By Raja Aziz Addruse and Logan Sabapathy in Project Malaysia
It is now beyond question that the Judiciary is in serious need of reform.
At a dinner earlier this year, held shortly after the Royal Commission of Enquiry into the V K Lingam video clip had made known its conclusions and recommendations, the Prime Minister reflected that the “level of trust and respect for the judiciary…(was) simply not as strong as it was before”. His basis was concerns “related to capacity and efficiency, stemming from long case backlogs, delays and the outdated manner of court administration” and less tangible concerns “such as perceived corruption and perceived decline in quality.”
Appreciating that the nation needed an efficient and trusted judiciary, the Prime Minister committed the Government to a process of reform.
Though we are yet to see any real progress taken in that direction, the acknowledgment that matters are not as they should be is an important first step. For too long, pleas by the Bar and civil society for the Government to take stock of the worrying state of the Judiciary had either fallen on deaf ears or been rejected for allegedly lacking credibility.
The stage is thus set. Given the requisite political will and a continued spirit of conciliation and healing, such as infused the tacit concession by Government that wrong had in fact been done in 1988, significant reforms could be achieved to great effect.
A query however arises as to what it is that we aim to achieve. Though there is universal acceptance of the need for reform, there seems to be no consensus about the ultimate objective of any such endeavour. Though a ‘more competent’ or ‘seemingly less corrupt’ or ‘more efficient’ judiciary are all satisfactory aims in themselves, we must keep in mind that as aspirations they are ambiguous. The exercise requires the kind of strict benchmarking that would allow us to establish a Judiciary that inspires confidence both nationally and internationally. We should also not be distracted from the fact that the difficulties we face go beyond the Judiciary into the wider system of the administration of justice.
It would thus appear that for any meaningful progress in this regard, we must first determine the objective of reform, having regard to the standards that we wish to achieve. As we see it, any undertaking would only be of value to the nation if its ultimate aim were to be the establishing of a framework that would once again allow for the Rule of Law. By this we mean a system in which everyone is made safe from arbitrary governance by subjecting all persons to the law.
Though some might argue that the Rule of Law is in place, pointing to the existence of laws and institutions that constitute the wider system of the administration of justice, an honest and objective assessment would make it patently clear that this is no longer the case. Serious doubts have been cast over the competence and integrity of the key institutions. No less significant is the very low level of public confidence in the system as a whole, such confidence being a necessary prerequisite to its effectiveness. We are in the midst of a serious crisis of confidence such that decisions of the courts and the authorities, be they the police or the Attorney General, are doubted virtually as a matter of course. It is regrettable that the current state of affairs in this country is such that many now believe that governance is arbitrary.
In view of this, an intention to address those factors that have led to the belief that governance is arbitrary for there being no effective Rule of Law must be central to any campaign for reform. This in turn brings into relief the need to build a consensus as to the level of influence the Executive should be permitted to have, if at all. The Government’s apparent reluctance to dilute its involvement in the appointment of judges despite having very publicly endorsed the need for an independent judicial appointments commission points to a continued desire on the part of those who form the Government that the Executive should be allowed to shape due process. Mirroring attitudes of the Executive arms of governments in other jurisdictions, our Executive’s desire for influence must not be dismissed as being idiosyncratic to merely those who make up the incumbent Government.
It also becomes apparent that the reform initiative must be approached on at least two equally important levels; the legal framework and human resource.
The former is crucial in ensuring that the fundamentals of the system are strong. This can be seen in the impact that the controversial amendment of Article 121(1) of the Federal Constitution in 1988 has had. The amendment did immeasurable damage. Not only did it affect the psyche of judges, already battered by the attack on the Judiciary, it set the foundation for a reshaped perspective on the role the Judiciary was to play in promoting the Rule of Law. In its 2007 decision in PP v Kok Wah Kuan1, the Federal Court in effect held that the doctrine of separation of powers was not relevant to constitutional law in this country. In a previous decision handed down in 2002, Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan2, the Court had for all purposes and intents concluded that it was Parliament that was supreme and not the Constitution. These decisions, and others of a similar nature, have in many ways lent to the arbitrariness we have seen these past two decades. The call by Zaid Ibrahim, the former Minister in charge of legal affairs and judicial reform, for a reinstatement of the original Article 121(1), echoing the position the Bar has taken since the amendment, is therefore a welcome one.
