without having to amend the federal constitution. This is our strength and the BN MPs have given their full support," he said.

Wrong.

It was BN’s weakness that Abdullah had to junk the idea of changing the constitution. Because of our risk-averse PM, Malaysians are now left with two imperfect laws - Malaysiakini.