Monday, June 1, 2009

Text Of Speech On Debate Judicial Appointments Commission Bill 2008

Tan Sri Speaker,

I thank the Honourable Speaker for the opportunity to participate in the debate on the Judicial Appointments Commission Bill 2008.

Forward

I wish to record my profound disappointment with this Bill. This is because the public and I have waited for more than 20 years for this opportunity to rehabilitate the Judiciary but now I receive this Bill containing 37 provisions that is insufficient and incomplete to correct the problems of the Judiciary. This Bill is not the medicine that can cure the disease affecting the Judiciary.

The Judiciary is the third pillar of the Government, the two others is the executive and the legislature. Tun Mohammed Suffian, the former Lord President of the Malaysian Courts, in his book, “An Introduction to the Constitution” observed that on Merdeka Day, 31st August 1957, the judiciary was vested with the powers of the judiciary as the legislative powers are vested in the parliament and the executive powers in the Executive. The Judiciary occupied the same status as the Legislature and the Executive.

But this changed after the case of Public Prosecutor v Dato Yap Ping [1987] 2 MLJ 311 SC when Article 121(1) of the Federal Constitution was amended with the deletion of the words “The Judicial power of the Federation shall be vested in…” and replaced by the substitution that there shall be two High Courts of co-ordinate jurisdiction and status.

The first 30 years after independence the judiciary was calm and free of interference from outside influence. The second 20 years have been turbulent. Tun Suffian, the former Lord President observed in a speech delivered at the Malaysian Institute of Management in Kuala Lumpur in 1987:

“The reputation that the Malaysian judiciary enjoys of being able to decide without interference from the executive or the legislature or indeed from anybody contributes to confidence on the part of the members of the public generally that should they get involve in any disputes with the executive or with each other, they can be sure of a fair and patient hearing and that their disputes will be determined impartially and honestly in accordance with law and justice.”

The preservation of public confidence in the impartial and independent administration of justice is a vital element in the judicial function. Loss of confidence in the system whether due to inefficiency or more particularly due to perceptions of a want of independence or impartiality on the part of the judiciary is extremely damaging to the effective working of the justice system.

What is the cause for the erosion of public confidence in the Judiciary?

In 1988, Tun Salleh, the Lord President and two other Judges of the Supreme Court Tan Sri Wan Sulaiman bin Pawan The and Dato’ George Edward Seah were sacked from their high office. Three other Judges, Tan Sri Mohamed Azmi bin Datuk Kamaruddin, Tan Sri Dato Sri Eusoffe Abdoolcader and Tan Sri Wan Hamzah bin Mohd Salleh were suspended pending official investigations.

Immediately following these shocking events, Tun Hamid Omar was appointed Lord President. The appointment was controversial because he chaired the Tribunal sacking his predecessor, Tun Salleh Abbas. This contravened established principles of natural justice that Tun Hamid Omar ought not to have participated in the Tribunal in which Tun Hamid had an interest in the decision as he would as deputy to Tun Salleh succeed him. The tenure of the Chief Justices following the Judicial crisis in 1988, Tun Hamid Omar, Tun Eusoffe Chin and Tun Ahmad Fairuz were filled with controversies culminating in the infamous Commission more popularly known as the Commission on VK Lingam Video.

It is therefore important that we should consider the role played by the Executive in these unfortunate events. These events started when certain decisions of the Judiciary earned the ire of the former Prime Minister, Dr Mahathir. Following the abolition of appeals to the Privy Council, the Supreme Court became the apex court of the land and fully aware of its responsibility the Supreme Court to deliver decisions especially those involving the Executive without fear or favour. Dr. Mahathir was displease with the Court’s decisions in cases such as JP Berthesen v Director General of Immigration (1987) 1 MLJ 134 SC the Supreme Court held that the Director General of Immigration’s cancellation of the employment passes of Asian Wall Street Journal’s reporters John Berthelsen and Raphael Pura were wrong.

Following these decisions, Dr Mahathir carried out a series of public attacks in the newspapers against the Judiciary. Several judges in Kuala Lumpur held a meeting and requested Tun Salleh write to the King to intervene. Tun Salleh wrote to the King and this led to Dr. Mahathir calling the Lord President to his office to ask for his resignation. Tun Salleh initially agreed but changed his mind the next day. Tun Salleh was then suspended and a tribunal established under Article 125 of the Federal Constitution to sack him.

