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Abdullah should not shut off public discussion to review the system of judicial appointments but should welcome public debate and  keep an open mind on the issue as the quality of the judiciary and its composition is largely dependent upon the method of judicial appointment

Media Statement
by Lim Kit Siang

(Penang,  Tuesday): Prime Minister-in-waiting, Datuk Seri Abdullah Ahmad Badawi should not shut off public  discussion to review the system of judicial appointments but should welcome public debate and keep an open mind on the issue as the quality of the judiciary and its composition is largely dependent upon the method of judicial appointment. 

One of Abdullah’s last pronouncements as Acting Prime Minister on Sunday fell far short of the high standard he set in  his first major speech  in early March when Datuk Seri Dr. Mahathir Mohamad started his two-month leave, brilliantly diagnosing the “First World Infrastructure, Third World Mentality” Malaysian malaise. 

Speaking to reporters after opening the Jelebu UMNO delegates’ meeting on Sunday , Abdullah said there would be no change to the present system of appointing judges as it had worked well. 

This is most disappointing as it gives the impression that the next Prime Minister-designate is not fully in tune with the deep-seated aspirations of the people to see structural reforms in our system of governance in order to protect and entrench the fundamental principles on which Malaysia  was founded 46 years ago – one of which was  the rule of law and the independence of the judiciary. 

The existing system of judicial appointments had not worked well at all, or the country would not have been plunged into a protracted national and international crisis of confidence in the accountability, independence, impartiality and integrity of the judiciary, spanning over a decade, culminating in 2000 in three infamous developments: 

  • The terrible indictment on the rule of law and the system of justice in Malaysia by the international judicial and legal community in the report entitled “Justice in Jeopardy: Malaysia 2000” released jointly by the International Bar Association, the Centre for the Independence of Judges and Lawyers, the Commonwealth Lawyers’ Association and the International Lawyers’ Union;
  • The   survey by the Hong Kong-based Political Economic and Risk Consultancy (PERC) which ranked Malaysia as among the five countries with the worst legal system in Asia – even worse than the Philippines and Thailand; and
  • The increasingly common practice for international contracts with Malaysian parties to contain clauses that any dispute or litigation between the parties involved will not be adjudicated in Malaysian courts, but by way of arbitration in a foreign forum.

Credit must be given to Tun Mohamed Dzaiddin Abdullah for stopping the rot in the system of justice in his 27-month tenure as Chief Justice, although he had not been able to put in place structural judicial reforms, without which there could be no  full restoration of public confidence in the independence, impartiality and integrity of the judiciary after over a decade-long ravages against the system of justice.

The biggest challenge facing the  new Chief Justice, Tan Sri Ahmad Fairuz Sheikh Abdul Halim, is whether he could institute the structural judicial  reforms to fully restore public confidence in the independence, impartiality and integrity of the judiciary – and one important issue is the system of appointment of judges.

Malaysia urgently  needs  a more transparent process of  judicial  appointment to ensure that the justice administered by the judges is  of superior quality because they are professionally qualified,  persons of integrity and   good character,  independent and  courageous.

The present system, where the judicial appointments are decided by two persons, the Prime Minister and the Chief Justice, is most unsatisfactory. The flaws of the present judicial appointment process includes:
 

  • Selection and appointment procedure not transparent;
  • Consultative process is secretive; and
  • There is a lack of appraisal of the candidates against pre-determined criteria

Many Commonweath countries have carried out reforms to  modernise their system of  justice as in the introduction of transparency and competition in the  judicial appointment process.

Malaysia can benefit from the reforms introduced by some of these countries.  Canada for instance has established a Judicial Appointments Advisory Committee in each province, comprising  judicial and legal representatives and non-lawyers. Judicial appointments are confined to those approved as suitable for appointment by the committee.

In New Zealand, in response to criticism that the judiciary was remote and unrepresentative of  the community, a Judicial Appointments Board  was established comprising representatives from the bench and bar and lay members which makes a recommendation on judicial  appointment once a vacancy occurs. The Board advertises the judicial  position and reviews all applications. A ranked list of  at least two candidates is then given to the Attorney-General, who makes the final recommendation to the  Governor-General.

In 1997, the United Kingdom defined and made public the criteria against which candidates for judicial appointment would be judged and the selection process by which they would be appointed.

With so many countries which have carried out reforms in the modernisation of their system of justice, including the system of judicial appointments,  there should be no lack of reference materials for Malaysia to undertake its own reforms of our justice system.

(6/5/2003)

* Lim Kit Siang, DAP National Chairman