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

Spoils Of War

(This article first appeared in The Edge in the week of 28th August this year It was my first piece for a column called 'Rule of Law')

Spoils Of War

It feels sometimes that the way things are going political forces are going to rip this country apart. Intent on their respective agendas, for better of for worse, the Barisan Nasional and the Pakatan Rakyat appear to be caught up in a “no quarter” given, fight to the death that is focused more on their survival than it is on our well being. Resources, such as they are, are being deployed more to one end than they are to the more well deserving other.

Sadly, in the Malaysia of now politics is no longer the handmaiden of democracy; it defines it. The campaign being waged around us is about the continued political subjugation of this nation. It is about control. We are not witnesses to a gladiatorial contest for sport; we are the spoils of war.

Though it is a given that in even the more mature democracies the line between government and politics is not always as broad as the ideal requires, that line nonetheless exists if only for the existence of an effective system of checks and balances centered on the separation of powers between the Executive, Legislature and the Judiciary.

The line between government and politics in Malaysia is so blurred that some might describe it as no longer being visible to the naked eye. If there were any doubts about that, it would have been put to rest by any of a number of recent events. The campaign speeches made by the Honourable Prime Minister for the recent parliamentary by-elections in Hulu Selangor and Sibu, the intensified and highly selective policing of free speech, and the resurgence of intolerance against legitimate dissent are instances of what it is that fuels the belief that the Barisan Nasional views itself as the government and vice versa. To criticise one is to condemn the other.

It is crucial for all stakeholders to recognize this as much as it is not in the interests of this nation for this state of affairs to continue. It is equally imperative that we appreciate the reasons for it and commit to addressing matters as they need to be.

We suffer the consequence of several inter-locking processes that were given life during the administration of a Prime Minister who tended to view the ends as justifying the means. I would like focus on one.

Frustrated that an interfering judiciary was impeding his vision, the Mahathir administration moved a constitutional amendment that subjugated the Judiciary to Parliament and showed the Justices that he could remove them if he saw fit. His perception of the role of the Judiciary called more for compliance rather than effectiveness. This was essential to his need for Executive control over the nation.

Perhaps recognizing that it would be impolitic to suspend the Constitution, the Mahathir administration moved amendments to key legislation that would allow for greater central control over matters of free speech and government accountability. These vested subjective discretion over matters exclusively in the Government to the extent that even the courts were precluded from questioning decisions. This allowed for a suppression of civil society and opposition efforts, and in many ways hamstrung the democratic process. This state of affairs in turn allowed the Barisan Nasional to dominate Parliament, the other bastion of check and balance. A docile Judiciary washed its hands of the mounting dilemmas by citing their lack of power. Suggestions that the constitutional and legislative amendments that neutered the Judiciary were unconstitutional were dismissed.

This need for control and the willingness to do what it took ultimately led to the decline of governance in this country. As admitted by Abdullah Badawi during his term the Judiciary was in serious need of reform.

It still is notwithstanding the efforts by our current Chief Justice to increase efficiency within the courts. That is but one heavily nuanced dimension of the issue; the public perception that the Judiciary is not competent and lacking in integrity needs to be directly addressed. Perceptions of bias or extraneous influence cannot simply be brushed aside if the Judiciary is to function as such. Public confidence is as essential to the functioning of this institution as its infrastructure; laws would have no meaning if people reject the validity of the decisions of the courts. And the truth of the matter is that they have been for some time now.

It should not matter that this may be a situation that lends itself to the advantage of the Barisan Nasional. The fact remains that a fundamental feature of our system of governance is skewed. Questions of integrity and competence on the part of the Judiciary go far beyond matters of political significance. They pertain as much to matters of finance and commerce as they do to personal matters and for doing so touch the lives of all Malaysians. Consider the number of Malaysians who suffered by reason of the decision of the Federal Court in Adorna Properties or any number of self-evidently unjust and erroneous decisions of the courts, in some cases the apex court itself.

