On The Reform Agenda

The Pakatan Harapan ousted the BN on the strength of a promise of reform. Having formed the new government, it is clear that the ability to deliver on that promise has to be balanced against the challenge of taking the reins and steering the country back on course. 

From what Dr M has been doing, it appears that his government (as small as it is) equally recognises reform as a priority. The establishment of the Council of Elders, and the Committee On Institutional Reform speaks to that.

It is imperative that Dr M and his team be given the fullest support and latitude to do what needs to be done. To the extent that there is any political infighting s the members of the Cabinet are being determined, and it appears that there may be, it would be a shame if that infighting impacted on reform efforts.

More than that, it would amount to a betrayal of the mandate given to Pakatan Harapan to reform the country. Political interests must give way to the national interest. 

I am happy to note that, as quoted in Malaysiakini today, Dato’ Seri Anwar has said that the litmus test of the new administration (perhaps we should stop using the word regime) will be on how its implements the reform agenda. 

I think that is a fair yardstick to apply. It implicitly recognises that the new administration must be given the time and space to do what it needs to, and that a high standard is expected.

It bears reiterating that the necessary time and space must be given to the new administration to let it see through its reform agenda.

Going by the issues that created the momentum for the ousting of the BN, the expected reforms are numerous, ranging from the electoral system to the public service and, close to my heart, the administration of justice.  This will require a lot of thought and effort and, more importantly, the political will to drive reform through to completion.

Having said that, this is a process that has to be approached with a sense or urgency and novelty. Decisive steps will have to be taken. Problems need to be addressed with the best solutions, even if these involve approaches that are novel or unconventional. 

For example, where the justice system is concerned, if the administration is serious about shoring up public confidence in the Judiciary it must take concrete steps to do so. This has to start by asking whether the Judiciary is made up to the best persons for the job. It may be that, without impinging on their security of tenure, measure needs to be introduced to allow for judges to be independently vetted, evaluated and reviewed for performance and suitability for office periodically by an independent judicial ethics committee. There is a Judicial Ethics Committee Act 2010 in place. It needs to be tweaked. Similarly, it may be that the Judicial Commission Appointments Act 2009 will have to be amended to make it wholly independent of the Judiciary in the manner originally proposed by the Bar. This is after all the way in which the commission operates in the UK.

Similarly, to ensure that justice is seen to be done, it may be the case that the judges of the Federal Court and the Court of Appeal be required to deliver written grounds of judgment for every appellate decision of those courts. This will make their reasoning known to litigants and the wider public, and ensure that due consideration is given to the issues that arise for determination. It will also eliminate concerns about selective decision-making.

Also, it would best for all appeals to the Federal Court to be determined by panels of at least 7 or 9 judges, each of whom write or contribute to the written decisions of the court. This is, after all, the practice of the apex courts in the USA, the UK and Australia, a practice that ensures the development of the law in a coherent manner. The Federal Court is after all the apex court tasked with supervising and developing judge made law in the public interest.

These changes are easily applied without the need for constitutional amendment.  However, those seeking change will have to wrestle with entrenched ways of thinking, comfort zones, or circumstances, these obviously beneficial practices have not to date been adopted. 

Dealing with an entrenched culture is going to be one of the biggest challenges to the institutional reform. It will have to be driven through unrelentingly by administrators capable of staring it down. Amongst the most important of these administrators is the Attorney General. That is why I think that the reform process can only truly start, going from theory to practice, when we have an Attorney General who understands what is needed and is not daunted by the challenge.

That is why a new Attorney General has to be appointed as quickly as possible, one who is capable of doing what it takes but who remains accountable to Parliament. 

MIS

Pushing ahead with Judicial Reforms

There is a growing perception that judicial reforms may finally be gaining traction. 

Efficiency in court has increased tremendously with the Kuala Lumpur High Court and the Appellate courts disposing cases at a commendable rate. It is now not unusual for cases to be disposed by the High Court within nine months from the date of commencement, a far cry from the not so distant days of cases taking anything up to five or six years to be determined. 

This has not only been about managing the situation, or cracking the proverbial whip, it has equally been about embracing a new mindset and the technology that makes it a reality. And while questions are still being asked about the quality of justice, after all justice sped up will at times result in justice denied, I believe the merits of the changes we are experiencing outweigh their demerits. Having said that, this is a serious concern that must be addressed by the Judiciary, a matter I will return to.

On other fronts, eyebrows have been raised by several decisions over the past year or so that suggest an increasingly independent judiciary. Amongst them was the majority decision of the Court of Appeal striking down as unconstitutional section 15(5)(a) of the University and Universities Colleges Act last October. A short while later the High Court acquitted Anwar Ibrahim of sodomy charges. In July the High Court quashed the Home Minister’s declaration of Bersih 2.0 as an illegal organisation, while more recently in October, the High Court quashed the decision of the Home Minister rejecting Mkini Dotcom’s (the owners of Malaysiakini) application for a permit to publish a newspaper.