Tun Hamid Omar appointment after the sacking of Salleh Abbas was thus shrouded in a cloud of controversy and the persons appointed subsequently, Tun Mohd Eusoffe Chin, were also filled with controversies. The scandals became an open secret and one of the cases is that of Ayer Molek Rubber Co. v Insas Bhd (1995) 2 MLJ 734 where Court of Appeal Judge, NH Chan said in his judgment as reported in the Malayan Law Journal that “Something is rotten in the state of Denmark” which was intended to refer to the House of Denmark where the Kuala Lumpur High Court was situated.

From the time of Tun Eusoffe Chin until Tun Ahmad Fairuz as Chief Justice, there have been scandals after scandals culminating in the Commission of Inquiry into the VK Lingam video which found that VK Lingam had influence in the appointment of Tun Ahmad Fairuz as President of the Court of Appeal and later Chief Justice.


These events showed how fragile is the independence of the judiciary under the Federal Constitution. The safeguards to preserve the independence of the Judiciary can and was dismantled and removed with ease.

These events contravened an important principle, the independence of the Judiciary.

Tun Mohamed Suffian in his book, ”The Constitution of Malaysia: Its Development” said:

“Judicial Independence has always been a pillar of the Constitution. Judges do not take orders from Parliament, nor do they from the Prime Minister or from anybody in Government. Judges are not civil servants who quite properly take orders from ministers and their senior in the service”

After the Judicial Crisis the public perception of the Judiciary is that Tun Suffian’s statement no longer reflected the situation in the country.

This is the central and core issue before us the Independence of the Judiciary.

The events I have narrated is the cause and root for the erosion of public confidence in the Judiciary and the public is presently resigned to the idea that they will not receive justice in our Courts. The independence of the Judiciary is the corner stone for the rule of law. This corner stone has been demolished and the foundation for the rule of law and justice is in danger of collapsing.

The Independence of the Judiciary

I have given a history on the appointment of the Chief Justices for the past 20 years and to explain that it is absolutely critical for there to be a transparent system for the appointment and elevation of judges clear from Executive influence.

I request the Honourable Minister to explain how this Bill is able to restore public confidence in the judiciary and re-establish an independent judiciary. I also request the Honourable Minister to explain how public confidence can be restored that the Prime Minister will not have any influence over the Judiciary.

Pursuant to the provision of this Bill, the Prime Minister has a pivotal role in this Commission, from the appointment of the 4 eminent persons under section 5 to the determination of their emoluments under section 7 and their dismissal from the Commission under section 9 which the Prime Minister may carry out without giving any reasons. This is not a transparent process and certainly not the way to restore public confidence in the system.

Amendment to the Constitution

It is critical that the Federal Constitution is amended to put into practice what other countries have established in the appointment and promotion of judges. Many of the developed and developing countries have established a Judicial Services Commission with powers to appoint, promote and provide for the


remuneration and emoluments of judges. The power of the Prime Minister to appoint judges under Article 122B of the Federal Constitution should be amended to give meaning and effect to the doctrine of the separation of powers.

We must take into consideration and learn from history by establishing a Judicial Services Commission and not just a Judicial Appointment Commission to preserve the integrity and the independence of Judiciary according to the following principles:

    • clear recognition of the separation between the Judicial, Executive and Legislative branches of Government;
    • greater transparency at all levels of the appointments process;
    • representation of various stakeholders in the judicial system on the JAC;
    • meaningful consultation between the JAC and other concerned parties in the selection of candidates for judicial office;
    • accountability of those involved in the process; and
    • clearly defined criteria for the selection and promotion of judges.

There is a general move in developed and developing countries towards a more transparent and independent system for the appointment of judges. Research indicates that judicial appointment commissions feature in jurisdictions such as the United Kingdom, Hong Kong, Thailand, South Africa, Canada, France, Italy, Spain, the Netherlands and Germany.

