Article 38 empowers rulers to arrest rampant corruption

I was pleasantly surprised last week when MACC chief commissioner Azam Baki warned that increasing salaries in the government sector was not the solution to curbing corruption in the civil service.

According to FMT, Azam cited “greed”, “opportunities” and “systemic flaws in procedures and governance” as reasons why rampant corruption exists, both in the government and private sectors.

Indeed, Malaysia’s path to corruption and unjust enrichment is a self-inflicted tragedy which has deprived a large segment of the population the means to secure a job with a reasonable income sufficient to allow them to enjoy food, shelter, healthcare, a quality education, and a safer environment, among other needs.

This tragedy has been well-planned by politicians, dating back to the late 1980s when the real Umno was declared illegal by the courts and former Lord President Salleh Abbas wrongfully removed from office. Many more events followed, rendering the separation of powers in this country now a myth.

For that reason, it was heartening to note that our Malay rulers had as far back as November 2022 proposed to scale down the executive’s role in the appointment of judges.

The recommendation came one week after the 15th general election which saw the current unity government appointed.

According to NST, the Conference of Rulers proposed that five of the nine members of the Judicial Appointments Committee, which appoints superior court judges, no longer be nominated by the prime minister.

The proposal was designed to reduce the control which the executive has on the judiciary.

Instead, the rulers called for institutions such as the Malaysian Bar, Sabah Law Society, Advocates Association of Sarawak and a parliamentary select committee to have a say in the appointment of judges.

To date, that advice has yet to be heeded by the government, despite many promises of meaningful institutional reform.

In fact, many other aspects of the legal system are crying out for reform.

For instance, the government has long talked about removing all prosecutorial powers from the hands of the attorney-general. Thus far, however, nothing concrete has been proposed, let alone put in place.

I have previously advocated the removal of the trying of facts from the judiciary through the use of arbitration conducted by subject matter experts in civil and commercial cases, while in criminal cases, I have argued for a return to jury trials.

To my mind, these proposals will go a long way to clamping down on any form of misconduct in this country. Both proposals will reduce reliance on a single judge as a trier of fact, while a jury trial, especially in corruption cases, will ensure a fairer trial for accused persons.

It will also have the added benefit of reducing the long delay and backlog of cases in our court system, and improve the now outdated litigation system we inherited from the British.

Our Federal Constitution is unique in that unlike other countries, Malaysia is not, in my view, headed by a constitutional monarch.

Article 38 clearly provides for the Conference of Rulers, who, apart from the specific powers given to them collectively, may also “deliberate on questions of national policy and any other matter that it thinks fit”.

In my view, those wide words provide space for the nine Malay rulers and four governors to play a positive role by intervening to correct maladies in the rule of law.

As I have suggested previously, the Conference of Rulers ought to do this under advice, for which purpose it ought to appoint an independent advisory panel in the form of a rulers’ court, comprising men and women from respected jurisdictions with a strong track record of upholding the rule of law.

Such a framework is necessary so as to avoid criticism that decisions arrived at, and advice given to the executive, are not seen as being in the arbitrary exercise of power.

Ultimately, the solution to arrest corruption and abuse of power is simple and straightforward, but depends on the existence of real political will. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.