These decisions, and others like them, are important not just for what they concluded but equally for what they signify to Malaysians: that the Judges of the Malaysian courts are free to determine the issues before them as they see fit and without regard to any concerns, on their part, as to their prospects within the institution. With no intention of undermining the respect these decisions deserve, I believe that the judges felt free to do what it is they thought best principally because the Chief Justice has made it sufficiently clear to his judges that that is exactly what it is they are required to do.

If it is one thing that marks the Arifin Court, it is that the Chief Justice has, at least publicly, consistently expressed his belief in the need for an independent judiciary. While this may seem a truism to many of us, the sentiment is nuanced when we take into account the make-up of the judiciary.

Consider this. The Judicial Appointments Commission was established in 2009. It was established in part due to outcry over the controversial video recording of lawyer V K Lingam that resulted in the establishment of a Royal Commission of Enquiry that in turn made evident serious weaknesses in the way in which judges were appointed. These events led to an admission by the then Prime Minister, Tun Abdullah Badawi, that the appointments process was such that the best persons for the job were not necessarily selected. The self-evident implications of this admission were, and still are, a matter of grave concern. 

It also cannot be ignored that in the period following the judicial crisis of 1988, the number of judges that were appointed from the Bar dwindled to a point of it being negligible. In the period after, the overwhelming majority of judges were appointed from the Attorney General’s Chambers, elevations being perceived by some as “promotions”.  Many had not directly experienced the traditions of the Bar or were given an opportunity to fully appreciate the distinct relationship between Bar and Bench.  This limited exposure had perhaps, in some cases, resulted in a blurring of the defining lines of judicial office and a tendency to respond to authority in a manner not entirely consistent with that august office. This may explain how it is things got to that point where the government felt a need to introduce reforms. 

And although I have no foundation for this, I would venture that the Judiciary has not been left unscathed by the vagaries of race and religious politics, and an Executive that over the years became accustomed to dominating the organs of the State without due regard to the separation of powers.

These are just some of the more important dimensions of the discussion at hand. They however shed some light into the complexity of instilling a sense of independence into an ailing institution. Like all institutions, however, strong leadership and leadership by example will go a long way. And I believe that the Chief Justice is striking the right notes.

This is not to say that more cannot be done. The Chief ought give consideration to concerns that the speedy disposal of cases by judges, in particular the Court of Appeal, has resulted in case loads that impair the ability of judges to do justice. In an effort to finish their lists of cases, some judges have tended to unreasonably restrict the time given to counsel to present their cases. In some cases, it is not apparent that written submissions had been properly digested by the presiding judges, a situation that might be explained by the fact that the case load, as punishing as it is, left them with little or not time to do the same. In fairness, this may have been as a result of submissions coming in late; the relentless schedule has had its toll on advocates as well. 

The Chief must also consider the quality of judgments being handed down leaves anything to be desired. This is not a matter for appeals, which are more properly utilised to address complex points of law. There is a growing concern at the Bar that the quality of judgments is declining. If this is the case, and perhaps the Chief should consider conducting an audit, then urgent steps must be taken to address this, perhaps by appropriate judicial training. This can also be addressed by requiring all judges, even those of the Court of Appeal, to write judgments on each of their cases. It is admittedly a time consuming process, but one with obvious benefits. 

And above all, the Chief must keep his ear to the ground. If he listens, he will hear what it is that is being said about his judges. For as much as lawyers may whinge, at the end of the day their lives are intertwined with those of the judges. The Bench and the Bar balance and keep each other afloat in the stormy seas of state.  

MIS

(First published in "Rule of Law", The Edge, 20.10.2012

Defining Ideals: The JAC Bill

The tabling of the Judicial Appointments Commission Bill 2008 in Parliament is a momentous event for what it implies.

For far too long, civil society’s concerns about the state of the Judiciary had gone unaddressed by the Government. It seemed that that the acknowledgments this would require, and their implications, were too problematic for the Barisan Nasional to generate the political will this would require.

Consequently, rather than deal with the situation Malaysians were emphatically told instead that all was fine. In this, warnings from various quarters and mounting indications that the institution was in a tailspin went unheeded. The nature and extent of injury this has caused to the institution and our system of law is something that we may never fully recover from without radical steps.

The value of the Bill is chiefly in what it allows Malaysians to do: to move forward and to start looking at solutions.

Though the rhetoric from the Government since March 8th has been welcome, there had been neither tangible acknowledgment of the need for reform nor any concrete indications that steps were going to be taken. The tabling of the Bill has however changed that and we are now on far firmer ground to do what needs to be done. In the same vein, it is also noteworthy that in promoting the establishment of an appointments commission, the Government has also conceded that the way in which judges had been appointed in the past had compromised the independence of the Judiciary.