It is not enough to say “the courts have decided” in the face of decisions that are obviously unsustainable. For us to progress, the standard and quality of justice must be high as it is consistent. This is a feature of the Singaporean judiciary that has reaped much benefit for that nation. In as much as some might say that decisions of those courts involving the Government tend to go one way than the other, their commercial decisions speak for themselves. It is no coincidence that the Privy Council not too long ago adopted the reasoning of a Singapore High Court judge in rejecting a precedent that had held sway for more than a century; it was a matter of planning. From the outset Lee Kuan Yew recognized the importance of a strong legal tradition.

The question therefore is where does that leave us in Malaysia.

MIS

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

Shaping Policy

I have said elsewhere that decisions of the Federal Court do not only determine the issues in the particular case the court decides on. Being the apex court and empowered to only hear appeals that involve questions of novelty or public importance, decisions of the court in many ways define the policy of the law. These decisions set precedents and are binding on all other courts.

In an ideal context – in which decisions are made impartially, correctly and with regard to all relevant considerations – this is a good thing. Decisions of the apex court would guide the administration of the law so as to ensure uniformity of decision making by the High Court and the Court of Appeal. This would allow for certainty in the law, a vital feature of a functioning system of law.

It follows then that in less than ideal situations, where decisions are made incorrectly or by reference to considerations that are not relevant to the issues being adjudicated, decisions of the apex court become problematic for setting bad precedents. As a lawyer, I have seen how judges struggle with getting around these bad decisions in attempting to do justice.

These less than ideal decisions are particularly problematic where they involve matters of governance, either at the level of government or lower down the chain of administration. Decisions of the apex court here would not only define the policy of the law, they would also shape administrative policy. In most cases involving the government or other administrative bodies, it is more usual that these entities would have been sued for alleged wrongdoing. By upholding or dismissing claims, the apex court would be setting down parameters and sending signals, one way or the other, to these entities.

Put another way, bad or shortsighted decision-making could, and most probably would, result in bad administrative policy.

It is my respectful view that the decision of the Federal Court in the Highland Towers case (MPAJ v Steven Phoa [2006]) is a problematic decision for having immunized the State Government and local authorities from liability. It must be recalled that in its said decision, the Federal Court found that the MPAJ was not liable for its negligent acts or omissions for being protected under the Street, Drainage and Building Act (s.95(2)). In so concluding, the Federal Court had effectively told the MPAJ, and other administrative bodies protected under that provision or provisions similar to it, that they could act with impunity. One can only imagine how this has shaped attitudes of local councils throughout the nation.

There are two ways that the decision could be considered. The first is supportive of the decision for the court having applied the law as written. After all, the section does provide “…shall not be subject to any action, claim, liability or demand whatsoever…” and courts cannot rewrite the law.

The second is not supportive. Though the Court is obliged to apply the law, it is nonetheless obliged to apply it purposively with due regard to the intention of legislature. It cannot have been the intention of legislature to immunize all actions or inactions. The provision was obviously aimed at protecting the parties identified for acting (or not acting) within the scope of what could be reasonably expected of such parties, seen in the phrase “..in accordance with the Act..”. There are situations, such as where the parties have acted in bad faith or in a manner not countenanced by the law, that legislature could not reasonably have intended to give immunity for.

I favour the second view not because my sense of social justice is appeased by it but because that view is more consistent with the guarantee of access to justice and equality before the law under the Constitution. These are features of the core of the Rule of Law; no person is above the law. This approach is also consistent with jurisprudence across the common law world on the subject. Significantly, the Court of Appeal in the Highland Towers case took the view that the MPAJ was not immunized from liability.

There are very real and practical implications of the decision of the Federal Court. Consider its impact on the state of affairs in Bukit Antarabanga. Going by the said decision, individuals who have lost everything have no recourse even if it could be shown that the local council acted with complete disregard to their interests. That cannot be right.

The decision in Highland Towers appeared to have triggered the start of a trend of protectionist decision making on the part of the court. In October this year, the apex court held in Government of Malaysia & 3 Others v Lay Kee Tee & 183 Others that such provisions rendered parties concerned immune from suit as a consequence of which such claims could be struck out without going to trial. The claimants there were denied their day in court unlike the claimants in Highland Towers.

