Tax Payer's Money, Loss, Allegations-Solutions through the RULE OF LAW (Part 2)

In my previous article, I had mentioned of the need to address all issues in a neutral manner without taking sides, consider all facts and evidence and be confident of the system.However, all these could only take place if we have a proper system to rely on and the very question is, DO WE NEED A CHANGE ON THE SYSTEM?

Without hesitating, I believe most of us would give a big YES to the question. A system where an independent body could be set up to monitor the effectiveness and efficiency of the concept of separation of power and the setting up of an independent body to look after the basic rights of citizens such as freedom of speech, religion and movement. The need to change to cope up with the ever fast moving society as to avoid us from being lacked behind and a need to have a judicial body which could deliver justice and make justice apparent to the people.

Malaysia has always seen the overlapping of powers between the judiciary, legislative and the executive. The ruling party Barisan Nasional is the majority in the parliament and the executive will be formed by party which has the majority in the house of common and that is Barisan Nasional Again and the judiciary which is perceived to be under the domination of Barisan Nasional as by virtue of Article 121 of the Federal Constitution, the Chief Justice of Malaysia shall be appointed by His Majesty Yang di-Pertuan Agong upon being advised by the Prime Minister.Again, another involvement of Barisan Nasional.

With a strong presence in almost all 3 branches, it would be virtually almost impossible for literate citizens to be convinced that neither one of the bodies would perform it's duty without any biasness to the Barisan Nasional Party. Similarly, if Pakatan Rakyat were to rule today, the current the 3 major bodies would consist of mostly if not only Pakatan Rakyat people be it through direct or indirect appointments. The bottom line is, this is no longer separation of power but more to communism or "party autocracy"-ONE PARTY RULES ALL.

In order to understand better as to why an overall system needs to be changed, perhaps a comparison to the unilateral government in China should be made. In China, the people I believe will always be engulfed with uncertainties due to the fact that when only one party is ruling a country, it all boils down to the concept and policy that is in the mind of the leader. In the mid 60's till the mid 70's, cultural revolution hit China under the pretext of restoring socialism and eradicate all forms of capitalism influence in Mainland China. Economic disarray, chaos, people were deprived of basic human rights. That was when Mao Zhedong ruled China. Today, China has some of the better leaders ever since Deng XiaoPing took over the administrative state. China is progressing well thanks to the proper mindset of the leaders. Jiang JeMing, Wen Jia Bao and Hu JinTao are all visionaries which has propelled China to a higher level of development. However, with only one party ruling, What if in the future, an extreme leader rules China, Seems possible for China to revert back to it's oppressive policies.

At the end of the day, it's about how certain the people would be in having their rights and liberty safeguarded. Fusion of branches under the concept of separation of power would be dangerous to the people at large since it would be similar to socialism and communism, check and balance would just be another concept which is impossible to be effectively practiced. Perhaps the practice of democracy used by the United States of America should be emulated as it clearly demonstrate an absolute separation of power.

It is for this, I propose the position of prime minister to be elected by the people and at the same time retain the power of His Majesty that is to appoint people selected by the people and His Majesty should have the power to terminate the position of Prime Minister if his or her performance is not on par with the required standard. His Majesty could then under the advise of prime minister appoint other ministers similar to that of the United States of America or Taiwan. Through this, the prime minister who runs the administration of the executive would then be able if not needed to summit in an independent and quality report without having any overlapping interest with the legislative and judiciary to the leader of the executive that is His Majesty Yang di-Pertuan Agong. This would safeguard people from any lax of quality from the decision made by the executive.

With this, at the end of the day, the status of the term "EXECUTIVE RESPONSIBLE TO THE PARLIAMENT" will elevate to a higher level since it involves true separation of power and IF the same party has been elected to these 2 branches of government, it would then seem that the people is confident of the impartiality standard of the party leaders that is being fair, just and caring when it comes to decision making. If this is the case, the people should not complain of the decision made by them personally.