Malaysia has also made commitments with international organisations to maintain an independent Judiciary and in that regard, to promote a transparent and accountable system of appointment of judges:

(i) In 1997, at a conference of Chief Justices of the Asia Pacific Region in Beijing, a “Statement of Principles on the Independence of the Judiciary in the LAWASIA region” (“Beijing Statement”) was adopted. The Beijing Statement, endorsed by Malaysia’s then Chief Justice, sets out internationally accepted key indicators of an independent Judiciary.

(ii) In 2003, the Commonwealth Heads of Government endorsed the Commonwealth (Latimer House) Principles on the Three Branches of Government (“Latimer House Principles”). The Latimer House Principles set out guidelines on the accountability and relationship between the

three branches of government, which had previously been approved by Law Ministers and Chief Justices of the Commonwealth countries. The guidelines include the setting up of an independent judicial appointments process. And to give effect to the doctrine of the separation of powers.


Section 28

The entire Bill may be summarized in one section. This is section 28 which states as follows:

“Where the Prime Minister has accepted any of the persons recommended by the Commission, he may proceed to tender his advice in accordance with Article 122B of the Federal Constitution.”

The word “may” means that it is not mandatory and the Prime Minister is not obliged to accept the Commission’s recommendations. This means that the Prime Minister’s prerogative and powers as set out in Article 122B of the Federal Constitution remains unaffected. The doctrine of separation of powers is not given effect and the Prime Minister retains his powers over the Judiciary. This will not restore public confidence in the Judiciary.

Transparency

The procedure in sections 13 and 16 do not promote transparency.

“The appointment of Judges should be a transparent process. It should be open to questioning by the general public. Demanding judicial accountability for judicial appointments.”

I suggest that a Judicial Services Commission be established instead of the present proposed Judicial Appointment Commission with a clear transparent process for the appointment, promotion and remuneration of judges and to provide information to the public.

Judicial Accountability

Sections 23(1) and (3) is deficient in respect of providing judicial accountability. Judicial independence must be balanced by Judicial accountability.

Promotion/elevation of Judges

I support YB Ipoh Barat and Teluk Intan’s call for provisions on the promotion of judges to the Court of Appeal and Federal Court. The case of Dato Gopal Sri Ram is an example where an able and esteemed Judge held in high regard by judges in the common law jurisdictions have been neglected. The Courts in Singapore decline to follow decisions of the present Malaysian judges except those of Dato Gopal Sri Ram. While the foreign judges hold him in high regard this is not the case with those exercising the powers of promotion to the Federal Court. Many who were elevated to the Court of Appeal after Dato Gopal Sri Ram has been appointed to the Federal Court while he remains languishing in the Court of Appeal for more than 13 years. There must be clear and fair objective criteria for the elevation and appointment of Federal Court Judges.

Remuneration.


I request the Honourable Minister to provide for powers to be given to the Commission to review the remuneration and emolument of judges. One of the biggest problems in the judiciary is to obtain the appointment of the best and the brightest lawyers to be judges. However, the growing disparity in the income a good lawyer obtains in practice compared to the salaries paid to our judges prevents the better lawyers accepting the post of a judge.

It is suggested that urgent attention be given to this issue to address the problem.

Section 5

The events relating to the sacking of Tun Salleh, the appointment of Tun Hamid and the VK Lingam episode shows that there is a real danger of judges desiring promotion to be exposed to pressure from their superiors to make decisions according to directions and not according to law and justice.

Section 5(1)(e) of the Bill retains this unhealthy aspect because the four eminent persons to be selected by the Prime Minister is a minority. Section 13 provides that decisions of the Commission is by majority.

It therefore suggested that the number of persons to be appointed should be six and that there are to be representatives of the Bar Council, the law society of Sabah and Sarawak as well the law academies of the local universities. They should not be subject to the appointment of the Prime Minister to retain and give substance to the doctrine of separation of powers.

Select Committee

This is an important bill to the nation. I request the Honourable Minister not to rush this Bill and waste this golden opportunity to make the amendments and changes necessary to restore public confidence in the judiciary by sending this Bill to a select committee to rectify the many weaknesses I and my colleagues on this side of the House have highlighted. This is not a matter of politics and there should be a bipartisan approach to restore the I ndependence of the judiciary and the rule of law.

Thank you


17 December 2008

William Leong Jee Keen

Member of Parliament Selayang


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