The utility of the Bill must however be measured against its declared objectives. That the genesis of the Bill lies in the unfortunate events underlying the Lingam Video Enquiry cannot be ignored. These centered largely on the perceived absolute discretion of the Prime Minister to unilaterally determine the appointment and promotion of judges. I say perceived because there had been a time when the constitutional provision concerned had been understood to mean that the Prime Minister would defer to the choices of the leaders of the Judiciary whose advice would have been shaped through consultation with the leaders of the Bar. In this way, care had been taken to ensure that one person did not shape the Judiciary, even if that person was the Prime Minister. As the evidence that came to light during the Lingam Video Enquiry however showed, this had become the case over time.

In this context, for the proposed law to be effective it must substantially minimize, if not wholly extinguish, the risk of this reoccurring. In doing so, one would reasonably expect the Prime Minister’s role to be circumscribed in such a way so as to impede autocratic decision making on his part.

Regrettably, the Bill does not achieve this and instead goes a long way to preserve the absolute discretion of the Prime Minister. It does this in several ways. Firstly, it is not clearly stated that the Prime Minister can only recommend for appointment those persons whose names have been put forward by the proposed JAC. This suggests that the Prime Minister is not bound to do so and can make his own recommendations.

Secondly, the composition of the proposed JAC is worrying for not only involving the leaders of the Judiciary who, as experience has shown us, are not entirely immune from being beholden to their appointing authority, but also a Federal Court justice who might suffer from the same sense of obligation as his or her peers. Four other individuals who are appointed and can be removed at the sole discretion of the Prime Minister complete the JAC. It is evident that this scheme will not inspire much confidence, given our history.

There are other aspects that are equally indicative of a concentration of power in the Prime Minister over the make-up and functions of the proposed JAC. This is worrying for they collectively undermine the stated aim of the exercise for promoting rather than minimizing the role of the Prime Minister. The scheme of the Bill is not easily reconciled with the independence that the proposed JAC would require in order to function effectively.

There are some laudable aspects of the Bill. These include the creation of a duty on the Prime Minister to promote and protect the independence of the Judiciary as well as the characterization of potential conflicts of interests on the part of members of the proposed JAC. These are however of no real value if the core of the Bill is not crystallized correctly.

As other more notable personalities have expressed, all indications point to a need for more comprehensive study and extensive debate. In attempting to give meaning to the independence of the Judiciary, a cornerstone of our system, we are defining an ideal. This is a process that allows for no compromises.

(This comment was written for The Malaysian Insider where it was published under the caption "In current form, JAC falls short of inspiring confidence")

MIS

All The King's Men...

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

MIS

Of Justice And The Rule Of Law

Justice Dato’ Hishamudin Mohd Yunus of the Kuala Lumpur High Court today once again displayed the sterling qualities that distinguish him as a judge. In delivering his judgment in the case of Raja Segaran v The Malaysian Bar, he unrelentingly lived up to his reputation as a judge of courage and integrity.

In 2000, the fact of the now notorious trip to New Zealand of Tun Eusoff Chin, the then Chief Justice, and V K Lingam became know to the Bar Council as a result of evidence having come to light in a defamation case involving the Asian Wall Street Journal. The clear implication of the evidence, if credible, was that the Chief Justice had been more closely associated with V K Lingam than had been thought and that this relationship may have been exploited to an improper end.

Quite understandably, the Bar Council reacted and moved to urgently convene an Extraordinary General Meeting of the Bar to consider what it is that had to be done. It was of great concern that the matter be dealt with urgently and transparently to avoid any undermining of the institution of the Judiciary and the administration of justice. The Bar Council quite correctly considered itself and the Bar under a legal duty to take appropriate steps but, again quite correctly, thought it best to leave the decision of what to do to the full membership of the Bar. It should be said that based on proposed resolutions which had intended to be moved at the proposed EGM, the Bar Council aimed to secure a resolution of the Bar calling for a Royal Commission of Enquiry.

A lawyer named Raja Segaran took issue with the proposed course of action and demanded that the Bar Council desist from proceeding with the EGM. His complaint was primarily that the proposed meeting would be contemptuous of the Judiciary and seditious, and was in any event a course of action that Bar did not have legal power for. The Bar Council refused to accede to Raja Segaran’s demands as a consequence of which Raja Segaran filed an unprecedented legal action against the Bar, the Bar Council and its then President. This was Raja Segaran 1.

Leaving aside the question of law as to whether Raja Segaran had the standing in law to file the legal action in the first place, the primary issues went to the freedom of association, and the incidental right to self-regulate, and the freedom of expression of the Bar and its members. One would have thought that the matter was open and shut: the Bar undoubtedly had the requisite power to proceed with a discussion of the matter with a view to making the necessary recommendations in law.

The High Court did not share this view. It granted an injunction against the Bar. The Court of Appeal affirmed this order on the incredible premise that the conduct of judges could only be discussed in parliament. Tun Ahmad Fairuz, then judge of the Court of Appeal, delivered the judgment of the Court of Appeal. The Federal Court declined leave to appeal on the basis that the application for leave to appeal “had no merit” notwithstanding the self-evident matters of constitutional significance.

During this time, Tun Eusoff Chin was the Chief Justice.

