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©Malaysiakini
(Used by permission)
by Chan Kok Leong
The judiciary cannot continue on a course of ‘business as usual’ at a critical
time in the nation’s history, said Perak Regent Raja Nazrin Shah as he called
for “a judicial renaissance”.
Addressing the Judges’ Conference in Putrajaya today, he echoed the views of
Chief Justice of Malaysia Abdul Hamid Mohamad on erosion of confidence in the
judiciary, ever since the dismissal of Lord President Salleh Abas and two former
Federal Court judges in 1988.
“Malaysia needs nothing short of what I would call a judicial renaissance.
Without it, one of the three pillars that hold up this nation will remain in a
significantly weakened state. Injustices will continue to perpetuate,” he noted.
“Efforts at developing social cohesion and nation building will be severely
compromised. A judicial renaissance is also necessary because it is one of the
most important requirements for continued economic, scientific and technological
progress.”
He said respect for the rule of law must become the nucleus of judicial reform.
“We are now at a critical time in our nation's history, one where the
institutions of state -indeed, the foundations of our democracy - which we have
built up since Independence, are under scrutiny,” Raja Nazrin said.
The 12th general election has ushered in changes including “a greater degree of
contestation in policy-making, legislation and administration than many would
previously have thought possible”.
“...the new political realities have proven to be and will continue to be
challenging. They send a clear message that we cannot continue on a course of
'business-as-usual',” he said.
"It goes without saying that recent revelations of improprieties in the
judiciary have been extremely damaging, not least by eroding the public's image
of, and confidence in, the system of justice.
"We must be committed to working through our current problems and to emerge the
stronger and better for them. In order to do so, we must be prepared to deal
with the facts as they are, and not as we would like them to be."
He said there was a time when Malaysia’s judges and their judgments were admired
across the Commonwealth “for their wise and fair rulings”.
“Reputations can only be maintained if the high standards adopted are
consistently adhered to. This has not always been the case. In the last two
decades, judicial independence and integrity have eroded.
“The result is a lack of confidence in the judicial system and the complete
disregard for the law by some quarters. These are dark stains on our honour and
reputation and they have the potential to weaken if not destroy the nation.”
He therefore backed calls to review the way judicial appointments and promotions
are carried out.
“The many calls for a more transparent mechanism, one that is in line with other
developed countries should be given serious attention. There is merit in the
suggestion for the establishment of a Judicial Commission that will make
recommendations to the prime minister who, in turn, consults the Conference of
Rulers,” he said.
"On the latter point, I am happy to note that in recent years, there has been
greater willingness on the part of the prime minister to consult the Conference
of Rulers in a meaningful way.”
Excerpts from the speech on related matters:
Federal constitution
It is worth repeating that the Federal Constitution is the highest law of the
land. It is not only the law to which everyone is subject but also the authority
from which power comes. Every judge, member of Parliament, cabinet minister,
prime minister and, indeed, the Yang Di-Pertuan Agong himself, has taken a
solemn oath to defend the constitution.
They are not supposed to serve the interests of a particular community alone.
They are supposed to uphold the constitution in its totality.This is not to say
that it is a perfect document. It is not. It was forged out of the necessities
of the time. Many of these, however, are still relevant today and Malaysians
would do well to bear this in mind whenever they amend or interpret it.
Each time an administrative decision is taken that runs contrary to its
provisions, the consitution is in danger of being deemed irrelevant. This is why
it is absolutely critical for judges to be sensitive to the spirit that
underlies the constitution. It bestows and protects the rights of all citizens
and provides a basis for peace and harmony among them.
Without it, we are in danger of heading down the path of sectarianism and
victimisation. The courts must therefore be thoroughly objective and
uncompromising on constitutional questions. In doing so, they are not only
upholding justice but also strengthening the process of nation building and the
integrity of the state.
Good governance
There is demand everywhere today for good governance. Unpacked, this means that
the three pillars of government must not only be efficient but also highly
responsive and accountable. Society and needs have become ever more complex.
Citizens have become more educated. Borders are now more porous. Human capital
and financial capital are mobile as never before.
If good governance is not forthcoming in one country, then the best and
brightest, and investment, will move to where it is forthcoming. The old model
of large and rigid bureaucracies handing out government largesse has also become
outdated. And governments can no longer just offer their citizens material
wealth.
The intangible benefits of development, including an absence of corruption,
abuse and repression, and the protection and enlargement of individual rights
and freedoms, are now equally important goods that citizens demand and which
governments must deliver.
It would be wrong to think for one moment that Malaysians can achieve great
things without a properly functioning judiciary. The most politically stable and
economically successful countries are the ones where the law matters a great
deal and where the judiciary is highly respected.
We must not be fooled into believing that to be monetarily rich, only practical
expediency matters and that judicial intergrity and independence do not. I say
'monetarily rich' and not 'developed' because there is a very big difference
between the two. I do not believe it is possible to be developed without a
highly respected judiciary.
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Circular No 304/2008
Will we first admit that there is this existing rot in the house that we need to get rid of in order to have a first class judiciary? I hear mumblings along the corridors of justice that certain persons are not fit to sit. If we are to wait for them to retire, how long is that going to be? Can and will the proposed Royal Commission fire and hire judges so that those who have most of their decisions reversed or have not written like 30 judgments be retired or removed without pension and honour. I certainly hope that real change will come soon and that we are not just paying lip service. The grave state of our judiciary is without doubt a huge concern for all.
Lim Chong Leong