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Friday, November 2, 2007

The Judiciary Must Act

Tun Ahmad Fairuz has retired.

It feels as if everyone is breathing a little more easily. Not just because his retirement arguably marks the close of yet another turbulent chapter for the Judiciary, and as such for the Bar as well as the administration of justice, but also because it has allowed Malaysians to avoid the controversy that an extension of the term of Tun Fairuz would have as a matter of certainty caused.

Where does that leave us? For the moment in slightly calmer waters with Datuk Abdul Hamid, President of the Court of Appeal as acting Chief Justice. Datuk Abdul Hamid has distinguished himself as a judge at all 3 tiers of the superior courts and has several leading judgments to his credit. Though I do not agree with his reasoning in some of his judgments, I am prepared to say that Justice Hamid has struck me as a judge who has been consistently aware of his oath to uphold the Constitution and the significance of the Constitution in our lives as Malaysians.

It remains to be seen what the Acting Chief Justice proposes to do about the Lingam Video Scandal. Thus far the Judiciary has remained silent and civil society has not openly considered the role of the Judiciary itself in inquiring into matters that arise from the scandal. With Tun Fairuz having retired, the way is now open for the Judiciary itself to conduct its own internal inquiries, not only into matters arising from the scandal itself, but also into the systems in place for the appointment and promotion of judges, the way in which cases are scheduled before judges, the way in which judges are selected to form appellate benches to name a few.

This must be made a priority. We have heard CJ after CJ speak about reforming the system with a view to improving the levels of confidence in the Judiciary. Precious little was done. The video scandal and its implications has made it imperative for the Judiciary to walk the talk. The Bar is ready to assist, as it has always been as was made clear by the President of the Bar, Ambiga Sreenevasan in a follow up interview with Aniza Damis ('Video clip not doing judiciary any good', NST, 04.11.2007).

No comments were needed for this interview.


Spot Light: 'Video clip not doing judiciary any good'

Q: Is there a crisis in the judiciary?
A: There is. It's a crisis of confidence. It's been present for a while.

Q: What was it about the "Lingam" video clip that brought you to this climax?

A: It raised serious issues about the appointments' process, and the manner in which people who should not be involved in anything to do with the judiciary were heavily involved. For us, that was so stark. We felt we had to say something about it.

Q: Why walk? Why not just hand in the memoranda?

A: We have sent in memoranda to the judiciary and the government before, about the judicial appointments commission; we have raised it with the minister, we've even held a debate, between BN Member of Parliament Datuk Zaid Ibrahim and the minister (Minister in the Prime Minister's Department, Datuk Seri Nazri Abdul Aziz).

But, they (the government through Nazri) said they were not interested, unless it came from the judiciary. We think that's a non-starter. If you're asking the judiciary to change the system they like, it's not going to happen.

Q: Is the independent judicial appointments commission system a good system?

A: It's an excellent system. For its independence, its clarity and its transparency.

Q: The minister says if you want to change the system, you have to get the judges to change it. You don't think there are enough good men in the judiciary who would want to bring in that system?

A: We have many good men in the judiciary. If you were to do a survey, I think you would find even they, too, would want a change. What happens in other jurisdictions is that they set up a commission to look into it. But we haven't even got there yet.

I've no doubt there are good people in the judiciary; but there has been some resistance to the appointments system.

Q: Knowing that the government doesn't support the idea, why did you appeal to the government?

A: Well, we sometimes have to re-state our position. We updated our memoranda to show how many more jurisdictions have gone that way. It is not an interference of the judiciary (to set up an independent judicial appointments commission). Because what you are doing is strengthening the judiciary, that can never be interference. It's judicial reform.

Q: If the government were to set up an independent appointments commission, who would be the commissioners?

A: In the model we have suggested, the chief justice heads it. All the four office-holders (including the president of the Court of Appeal, Chief Judge of Malaya, and Chief Judge of Sabah and Sarawak) would be there. You would also have members of the public, the Bar, and the Attorney-General's Chambers. All the relevant stakeholders in the administration of justice would be there.

Q: Was the walk based on the belief the video clip was authentic?

A: I think the walk was based on all the things we've been saying about the judiciary requiring rejuvenation. We've been saying for so long, and I think the video clip made things absolutely urgent. We were very alarmed by what we saw on the video clip. We felt the video clip was not doing the judiciary any good at all, and has to be investigated. We were not prejudging anything in relation to the video clip. But there was enough there that gave us real cause for concern.

Q: Has the Bar Council done anything to approach the lawyer in the video clip?

A: A complaint has been lodged and the due process will take its course. We cannot interfere after that. It is with the disciplinary board.

Q: Had the main player in the video clip not been that lawyer, had it been any other lawyer, would it have mattered at all?

A: Of course. The fact that there can be any interference or manipulation of the appointments system is very worrying, frightening, in fact.

Q: So, if the lawyer had been a junior lawyer, and the judge had been a magistrate, would it have been as serious? Would it have resulted in the walk?

A: Absolutely. I think it would have made no difference. The fact of whether it was a senior lawyer or not is irrelevant to me. The very senior judge may well have made a difference. But to me, any kind of manipulation of appointments would have been very scary. Because of the ramifications, what does that do to all the cases that were heard?

Q: Lawyers don't chit-chat with judges about appointments?

A: The informal chit-chatting does go on, because there's no other way for the institution to know who are the good lawyers who should go up. So, where appointment of lawyers to the Bench is concerned, yes, that does happen. There's no harm in that. You can't stop people talking to each other.