The matter went to trial. Significantly, despite the trial having been closed and the matter reserved for judgment, Raja Segaran then applied for leave to discontinue the action. The High Court allowed the discontinuance. The Court of Appeal took a different view and directed the High Court judge to deliver his judgment. This took some time but when judgment was delivered, the Bar lost. In the period from the close of trial to the delivery of the judgment, Tun Eusoff Chin retired, Tun Dzaiddin became the Chief Justice and retired, and Tun Ahmad Fairuz became the Chief Justice. It was during his tenure that the Court of Appeal affirmed the trial judgment. Whether this had any bearing on the way things played remains a matter of speculation though the revelations during the Lingam Commission proceedings and the recommendations of the Commission are suggestive. Whatever the case, the line of reasoning adopted by the Court of Appeal leaves much to be desired.

For a while it seemed that the story would end that way, with the Judiciary having seemingly insulated itself from criticism and reproach. The Bar could do so only at the risk of being found in contempt or guilty of sedition. There was a second part though, one which Justice Hishamudin’s judgment brought to a close yesterday with his judgment.

Shortly after Raja Segaran 1 was commenced, the then de facto Law Minister Datuk Seri Utama Dr Rais Yatim gave an interview to the Australian Broadcast Corporation in which he described how it had been intimated to Tun Eusoff Chin “in no uncertain terms” that the holiday in New Zealand constituted “improper behavior”. This sparked off a public exchange in the media between Tun Eusoff and Dr Rais with other public figures weighing in, predominantly in favour of Dr Rais’ position.

The Bar Council took a decision that this fresh development was sufficient basis for it to make fresh moves towards calling for a Royal Commission of Enquiry. It called for a fresh EGM of the Bar to discuss these developments. Raja Segaran commenced fresh proceedings and sought a further injunction. This was Raja Segaran 2, the case in which Justice Hishamudin delivered his judgment.

In the forthright and direct style that the Bar has come to expect of His Lordship, Justice Hishamudin firstly found that Raja Segaran had not established that he had been specifically aggrieved by the decision to convene the EGM, in part by reason of his having failed to appear at the trial to give evidence, Raja Segaran did not have the requisite standing in law, or locus standi, to commence the proceedings.

Justice Hishamudin then went on to observe that he would be failing in his duty as a judge if he did not touch on a matter that he considered to be of constitutional importance. Considering the same constitutional provisions that had been relied upon by the Court of Appeal in the Raja Segaran appeals, the judge concluded that the reasoning of the Court of Appeal was “far-fetched” as the constitutional provisions relied upon by the Court of Appeal in the said appeals to shut out any discussion by the Bar only went so far as to prohibit parliamentary debate on judicial conduct without a substantive motion. Significantly, Justice Hishamudin observed that the “restriction or the prohibition is not imposed on the general public” and that he “could not fathom how such a conclusion (with its startling consequences) can be arrived at by the Court of Appeal.”.

Rightly so. The Federal Constitution guarantees the freedom of association and expression. The Legal Profession Act enumerates the object of the Malaysian Bar. These can be resolved to one primary object: upholding the rule of law. The conduct of Tun Eusoff Chin and V K Lingam was clearly questionable and, if left unaddressed would have undermined the administration of justice. The Lingam Commission report has vindicated the Bar’s position. We would have not got there if the Bar had not marched and if it had not convened an EGM to underscore its demands for a commission of enquiry.

The Lingam Commission report was however merely that, a report. The recommendations regrettably do not have the force of law and matters have been left to the Attorney General. We have yet to hear of what steps have been taken and what the Attorney General proposes to do. One could not be faulted for thinking that nothing much is going to be done perhaps in the hope that time will dim our collective memory of events.

And perhaps it will. Though the promises of reform have been welcome, they they do not indicate that for those of us who champion the rule of law, the struggle has ended or that victory has been secured.

It for this reason that the Bar and this nation owe a debt of gratitude to Justice Hishamudin, not only for having had the courage to state the obvious but for having stated for posterity what needed to be said. In doing so, he has reminded us that though judges and lawyers come and go, though regimes change, the rule of law remains if we wish it to.

MIS

Reforms?

In my post 'The Politics Of Compromise' I questioned the levels of the Barisan government's commitment to judicial reform. The New Straits Times ran a report yesterday (Najib: Lingam report decision still pending) which included a reference to Mukhriz Mahathir (who's views I will take as representing some quarters in UMNO) as follows:

"On judicial reforms which Abdullah proposed in April, Mukhriz said: "Reforms are good but I also need to be convinced that the judicial reforms will make us win the next election, because I don't see how reforms will bring back confidence to Barisan Nasional."

"If we don't solve issues like rising oil and consumer goods prices, I don't think we'll win the elections."