The court in Lay Kee Tee raised another barrier to claims against governments by laying down a pre-condition to actions against governments (State or Federal) as follows: if one wants to sue the government for wrongs done by an agent of the government, then one must not only identify the agent, one must also make the agent a party (or defendant) to the action failing which the claim is struck off without going to trial. The court came to this conclusion through an interpretation of the relevant legislative provisions (Government Proceedings Act) that runs counter to established practice through the years both in the country and elsewhere in the common law world.

One sues the government for what is called vicarious liability. The Government not being a person, it cannot act other than through its agents. In law, where an agent is negligent, his principal is vicariously liable. There has never been any need to sue the agent in order to make the principal liable. One had merely to establish the wrongdoing of the agent to make the Government liable.

All that changed with the decision in Lay Kee Tee, which drastically altered the ground rules. Consider a situation like that in a pending action against the police and the government for inaction on the part of the police during the Kampung Medan riots. The claimant there claims that police officers stood by while he was being attacked. He now has to identify the police officers he says did not take steps and make them parties. How he does that is anyone’s guess especially since the police force is not about the volunteer the identities of those involved (this is fair considering that the burden of proof is on the claimant). Suing the government has always been difficult; it has become virtually impossible.

These decisions and others that have been too accommodating of unfettered discretion on the part of the authorities are worrying as they signal an unduly narrow view of fundamental liberties. They also indicate a misapprehension on the part of the Judiciary as to its role. The institution is not intended to blindly apply the law; it must infuse the law with those elements that mark this nation as a democracy founded on the Rule of Law.

Citizens must be allowed to seek redress for wrongs done to them by the State or its agencies; their right to do so cannot be rendered illusory. As emphasized above, this is not just a matter of one person’s wrongs being addressed and compensation. The decisions handed down have shaped policy and attitudes, and will continued to do so. If public officers are allowed to feel that they are beyond the reach of the law as they have been, they will act as they please and not necessarily in the way they are expected.

The Federal Court must appreciate more fully that its decisions are not handed down in vacuum. They shape society, sometimes drastically.

MIS

Navigating The Constitutional Impasse

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.

MIS

Suspicion Of Tyranny

"I realise that the police have a difficult duty to perform to maintain the public peace and security. They should by all means exercise their powers under the law but in exercising these extra-ordinary powers of detention without trial, they should be careful not to raise in the minds of the public any suspicion of tyranny."

The late Justice Harun Hashim (as he then was) in IGP & Anor v Lee Kim Hong [1979] 2 MLJ 291


MIS

Re-establishing Malaysia

Re-establishing Malaysia

I think back with amusement to how much I disliked constitutional law as a subject when I was studying law. No matter what, I just could not sink my teeth into it. The doctrine of separation of powers, matters of governance, the multi-faceted role of legislature and so on were not exactly riveting material. And as tempting as it is to blame this seeming aberration on the way I was taught, this would not be the entire truth; there were simply more exciting things in life.

Little did I know that not only would constitutional law feature tremendously in my legal practice as an advocate and a human rights activist, it would also infuse my life in so many other ways as I attempted to understand and give words to my feelings about all that was happening around me. In an increasingly ambiguous environment, I found myself turning more and more to the constitution for certainty.

I did this for one reason. As a society evolves, it challenges itself. Memories being short, even fundamentals are not spared as the scrutiny of those in search of opportunities - social, political or intellectual - is brought to bear on even the most sacred of truths. And though democracy thrives on the clashing of ideas and opinion this entails, democracy also requires there to be basic, unassailable certainties for constructive debate. The ideas that form the picture that is Malaysia, in all their swirling intensity, must fit into a frame. That frame is the Federal Constitution.

As the supreme, or basic, law of the nation, it is intended to give structure to our lives by setting in place a framework for how it is we are to conduct ourselves as a society. By precluding arbitrariness in governance and protecting fundamental liberties, it is intended to provide for sanity in the mad world of politics and government, and the unavoidable excesses of the same.

