On judicial reform

The Prime Minister recently announced reform proposals for the judiciary and in the fight against corruption.

Many were disappointed by the Prime Minister’s speech on “Delivering Justice, Renewing Trust” at a special dinner hosted by the Bar Council on April 17, 2008, as more, much more, than what was announced to restore public and international confidence in the independence, impartiality and quality of the judiciary had been expected, viz:

• Ex-gratia payment for “the pain and loss” suffered by the late Tan Sri Eusoffe Abdoolcader and Tan Sri Wan Suleiman Pawanteh and their families, Tun Salleh Abas, Tan Sri Azmi Kamaruddin, Tan Sri Wan Hamzah Mohamed Salleh and Datuk George Seah in the 1988 Judicial Crisis;

• A Judicial Appointments Commission;

• Review of the judiciary’s terms of service and remuneration to ensure that the Bench can attract and retain the very best of the nation’s talent.

The thunderous and prolonged applause at the Bar Council dinner which greeted Abdullah’s recognition of the “contributions of these six judges to the nation, their commitment towards upholding justice” and acknowledgement of “the pain and loss they have endured” in the 1988 judicial crisis cannot hide the general disappointment that the Prime Minister had fallen far short of expectations to ensure a fair and just closure to the Mother of Judicial Crisis in 1988.

It is precisely because the “contributions, pain and loss” of the six wronged judges cannot be equated with mere currency that the ex gratia payment is grossly inadequate. The six wronged judges deserve a full and proper recompense.

In his speech, the Prime Minister skirted the “rights and wrongs” and the “legality and morality” of the Mother of Judicial Crisis which plunged the country into two decades of judicial darkness.

The victims of the 1988 Mother of Judicial Crisis and the ensuing two decades of judicial darkness, with three of the four chief justices during the period, Tun Hamid Omar, Tun Eusoffe Chin and Tun Ahmad Fairuz compounding the travesties of justice by the judicial system, were not just the six wronged judges in 1988 but also included innocent, high-minded, idealistic and patriotic Malaysians who want the best for the country. In fact, whole generations of Malaysians were victims of the 20 years of judicial darkness!

Will the Prime Minister extend goodwill ex gratia payments to the other victims of the two decades of judicial darkness like former Deputy Prime Minister Datuk Seri Anwar Ibrahim, Penang Chief Minister Lim Guan Eng and former High Court judge Datuk Syed Ahmad Idid Syed Abdullah Idid (the first whistleblower from the judiciary with his 112 allegations of corruption, abuses of power and misconduct against 12 judges in 1996) as well as to the 106 Internal Security Act (ISA) detainees in the 1987 Operation Lalang?

The goodwill ex gratia payment to the six wronged judges are welcome though belated but they are grossly inadequate in clearing the name and reputation of the six and in providing a full and proper closure to the 1988 Mother of Judicial Crisis and the ensuing two decades of judicial darkness under three Chief Justices.

The statement the next day by Deputy Prime Minister, Datuk Seri Najib Razak that the ex gratia payment for the six former judges in the 1988 judicial crisis is not a form of apology to them but merely “our way of addressing some of the personal considerations and some of the personal experiences, hardships that they have gone through” raised questions about the real worth and meaning of the ex gratia payment.

The payment of goodwill ex gratia payment without revisiting the 1988 Judicial Crisis on its rights and wrongs is already unsatisfactory enough but it becomes quite unacceptable when its whole basis is stemmed from pity or compassionate grounds to address “some personal experiences and hardships” suffered by the six wronged judges!

Najib is in fact directly contradicting Abdullah’s statement that “the contributions, pain and loss” of the six wronged judges cannot be equated with mere currency by implying that these wrongs and injustices could be dealt with solely in monetary terms.

This is why I maintain what is imperative to start a new chapter in Malaysian judiciary to turn our back on the 20 years of judicial darkness is to have a Judicial “Truth and Reconciliation” Commission to find out the lessons to be learnt from the 1988 Mother of Judicial Crisis and the series of one judicial scandal and crisis after another which rocked Malaysia in the past 20 years, not out of vindictiveness or vengeance, but to prevent any such recurrence in the future – focusing also on why the various national stakeholders, the judiciary, Parliament, political parties, mass media, civil society failed the critical test to defend the cardinal Constitutional principles of the doctrine of separation of powers and an independent, impartial and competent judiciary for two decades.

I have been calling for judicial reforms both in and outside Parliament in the past two decades when the country reeled from one judiciary crisis to another since the “Mother of Judicial Crisis” in 1988 and the victimization of independent-minded judges.

Abdullah should not take half-hearted measures but must initiate far-reaching judicial reforms to restore the Malaysian judiciary to its world-class pedestal which it had enjoyed since Independence in 1957 until two decades ago.

To ensure that Malaysia move out of the “judicial darkness” in the past two decades, the elements of a far-reaching judicial reform programme must include:

• A Royal Commission of Inquiry on Judicial Reforms to make detailed recommendations after a probe into the “judicial darkness” of the past two decades;

• A just and proper closure to the 1988 judicial crisis over the sacking of Tun Salleh Abas as Lord President and Datuk George Seah and the late Tan Sri Wan Sulaiman Pawanteh as Supreme Court judges, bearing in mind that the victims of the “Mother of Judicial Crisis in Malaysia” were not confined to the three top judges sacked, the three other judges who were persecuted and hauled before a Judicial Tribunal but also the Malaysian people and nation who suffered for two decades the depredations of a deepening “judicial darkness”;

• Upholding the doctrine of the separation of powers through constitutional re-amendment of Article 121(1A) to restore the inherent judicial powers of the judiciary as entrenched in the Merdeka Constitution but which was taken away in a constitutional amendment in 1988 as part of the 1987-88 Operation Lalang crackdowns on fundamental liberties.

• A Judicial Appointment and Promotions Commission; and

• Overhaul of the Judges’ Code of Ethics to restore public confidence in judicial independence, impartiality and integrity, and to provide for a satisfactory and accountable mechanism for public complaints against judges, including the Chief Justice, for breaches of the Judges’ Code of Ethics.

It is most disappointing that legislative proposals for judicial reforms will not be ready for the current meeting of Parliament.

When will the necessary constitutional amendments for judicial reforms, like the establishment of t6he Judicial Appointments Commission, be presented to Parliament and come into force?

Will the Prime Minister be bound by the recommendations of the Judicial Appointments Commission as not to submit any judicial nomination which has not received the approval of the Commission or will the Judicial Appointments Commission be another toothless tiger like Suhakam?

Will the Judicial Appointments Commission be formed in time to influence the appointment of the next Chief Justice in less than six months to ensure that the country does not have another infamous first, in having the first Umno Chief Justice?

In the last Parliament, I had questioned the fast-track elevation of Tan Sri Zaki Tun Azmi in the judiciary, with his unprecedented triple jump to become Federal Court judge last September without ever being a High Court or Court of Appeal judge, then quadruple jump in three months as Court of Appeal President, and whether this is to be followed by his quintuple jump in a matter of a year to become the next Chief Justice when Datuk Abdul Hamid Mohamed steps down from the topmost judicial post in October?

Is the Prime Minister prepared to make a public commitment that the appointment of the next Chief Justice will be first referred to the Judicial Appointments Commission which he has agreed to set up?

(Speech [3] in Parliament on the Royal Address on Tuesday, 6th May 2008)