The Bar Council views with concern the suggestion by the Chief Justice as reported in The Star, 13th October 2004 to change the Malaysian justice system from that of a common law system to an inquisitorial system as exists in some other countries. The basis for this drastic move appears to be so-called "hiccups" experienced in recent high profile cases.
The Bar Council must caution that a move to dismantle a system tried and tested in this country and in other jurisdictions for hundreds of years should not be resorted to easily and is in the view of the Bar Council wholly unnecessary. The common law system has no problem adapting to modern times as it has proven over the years and its very strength lies in its flexibility and ability to adapt. It should also not be forgotten that the most basic tenet of the common law system is that justice is done.
That the reason and basis for the revamp are recent decisions in high profile cases is an over-reaction and a misapprehension of the protection provided by the law to litigants and in particular accused persons which must exist in any legal system.
The Bar Council is supportive of any improvements to be made to the present system of justice and has in fact submitted several memoranda to this effect. However it sees as a first step in this process, a proper system for the appointment of judges that ensures that judges who possess the best skills are appointed to the Bench. It is not the common law system that needs changing, for whatever system is in place, it is the people that administer it and who dispense justice who make it work. If it works as it should, without interference from any quarter and if the judiciary acts without fear or favour, then truth and justice will prevail.
The Bar Council is further concerned at the comments in the same article attributed to the Menteri Besar of Pahang that "if [the law] continued to thrive on technicalities, then rapists and murderers may go free", and his further comment that judges should be more sensitive to the interests of the nation and how some of their judgments could affect the stability of the country politically and socially. This and similar outpourings reflect an unhealthy state of mind that the law and the judiciary exist to serve a political agenda. The Bar Council must caution against such a mindset which runs counter to all assurances that there will be no political interference in the independence of the judiciary. It must be realised that the independence of institutions like the judiciary is not a sign of weakness of the government but a sign of its strength. The independence demonstrated by the judiciary in some of these so-called high profile cases has only enhanced its image here and internationally. Rather than changing and criticising this justice system that is once again demonstrating such independence, we should be building on it and seeking to improve it.
Dated : 13th October 2004
Hj. Kuthubul Zaman Bukhari Chairman Bar Council Malaysia
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