THE resignation of the Chief Justice and the President of the Court of Appeal together with public discourse and speculation on their successors, brings into focus the state of the Judiciary – which is one of the three institutional pillars supporting our Democracy.
Institutional reform has been promised by the new federal Pakatan Harapan Government.
Judicial reform is what the Malaysian public expects especially in regard to how our Judges are selected and appointed, with some quarters also questioning the quality and correctness of some of their judgments.
The 1970s
In the early 1970s the Malaysian Judiciary was well respected both at home and abroad.
This respect was well earned as our Courts were manned by notable jurists like Tun Mohd Suffian, Tun Azmi, HT Ong, Ali Hassan, Ismail Khan, Raja Azlan Shah (as his Royal Highness then was), Eusoffe Abdoolcader, and others.
They performed their judicial functions in an environment free from external influence, and their personal and judicial integrity was never questioned.
Lawyers in Singapore then spoke highly of our judicial system; our Judges and the Judgments they delivered.
To many lawyers both within and outside Malaysia, esteem for our Courts started to decline at a time which coincided with the abolition, in 1985, of Appeals to the Privy Council in London.
Our Judges may have felt that their Judgments would no longer be subject to external scrutiny.
This unfortunate public perception resulting primarily from Judgments especially in cases of unlawful detention or which involved the Government, was that the standards of the Judiciary was on the decline.
In the absence of any avenue to “test” the correctness of their decisions, such public perception, rightly or wrongly, could not be erased.
The judicial crisis 1988
The controversial dismissal in 1988 of Lord President, Salleh Abas and two other respected Judges, George KS Seah and Wan Suleiman; and the suspension of other senior Judges including Azmi Kamaruddin and Eusoffe Abdoolcader, severely dented public confidence in the Judiciary especially in the manner in which the Courts dealt with the cases originating from what was termed as the “Judicial Crisis”.
Confidence in and respect for the Judiciary was further eroded when evidence surfaced from what was infamously called the “Lingam Tapes” relating to the fixing of appointment of Judges.
There was also the allegations that a Chief Justice went on overseas vacation with expenses paid by a senior member of the Malayan Bar.
These episodes reminded the public of what Datuk Seri Anwar Ibrahim, then Deputy Prime Minister, said in 1988 at the Commonwealth Law Conference in Kuala Lumpur, that to win a case, a lawyer not only has to know the Law but he must also know the Judge!
Equally damaging was the circulation of a letter in the mid 1990s, said to be authored by a High Court Judge, about judicial misconduct committed by his fellow judges.
These allegations were never impartially investigated, but the Judge concerned had to leave the Judiciary.
This resulted in the introduction of a Judges’ Code of Ethics which appeared not to have been truly enforced. See: Karpal Singh Ram Singh v Ketua Hakim Negara (2011) 4 CLJ 179.
Institutional reforms
With what many claimed that we are in a “New Malaysia” undergoing institutional reforms, an injection of a breathe of fresh air into the Judiciary is timely indeed.
A new leadership in this arm of Government beckons.
The doctrine of separation of powers (which appears to have been largely ignored in the last 2 decades or more) must be stringently upheld for Malaysia to have a functional Democracy where the Rule of Law must be enforced by the Judiciary without fear or favour.
It may be useful to look at how other Countries have reformed their Judicial system by bringing into the System persons who could carry out the reforms.
For instance, in the United Kingdom, when the archaic House of Lords, as the apex court of the Country, was replaced by a Supreme Court, Judges with a reforming background were brought in.
Today, the Supreme Court is presided by Baroness Brenda Hale, a former lecturer at Manchester University, visiting professor of King’s College London, a law reformer and having close links with the academic world by being, until lately, Chancellor of Bristol University.
There was also direct appointment to the Supreme Court from the Bar as in the case of Lord Sumption, an outstanding barrister.
In Singapore, the Judiciary is headed by Sundraesh Menon, whose professional career was spent in private practice and like at least two other Judges of the Singapore Court of Appeal, Judith Prakash and Steven Chong, are products of their local University, NUS, with 1st Class degrees.
