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Lawyers should not be browbeaten by Mahathir and Raisí improper comments  but should turn up in full force for the Bar Council EGM tomorrow in memory of the  spirit of the late Harun Hashim to uphold the principle of a truly independent judiciary and a just rule of law through  a more transparent system of judicial appointments and promotions


Media Conference Statement (2)
by Lim Kit Siang

(Petaling JayaFriday): Lawyers should not be browbeaten by the comments of the Prime Minister, Datuk Seri Dr. Mahathir Mohamad and the Minister in the Prime Ministerís Depatment, Datuk Seri Dr.  Rais Yatim but should turn up in full force for the Bar Council  extraordinary general meeting (EGM) in Kuala Lumpur tomorrow   in memory of  the spirit of the late Tan Sri Harun Hashim, one of the greatest High Court judges  in Malaysian history,  to uphold the principle of a truly independent judiciary and a just rule of law through a more transparent system of judicial appointments and promotions. 

It was most improper for Mahathir and Rais to anticipate  and attempt to  influence the outcome of the Bar Council EGM tomorrow by declaring their opposition to the EGM resolution,  when they should have manifested the spirit of democracy to wait for the outcome of the Bar Council EGM before making their response. 

Raisís statement that the Bar Council was disrespectful of the King in contesting the choice of judges chosen for elevation to the appellate courts in the recent promotion exercise is most shocking and unbecoming   for  a holder of a Ph.D. in law. 

It reminds me of an episode in Parliament 25 years ago when a Cabinet Minister, who also had a law background but not a Ph.D., accused me of being disrespectful and disloyal to the King when I  moved an amendment to the Motion of Thanks to the King for his Royal Address, when it is accepted parliamentary practice in all Commonwealth Parliaments for such an amendment to be moved, as the debate on the royal address is  a debate on the governmentís policy and casts no personal reflection on the Yang di Pertuan Agong.  After I had exposed this Ministerís  ignorance, I had no difficulties after that in moving amendments during debates  on motions of  thanks on the Royal Address in Parliament. 

Why is Rais taking the country back to a feudal past instead of into the IT future of open ideas and democratic debate? 

Mahathir should not regard the Bar Councilís EGM as an attack either on the King or on the judiciary as it is neither, but as an effort to ensure a more transparent system  of judicial appointments and promotions, which is a world-wide phenomenon.

The United Kingdom has a new system of judicial appointments as it has recognised that the confidence of both the public and the legal profession in an independent judiciary  is of the first importance. It  has accordingly placed great importance on maintaining the quality and integrity of the judiciary by introducing a system of judicial appointments which is open to public scrutiny.

Apart from statutory qualifications for judicial office, the Lord Chancellor had announced three fundamental principles which underpin his policies in selecting candidates for judicial appointment, which include:

  • appointment is strictly on merit.
  • significant weight is attached to the independent views of members of the professional community (and others) as to suitability for judicial appointment.

On the latter, the Lord Chancellor regards the knowledge, experience, and judgment of the professional community (judges and members of the legal profession) as the best available source of informed opinion on the relative merits of applicants for judicial appointment. Before and during judicial service, views and opinions about applicants and their work are collected on a structured and systematic basis, in terms of the criteria for appointment, from a wide range of judges, senior practitioners from both branches of the profession and  others who are in a position to assess the candidate's work and abilities.

The time has come for Malaysia to have a more transparent process of judicial appointments which is open to public scrutiny  to restore the confidence of both the public and the legal profession in an independent judiciary.

There can be differences of opinion as to whether the Judicial Commission as proposed by the Bar Council is the best way to start the country on the road towards a more transparent system of judicial appointments and promotions Ė but such proposals should  be encouraged instead of being  castigated by the Prime Minister and his de facto Law Minister. 

Mahathirís claim that the current system of appointing and promoting judges secured the independence of  judges do not bear scrutiny.  He claimed for instance that despite being appointed by the government, judges had handed down sentences which were against the Government, and that a Cabinet Minister had been sentenced to death while a Mentri Besar had been jailed for corruption. 

But Mahathir did not mention that these two cases happened before his time and that during his 22-year premiership from July 1981 till now, there had not been a single case of a Cabinet Minister, Mentri Besar or Chief Minister  belonging to Barisan Nasional arrested and prosecuted in court, let alone convicted and  sentenced. 

(3/10/2003)


* Lim Kit Siang, DAP National Chairman