Contributed by Nicole Chee and Kevin Kam
Judge Nico Tujin, Judge of the Court of Appeal, Hertogenbosch, Netherlands elicited a few laughs from the crowd by averring that the agenda today was nothing more than from his own personal opinion and was not in any way representing the Judiciary of Netherlands or the European Union. He went on to say with utmost seriousness that the duty of a professional independent judiciary is to protect citizens against the Government and sometimes against each other. He then went on to stress that a trustworthy judiciary is the key to social reform.
It has been said that Hague is considered the legal capital of the world with an impressive 2,500 judges who deal with 1.6 million cases per annum. Needless to say, their judges go through some fairly intensive and rigorous training. This is implemented and organized by a body known as the National Justice Academy who has in place training spanning some 6 years. Justice Tujin says that the training is designed to develop competent behaviour in their judges and not just in terms of knowledge. A large part of their courses focuses on other aspects such as communication, time management and ethics. The improvement of legal knowledge, he says, is only one aspect of the training. A profile of a judge should contain integrity, independence, professionalism and most importantly be interested in people and be genuinely concerned about them and be able to conduct a fair and decent trial as this will keep the citizens’ faith in the judicial system and the rule of law.
Mark Goh, Senior Lecturer of the Department of Law and Government at HELP University then presented an academic paper titled, “Old Wine in a New Bottle? Judicial Appointments after the Judicial Appointment Commission,” which assessed the effectiveness of the Judicial Appointment Commission (JAC) from a constitutional perspective. He questioned whether the establishment of the JAC has improved the selection of judges. He identified certain weaknesses present in the current regime that are institutional or constitutional in nature.
One of the main weaknesses is that the selection process is entirely in the hands of the Executive. “We have a system where the Prime Minister effectively has the final say in appointing or removing judges and the JAC takes a mere ancillary role in the process,” he said. He then compared it to the equivalent in the UK where the main purpose of the JAC there was to strengthen the doctrine of separation of powers.
“The selection process in the UK has more check and balance mechanisms in place such as the JAC recommending only one name to the Lord Chancellor who can reject that candidate only once. He then has to recommend only one name to the PM who has to accept it.”
He ended by proposing that the process could be improved, e.g. by having a system that adhered more to the doctrine of separation of powers based on the UK system.
Next, Dato’ Haji Sulaiman b Abdullah, Partner of Sulaiman and Past President of the Bar Council began his speech by comparing the function of the judiciary to that of an umpire or referee in a sports match. He said that any decent society needs an independent and professional judiciary. However, he pointed out that in recent years, much of the benefits in terms of remuneration and security of the judiciary has only been centred on the superior judiciary. He emphasized that the judges who actually affect the bulk of society are the judges in the subordinate courts and they are guaranteed neither independence of tenure nor security of their salary.
The first important step that should be taken to improve the judicial system is to take the control of the lower judiciary out of the hands of the public services department. He advocated that we should work towards an independent judiciary who is fit in body and in mind to be able to handle the tremendous power that is placed in their hands.
“They must be able to make decisions independently.”
Towards that end, judges should be granted pension for life after retirement as a form of security. They should also not be involved in politics. He ended by saying that “Let us Malaysians concern ourselves with the judiciary and the right of justice. Let us adhere to the principles of fair play and sportsmanship.”