Bar Council should emulate the example of their foreign counterparts like the American Bar Association in setting up a Standing Committee on Judicial Independence comprising judges, lawyers, legal academics and civil society representatives

---

Media Statement
by Lim Kit Siang 

---

In his weekly column, Benchmark, Harun wrote:
 

"As it is, civil litigation in the High Court is already expensive.  The courts provide a service to the public and are not intended as a revenue source for the Government. Still, the operating cost including development expenditure of the Judiciary is only 60 per cent of the total court revenue in fees and fines. We do not have to follow commercial-minded Singapore and Hong Kong."

It is most unfortunate that the Judiciary had come out with its proposal for hourly hearing fees for civil cases in a vacuum without any consultation or discussion with the legal community or the user public.

Before the proposal of the judiciary is presented to the Cabinet for decision, it should be published as a public consultation paper so that there is the fullest opportunity for public feeback as to how the hearing fee proposal might adversely impact on the important principle that access to justice should be cheaply and efficiently available to all Malaysians.

The time has also come for the Bar Council to play a more active role to protect the independence of the judiciary in Malaysia. The  Bar Council can emulate the example of their foreign counterparts like the American Bar Association in setting up a Standing Committee on Judicial Independence comprising judges, lawyers, legal academics and civil society representatives

The American Bar Association formed a Standing Committee on Judicial Independence in 1997 to promote public awareness about the values of an independent, accountable and efficient judiciary and to assist in responding to unwarranted criticism.

The American Bar Association had established a  Commission on Separation of Powers and Judicial Independence which held hearings throughout the country and came out with a report concluding that while the state of  federal judicial independence remained essentially sound, a number of potentially serious problems existed that, if left unremedied, could degenerate into real threats to judicial independence.

The report urged lawyers to step up and take a  leadership role to protect judicial independence. It held that  public support for the judicial system is diminished by misleading criticism and recommended that the  American Bar Association  continue research into the  causes of eroding confidence in the judicial and justice systems.

As public confidence in judicial independence in Malaysia has reached crisis stage, the Bar Council should set up a Standing Committee to protect and promote judicial independence as is being done by the legal profession  in other legal systems.

The Bar Council should in particular focus on one aspect of judicial independence which is often overlooked -  that judges must also be independent from each other.

This principle was very well-explained by Justice  Michael Kirby, former  President of the International Commission of Jurists, who said:
 

"A proper system of judicial administration will provide for presiding judges and court officials to organise the business of the members of courts and tribunals efficiently, economically and justly as between different members. But in the performance of the central role of decision-making, a member of a court or tribunal will not be independent if he or she can be directed by a superior colleague on how to decide a matter. Nor will the judge enjoy independence of mind if he or she can be effectively removed from the performance of the judicial function by the simple expedient of rostering the judge off work. If that were to become common, the court or tribunal in question would not be constituted in accordance with law. The formal procedures for discipline and removal from office would then be set at naught."

(22/6/2000)