In the last decade or so, the constitution has however taken a beating. Sadly, much of this has been at the hand of the Federal Court, an institution that was intended to protect it. The net effect of a string of decisions in this period has been the blurring of constitutional positions on key aspects of the system of governance to the extent that we have rapidly lost definition as a nation and the basic structure that is so vital for our continued sustainability has been put under threat.

Though the Islamic “conflicts of jurisdiction” cases have been the most public, this is not the only aspect that has been thrown into confusion by other equally controversial, ambiguous and precariously founded decisions of the court. For instance, it recently declared that the doctrine of separation of powers no longer had a place in Malaysia, an astounding conclusion that runs counter to our system of democracy and does away with the checks and balances so vital to fair and just governance. This is of grave consequence particularly when we consider how the same court not too long ago affirmed Parliament’s right to immunize Executive action from judicial scrutiny by ousting the court’s power to review. In doing so, the court allowed Parliament to place the Executive above the law.

There are other instances where the court approached its subject matter too myopically and with insufficient consideration of the policies that its decisions would invariably create or reinforce. The judicial attitude that has led to the articulation of parliamentary, and not constitutional, supremacy and all that entails has resulted in an unhealthy political environment that lends itself to oppressiveness, divisiveness and intolerance, the full effect of which we are yet to appreciate.

The Federal Court cannot wash its hands of these difficulties by saying that is bound by the law and as such merely applies it. Like apex courts of other nations, the Federal Court is the principal guardian of the constitution and has the power to strike down laws and actions that run counter to it, even those that are aimed at undermining the power of the Judiciary. The court defines our way of life through its interpretation and application of the constitution. That many of the difficulties currently being experienced in this society - from the jurisdiction of the syariah courts to the arbitrariness of governance - can be traced back to decisions of the court only goes to show the extent of the court’s immense responsibility to society.

For this reason, the Federal Court must confront the fact that its decisions do not operate in vacuum or isolation and impact on nation building. More than ever, the court holds the fate of the nation in its hands. It is not too late for the court to act decisively and with a clear vision of our long-term needs to reestablish the framework required for this nation to remain united and capable of growing sustainably for all Malaysians.

(Malay Mail; 19th August 2008)

MIS

Rule By Law

It has become manifest that the Rule of Law has collapsed in Malaysia.

Even if Anwar Ibrahim were to be found guilty of sodomy, the court of public opinion would have acquitted him. Even if the Deputy Prime Minister were shown to be wholly unconnected with the events underlying the Altantuya murder trial, that court would have already found otherwise. It would not matter if all the police officers, prosecutors and judges in the country were to say otherwise or if all the untruths, one way or the other, were undone. Malaysians, or at least a very large number of them, have lost faith in the system.

The Rule of Law does not exist merely for there being present the institutions of the administration of justice. Courts, prosecutors, a legal profession and a police force do not in themselves give rise to the Rule of Law. That can only occur if they collectively function in a manner that allows for the full confidence of the Malaysian public. Without such confidence, these institutions are nothing more than empty shells.

There is no longer a basis for continued public confidence in these institutions. Where the police and the Judiciary are concerned, this is a state of affairs that has for all purposes and intents been formally recognized by two Royal Commissions of Enquiry. The office of the Attorney General is suborned to the Executive and its impartiality has been put in doubt, its decisions and conduct having become increasingly questionable. The legal profession has been largely neutered by self-interest or the need for self-preservation.

Corruption or abuses of power are perceived as permeating throughout.

The intensifying sequence of events that has played out these last few weeks has done little to build confidence in the system. If at all, it has eroded what little faith there was.

The need for reform is widely acknowledged, even by the Government. That little or no real reform has taken place is similarly widely known, as is the politicking that stands in the way. A system that works to vested interest, even if it is a shell propped up by laws that have been beyond challenge, is after all a system with value for those whose interests it serves. In it, existence is a game of chance played out in an arena of fear and unchecked power, and umpired by laws utilized in aid of the arbitrariness of Government.

