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The recent remark by the Chief Justice, Tun Ahmad Fairuz Sheikh Abdul Halim that he had received some poison pen letters regarding corruption of the judiciary is a very honest statement. Maybe he did not want to say it; but the fact is that by so doing, he has launched a manifesto for judicial reform. In a press release, the Chairman of the Bar Council, Yeo Yang Poh, commendably noted that the Chief Justice adopted 'an open approach'. This is, of course, not just an one upmanship, but a noteworthy paradigm shift compared to the experiences of the past. Even the New Straits Times, in its editorial on June 6, 2006, wrote in favour of the setting up of a Judicial Commission.

However, this is not all that the Tun has in mind. Members will recall that the Tun was in favour of revamping the criminal trial system. He suggested that the inquisitorial system be studied. This suggestion was, of course, not readily accepted. It irked some and worried many others. There was no suggestion to completely replace the present adversarial system with the continental inquisitorial system. And many might have read the views of Louis Bloome-Cooper, QC which appeared in the NST some time ago on the issue of the English criminal justice system. Unsurprisingly, Louis Bloome-Cooper favoured the inquisitorial system. As a long practising barrister of the English criminal bar, the English QC knew what he was talking about.

This is not all. Tony Gifford Q.C., and a Labour member of the House of Lords at one time, also clamoured for change in his book published in 1986. Entitled 'Where's the Justice? A Manifesto for Law Reform,' he derided the English legal system and called for massive judicial reforms of the justice system, the courts, the juries, the professions of barristers and solicitors. The first paragraph of the first chapter of his book marked the biting sarcasm that he held for the English judicial system when he clangorously mocked the British legal system in that -

“Few myths have been so powerfully developed by the British Establishment than that we have - the finest legal system in the world’. According to the myth, whenever a citizen’s rights are infringed there exists an array of benevolent institutions, known as courts and tribunals, which will provide a remedy. They are said to be presided over by men (nearly always men) of unquestioned impartiality and independence. To help the citizen to have access to these arbiters of truth and right, there is a hierarchy of solicitors, barristers and Queen’s Counsel, whose skill, learning and devotion to their clients is incomparable.”

As if not enough, he was passionate in raving without a second thought his raucous jibes, of the attire of banisters and the high sounding ranks of their high priests, where he said,

“The comparison with religious devotion is apposite. The practitioners of law wear strange robes - black for the lower orders, black silk for the Queen’s Counsel, purple or red for the judges - and even stranger headgear. Their buildings are designed to inspire awe and reverence. Their high priests bear majestic title: the Master of the Rolls, the Lord Chief Justice, the Lord Chancellor. To cross them or even to protest about their decisions may amount to 'contempt of court'. It is all designed to create an effect: respect, subservience, obedience.”

The proposals made in his book are grounded on certain basic principles about the legal system and what it should provide:

● first, that when issues have to be decided by a court or tribunal, the people who adjudicate should be fair-minded, impartial and able to apply the law in a way that people broadly will respect;

● second, that when people have legal rights which have been violated, the legal system should provide remedies which are prompt and effective;

● third, that when individuals or groups of individuals have a legal problem which they need to resolve, they should, irrespective of their means or status, have access to legal advice and representation which is able to meet the need.

Of Queen’s Counsel, Tony Gifford said,

“To become a Queen’s Counsel, a barrister need pass no examination, write no thesis, undergo no interview. He or she submits an application to the Lord Chancellor who consults with senior judges and decides whether the applicant is worthy of the honour. There is no parallel in any other walk of life. Becoming a Queen’s Counsel gives barristers no rights which they did not have before, though it does considerably enhance the fees which they can charge.”

In fact, he was in favour of the abolition of the QC tag, of wigs and gowns now worn by barristers and judges in England. What is psychagogic is that he called for the appointment of a Minister of Justice at that time to deal with all the situations which he perceived to be not right. Regardless of whether one agrees or disagrees with his view on the revamp of the English judicial system, it cannot be gainsaid that the system was not perfect. Thus, some form of circumjacent change was desirable. And now, a Judicial Appointments Commission has been set up in England and Wales to deal with the appointment, promotion and chastisement of judges. This is in consonance with the skipping times.

And the Malaysian Bar has openly made a tonitruous call to set up a permanent Judicial Commission to deal with the selection, appointment and promotion of judges, as well as issues concerning the conduct of judges and administration of justice. Since a judge cannot be easily removed when things go awry, the manner of appointment of a judge ought to be a matter of concern to all and sundry. The improprieties committed by judges, their arrogance, and their dereliction of duties are now all too well known. All these actions or omissions are exlex, that is, bound by no law. These situations may be new to us in Malaysia, but they existed before in other common law jurisdictions. India is one example and especially so during the early years of independence where many of the judges were appointed because of political patronage. Not only did they not write judgements, some were found to be wanting in their law. And as recently as three years ago, some Indian judges were hauled up for wanting sexual favours from a female doctor who was a witness. The issue blew up in the press because the witness felt insulted and lashed out at the judges.

The ultimate aim of having a Judicial Commission is to ensure that these improprieties do not occur. Not just these alone. As Yeo Yang Poh pointed out in his release, “corruption is not limited to the monetary kind. It can also take the form of favouritism and partiality, whether founded upon personal interest, prejudice or ignorance.” This is a fact and the statement is confocal enough to drive home the point.

And if I may end by quoting the New Straits Times (June 6, 2006) editorial,

“As the Chief Justice has said elsewhere, judges must be selected on merit, Good appointments have no doubt been made under the present system, but a more transparent and open process of appointing judges could increase public confidence in the competence, independence and impartiality of those elevated to the Bench.”

The truth of it is far too strong to be overwhelmed. Only then will the new judiciary be remontant again. Which is why I borrowed the title from Tony Gifford as the theme!

*The writer is the Chairman of the Perak State Bar Committee

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