Call for Government White paper for debate in Parliament next month on the progress made by Malaysia to implement the 1991 Harare CHOGM Declaration to protect and promote democracy, honest government, rule of law and the independence of the judiciary

Media Conference Statement
by Lim Kit Siang

(Petaling Jaya, Monday): The Barisan Alternative National Council will discuss this week the issue of the unconstitutionality of the tenth Parliament meetings and the question of taking it  to court.

This is one of the options considered by the  Round Table Conference on "Constitution, Parliament and Rule of Law" held in Petaling Jaya yesterday which was convened to discuss the wide-ranging ramifications of the unconstitutional convening of the new Tenth Parliament on December 20, 1999, which could infect all laws and businesses transacted by the tenth Parliament with illegality and unconstitutionality.

Former Lord President Tun Suffian opened the Round Table Conference, which was attended by leading jurists and legal practitioners as well as representatives of NGOs and the civil society.

Another former Lord President, Tun Salleh Abas led  off the Round Table deliberations, with  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.

The Round Table Conference covered wide areas of constitutional governance, rule of law and democracy affected by the convening of the first meeting of the Tenth Parliament on Dec. 20, 1999 not in accordance with the constitutional provisions, including:

Different views were advanced as to how the unconstitutional convening of the  first meeting of the tenth Parliament on December 20, 1999 could be rectified and whether legal proceedings should be instituted for a decision by the courts on the validity of  a royal proclamation summoning Parliament before the new Cabinet had been formed to offer such an advice as provided for in Article 40 of the Constitution.

After the general election, the Penang State Assembly had been similarly convened in disregard of constitutional provisions  by way of a proclamation of the Yang di Pertua Negeri even before the Penang State Executive Council had been formed.

However, the Penang State Government subsequently acted on the DAP advice and  a second proclamation was issued by the Yang di Pertua Negeri after the State Executive Council had been formed and held its first meeting to regularise the convening of the first meeting of the Penang State Assembly.

No attempt, however, had been made to regularise the first meeting of the Tenth Parliament on December 20, 1999 after the Cabinet had been formed and held its first meeting on 15th December 1999, as similarly advised by the DAP.

A subject which was discussed at great length at the Round Table Conference was the independence of the judiciary.

Without judicial independence there is no rule of law.  Without the rule of law, there can be no democracy. Democracy and the rule of law are the fundamental building blocks for a modern, decent and democratic society.

Parliament when its meets next month, should pursue the Round Table Conference deliberations on 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.

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.

The Government should table a White Paper for debate in the next meeting of Parliament, starting on February 14, 2000, on the progress made by Malaysia to protect and promote democracy, honest government, rule of law and the independence of the judiciary in the past decade.


*Lim Kit Siang - DAP National Chairman