We should not fear and yet that is what we do. For how can it be otherwise under a Rule By Law. Under it, might is always right.

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

Of Judges And The Constitution

Of Judges And The Constitution

My last comment ‘Of Religion And Choice’, not unexpectedly, drew some adverse comments on my blog.

One in particular emphasized the need for scrutiny in this very serious matter of Muslims leaving their faith, a process that, according to my critic, only the Islamic courts could properly undertake. It is intrinsic to this viewpoint is a belief that Islam prohibits apostasy.

The difficulty that the Muslim community in general has with apostasy is not a recent nor a localized phenomenon, the rejection of the freedom to leave Islam having been vehemently denied in other parts of the world. This is notwithstanding there being a dichotomy of views on the subject within the Islamic community, the other view being that the prohibition against compulsion in religion extends even to Muslims.

What has made the Malaysian experience unique is that while Muslim society did not support renunciation, until the Supreme Court fashioned a need to procure a declaration of apostasy from a syariah court in its 1999 decision in Soon Singh, there were no legal impediments standing in the way of an individual’s right to express his or her choice to do so. I say ‘express’ because to date, there has been no suggestion by the courts that Muslims do not have the freedom of religion. In Lina Joy, the majority concluded that the freedom of religion applied equally to Muslims but that such freedom was to be exercised through the syariah courts in accordance with Islamic law and that a declaration of apostasy was a pre-requisite to the practice of another faith.

It is significant that the decision in Lina Joy, like the prior decisions in Soon Singh and Kamariah Ali, were cases concerning the jurisdiction of the syariah courts. This was notwithstanding lawyers for or in support of the claimants having argued their cases as being mounted on the freedom of religion.

It appears that the judges concerned took this tact as this allowed them to avoid confronting the very real fact that the Federal Constitution guarantees in Article 11 a freedom of religion for every ‘person’ without qualification. The judges, Muslims themselves, seemed to have been conflicted; giving weight to the rights under Article 11 would pave the way to apostasy, something that they perhaps could not condone.

However, short of declaring the guarantee as not being applicable to Muslims, something they could not do, the judges concerned were bound. Diverting focus to the question of the separate and exclusive jurisdictions of the civil and syariah courts was a convenient compromise. This allowed for lip service to be paid the freedom of religion and, in their minds, caused no harm as they were not shutting the door on renunciation. That this would however create a conflict of interest for the qadhis of the syariah courts and result in a plethora of further complications did not appear to have struck the judges of the Federal Court.

This approach was similarly adopted in those cases where one of the spouses to a civil marriage converted to Islam and where the religious status of deceased persons was in issue, creating more difficulties rather than providing resolution causing SUHAKAM in recent years to call upon the judges to be more courageous.

Courage and personal morality have no place in the application of law. Judges take an oath to uphold the Federal Constitution. In doing so, unless it is unconstitutional, judges commit to upholding the law as it is written no matter how much they disagree with it on principle. If a judge is expected to sentence a man to death even if he disagrees with the death penalty, then a judge must give effect to the freedoms entrenched in the Constitution no matter how much he might find them unacceptable for personal reasons.

In the period before 1999, the courts of this country did not appear to have great difficulty with this concept. Apostasy, divorces by reason of conversion into Islam and other now-controversial matters came before the courts and were dealt with in a fair and just manner in accordance with the law.

What happened, we might ask.

I cannot say for sure. I do however believe that the judges who sat in these cases in the period after do not appear to have appreciated the legal nuances of the issues before them or the need for a strict adherence to the Constitution. In a 1988 decision of the Supreme Court (Che Omar Che Soh), Tun Salleh Abbas noted that as attractive as the argument that Islamic law was the governing legal paradigm of the nation may be, unless and until the Constitution was amended, that was not the case. Judges of the Federal Court in more recent years have not been so strict in their approach, having allowed for a re-writing of the Constitution that has resulted in confusion and injustice.

