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Comment by Param Cumaraswamy

IN his address on April 17, Prime Minister Datuk Seri Abdullah Ahmad Badawi committed his government “to begin a process of judicial reform”. As a first step in the process, he announced the setting up of a Judicial Appointments Commission to “identify and recommend candidates for the judiciary to the prime minister”.

The need for such an independent commission had been brought up many years ago amidst exposure of abuses in the present system of selection for judicial appointments and promotions.

Those calls were turned down even as late as a year ago on the ground that the present system was satisfactory, ignoring the alleged abuses.

Hence, credit must be given to the prime minister now to recognise the need for such a commission.

The revelation in the Lingam video clip and the March 8 election results certainly triggered the need to address the shortcoming in the judicial organ of the state as a priority.

However, the reformation of the Malaysian judiciary should not only be centred on addressing the setting up of a commission for judicial appointments. It is not even the most important requirement.

The needed reforms must be carefully identified and addressed comprehensively as most of them will require constitutional amendments. It is prudent to seek constitutional amendment for all the needed reforms in one session of Parliament rather than doing it piecemeal.

In addition to a commission for judicial appointments, which should also address judicial promotions, the following reforms must simultaneously be addressed:

» 1. Article 121 of the Constitution must be amended to restore the pre-1988 position, thereby restoring the judicial power in the courts. This is imperative;

» 2. In the light of the recent judgment of the Federal Court declaring that the separation of powers is a political theory and not a legal concept, it is necessary to expressly entrench this concept in the Constitution and provide expressly that the judiciary is independent of the other organs of state;

» 3. While an independent judicial appointments commission is needed as a guarantee for judicial independence, either the same commission or another commission should be set up to deal with judicial complaints to extract judicial accountability. The present procedure under article 125 of the Constitution is only meant for misconduct requiring removal of a judge. There is no procedure to deal with misconduct falling short of need for removal;

» 4. There clearly is a need for a review and expansion of the 1994 Judges’ Code of Ethics. Malaysia appears to be the only country where such a code is entrenched in the Constitution. It may be desirable to remove it from the Constitution, expand the code by incorporating all or some of the principles in the Bangalore Principles of Judicial Conduct now adopted by many countries. The code can be enforced by the commission entrusted with dealing with judicial complaints;

» 5. The appointment of judicial commissioners (JCs) under article 122AB needs to be reviewed. These JCs, who are in effect judges on probation, do not have the requisite security of tenure to insulate them to secure their independence. Yet they are entrusted with the same powers and jurisdiction of a judge. The need for appointment of these JCs should be reviewed;

» 6. The public’s first encounter with the courts is generally the lower courts presided by magistrates and sessions judges. Nearly 90% of criminal cases begin there and often end there. Yet these magistrates and judges are not perceived as independent as they are under the purview of the Judicial and Legal Service Commission, which is an executive body though a constitutional creature. If securing an independent judiciary is the primary objective of the government’s commitment for judicial reforms then it is essential that these presiding court officials in the subordinate courts are separated from the control of the executive. The proposed judicial appointments commission could also deal with appointments of magistrates and sessions court judges;

» 7. The judiciary’s lack of institutional autonomy over financial aspects of court administration is a factor often seen as an impediment to independence from the executive. Financial dependence on the executive is inimical to judicial independence. Many years ago the late Tun Suffian as the then Lord President publicly raised this concern;

» 8. An independent judiciary is one of the pillars of the administration of justice in any democracy. A Malaysian judge in 1974 aptly described the roles of the pillars in this structure. He said: The administration of justice is dependent on a triangular structure with the Judiciary at the apex of the triangle and the Legal Department and the Bar forming the two corners of the base. Without an efficient, confident and incorruptible Public Prosecutor’s Department and a fearless, honest and scrupulous Bar, no Judiciary can be strong and as a result the rule of law would become a mockery and society will be deprived of its just desserts, whether it be civil or criminal. It is the duty of all of us to ensure that the law is not prostituted, justice is not perverted, citizenry is not exploited”.

The public prosecutor’s department is in effect the attorney-general’s department. However, the importance of the service of the police in this structure should not be overlooked. While prosecutions are at the discretion of the Attorney-General (AG) yet all investigations leading to prosecutions are carried out by the police.

It is, therefore, necessary, while addressing judicial reforms, to review article 145 of the Constitution which provides for the office of the Attorney-General. Article 145(5) provides that the “attorney-general shall hold office during the pleasure of the Yang di-Pertuan Agong…” This, in effect, means that the AG holds office at the pleasure of the prime minister upon whose advice the King appoints the AG. By virtue of article 40(1A), the King must accept the advice. By law, the power to appoint includes the power to remove. One can well appreciate the merit in the allegations levelled against successive AGs under the Mahathir era.

The original 1957 Constitution provided for an independent attorney-general insulating him or her with the security of tenure similar to that of a judge. The then article 145(5) provided “... shall not be removed from office except on the like grounds and in the like manner as a judge of the Supreme Court ...”

The government should seriously consider amending article 145(5) and reinstate the provision in the 1957 Constitution and make the office of the AG independent. Not just independent but also accountable over his decisions not to prosecute in particular cases and more particularly in high-profile cases.

While on article 145 of the Constitution, it is necessary to repeal article 145(3A) which confers on the AG the power to determine the courts in which or the venue at which trials can be held. This power is inconsistent with the judicial power vested in the courts prior to 1988. It was so decided by the court then. When article 121 was amended in 1998 to remove the judicial power from the courts article 145 was amended to confer the power on the AG to determine the courts.

With regard to the police, the government is urged to implement the recommendations of the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police without any further delay.

In the light of what has been outlined above, it will be seen that addressing the need for a judicial appointments commission is only one of several reforms needed to correct the ills in our system of justice. There may be better judges appointed through the process of an independent judicial appointments commission. However, the better judges maybe frustrated if the environment in the structure is not conducive for them to effectively administer and deliver independent and impartial justice.

Datuk Param Cumaraswamy was former Bar Council chairman and United Nations Special Rapporteur on the Independence of Judges and Lawyers.

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