Call for reform and modernisation of justice in Malaysia, including introducing a transparent and competitive  judicial appointment process, to restore public confidence in the judiciary

Round Table Conference on "Constitution, Parliament and Rule of Law"
Lim Kit Siang 

(Petaling Jaya, Sunday): Firstly, let me thank former Lord President, Tun Mohamed Suffian for agreeing to officiate the opening of the The Round Table Conference on "Constitution, Parliament and Rule of Law" as well as another former Lord President, Tun Salleh Abas for consenting to  lead off the Round Table deliberations.

Thanks are also in order for the other Round Table panellists, including former Bar Council President, Zainur Zakaria, HAKAM President, Ramdas Tikamdas, academician Dr. Abdul Aziz Bari and leading constitutitional lawyers in the country, Karpal Singh and Christopher Fernando.

I also want to thank representatives of NGOs and the civil society, academicians and leading legal practitioners who have taken precious time off to  attend  the Round Table Conference.

It is most unfortunate that  Malaysia ended the previous millennium not with any strengthening of the fundamental constitutional values to contribute to the rule of law, but a greater blow to constitutionalism with the statutory rape of the onstitution in the unconstitutional convening of the new tenth Parliament on 20th December 1999.

The issues involved however are not just confined to the constitutionality of the new tenth Parliamentary meetings, but bigger issues of good democratic governance.

In 1991, the Prime Minister, Datuk Seri Dr. Mahathir Mohamad  was a party to the Harare Declaration - a pledge by the Commonwealth Heads of Government to work with renewed vigour to protect and promote the values of  democracy,  honest government,  the rule of law and the independence of the judiciary throughout the Commonwealth.

These are the  key issues we will have to grapple with  at today’s  Round Table Conference as  democracy and the rule of law are the fundamental building blocks for a modern, decent and democratic society.

I do not propose to go through the basic facts and arguments of what I had described as the "constitutional case of the millennium" as they are set out in my latest publication under the same name.  The whole purpose of the Round Table Conference today is to hear the views and opinions of renowed jurists and legal practitioners in the country on the subject.

I wish to refer instead to two  cornerstones of democracy -  judicial independence and the rule of law.

The notion that the ordinary Malaysian can fall back on the judiciary as the last custodian of their basic rights to hold the  executive in check  through judicial review had been  discredited since  1988, when the country when through the trauma of the first and biggest judicial crisis in the nation, where Tun Salleh Abas was sacked as Lord President together with two Supreme Court judges.

As a result, the independence of judiciary suffered a setback from  which it had never  recovered.  What is worse, there had been a relentless erosion of public confidence in the independence of the judiciary and the rule of law since the last judiciary crisis 12 years ago.

Without judicial independence there is no rule of law.  Without the rule of law, there can be no democracy.  Without democracy, there can be no  fair and just society.

The time has come for the reform and  modernisation of justice in Malaysia, starting with the introduction of a transparent and competitive judicial appointment process.

If judges depend on the goodwill of the Government for their continuing employment, they may  find themselves unable to resist political or other improper interference in individual cases.

This is why judges must have security of tenure. They must be able to undertake their responsibilities and exercise their discretion without fear or favour. Their appointments and careers must be developed on the basis of objective criteria to avoid any suggestion of favouritism or preferment in return for favours rendered.

Malaysia should emulate the example of other Commonwealth countries in the reform and  modernisation of justice as in the introduction of transparency and competition in the  judicial appointment process, whether magistrates or other judicial appointments up to the High Court judge level.

Judicial review promotes the rule of law.  Let transparency be the  watchword of the judicial appointment process where  candidates are assessed against objective criteria, which should be easily availlable, both in paper form and on the Internet. Let all these  vacancies be advertised, involving lay people in the selection procedure for judicial  appointments up to High Court judge level.
The introduction of such a transparent judicial appointment process,  together with appointment on merit,  will provide a strong   foundation for a truly independent judiciary at every level.

The Round Table Conference today on "Constitution, Parliament and Rule of Law" covers many fundamental issues in the country, whether it be the proper role and function of a caretaker government; the respective  powers of the Yang di Pertuan Agong, the Cabinet and Parliament; the responsibilities of the Attorney-General and the Judiciary; the distinction between the rule of law and rule by law and the redress available to undo the constitutional case of the millennium where all laws and businesses enacted by the new tenth Parliament for the next five years could be infected with illegality and unconstitutionality.

I wish all panellists and participants a fruitful and productive Round Table Conference. The consensus  of the deliberations of the Round Table Conference would be made public tomorrow as part of the process to conscientise Malaysians as to their constitutional rights and responsibilities  and what they should do to uphold the rule of law and  restore independence of the judiciary.


*Lim Kit Siang - DAP National Chairman