We cannot deny the impact of the sacking of the judges in 1988 just as we cannot deny the slow and steady erosion of the effectiveness of the Bench as the old guard gradually retired throughout the mid 1990s. And sadly, we can no longer deny the impact of the now confirmed brokering of judicial appointments and promotions.

Did we have as a general rule the best and most suited persons on the bench this last decade or so? It appears that we did not.

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

At Face Value

I was in Perth recently and someone I met asked what I thought Tun Mahathir was up to.

This was shortly after Tun gave testimony at the Royal Commission hearing on the Lingam Video scandal. Tun had, in effect, stated that he had chosen the judges as he, and not necessarily the Chief Justice, thought fit. In doing so, he admitted that he had taken into consideration suggestions made by persons other than the Chief Justice and such suggestions could have come from persons like Tan Sri Vincent Tan. This was quite a staggering admission. It meant that everything the Bar had ever said about the appointment of judges on subjective considerations was true. It meant that the judges who were appointed or promoted were not necessarily the best persons for either.

But then, virtually in the same breath, as part of a continuing campaign against the Abdullah Badawi Administration, Tun Mahathir has leveled charges of diverse nature, from money politics to election rigging to intolerance and an undermining of Malaysia.

I am not surprised that the person I was speaking to was wondering what was prompting all of this. Being an observer from afar, he had the benefit of an objective perspective that those of us who are in the thick of things tend to lose. And after all, looking at the bigger picture, Tun Mahathir appears to have forgotten that he had put in place the foundations for many of the things that are wrong with our country at the moment.

Think about it. Tun Mahathir apparently recently suggested that the government speak to the HINDRAF leaders rather than detain them under the Internal Security Act. I find this incredible considering the way in which Tun Mahathir used the ISA for his own political ends. Those of us who remember still shudder at the mention of Operasi Lalang. And how do we ignore the initial detention of Anwar Ibrahim under the ISA? In using the ISA in this way, Tun Mahathir set a precedent for those of like mind to follow. And it appears that there are those who are of like mind.

Tun Mahathir also, in effect, dismantled the systems of checks and balances that the founders of the Constitution felt essential for democracy. He notoriously had Tun Salleh Abas and two other supreme court justices removed from office in what to date remain controversial proceedings. In doing so, he began the process of suborning the Judiciary, a process that he completed by having the constitution amended to give Parliament the power to vest, and as such remove, the jurisdiction of the Courts. That paved the way for Executive immunity and arbitrariness beyond review. More significantly, it set the foundation for a system of patronage that the Judiciary apparently still subscribes to. I know of no other way to explain the recent declaration by the Federal Court that the separation of powers has no place in the Malaysian legal system.

Tun Mahathir rendered the Judiciary virtually ineffective against Executive arbitrariness, a legacy that many a Malaysian still suffers under. This is borne out by the fact that despite having the necessary expertise, manpower and equipment to deal with the key problems this country faces, these problems have not only persisted but have become more endemic. Take corruption for example. Surely, the ACA could do more. The revelation during the ongoing Royal Commission hearings that the ACA did nothing despite having proof of judicial impropriety because there were too many persons of influence involved is shocking, not only for the fact of the ACA having done so but for the apparent complicity of the Mahathir government. These are matters that Tun Mahathir cannot deny knowledge off, all things considered.

And could civil society complain? Leave aside the chilling effect of the ISA and consider instead the more fundamental question of how it is civil society was to get access to information on crucial matters. The systems that Tun Mahathir employed did not lend themselves to transparency nor accountability. What little information that could leak out was classified as Official Secrets under a law that Tun Mahathir had caused to be amended to ensure that the loop-holes were plugged. Media was put under the thumb of Government through tightened up media laws like the Printing Presses and Publications Act. Those few who were brave enough to try and defy media bans were prosecuted with gusto. Lim Guan Eng, Irene Fernandez are Malaysian heroes for the fact of their convictions for nothing more than attempting to bring to light issues that were crucial to the workings of democracy in this country. These laws, and the willingness to use them, still plague us.