MIS

The Politics Of Compromise

Any reform of an institution or an institutional nature will require political will. As we have learnt, the Barisan Nasional federal government is impervious to public opinion. Were it otherwise, we would not have heard the kind of rhetoric we did these past few years and that we continue to hear. Like all bullies, the Barisan responds to aggression and power. Until March 8th, when Malaysians coalesced into the phalanx that drove the Barisan out of five states and denied it the traditional two-thirds majority it had become accustomed to, there was no power that could match that of the Barisan. Safe in its control of key institutions and agencies, it had sat back and thumbed its nose at everyone else.

The slap it received on March 8th made the Barisan reel. But even as it took one, maybe two, steps back, it quickly steadied itself and clung to whatever it could, notably government. And despite seeming efforts to bridge the gap between it and Malaysians through the trumpeting of the need for reforms, the Barisan has thus far governed pretty much as it had prior to March 8th. We have in the short time since the elections heard about threats to racial harmony, seen the race and religious card played, heard the usual excuses over non-performance and, as expected, heard of how the opposition is the cause of all ills in the nation. Business, as such, is pretty much as usual, perhaps more so for the fact that the internal power struggle in UMNO is eclipsing all else on the list of priorities. Governance, it would seem, has once again fallen second to politics.

In this climate, it is apparent that Malaysians can only reasonably expect to see reforms where these reforms intersect with the political agenda of key players within UMNO. For all purposes and intents, more so than before in light of their dismal performance at the polls, the MCA and the MIC are largely irrelevant.

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.

Which is why I find the overwhelmingly supportive reaction of the Malaysian Bar somewhat surprising. The Bar has always been at the vanguard of rule of law issues. It has been steadfast in its condemnation of the events of 1988 and the subsequent decline in the quality and integrity of the Judiciary. Nothing less than a full apology and a reinstatement of all benefits of the judges who were wrongly attacked should have warranted the standing ovation given to the Prime Minister. But there was a standing ovation, and that at a dinner hosted by the Bar but paid for by the Government, something I never thought I would see in my lifetime as a lawyer.

The Bar needs to be wary of accommodating, or being perceived as accommodating, the politics of the Executive. It is however veering dangerously close to doing just that and compromising itself in a manner that will rob it of its credibility.

When, and if, the proposal for a judicial appointments commission comes to fruition, the Bar will be the primary voice of civil society to ensure that the commission is established as it should be. In all likelihood, the appointments mechanism will not satisfy the criteria of an independent appointments commission. At that point in time, the Bar must ensure that it is in a position to live up to its responsibilities. Positions it takes now will limit its freedom to react appropriately. Regrettably, the extent of support shown to the Government, from the hosting of the dinner to the adulatory speeches, may have already had their impact.

Commending the Prime Minister for the step taken was the proper thing to do, but to offer, as the media reports suggest, congratulations for the loosening up of controls over the freedom of expression, is to ignore the very real and very painful suppression of the numerous demonstrations of 2007 by force. The shots fired in Pantai Batu Burok still ring out, as do the cries of peaceful marchers and demonstrators as they were tear gassed and attacked with water cannons. The Prime Minister was responsible for all that and more.

I appreciate that activism will require tactical concessions. I also understand that it is better to seize what gains one can when one can rather than not making any progress at all. However, gains should not be taken at the risk of principle. The rule of law cannot be built on compromise.

MIS

Apppointment Of President, COA: Await Outcome Of Enquiry

The radical step of nominating Tan Sri Zaki Azmi the President of the Court of Appeal conclusively shows that the Government is blind to the crisis that the Judiciary, and consequently the legal system, is in the throes of. It also shows that the Abdullah Badawi administration views the Judiciary in much the same way the Mahathir administration did; the Judiciary is there to serve the Government’s interests, and not those of the nation (I say nominating as media reports indicate that the Yang Dipertuan Agong is yet to fix the date of appointment (see, for instance, ‘Abdul Hamid is new CJ, Zaki is judiciary’s No 2', Malaysiakini, 05.12.2007).

I do not intend to call into question the appropriateness of the decision to elevate Tan Sri Zaki to the bench. I have had the privilege of dealing with him as a lawyer over a period of time, and more recently as a judge, and have always found him to be courteous, incisive and approachable, key attributes of a good judge. His appointment as President is however, notwithstanding, a basis for concern.

Tan Sri Zaki is amongst the most junior members of the Judiciary, if not the most. He is the most junior Federal Court judge. He has to date only some two months experience as a sitting judge. This is in stark contrast to other justices of the Federal Court and the Superior Courts as a whole.

An appointment as one of the four office bearers of the Judiciary is a matter of pride. It is undoubtedly the aspiration of all judges to end their career at the Federal Court, if not as one of the four office bearers. The question of appointments to office as such has a very human dimension. Like all of us who serve, recognition of dedication and quality is signaled by promotions. This is true also for judges.

Many have called into question the constant bypassing of senior judges for promotion to the Court of Appeal and the Federal Court, for good reason. Over the last decade or so, we have witnessed a startling increase in the number of promotions of junior judges over their senior counterparts. The Bar has repeatedly made calls for the establishment of an independent judicial appointments and promotions commission. At its recent Extraordinary General Meeting, the Bar called on the Judiciary to support the move towards the establishment of such an independent commission.

