Bar Council should consider submitting a signature petition to the Yang di Pertuan Agong and Conference of Rulers supported by overwhelming majority of its members –80 or 90 per cent of membership – seeking greater judicial accountability and transparency, including judicial appointments and promotions
by Lim Kit Siang
(Petaling Jaya, Friday): The Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim should not gloat at the failure of the Bar Council extraordinary general meeting (EGM) last Saturday because of a lack of quorum but should instead invite the Bar Council for a dialogue on the burning issue of greater judicial accountability and transparency including judicial appointments and promotions to uphold the important principles of a just rule of law and a truly independent judiciary.
Rais was both wrong when he claimed that
the lack of a quorum for the Bar Council EGM showed that the Malaysian
legal fraternity, in particular the practitioners, did not share the Bar
Council views on judicial accountability and transparency and that most of
the younger lawyers did not attend the EGM as they felt the issue of setting
up an independent judicial commission to decide on all future appointments
and transfer of judges was not part and parcel of the Council's objectives.
Rais cannot turn his back on his own scholarly study in his book "Freedom under Executive Power in Malaysia".where he brilliantly expounded on the conflict between the rule of law and executive power in Malaysia, and how “the very mechanism of democracy …had been able to render subservient both the judiciary as well as parliament", and where he said:
“The judiciary has lost its tussle with the executive in controlling arbitrary executive power. The executive that directly alters the affairs and status quo of the judiciary in a manner that the Malaysian executive has done is indeed a rarity and its mode of attack on the Malaysian judiciary in 1988 is not known to be practised in the liberal democratic world. But again one must understand, Malaysia is not a liberal democratic country.
“The executive has come to occupy a truly supreme position that renders the other segments of government - Parliament and the judiciary - subservient to it.”
As I intimated in my media statement (3.10.03) on the eve of the aborted Bar Council EGM, there could be differences of opinion as to whether the Judicial Commission to decide on all future appointments, transfers and promotion of judges as proposed by the Bar Council was the proper or best solution, as the Bar Council did not seem to have done enough homework on the matter, there could be no question however that a more transparent system of judicial appointments and promotions is urgently needed in the country.
As Rais should know better than anyone about the urgent need to restore public confidence in the transparency, independence, impartiality and integrity of the judiciary, he should not lend credence to irresponsible talk that the lack of a quorum of the Bar Council EGM last Saturday meant lack of validity of public concerns about these issues.
This is why, as the de facto Law Minister, he should take the initiative to invite the Bar Council for a dialogue on the best ways to address the important issues of judicial accountability and transparency including judicial appointments and promotions.
For its part, the Bar Council should not capitulate just because of one setback in failing to get a quorum for an EGM, and should consider other means of addressing the critical issues, including submitting a signature petition to the Yang di Pertuan Agong and Conference of Rulers supported by the overwhelming majority of its members – probably 80 or 90 per cent of membership – seeking greater judicial accountability and transparency, including judicial appointments and promotions.
* Lim Kit Siang, DAP National Chairman