Tun Mahathir also ramped up the Islamization process, and in doing so, put in place the kind of insensitivity that has led to the heightened ethnic tensions we are facing at the moment. This has further been driven by a supremacist mindset put in place through a mismanagement of affirmative action policies that have, instead of shaping a world class Malaysian society, led to the entrenching of a third world classist and racialist mentality that the Government continues to hide behind its boasts of a first world infrastructure. This mismanagement continues to plague Malays as much as Malaysians of other ethnic communities, in many ways allowing for the perpetuation of the problems the policies were intended to address in the first place. The exclusive club of elites that Tun Mahathir’s brand of economics created continues to be as exclusive as ever, contacts and riches being the only qualifications for admission. The widening poverty gap has left more and more on the outside, even as they are told that the policies are in actual fact aimed at helping them.

And of course we should not overlook Tun Mahathir’s reworking of the UMNO constitution to allow for non reviewable entrenching of leadership not only of the party but also, in effect, by reason of the nature of the power sharing arrangement within the Barisan Nasional, of the nation. What UMNO wants becomes a reality. And whoever is at the top of UMNO decides what UMNO wants. Tun Mahathir allowed reform and progress to be held to ransom by politics.

They still are, the politicized system a juggernaut that Malaysians desperate to institute reform measures in the face of mounting global competition and a wanton, uncaring depletion of national resources, from oil to state funds, are confronted by. This system, having allowed politics to be prioritized above all other considerations, has seriously undermined any genuine and comprehensive efforts to address wrongs effectively and efficiently. It has further allowed for a demonizing of those who have had to pit themselves against the system in their wish for a better Malaysia. It has also engendered a recklessness on the part of the Executive that is deeply worrying, not least for the emphasis it has placed on individuals and their vested interests.

I could go on but I think we all know the story. So, as much as there may be substance to some of the criticism of the current administration, the truth is that the current administration inherited the structure, the apparatus and the problems they created from Tun Mahathir. I cannot help but wonder whether it is timely for Tun Mahathir to admit the mistakes he made and point the way, objectively and constructively, the way forward for the nation.

If there is any blame on the part of the Adbullah Badawi Administration, it is its apparent willingness to take on, even embrace enthusiastically, the legacy that was left to it by the Mahathir Administration. The question that should be posed to the Abdullah Administration, and must be answered, is what has it done to address the very serious problems it inherited. Looking at the landscape, this is the question that will be at the core of the next General Elections and rightly so, in my view.

It sometimes seem that such steps as have been taken by the current administration are negligible in the face of the pressing need for major institutional reform. The nation needs a decisiveness and a firmness of vision that we are regrettably not seeing enough of. And for all of this and more, one cannot be faulted for concluding that the current administration is content with leaving things as they are.

And as for Tun Mahathir, as my Australian friend put it, what exactly is he up to.

Respectfully, the positions he has taken recently smacks of a political positioning. The criticisms leveled only rarely come across as the constructive and objective views of an elder statesman. The political nature of his criticism is curious for, at face value, one would have expected Tun Mahathir Mohamad to withdraw from politics when he stepped down as Prime Minister.

The decision to step down appears to have been a considered one. At the time, he was in relatively good health, was under no apparent pressure from UMNO to retire nor was the state of play in the wider context such that his resignation was required. It appears that Tun Mahathir had come to a view that the decision to hand over the reigns could not be deferred anymore. I would like to think that he believed that taking the decision then, rather than later, would allow him to assist in the transition process so that the hand over was smooth and did not impact on the nation’s interests.

As things eventuated, the transition did proceed smoothly and Tun Mahathir gracefully withdrew to the role of elder statesman. This was a role he was, and is, eminently suited for, the breadth of his experience being an invaluable resource on how to govern the nation and, perhaps more significantly, how not to.