In other words, Judges were appointed from ranks of lawyers with impressive academic achievements and reputation as successful practising lawyers.
They bring to the Bench a profound knowledge of the law and invaluable experience as legal practitioners.
Reforming the Judiciary
In Malaysia, it must be acknowledged that in recent years, there have been improvements in the administration of the Court systems, procedures and processes which have reduced the backlog of cases which have been expeditiously disposed of.
The quality of written Judgments from appellate Judges have improved even if we do not agree with them. Credit must be due to the leadership of the Judiciary in the last decade.
What the people look for in the advent of a New Malaysia is that the Judiciary must safeguard its own independence, to fearlessly uphold the rule of law.
The people generally feel that the doctrine of separation of powers has not been followed and the Executive Arm of Government is perceived to have interfered with both judicial appointments and decision making.
The institutional reforms must entrench the doctrine of separation of power and an end to external interference with judges who must remain faithfully to their constitutional oath of office.
Judicial independence
For there to be a truly independent judiciary, its members should not be beholden to the Executive nor to the Bar which is supposed to serve the Bench, but should not have a role to determine who should be sitting in Court to decide cases affecting their clients or any political party.
A litigant should not have any suspicion that the Judge who hears his owes his appointment to the Executive, any political party or organisation or for that matter to the organisation representing the lawyers.
Judges of the superior courts should be selected by their own peers, and the Chief Justice should be deemed to be a first amongst equals.
The Judicial Appointments Commission (JAC) should not have members appointed by the Executive.
Apart from those holding judicial offices, other members in the Commission should be appointed by the Yang di-Pertuan Agong acting on the recommendation of the Chief Justice.
Before making such recommendations to His Majesty, the Chief Justice must consult the Council of Judges.
The Prime Minister shall tender to the Agong and the Conference of Rulers, the appointee for judicial office proposed by the JAC .
If the Prime Minister disagrees with the recommended appointee, he should inform the JAC in writing giving his reasons and the JAC will propose another Judge for submission to the Agong and Conference of Rulers.
The Prime Minister shall have no prerogative to propose his own candidate for appointment if he does not agree with the JAC’s nominee.
Under this system, the appointment and promotion of Judges would not be subject to any external influence. It would avoid the unseeming and very unhealthy practice of having political parties like UPP and UPKO or Advocates Association of Sarawak being involved in publicly championing any Judge for promotion.
Even if this Judge is promoted, his independence would have been gravely compromised and the Independence of the Judiciary would remain a myth as far as the public is concerned.
This is clearly not the way for carrying out judicial or institutional reforms in our New Malaysia. We want the episode of the “Lingam Tapes” to be completely erased from the annals of our judicial history and not repeated at this juncture when institutional reforms are being seriously promoted by the new Government.
Quality of Judges
The current attempts towards institutional reforms ought to provide us with a Judiciary whose members’ character and commitment towards upholding the Rule of Law will inspire public respect and confidence.
We should have a Judiciary manned by Jurists, dedicated servants of the Law, not beholden to any member of the Executive, politicians or political parties or any body representing the practicing Bar.
In our multi racial and multi religious society, he must have the qualities expounded by one of our Nation’s most revered Judges, Tun Mohd Suffian, when delivering a Braddell Memorial Lecture at the National University of Singapore in1982:
“In a multi racial and multi religious society like yours and mine, while we Judges cannot help being Malay, Chinese or Indian, or being Muslims, or Buddhist or Hindu or whatever, we strive not to be indentify with any particular race or religion, so that nobody reading our judgments with our names deleted, could with confidence, identity our race or religion, so that the various communities, especially the minorities, are assured that we will of allow their rights to be trampled with.”
Let us hope that the wisdom of our King and the Conference of Rulers will provide the Judiciary with a new leadership that would earn the confidence and trust of Malaysians to entrench firmly the separation of power between the Judiciary and other arms of Government, and to zealously uphold the rule of law without fear or favour and who will not be under suspicion of been beholden to any vested interests.
The author is a member of the Sarawak Bar since 1972.