Claim of prerogative by the Chief Justice is an anachronism in the modern era of democracy, accountability and good governance

Media Statement 
by Lim Kit Siang

(Petaling Jaya, Thursday): The United Nations Special Rapporteur on the Independence of Judges and Lawyers Datuk Param Cumaraswamy is right when he  expressed surprise and being disturbed by the claim of the Chief Justice, Tun Mohamed Dzaiddin Abdullah telling the Bar Council to “refrain from treading in matters” which were his prerogative  in response to  the Bar Council’s stand on the public dispute between High Court judge Justice Datuk R. K. Nathan and Court of Appeal judge Justice Datuk Gopal Sri Ram.  

Param said that the right to an independent court and judge is the right of the citizens and the judiciary as no absolute claim to privilege over it. 

In the modern era of democracy, accountability and good governance, the Chief Justice’s claim to  prerogative is an anachronism and the judiciary must individually and collectively be held accountable for their actions to the general citizenry.  

Judicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Malaysians.  

The rule of law and the independence of the judiciary depend primarily upon public confidence.  .Lapses and questionable conduct by judges tend to erode that confidence and the judges individually and the judiciary collectively cannot be immune from public accountability for acts of omission or commission in failing to exhibit and promote high standards of judicial conduct.  

Dzaiddin can disagree with the Bar Council’s prescription of the solution to any matter which undermines public confidence in the independence and impartiality of the judiciary, but he should not resort to the anachronistic claim of prerogative to shut out the  fundamental right of the citizenry, including the Bar Council, to the constitutional right to independence of the judiciary when it is  under threat or erosion – whether by acts of individual judges or the Executive. 

Seven High Court judges have been elevated to the Court of Appeal on Tuesday to fill the full quorum of 15 Court of Appeal judges.  It is  a matter of grave concern that the appointments have overlooked an important  unwritten rule that  all appointments should reflect the plural Malaysian society as much as possible – which is not the case at present as there is only one Malaysian Chinese out of 15 Court of Appeal judges.  It should be a top national priority to rectify this serious defect in the higher echelons of the judiciary.  


*Lim Kit Siang - DAP National Chairman