Call for the appointment of a Royal Commission on Judicial Reform headed by Param Cumaraswamy to fully restore public and international confidence in the judiciary
- on the Royal Address
by Lim Kit Siang
(Dewan Rakyat, Wednesday): The second major disconnect between the reality and rhetoric of reform in the past 17 months concerns the system of justice.
The administration is suffering from a new denial syndrome, pretending that the over-a-decade-long crisis of the judiciary which plunged the credibility, reputation and legitimacy of the system of justice in Malaysia to an all-time low when the international judicial and legal community issued its terrible indictment in a report entitled “Justice in Jeopardy: Malaysia 2000” had not happened or was history and could never recur in the future.
At the 12th Malaysian Law Conference in December 2003, former Finance Minister, Tengku Razaleigh Hamzah quoted an anecdote in the nineties to illustrate his lack confidence in the Malaysian system of justice, how he was advised by his lawyer and a former Supreme Court judge “that it would be very difficult to get justice in my own country, especially when my adversaries were closely connected to the powers that be” and not to resort to the Malaysian courts when his political enemies alleged that he was responsible for the BMF scandal. But “the opportunity came when the same allegation was published in a number of foreign newspapers” and he hesitated no longer and filed actions in the appropriate foreign courts against those newspapers and cleared his name.
Let me add my anecdote. In January 2000, I consulted two jurists who had held the highest judicial office in the land, former Lord Presidents the late Tun Suffian and Tun Salleh Abas, on the advisability of challenging in court the constitutionality of the tenth Parliamentary meetings and the validity of its enactments and decisions.
The first meeting of the tenth Parliament was summoned by a royal proclamation on 9th December 1999, but this proclamation was defective as under the Constitution, the Yang di Pertuan Agong acts on the advice of the Cabinet, which was formed and held its first meeting only on Dec. 15, 1999.
While both agreed that the convening of the 10th Parliament was unconstitutional rendering all its subsequent acts unlawful, both advised against instituting any court challenge - a sad commentary on the state of the system of justice in Malaysia at the time when the two former Lord Presidents themselves had no confidence in it!
Although many judges are fair, conscientious and capable, both these anecdotes raise the question as to what structural judicial reforms had been put in place to fully restore national and international confidence in the independence, impartiality and integrity of the judiciary in Malaysia, especially in high-profile cases either involving the government-of-the-day or mega corporate deals.
Much is expected of the Abdullah premiership as nobody expected that there could be any far-reaching judicial reforms under the previous Prime Minister of 22 years.
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, from which the country has not fully recovered.
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:
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.
Judicial reform to restore national and international confidence in the just rule of law and a truly independent judiciary is not just the concern of the judiciary, but of the government, Parliament, the civil society and the nation as a whole.
The Prime Minister should appoint a Royal Commission on Judicial Reform to fully restore public and international confidence in the judiciary. The country has an ideal candidate to head such a Royal Commission, a Malaysian who is regarded internationally as a leading authority in this field, having been the United Nations Special Rapporteur on the Independence of Judges and Lawyers for three terms or nine years.
In 2003, Cumaraswamy was the first Malaysian and the sixth person to be conferred the 2002 International Justice in the World prize since its inception in 1997. The award honours exceptional figures around the world in the field of law for “his commitment in the defence of the independence of judges and lawyers, the ultimate custodian of a just rule of law”.
Cumaraswamy has brought international kudos to Malaysia since his UN appointment – although he had been regarded with suspicion and even distrust by the previous Malaysian Government, basically because it was itself in the dock of international opinion for its grave transgressions against a truly independent judiciary and a just rule of law.
Should Cumarawamy continue to be treated as “a prophet not honoured in his own country” under the Abdullah administration, when the full restoration of national and international confidence in the independence, impartiality and integrity of the judiciary to the “golden age” before the Salleh Abas judicial crisis in 1988 should be regarded as a top national priority?
* Lim Kit Siang, Parliamentary Opposition Leader, MP for Ipoh Timur & DAP Central Policy and Strategic Planning Commission Chairman