In his opening address at the Malaysian Law Conference this year, His Royal Highness the Sultan of Perak expressed disquiet at the erosion of public confidence and a nostalgia for a time when the Judiciary was respected throughout the Commonwealth. Much of this erosion stems from the manner in which judges have been appointed and promoted.

Judicial morale is at a low just as public confidence is. Judges are uncertain of their futures, frustrated at the seemingly arbitrary manner in which promotions are handed out. It would not be unreasonable that many wish for a better, more effective and more respected judiciary. This sad state of affairs needs to be addressed. The Bar has maintained, correctly so, that its calls for reforms are not an attack on the attack on the judiciary. They are instead a defence of the Judiciary, its members and the legal system.

In this context, it is manifest that the nomination of Tan Sri Zaki as President can only send the wrong signal to Judges. Coming as it does so soon after his unprecedented direct elevation to the Federal Court, it suggests that there is no one worthy of the position in the Judiciary as things stand. It also strongly suggests that the Government itself has no confidence in the Judiciary.

It also sends the signal that the Government wants to retain control of the Judiciary. Tan Sri Zaki’s history of service to UMNO is not in itself a disqualifying factor for elevation to the bench. However, the special arrangement made for his direct elevation to the Federal Court and the alacrity with which the Government recommended him for the post of President, so soon after the refusal of an application for an extension of the term of Tun Ahmad Fairuz supported by the Government, is cause for concern even if limited to purely the realm of perception.

This is more so for the fact that one of the implications of the Lingam Video is that the Government has been interfering in the affairs of the Judiciary in a manner not countenanced by the Constitution. The fear is that this trend continues.

None of this augurs well for an ailing Judiciary. One wonders how many more shocks it can take.

One of the concerns that civil society groups and the Bar aim to raise before the Royal Commission of Enquiry on the Lingam Video is the need for an independent and transparent appointments and promotions mechanism. It is a widely held view that such a mechanism would go a long way in helping the Judiciary avoid the fallout of incidents such as the Lingam Video affair as well as addressing concerns about unwarranted Government interference.

In light of these concerns, and the crucial need to ensure higher levels of confidence in the Judiciary, it may be appropriate for the Yang Dipertuan Agong to defer the matter of the President, Court of Appeal, until after the Royal Commission delivers its findings. This would have the additional benefit of prompting the Government to act with greater urgency to address the unparalleled judicial crisis that the nation is currently confronted with.

MIS

HAKAM Press Statement: Royal Commission Of Enquiry

The Royal Commission of Enquiry being established to enquire into the Lingam Video is one of crucial significance to the nation and the public interest. It should not looked upon as being merely a means of investigating the narrow issue of the Video and the involvement of V K Lingam in the promotions and appointments of judges.

When one considers the tenor of the conversation the person alleged to be V K Lingam is having, it is apparent that, if authentic, the Video has serious implications and ramifications as to the integrity of the administration of justice. The names of Tan Sri Vincent Tan, Tengku Adnan Tengku Mansor (who, if the Video is authentic, was a Deputy Minister at the time the Video was apparently taken, and is currently a Minister), Tun Dr Mahathir Mohamad, the Prime Minister at the time) and Tun Eusoff Chin (a former Chief Justice) were mentioned in a manner suggestive of a collaboration amongst these individuals on the question of promotions and appointments. Additionally, reference was made to the manner that the then Chief Justice, Tun Mohamed Dzaiddin, was approaching the question of promotions and appointments.

From the involvement of the then PM and the then Deputy Minister, and in view of the Government’s direct involvement in the promotion and appointment of judges, it is clear that the Government itself is embroiled. This is significant in light of numerous allegations against the Government for having attacked the Judiciary in 1988 and thereafter having interfered with the Judiciary.

These implications and ramifications as such pertain to, amongst others:

• the manner in which judges were, and are, appointed and promoted;
• interference by the Government in the process of appointments and prmotions beyond the limited involvement permitted under the Federal Constitution;
• the involvement of external influences and factors, including those of a corporate or commercial nature, that had, and have, no bearing on the capability and integrity of candidates for appointments and promotions;
• interference by the Government with the Judiciary directed at the outcome of the proceedings before the superior courts;
• the possibility of partisanship and allegiance amongst some members of the Judiciary, such partisanship and allegiance having a bearing on the outcome of proceedings before the superior courts; and/or
• the possibility that the practices revealed in the Video had continued in the period after the recording of the Video.
  

The terms of reference must as such be wide enough to allow for a consideration of the issues arising from these ramifications and implications. The need for a sufficiently comprehensive mandate has been made more pressing by the fact of the police reports lodged by V K Lingam’s brother, K.V. Thirunanama Karasu, that go to underscore the apparently inappropriately close relationship between V K Lingam and the Judiciary, The naming of other Judges in the said police reports and the nature of the allegations made strongly suggest corruption.

