Tuesday, February 5, 2013

Rallying behind reform


The recent statement by the Chief Justice that lawyers should stop corrupting judges is welcome for the fact of it implicitly recognizing that corruption within the judiciary is a problem that needs to be addressed. That the Chief Justice underscored his caution by once again reiterating the importance of judicial independence shows how clearly he views corruption as undermining the integrity of both the institution and the process it administers. It is heartening that this a theme that the Chief Justice has consitently returned to in the course of his tenure.

It must be said however that as welcome as the statement is, the Chief Justice should also give Malaysians an idea of what further steps are being taken to deal with, and combat, this evil. He should not allow himself to be seen as doing nothing more than merely say the right thing. I, for one, do not think this to be the case. As I have written before, in belling the proverbial cat, this Chief Justice has done something that his predecessors had not. He has also, to an extent, followed through. His decision to empanel five, as opposed to three, judges in all Federal Court hearings, implemented last March, has gone some way to inspire more confidence in that court. 

Having said that, the Chief Justice should appreciate that for his reform efforts to gain traction, there has to be a public discussion about the same.  As far as i know, his recommendation that judges declare their assets has yet to be affected. Though this is undoubtedly an issue that requires mature consideration, it has been some time and the issue has to an extent faded. I believe that a further explanation as to the state of play is warranted.

Similarly, other aspects of the mater, for instance the forms of control imposed or being proposed to reduce the prevalence of corruption, should be highlighted. For instance, the Chief Justice can let us know how it is that the staff of the various registries is being kept in line. It is widely accepted that the staff of the registries are influential for their being privy to information concerning judges and hearings, in particular which judges are slated to hear specific cases. Without intending any accusation, it is evident that this is information that could be utilized to further improper aims, and may have well been.

I have said before too that it would be useful for the Chief Justice to make clear how it is judges are selected for hearings. The impression that judges are selected for particular cases based on their views of the case, especially in the appellate courts or in controversial cases, is one that can only be dispelled by an explanation of how they are in fact selected. 

There is another dimension to the issue. Malaysians should also be made aware of what systemic impediments there are to the due administration of justice. For instance, consider the salaries of judges. We should be made to understand whether our judges are being paid enough or, put another way, whether their salaries are sufficiently high so as to attract the kind of candidates the job requires. This is not to say that money should ever be the key factor in embracing public service.  However, it must be recognised that the kind of high calibre practitioners that judicial office calls for are individuals who have over the years arranged their financial affairs in a manner suited to their income levels as private practitoners. As such, they may not be in a position to accommodate the reduction of income currently involved. This was recognised by the Government of Singapore a while ago as a consequence of which it provided for suitable remuneration, which while it did not match what the candidates were earning in private practice nonetheless allowed them to adapt without undue difficulty.

It goes without saying that if judges were remunerated in a manner befitting of their office, there would be less temptation to stray.

The question of whether the Judiciary is given the resourses it needs to ensure that it can function the way it should is another instance of a potential failing of the system.  Consider the kinds of facilities judges of the Singaporean Judiciary have at their disposal, from well qualified and highly competent research officers, court staff and registrars, to reasearch facilities and even dining facilities. The contrast with the Malaysian Judiciary is stark. It is evident that the lack of facilities is going to result in compromises of quality of adjudication and judgments.

I refer to these two instances, there are others, to make the point that it is ultimately in the interest of the Judiciary for the Chief Justice to create public awareness of not only his vision but also his efforts at reform and the impediments he faces as it is only through this that Malaysians will appreciate what it is they have to do to bolster the Chief Justice’s efforts to improve the administration of justice and how it is they can rally behind the Chief Justice.

For at the heart of it is this one simple truth; I think Malaysians must rally behind the Chief Justice in order to restore the one institution that would help us put this country back firmly on the path to recovery. 

MIS

(This article was first published as "Rallying behind the Chief Justice" in the Edge, 21.01.13)

1 comment:

Lawyer burok said...

I am afraid that all that glitters in Singapore is not gold and let me give some examples in the administration and application of law there.

1 In the 1997 GE on Polling Day, several top PAP Ministers were within the precinct of polling stations in Cheng San Group Representation Constituency, although they were not themselves candidates in the constituency. The Workers Party believed that this violated the Parliamentary Elections Act and filed police report but the case was not taken up for prosecution on the advice of the Attorney-General. His interpretation was that remaining within a perimeter of 200 meters from the external walls of the polling station, as opposed to being within the polling station itself, was not an offence. How did they then get into the polling stations without breaching the 200 meter off-limit distance for unauthorised persons – by being parachuted from the sky?

2 There is a law which says that one man standing constitutes an “illegal assembly”. Doesn’t it look weired? The legal draftsman who drafted the law or the political mandarin who directed or endorsed for such a law to be made (if that was the case) must be real daffts.

3 A pastor was leaving Singapore for Johore by car without the mandatory three-quarters of fuel in the tank. He was charged and the magistrate sentenced him to 2 weeks jail. He appealed and the Chief Justice replaced the jail term with $4,000 fine. The pastor is said to have gone to a workshop and get his fuel tank altered so that it will always reflect more than ¾ tank full, which is clearly a deliberate act to cheat – not a nice thing to do particularly for a man in robes.

The Attorney-General who gave the advice in case 2 was promoted as Chief Justice and he was also the man who gave the final verdict in case 3.