The Malaysian Bar - Reforms should also have covered constitutional matters

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Reforms should also have covered constitutional matters

Thursday, 08 September 2011 08:49am

©Malay Mail (Used by permission)
by TERENCE FERNANDEZ

WHILE outgoing Chief Justice Tun Zaki Azmi has won accolades for instituting sweeping reforms in the judicial system, the Bar Council feels he fell short on key constitutional amendments which would have put to rest long-standing conflicts of laws.

Bar Council president Lim Chee Wee, in calling the Chief Justice (CJ) "a friend of the Bar" for his sweeping reforms and unprecedented consultations with lawyers, also said Zaki could have done more for constitutional reforms.

“We would have liked a more progressive development in constitutional matters but Zaki had missed certain opportunities, such as in S. Shamala's case which is an important issue," said Lim when met by The Malay Mail.

"Our judges, when deciding on such sensitive issues, cannot hide behind technicalities as the law is there to provide remedy and relief to litigants. If there is a need to change the law, then change the law.”

Lim was responding to The Malay Mail's Q&A interview with Zaki (published yesterday and today), in which theChief Justice had said he could not decide on the fundamental issues in 39-year-old Shamala's case as she was in contempt of court by opting to take her two sons to Australia instead of facing custody hearings against her Muslim-convert ex-husband in Malaysia.

On whether it was right to put the ball at the feet of the politicians to settle thorny issues, such as the Civil-Syariah courts overlap, Lim said: “Judges are the last frontier. It is not a good defence to say politicians should sort out these issues. Three-quarters of our Federal Constitution has political dimensions to it, so the minute there is a constitutional case, it becomes political.”

Lim said another missed opportunity was upholding the principle that the will of the people should prevail, as in the Perak constitutional crisis in early 2009 in which Barisan Nasional did a reverse takeover of the State, causing Pakatan Rakyat to lose the State they had won in the March 8, 2008, general election.

“There were also cases relating to the Internal Security Act (ISA) and human rights which Zaki could have better addressed. To be fair, we have seen some brave judges and judgments under Zaki's watch," he said, alluding to the disclosure of government agreements with concessionaires, which, however, was later overruled and sex discrimination cases.

"If Zaki was as Machiavellian as some people believed he was, we would not have had some decisions where judges had ruled against the government (which, however, had appealed against those decisions)."

Lim said there were reservations to Zaki's appointment in 2008 due to his links with Umno as their former legal advisor.

“But when looking back at his tenure, Zaki has done a lot of good, and he was the man of the moment to improve the machinery and efficiency of the judicial system.

“He was a friend of the Bar, notwithstanding some issues initially, such as his initiating KPIs (key performance indicators) to improve delivery and the installing of video recorders in court. Thanks to his open-mindedness, much of our complaints were resolved. The Bar welcomes Zaki back to its fold and we hope he will take up a practising certificate again."

When interviewed by The Malay Mail, Zaki had stressed it was unethical for senior members of the Bench (judiciary) to return to practice.

Lim also opined that while the Malaysian Bench had been through a long dark chapter from the late 1980s (due to the removal of Tun Mohamed Salleh Abas), things improved somewhat during the watch of Zaki's predecessors, Tun Mohamed Dzaiddin Abdullah (2000-2003) and Tun Abdul Hamid Mohamad (2007-2008).

"Zaki brought a new culture of hard work and discipline among judges. He also brought in a culture of consultation between Bar and Bench, and a culture of technology," said Lim who described the proximity between the Bar and Bench during Zaki's tenure as positive as judges who were not up to the mark were a lot more careful due to the access the Bar had to Zaki.

“But Zaki was not one to just accept anything the Bar said as he had defended his judges, and also put in time and effort to verify claims.”

Lim is confident the CJ's successor, Tan Sri Arifin Zakaria, will continue Zaki's policies but hoped Arifin would initiate improvements on the quality of judgments. Zaki ends his tenure as the country's sixth CJ on Sept 12, and on the same day, Arifin will take over.

“Whatever you may say, Zaki has left the judiciary in a far better shape then when he entered it,” said Lim.

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