In view of the need for such a comprehensive mandate, it is evident that the persons appointed as Commissioners must be persons who are not only capable of fulfilling and discharging the very serious responsibility of such an effort. They must also be persons who, and who are seen to, have the necessary objectivity so as to ensure public confidence in the enquiry.

For this reason, it is self evident that that the following persons should not be asked to be members the Commission:

• Any Chief Justice since Tun Abdul Hamid, including Tun Hamid himself;
• Retired judges who served Tun Eusoff Chin, Tun Mohamed Dzaiddin and Tun Ahmad Fairuz;
• Any judge currently serving as such;
• Any person closely connected with the Government and/or who served the Mahathir Administration and/or the Badawi Administration or still serves. This would include former Attorney Generals; and/or
• Any person who might be perceived to have grievances against the Government and/or the Judicial Administration in the period from 1988. This would include Tun Salleh Abbas and any of the members of the Judiciary penalized in the 1988 attack on the Judiciary.
  

Malik Imtiaz Sarwar
President, National Human Rights Society
21st November 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.

MIS

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.

The Call For Judicial Reform

In His Royal Highness Sultan Azlan Shah's address at the opening speech at the 14th Malaysian Law Conference, His Royal Highness called for a return to the glory days when the Malaysian Judiciary was "held in high esteem". The address has been carried in full by the media and blogs (and can be read here).

The call by the former Lord President (as the office of the Chief Justice was formerly known) for Judicial Reform is timely. In many ways the Malaysian justice system is at the point of no return. Something needs to be done, and done urgently.

While we, quite correctly, have tended to focus on the more abstract notion on the need for an independent and competent judiciary, and its crucial significance to a functioning democracy, the sustainability of development and growth of the nation, and to our daily lives as Malaysians, we may not have given sufficient attention to the retrogressive effects of the insular and uninspiring Judiciary that Malaysians have come to inherit over these last two decades or so, on the practical aspects of our lives.

The question of public confidence goes beyond judicial independence. It crosses over into the realm of competency and judiciousness on the part of judges. Judges decide cases. If the judges concerned are appellate judges (of the Court of Appeal or the Federal Court), their decisions become binding precedents on the High Court and the subordinate courts. If appellate decisions are arrived at incompetently, and as such erroneously, or by reason of influence, these decisions shape the future of the law. If such decisions were the exception rather than the norm, these decisions could be treated as anomalies to be corrected at the first opportunity. The damaging effects of these anomalies could be contained and limited.

But what if these anomalies were the norm as opposed to the exception? Would we not be reshaping the jurisprudence of the country in a way which was undermining of progress and sustainability. I have argued that the development of case law on the role of Islamic law in the public sphere has been premised on questionable decision after questionable decision. Despite the call for correction and a restatement of principle in accordance with settled principle, the momentum has carried the development of legal principle into highly questionable decisions contrary to binding precedent such as that of the majority of the Federal Court in the Lina Joy case.

This phenomenon has not been confined to these so-called controversial cases. These cases are just one aspect of the wider dynamic. The experience has been similar in the sphere of commercial law as well as civil law. So much so that many a litigation lawyer can, if pressed to honest response, of being asked questions such as "Is the judge competent enough to handle the issues involved?" or worse, "Is the judge capable of being influenced?"

As much as these questions may not necessarily be answered in the affirmative, it must be recognised that the questions are being asked. This is as much a manifestation of a lack of confidence as much as the seeking of alternative recourse in preference to dispute resolution through the courts, such as through arbitration.

The call for judicial reform by His Royal Highness is therefore not only timely but welcome for the fact of the recognition by such an august personality, not least for having been a well respected and admired Lord President, of a damning state of affairs. This should not be taken as an attack on the Judiciary as an institutions or individual judges but rather as a well founded critique of the underlying system and the manning of the system as observed by constitutional law scholar, Professor Shad Faruqi (see 'Full support for sultan's call', NST, 31.10.2007)

I aim to comment more on the subject, and will be doing so in a series of postings. For the moment, allow me to share an open letter to His Royal Highness from Martin Jalleh, a well regarded social commentator whose thoughts appear regularly on Malaysiakini. Martin was kind enough to forward me a copy of his open letter and has given me permission to reproduce the same here.

MIS

An Open Letter to YM Sultan Azlan Shah

Your Royal Highness,

Thank you very much for portraying the truth about the state of the country’s judiciary and your accompanying clarion call for major reforms in the judiciary during your opening address at the 14th Malaysian Law Conference recently.

You acknowledged with sadness that “there has been some disquiet about our judiciary over the past few years and in the more recent past…there have been even more disturbing events relating to the judiciary reported in the press”.

“We have also witnessed the unprecedented act of a former Court of Appeal judge writing in his post-retirement book of erroneous and questionable judgments delivered by our higher courts in a chapter under the heading ‘When Justice is Not Administered According to Law’.”