As for the judiciary, we should take advantage of the fact that we are part of the commonwealth nations which has a total of 54 countries sharing the same type of judiciary system i.e the common law system. The importance of an independent judiciary in any commonwealth countries does not confined within the country itself. The concept of ratio decidendi, orbiter dictum, highly persuasive decisions, precedents, guidelines all would play a role in guiding judges in commonwealth countries in delivering judgement. The damage done by having a corrupted and tainted judiciary in any commonwealth countries would span beyond domestic conflicts. Thus, for all commonwealth countries to have an independent and consist of accountable judges, I propose a setting up of a Commission consisting of at least 3-5 members at one time to elect judges for any commonwealth countries intending to appoint judges.

Every Country would be concerned with the appointment of judges as independent and quality judiciary could safeguard the rights of people.Thus, with this proposal, I believe a fair and quality judges could be placed in all commonwealth countries. For instance, when Singapore is in need of judges, random selection of panels from different countries(such as from Pakistan,Maldives and New Zealand) to be part of the commission to look into the merits of judges of Singapore proposed by the Prime Minister would guarantee the citizen of Singapore of Justice and fairness not only in appointment but in interpreting the law as well. Another example demonstrating the mechanism of my proposal would be that the Malaysia's Prime Minister could look into potential candidate(s) and have it submitted to the panel consisting of panels from different countries and thereafter submit in a report to His Majesty the Yang di-Pertuan Agong to appoint credible judges which has a high level of credit.

Similarly, when it comes to for instance,appointment of judges for Canada-Panel such as Malaysia, India and Australia could be randomly selected to oversee the merits of the candidates submitted to the panel. It would then seem that no one and no Commonwealth countries would have judges that is tainted or bias since the advice to appoint is made by a non-partisan commission consisting of 3 or more members of the 54 Commonwealth Nations. It's about sharing expertise and should not to be considered even slightly among members of the panel as a symbol of permitting the interference of domestic administration.

The concept of scrutinizing by the panel might not need to be applied to all judges, perhaps it would be sufficient when it comes to the position of Lord President, Chief Justice or equivalent. If the leader of the judiciary is credible and is highly regarded by other Commonwealth Countries, His/Her subordinates will be independent from political influence and of certain quality as with his or her leader as well. Thus, my suggestion is; change the method of appointment of judges at least the position of the Chief Justice or Lord President or equivalent and maintain the method of appointment of other judges( by the President or The King/Queen of a country under the advise of the Chief Justice or Lord President.) As for Syariah Court, a similar pact could be made with countries that have Syariah Legal System such as those from the Middle East, Singapore or even UK(adopted lately) through the method explained earlier. At the end of the day, the main concern will be the independent and quality of judges that is at stake and has nothing to do with different domestic laws each countries have. Thus, the jist of my proposal is to monitor the quality and merits of judges and the panel appointed should not have(irrespective of Common Law or Syariah Law) any power to pressure any amendments or formation or repeal of any laws of any countries.

What I have been proposing all this while is for the strengthening of the rule of law through a more effective separation of power. By way of voting to be in power for either the legislative or/and the executive; policies, law and explanations made by political leaders will be highly regarded as there is an effective system of "check and balance" between the 2 independent and separate branches.An independent judiciary by sharing consultations between Commonwealth countries or Syariah Legal System Countries for Syariah Law(* NO INTERFERENCE OF DOMESTIC LEGAL ADMINISTRATION) will allow public to have faith in the judiciary and any judgement delivered be it political or normal dispute will be considered fair and perceive to be fair by the public since appointment is not through any political leaders from any parties but by anon-partisan party.

While I do admit that no system would be perfect even with this proposal. Nevertheless, what we could do so far is to perfect the imperfections as much as we could and I sincerely hope that this proposal would be kind enough to settle at least most of the problems engulfing our country and other commonwealth countries.