High Court injunction against any Malaysian Bar meeting on judicial misconduct at odds with the “Tell the truth” spirit of the new Prime Minister and reminds Malaysians that the issue of judicial accountability, transparency, independence and integrity remains a long-outstanding “unfinished” business
by Lim Kit Siang
(Petaling Jaya, Tuesday): The High Court judgment by Justice R.K. Nathan granting a permanent injunction against the Malaysian Bar and the Bar Council from holding any meeting to discuss judicial misconduct like the extraordinary general meeting (EGM) that had been scheduled for November 20, 1999, seems to be at odds with the “Tell the truth” spirit of the new Prime Minister, Datuk Seri Abdullah Ahmad Badawi and reminds Malaysians that the issue of judicial accountability, transparency, independence and integrity remains a long-outstanding “unfinished” business.
I have no doubt that the Bar Council will be appealing against Justice Nathan’s judgment to the higher appellate courts.
The judgment and injunction, however, should serve as a salutary reminder and even wake-up call to Malaysians that the nation has yet to fully recover from the series of judicial crisis of confidence in the past 15 years since 1988 which had at one time, plunged the Malaysian judiciary from being acknowledged as among the world’s most prestigious system to that of a “rogue” status, as to be 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.
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 fully 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 after his retirement, 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.
Malaysia should take a leaf from the Canadian experience to uphold judicial accountability and introduce legislation to set up a Judicial Council to consider complaints that judges have violated the Judges’ Code of Ethics.
The Canadian Judicial Council was first set up in 1971 to consider complaints about the conduct of federal judges. The role of the Council involves scrutiny not of a judge’s decisions but of a judge’s behaviour, and its comes into play when a complaint or allegation is made that the judge in some way has breached the requirement of good behaviour, and by his or her conduct "has become incapacitated or disabled from the due execution of the office of judge".
* Lim Kit Siang, DAP National Chairman