You highlighted “serious criticisms” against the judiciary such as delayed judgments and backlog in cases as a result of incompetence. You gave the example of a case of medical negligence involving a death of a lawyer which took 23 years to reach the Court of Appeal.

“Similarly there have been reports that some judges have taken years to write their grounds of judgments involving accused persons who have been convicted and languishing in death row.” (Like the judge who failed to deliver 35 judgments including four in which the convicted are languishing in jail despite being sentenced to death seven years ago?)

“Surely, such a situation cannot be tolerated in any progressive nation,” Your Royal Highness so very aptly concluded. The powers that be should therefore understand why the lawyers walked, the people talked and the rest blogged.

You have rightly pointed out that this is not the first time that you have expressed grave concern over the judiciary: “In 2004, I had stated that it grieved me, having been a member of the judiciary, whenever I heard allegations against the judiciary and the erosion of public confidence in the judiciary.”

Your Royal Highness had in June 2004 warned that “the erosion of public confidence in the judiciary’s independence would ultimately lead to instability and remedying it would be a protracted and arduous task.”

But, very evidently, the tell-me-the-truth Government has not been listening (even though it claims to be open). After saying that you had given a “very good speech” Minister in the Prime Minister’s Department, who is also the de facto Law Minister, Mohamed Nazri Abdul Aziz, told the press that the state of the judiciary that you had described was merely your “perception”.

Clearly contradicting the scenario that you had painted in your opening address, Nazri very proudly and loudly declared to the press that “there was no erosion of public confidence in the judiciary” (NST, 30.10.07).

You stressed in your opening address: “In matters concerning the judiciary, it is the public perception of the judiciary that ultimately matters. A judiciary loses its value and service to the community if there is no public confidence in its decision-making.”

When asked to comment on public confidence being an integral part of the judiciary Nazri said: “I agree but the public... what is the public? Does the public mean 1,000 or 2,000 people or the whole nation?” It was just as good as him saying “Does the public mean the voice of one Sultan?”

Your Royal Highness, if we were to apply and follow Nazri’s arguments and the twisted logic which he had used to arrive at his arguments, which appeared in a NST interview (28.10.07), your grave concerns would be deemed as “a false allegation”, a “perception created by some people…who are unhappy, make a lot of noise…” Yours (according to the Minister) will be a view of the “minority”.

Nazri had also insisted that there isn’t a crisis in the judiciary and that “(c)risis means it involves the whole country but nobody talks about it. I even asked my fellow members of parliament (MP) but nobody talks about it. So, what crisis are we talking about? The crisis is in the minds of those who created it.”

The NST interview caused Opposition Leader Lim Kit Siang to ask: “Will the de facto Law Minister, Datuk Seri Nazri Aziz dismiss Sultan Azlan Shah’s increasing “disquiet” about the crisis of confidence in the judiciary as a “false” perception and baseless allegation of one person, in the way he dismissed the concern of Malaysian Bar on the ground that it is no “big deal” as only 1,000 out of 13,000 lawyers or 26 million Malaysians had taken part in the “Walk for Justice” to the Prime Minister’s Office in Putrajaya?”

It now appears that the independence and future of the judiciary in our beloved country depends very much on the perception of one man – Mohamed Nazri Abdul Aziz. He had even made it very clear (last year) that we have to ‘convince’ him first if things are to improve significantly in the judiciary.

Perhaps Your Royal Highness could educate the minister with what you had written in the postscript to your book “Constitutional Monarchy, Rule of Law and Good Governance” (pp 399 – 401) in April 2004: “… statements made as to its independence (of the judiciary) by the judges, or even the politicians (my emphasis), do not measure public confidence in the judiciary. At the end of the day, it is this public perception that ultimately matters.”

As for the de facto Law Minister’s seeking refuge under the “silent majority” as “the public”, Nazri’s predecessor, Rais Yatim, who wrote “Freedom under Executive Power In Malaysia: A Study of Executive Supremacy”, would be able to unveil the Minister’s cheap and stale political trick:

The “…supremacy of the executive can be achieved and maintained within the so-called democratic process through political manipulations. This is exemplified by the very mechanism of democracy, namely, majoritism, which since Merdeka in 1957 the executive branch of government in Malaysia has been able to render subservient both the judiciary as well as the parliament.”

Your Royal Highness, one can understand why you are “driven nostalgically to look back to a time when our judiciary was the pride of the region and our neighbours spoke admiringly of our legal system” and we were then “second to none and the judgments of our courts were quoted confidently in other common law jurisdictions”.

Today, we are driven nauseatingly to look back at our judiciary. The region and our neighbours still talk about us. We have become a laughing stock. We are second to none when it comes to kangaroo courts and court jesters like the de facto Law Minister. The judgments of our courts are often quoted in political satire and online comic scripts.

May Your Royal Highness continue to speak out boldly on common law jurisdictions and the judiciary on behalf of the common man (and woman) as it has become increasingly common knowledge to many of us that we are being led by a Government tragically lacking in common sense.

A proud and loyal son of Perak,
Martin Jalleh
31 October 2007