Press Statement
Judicial Appointments Commission Bill 2008
- A Disappointment
The long awaited legislation for a Judicial Appointments Commission is a disappointment. While it provides for a mechanism for selection and recommendation for appointments to the superior judiciary namely, the High Court, Court of Appeal and the Federal Court including their respective heads and provides for criteria for such appointments all of which may appear giving a semblance of transparency yet it could lead to executive interference into the independence of the judiciary.
Provisions for the Prime Minister of the day to defend the independence of the judiciary and power conferred on him to appoint and remove any or all the non-judicial members (eminent persons) of the Commission at any time without giving any reasons in essence means that the independence of the judiciary would be dependent on the personality of the Prime Minister in power, in effect the executive arm of the government.
Without amending article 121 of the Constitution to restore the doctrine of separation of powers and conferring the judicial power on the courts judicial independence cannot be secured by merely conferring on the chief executive of the government to uphold judicial independence.
This provision in clause 2 of the Bill read together with the power of the Prime Minister to remove the eminent persons in the Commission 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.
There are other flaws in this Bill which are most worrying:
1) While clause 11 sets out at length for avoidance of conflict of interest situations for members of the Commission yet clause 15 dilutes its effectiveness in that contravention of clause 11 does not invalidate “any act done or proceeding taken” pursuant to the same contravention . Hence a judicial appointment made in contravention of clause 11 will in any event be valid. What then is the purpose of the strictures over conflict of interest in clause 11?
2) Clause 5 (1)(f) provides for the Prime Minister to appoint four eminent members to the Commission after ‘consulting ‘ the Bar associations in West and East Malaysia. The word ‘consultation” is not defined in the Bill. Experience has shown in the past how the process of consultation between the Prime Minister and the Conference of Rulers over judicial appointments was abused by one Prime Minister. The process of consultation should not be seen as a sham.
3) While the Bill provides for the Prime Minister to accept persons recommended by the Commission yet it does not expressly provide what happens if he does not accept the recommendations. This omission read together with the power of the Prime Minister to amend the legislation within two years “whenever it appears to him necessary or expedient to do so …………………..” leaves much to be desired. It provides unfettered power to the Prime Minister to amend the legislation under the pretext to “removing difficulties or preventing anomalies”. It will be open to abuse.
4) Further, clause 28 provides for the Prime Minister to tender his advice under article 122B of the Federal Constitution. Under article 122B the advice tendered to the King is after certain processes under the same article including the consultation with the Conference of Rulers. What happens if the Rulers have a differing view from that of the Prime Minister over any recommendation particularly in the light of the choices made by the Prime Minister from those recommended by the Commission? Hence without amending the Constitution to entrench the Commission and harmonize article 122B with its functions conflicts between the Constitution and the legislation could arise.
Finally, it must be stressed that the present Prime Minister may be well meaning and may not abuse his powers. The same cannot be said about future Prime Ministers. We must learn from experiences of the past. What is needed is a legislation which will insulate the judiciary as an institution and individual judges to secure their independence. The Dewan Rakyat as a constituent part of the legislature must be mindful of these concerns and provide for such insulation. The proposed Bill is far from providing such insulation. The Constitution must be amended to entrench the independence of the judiciary.
Dato’ Param Cumaraswamy
Former UN Special Rapporteur on the
Independence of Judges and Lawyers
December 11, 2008
sebab itu rang undang-undang ada beberapa peringkat. Boleh buat amendment. jangan diperbesarkan isu ini, ini kerja dalam parlimen, tak perlu diperbesarkan sebab ramai rakyat tidak tahu selok-belok parlimen, judiciary, yang penting ahli parlimen pastikan semuanya lancar dan terbaik. Jangan pula keluar dewan beramai-ramai lagi sekali, tak selesai kerja..
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GMA Network Inc. filed a suit yesterday afternoon, December 3 at the Quezon City Regional Trial Court against TV5, Malaysian company Media Prima Berhad (MPB) and MPB Primedia for entering into an unlawful blocktime agreement.
Here is GMA Network’s official statement in full:
“GMA Network, Citynet, and ZOE Broadcasting have filed a lawsuit against ABC-5, Malaysian company Media Prima Berhad (MPB), and MPB Primedia for allegedly entering into an unlawful blocktime agreement.
GMA Network is asking the Quezon City Regional Trial Court to nullify the blocktime agreement between MPB Primedia and ABC-5 as the agreement violated the 1987 Philippine Constitution, which restricts ownership and management of mass media to Filipino citizens or corporations.
The said blocktime agreement allowed MPB Primedia to control and manage ABC-5’s programming content and airtime sales.
GMA Network said that while MPB Primedia’s Articles of Incorporation indicates that it is Filipino-owned, it is in truth a subsidiary of Malaysian company Media Prima Berhad. The Verification or Reservation Request of Primedia on file with the Securities and Exchange Commission (SEC) indicates that the acronym ‘MPB’ in its corporate name stands for ‘Media Prima Berhad’ which is the same name of the Malaysian company.
This was later confirmed when MPB stated in its own website that it ‘has set up a subsidiary, MPB Primedia, Inc. that will soon enter into a blocktime agreement with the ABC5 network, one of the television networks in the Philippines.”
GMA also said that according to the report of Merril Lynch of Singapore on March 25, 2008, the acquisition of ABC-5’s airtime forms part of the investment strategy of the Malaysian corporation, Media Prima Berhad, to establish a company in the Philippines, which will be owned by MPB at seventy percent. This Philippine company was identified in the report as Primedia.
MPB Primedia has an authorized capital stock of P5,600,000. Twenty-five percent (25 percent) of Primedia’s authorized capital stock was subscribed by its incorporators and directors. Out of the 25 percent subscribed capital, only P350,150 has been paid.
The transfer of control and management of ABC-5’s programming content and airtime sales to MPB Primedia constitutes intervention by a foreign company and/or its dummy in the management and/or operation of a 100 percent nationalized business activity which violates the Constitution and the Anti-Dummy law.
As mandated by the Constitution, mass media, which includes television and radio broadcast, is a completely nationalized business activity. The Anti-Dummy Law (Commonwealth Act No. 108, as amended) punishes the evasion of nationalization laws and prohibits non-Filipino citizens from intervening in the management, operation, administration, or control of any nationalized activity.
It being contrary to the Constitution and the Anti-Dummy law, GMA Network said that the blocktime agreement entered into between ABC-5 and MPB Primedia is void.
GMA Network likewise said that the blocktime agreement between ABC-5 and MPB Primedia results in unfair competition against local broadcasting networks. GMA said that while it continues its operations within the bounds of law, ABC-5, MPB and Primedia employed illegal methods to evade restrictions on mass media ownership, which have deprived GMA and other local networks of the fair chance to engage in the broadcast business.
Since its re-launch in 2008, TV5 has ascended to the number three post in TV ratings.
Apart from asking the court to declare the blocktime agreement between ABC-5 and MPB Primedia null and void, GMA Network is also claiming a total of P11 million for damages, including attorney’s fees and litigation expenses, from ABC-5, MPB, and MPB Primedia to compensate for the loss of revenues due to unfair competition.”
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cari salah org memang senang.cuba tengok diri sendiri,apakah keamanan, dan segala nikmat yg ada di Malaysia ini akan kekal,jika kita selalu menyalahkan antara satu sama lain…tak puas hati keluar dewan…boleh apa…
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