His having retired left no reason for Tun Mahathir to involve himself in party politics. Such continued involvement would only be necessary if Tun Mahathir found it necessary to rely on the politics of his party as a means to a political end. His decision to retire as Prime Minister would seemingly have rendered the question of a political end wholly irrelevant. Moreover, the role of elder statesman would demand of him a detachment from political interests, not least for the fact that the most effective elder statesmen are those that are perceived as being objective, non-partisan and having no vested interest.

Seen from this perspective, the expectation that Tun Mahathir would withdraw from politics was the only reasonable one to have in the circumstances.

So, why the political positioning then? The situation is such that one possible inference is that he may be fronting for those who do not wish to fight their own political fights directly, preferring instead to stay in the shadows. If this is the case, and I am hoping it is not, it does not bode well. It marks a perpetuation of the systems of patronage that Mahathir allowed for, systems that have self-evidently led to the erosion of all the things that we value as Malaysians. If in fact there are those who wish to challenge Abdullah Badawi, then let them do so openly. I for one believe that challenges are good as it is only in the clash of ideas and opinions that we see the synthesis of true democratic value.

There may be other inferences that can be drawn. Mahathir is after all a true and true politician and that is something that does not fade away. However, even if untrue, Tun Mahathir should be concerned at possibility of his being seen as political. This is an impression that undermines Tun Mahathir’s stature and his value as an elder statesman. A perception of his being partisan would result in his opinions being seen as subjective, to be viewed with caution and perhaps even ignored. This would be a real loss for Malaysia.

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

Lingam Video: Who else for the Royal Commission?

I note from the report by Malaysiakini ('Royal panel: Ex-judge cum whistleblower 'pleasantly surprised', 28.11.2007) that Syed Ahmad Idid, the former High Court judge in discussing the intended Royal Commission of Enquiry into the judicial crisis had referred to the criteria suggested by HAKAM and asked “Who else is left?”.

We cannot lose sight of several key aspects of the discussion. If the motivation underlying the Government’s intention to establish the Royal Commission is sincere, its terms of reference will be designed to allow the Commission to consider all implications and ramifications of the Video. Further, the moral dictate by which the findings of the Commission will be given validity demand such terms of reference.

The implications and ramifications of the Lingam Video - ranging as they do from apparent interference by the Government into matters of judicial appointments and promotions to partisan decision making by judges in a manner contrary to the “without fear or favour” basis expected of independent judges - require that the comprehensive enquiry the circumstances warrant be conducted in a manner which leaves no room for doubt as to the integrity of the enquiry process and the findings.

Seen from this perspective, it is apparent that anyone who could be seen to have some interest or some axe to grind, would be a liability rather than an asset. It should not be open to anyone, no matter which ‘side’ they are with, to question the integrity of the enquiry process and the findings of the Commission. This is why the criteria suggested are so stringent and so far reaching.

The Commission does not have to be made up of a large number of commissioners. 3 or 5 members would suffice. Proper staffing arrangements could help the commission achieve the efficiency and efficacy expected of it. It is not unrealistic to expect that 3 or 5 persons of caliber fitting the criteria could be found. The Raja Muda of Perak, Raja Nazrin Shah, is one such person and could in light of his stature be invited to chair the Commission.

Should the need arise, assistance could be sought from international legal luminaries. There is precedent for this course of action. Judges from other commonwealth jurisdictions sat on the tribunal empanelled to try the former Lord President, Tun Salleh Abbas (judges from Singapore and Sri Lanka sat on the commission).

To this end, advice or recommendations could be sought from the International Commission of Jurists, a respectable organization whose mandate centers on the due administration of justice. Raja Aziz Addrusse is in fact a serving commissioner of the ICJ. The Judiciary and the Bar have enjoyed constructive relationships with international figures such as Michael Kirby, Justice of the Australian High Court, who have made outstanding contributions to the field within their respective jurisdictions as well as internationally and who would undoubtedly be in a position to ensure that the job was carried out and carried out as it ought to be.

The HAKAM criteria are the ideal. It is wholly unnecessary to jettison the ideal in favour of a perceived need for practicality. The matter at hand is one which allows for nothing less than the ideal.

Malik Imtiaz Sarwar
President, HAKAM

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.