Here, we are talking about a process where there is tremendous influence by parties who shouldn't have an influence in the process.

Q: If the government were to agree to a royal commission tomorrow, what would you want it to do?

A: To investigate the current state of the judiciary, and its appointments and promotions process, and how it can be improved. The issues in the video clip have to be investigated, to see whether any of those things actually took place at that time.

You would get the public coming forward, which happened in the royal police commission. Once you start that process, you would get a lot of information. When you do that, we would know exactly what has been happening in the judiciary.

Q: Why do you think no one has come forward to the panel?

A: Because the panel doesn't have powers to protect anyone; they don't even have powers to protect themselves. Despite the assurances that have been coming out, they don't think the panel can give them the protection they need. If it had the powers of a royal commission, they do have powers to protect.

Q: Would a royal commission really be able to give protection?

A: It gives more protection, at least to the evidence that is given, so that the person cannot be sued or arrested for the evidence they give. That is the protection the royal commission can give. It's not protection to identity, but protection to the evidence that is given.

Q: (Datuk Seri) Nazri (Abdul Aziz) said if no one comes forward to the panel by the time it concludes its work, it is "much ado over nothing".

A: It would be very wrong to take that stand. If you are going to deal with it in such a perfunctory manner, it will be real cause for alarm. I think the problem with the panel, its lack of powers, has to be taken seriously. People are scared to come forward. Despite all the assurances by everyone, there's no actual statutory protection for the evidence, that is what is missing. How can you conclude there is no issue?

Q: The minister said if you really wanted justice done, you would come forward.

A: The criminal justice system very often relies on whistleblowers. The law has to protect whistleblowers. We do not, at the moment, have an act that does that. The fact the government and Nazri himself recognises we need such an act must mean that there is value to be placed on whistleblowers.

Perhaps the Attorney-General should come out and say he will give immunity, in respect of civil and criminal prosecution to this witness. Amnesty should be given to this witness. In the public interest.

If you recognise that a country needs a witness protection act, then you recognise the value of whistleblowers, you recognise they need to be protected.

Q: The minister said it's not the government's problem if no one comes forward.

A: The government has taken a step to look into it, it shows they feel there is an issue. If no one comes forward, all it means is that the step they have taken is ineffective. If it is ineffective, then they have to take a step that is effective, they can't just close it.

Q: If everyone keeps talking about a crisis in the judiciary, won't this scare away foreign trade?

A: All we're doing is speaking the truth. I don't think anyone should be stopped from speaking the truth. We do it because we know we have the potential to be a First-World judiciary. Public confidence is something very fragile; it comes from the opinion that people have. If steps are taken to reform, the confidence will come back immediately.

Q: If the government doesn't do anything, what is the Bar going to do?

A: I think the Bar will be wanting to have an emegency general meeting. This cannot just go away without a full and thorough investigation. That is something we hope to persuade the government that has to be done.

Q: What options are open to you?

A: Our meeting with the prime minister -- that's a big option. And also by hearing from the members of the Bar at an EGM (on Nov 22), where we hope to communicate our views to the government. Those are the options we are looking at. We are still going to use persuasion.

Q: There was a suggestion at the recent Malaysian Law Conference for lawyers to go on strike from the courts for one day. Is that feasible?

A: We have discussed it. We have to be very careful in any steps we take. We have to be responsible -- first to our clients; secondly, we have to be careful not to pre-judge any issues. It's not something that we would easily do.

Q: The old chief justice is out. There is currently an acting-CJ, and there will be a new CJ. Have you thought of taking the minister's suggestion by going to the judiciary and asking them to reform?

A: We hope to write in and have a meaningful discussion, between the Bar and the Bench. We are hoping to see this new era, where there will be a lot of discussion. But even before this video-clip incident, the judiciary was already beginning to engage with the Bar. We were invited by the Chief Judge of Sabah and Sarawak (Tan Sri Richard Malanjum) to see the system in Sarawak. They are doing things to try to improve, and we want to help in that process.

So, we do know that there are judges there who will engage with us. And we hope to continue with that process, and that we start this new era where we work together, in the interest of the administration of justice.

Q: The government says it's not going to reform the judiciary unless the judges want the reform.

A: Well, let's see. It may be something everybody can be united on. Hopefully soon.


Anonymous said...

Gone with the Wind?
The swirl gives a stir
after that it still disturbs
as whatever dusts remains
it gives blurs!

It should be a system
with inputs by all
for the whole
not just to be told
via a hole.

No matter who came in
it will still on hold
as the system had been withhold
not for the whole
but with holes.

It is not a system
with judges or lawyers
but a system of admin
for all to iron
the grievances.

Not until all regulations be read
and be reached
then the rules could be rich
in the way they were preached.
Or, just a book to read or teach?

Not only judges but all who practice
should see justice
not for a few
but whoever in the field!

It's still a long way to feel
when the can of worms not a few!

Unknown said...

I think this is a pretty good article by Professor Allan Hutchinson on Judicial Appointments Process. There are some good things that we can learn from it. The link is provided below:

Unknown said...

I should have included this other link in my previous comment. In any case, I'm adding it here. It's the official home page of the Judicial Appointments Commission in the UK. There are some details on their selection criteria and procedures for those who are interested.

Anonymous said...

If you are given the power to appoint members of the Royal Commission to investigate VK Lingam video clips,who will you pick?
Bob from Kuching

Anonymous said...

Still waiting for your answer Malik.

Bob from Kuching