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©The
Sun (Used by permission)
by Tim Leonard
KUALA LUMPUR: A report of the panel of eminent persons to review the 1988
judicial crisis in Malaysia has stressed on the importance of the separation of
the judiciary from the executive for the independence of the judiciary.
As such, the report said, there should be no semblance of executive dominance in
the career and future prospects of a judge following appointment.
It noted that tensions between the judiciary and the executive are not uncommon,
particularly as the proactive role of the judiciary is seen to strengthen the
spirit of the law.
"The fine lines between the powers of the executive and the judiciary must be
maintained but not at the cost of depriving individuals or groups of their basic
rights. In situations of rising tensions, the judiciary could take appropriate
preventive measures that will not in any way erode its dignity or independence."
The report said universally recognised norms of natural justice and principles
of fair trial demand that the procedure for removal of a judge must include:
> disassociation of the complainant from the selection process for tribunal
members;
> absence of perceived conflict of interest or bias in tribunal members;
> right to demand a public hearing;
> requirement of proof beyond reasonable doubt; and
> suspension of the judge pending inquiry only in exceptional circumstance.
This was among the recommendations made by the panel in the report which the Bar
Council made public today. The report was commissioned by the Bar Council,
LAWASIA, International Bar Association’s Human Rights Institute and Transparency
International, Malaysia.
The report said there is considerable opinion, both inside and outside Malaysia,
that the 1988 judicial crisis has impacted Malaysian judiciary to erode its
independence. "This may, or may not, be the correct perception, but the likely
impact of the 1988 events on the perception of the community cannot be doubted."
The panel urged the reputation of the judiciary to be restored and that the
abuses of 1988 must not be allowed to recur.
The other recommendations are as follows:
1. It is desirable in the nation’s interest to redeem the people’s faith in the
credibility of the judiciary and the rule of the law, for which the wrong done
to the Lord President Tun Salleh (Abas) and two Supreme Court judges, (the late)
Tan Sri Wan Suleiman (Pawan The) and Datuk (Edward) Seah.
"An acknowledgment by the Government of the mistake in removing these three
judges in 1988 and making suitable amends would be an appropriate gesture to
restore confidence in the independence of the judiciary. The Panel appreciates
the recent actions taken by the Government in this regard."
2. The Beijing Statement of Principles of the Independence of the Judiciary in
the LAWASIA Region, 1997 and the Bangalore Principles of Judicial Conduct 2002
should be treated as the guidelines for the independence of the judiciary and
judicial accountability.
3. In the event of a similar situation arising in the future requiring
invocation of Article 125 (3), care must be taken in the composition of the
future tribunal to ensure exclusion of any likely danger of bias.
"Care must also be taken to appoint members who are higher than, or at least
equal in rank and hierarchy to the judge under inquiry in keeping with his
dignity, if need be by appointing persons from any other part of the
Commonwealth. This is the spirit of Article 125 (4) of the Constitution that
must be honoured.
The procedure adopted by a future tribunal, unlike that of the First Tribunal,
must ensure a full and fair opportunity to the concerned judge, to defend
himself, including the right to be defended by a counsel of choice. "
4. Independence of the judiciary and the application of the rule of law are
crucial for the advancement of all societies. The legal fraternity has a pivotal
role in upholding these principles and it has an obligation to play an activist
role in this regard.
Bar Council president Datuk Ambiga Sreenevasan said the report was completed on
July 26 2008 and the panel was chaired by Justice (Rtd) JS Verma, the former
chief justice of the supreme court in India.
He was assisted by Justice (rtd) Fakhruddin G. Ebrahim , the fomer judge of the
supreme court of Pakistan; Dr Asma Jahangir, the advocate of the supreme court
of Pakistan; eminent lawyer Tan Sri Dr Abdul Aziz Abdul Rahman; Dr Gordon
Hughes, the former president of the Law instutue in Victoria, Australia and
eminent lawyer Datuk W.S.W (Bill) Davidson.
"This is an historic day for us as it gives us the chance to do the 'right'
thing. Quite simply, this is a question of seeking the truth," said Ambiga,
after unveiling the report. "The report has absolved the judges of all
wrongdoing."
Among the judges who were suspended but reinstated are the late Tan Sri Eusoffe
Abdolcader, Tan Sri Wan Hamzah and Tan Sri Azmi Kamaruddin.
Ambiga said the report also vindicates the judges involved in the cirisis.
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