Parliament next week should initiate a wide-ranging national debate on judicial accountability and transparency and not wait for another judicial crisis of confidence down the road in another few years to revisit the issue
by Lim Kit Siang
(Penang, Wednesday): The controversy over the propriety of the post-employment status of Tun Mohamed Dzaiddin bin Hj Abdullah after his retirement as Chief Justice of the Federal Court should be a final wake-up call to the judicial and legal community as well as the nation that the grave issue of judicial accountability and transparency should be addressed seriously and purposefully, and not revisited only when there is another judicial crisis of confidence down the road in another few years.
In the past fifteen years, the country had been wracked by two major judicial crisis of confidence which had plunged the Malaysian judiciary from being acknowledged as among the world’s most prestigious systems to that of a “rogue” status, that it was the subject of an international legal and judicial indictment in the report “Justice in Jeopardy: Malaysia 2000”.
This was not just an international conspiracy against Malaysia, for the disillusionment and even despair with the system of justice and the judiciary was fully shared by eminent jurists and Malaysians, as evidenced by:
During the height of the first judicial crisis in 1988, the urgent need for judicial reforms particularly on judicial accountability and transparency was actively canvassed. It again became the subject of civil society concern in the judicial crisis a decade later.
But with two changes of the Chief Justice in the past 30 months, the subject seems to have again lost steam and is unable to sustain the necessary public interest to result in far-reaching and meaningful judicial reforms to ensure that the system of justice is not hampered by a culture which only pays lip service but not prepared to see institutional changes to entrench the principles of judicial accountability, transparency, impartiality and integrity.
The Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim said in Kota Baru yesterday that he would use feedback from his ongoing meetings with members of the Bar nationwide to further enhance the image of the judiciary, which would also address the conduct of judicial officers.
Last month, Ahmad Fairuz said that he needed time to monitor the behaviour of judges before initiating action to reprimand those “misbehaving” in office.
It is a misconception of the powers and responsibilities of a Chief Justice that he should act like a class monitor to individually discipline erring or misbehaving judges – when what he should do is to put in place a system and mechanism to uphold judicial accountability, integrity and discipline such as a judicial council with powers to receive and investigate complaints of judicial misconduct.
In the past 30 months, Malaysia had been groping and grappling with the great challenge of restoring public confidence in the independence, impartiality and integrity of the judiciary after the ravages of over a decade-long crisis after crisis of the judiciary.
Despite his public commitment to make the restoration of confidence in the judiciary his first priority on his appointment as Chief Justice of the Federal Court in December 2000, Dzaiddin’s greatest contribution was to stop the rot but he was unable to restore confidence in the judiciary with far-reaching structural judicial reforms – particularly on the appointment of judges; a meaningful and effective Judges’ Code of Ethics on judicial accountability, transparency and discipline; and now the issue of post-tenure employment of judges to avoid conflicts of interest, whether real, potential or apparent.
These are not prerogative or monopoly issues of the Chief Justice, the judges or even of the legal community, but must be the concern of all Malaysians as a truly independent judiciary and a just rule of law are the very underpinnings of justice, democracy and good governance in any society. Judicial independence, for instance, is not the private right of judges but the foundation of judicial impartiality and the constitutional right of all Malaysians.
Parliament next week should initiate a wide-ranging national debate on judicial accountability and transparency and not wait for another judicial crisis of confidence down the road in another few years to revisit the issue.
In October 1999, Parliament Speaker, Tun Zahir Mohd Ismail rejected my substantive motion of no confidence on the then Chief Justice, Tun Eusuff Chin with regard to his judicial impropriety and misconduct while in office, on the ground that any such substantive motion would require the support of at least one-quarter of the total number of MPs as required by Article 127 of the Constitution before the conduct of a judge could be discussed in Parliament.
This restrictive constitutional bar on parliamentary debate on the conduct or impropriety of any judge in Parliament does not apply in a general parliamentary debate on judicial accountability, transparency, independence and integrity or judicial reforms and Parliament should be in the forefront to initiate a national debate on the institutional reforms needed to fully restore public confidence, nationally and internationally, in the independence and impartiality of the judiciary in Malaysia.
* Lim Kit Siang, DAP National Chairman