In the same vein, it is now beyond question that a more transparent and accountable process of appointments and promotions of judges is essential. The events that led to the Yang di-Pertuan Agong establishing a Royal Commission of Enquiry, the proceedings of the Commission and its conclusions and recommendations have cast light on just how undermined the Judiciary is. An independent mechanism is no longer just one of several options; by virtue of circumstance it has become a necessity. We have been shown the extent to which the Executive considered it entitled to interfere with and influence the process of appointments and, in this regard, the secondary role that it had assigned to the Conference of Rulers and the Heads of the Judiciary.
Additionally, developments in the law now require a greater number of judges skilled not only in the law but also in those aspects that lend to greater efficiency and industry. These needs are no longer met satisfactorily by a method tailored around informal recommendations behind closed doors, such as is currently in place. Together, these factors underscore a need for a mechanism that in our view would best be embodied in an independent commission similar to that in the United Kingdom. Though concerns have been expressed about the composition of such a commission and whether its members might lead to inappropriate appointments, transparency and accountability will greatly reduce the risk. Additionally, allowing the Conference of Rulers and the Heads of the Judiciary to play the roles the Constitution intended of them would introduce a useful counterbalance.
Any discussion concerning measures in aid of strengthening the judicial process would not be comprehensive if it did not also consider other features of the system as it is presently. The effect of appointments of Judicial Commissioners as probationary judges on the independence of the Judiciary has been queried and justifiably so. By the nature of things, Judicial Commissioners serve on the assumption that they will be elevated to the bench only if they are confirmed. The process of confirmation is a subjective one, left very much to the discretion of the Chief Judge. Given the matters set out above, this is not a healthy practice for being open to abuse. It would as such be appropriate to consider whether it would be best to appoint persons to the bench directly. It is equally pressing that consideration be given to whether it would be best to create a framework that would allow the subordinate courts independence from the Attorney General’s Chambers for the same reason.
Looking beyond the Judiciary, it will be useful to consider whether the Attorney General’s Chambers should be streamlined to allow it to fulfill its primary task as legal advisor to the Government more efficiently. This could be done by hiving off some its current tasks to specialist bodies created for that purpose including the instituting and prosecuting of criminal cases. An independent body similar to the Crown Prosecution Services in the United Kingdom headed by a Director of Public Prosecutions could undertake that task satisfactorily. In addition to reducing a burdensome workload that lends itself to inefficiency and questionable judgment, this could also assist in allaying concerns as to selective prosecution through a transparent reporting process.
In the same way, an independent Law Reform Commission could be established for self-evident purpose. Such an independent commission could speed up the process of reviewing laws to ensure that legal developments here are abreast with developments in the world. The Bar Council submitted a proposal to this effect some years ago for this very reason. While the Government then thought that the Attorney General’s Chambers could undertake this very important responsibility, perhaps it is timely to reconsider the proposal.
Moving on to the human resource level, it is apparent that over the years, the Judiciary and the other institutions in the system have come to be viewed as being akin to departments and agencies in the Government. They have as such been staffed in very much the same way as these departments and agencies have. This has nurtured a lack of appreciation as to the invaluable role these institutions play in society with the consequence of the wider system having been greatly weakened.
Recognising that these institutions have a direct and causal relationship with the Rule of Law, it is vital that we approach the question of who it is that should be appointed as a judge or the Attorney General or as a senior federal counsel or otherwise with the utmost respect to what it is that is sought to be achieved by that appointment: the nurturing and promotion of the system of justice. Appointments in this area must therefore be given the gravity they deserve. The impression these individuals leave on society, through precedents they set or policy decisions they make, is virtually indelible. Correcting their mistakes will take significant time and much effort, if that is possible at all. This draws attention to a need to continuously guarantee that only those who are up to the task in the fullest sense, our best and brightest, should be appointed.
We have not set out to provide a comprehensive survey of needed reforms. The matters set out above are intended to invite a discussion on what needs to be done with full regard to the seriousness, and as such urgency, of the matters under consideration. Whatever the shape of that process, it is imperative that we keep in mind that its driving aim can only be the restoration of the Rule of Law.
1 [2007] 6 CLJ 341
2 [2002] 4 CLJ 105
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