Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjong, Lim Kit Siang, in the Dewan Rakyat on 11th May 1994 on the 1994 Courts of Judicature Amendment Bill
Proposal for establishment of a Judicial Performance Commission to regulate and deter injudicious conduct short of invoking removal procedures
I wish to raise two important matters during this debate on the Courts of Judicature Amendment Bill to set up a Court of Appeal.
Firstly, on the question of accountability of judges. We are living in an era of greater demands for public account¬ability and calls for judicial accountability is gaining momentum in many parts of the world.
I note that the International Commission of Jurists (ICJ) South-East Asian Seminar on ‘The Independence of Judges and Lawyers’ held in Manila in June 1989 made the following recommendation:
“Judicial independence and judicial accountability are not necessarily incompatible objectives. Both are achievable. Judges in the region should be more receptive to the idea of the creation of a mechanism to cater to judicial accountability.”
Yesterday, Parliament passed amendments to the Consti¬tution for a code of Ethics far Judges and also for the removal of judges for violation of the code of ethics.
The initiation of removal procedures of judges however is an extreme measure and is often time-consuming, cumbersome and expensive and is inappropriate to deal with complaints and griev¬ances by average litigants.
What is needed is a mechanism where the average complaints or litigant can resort to and have his grievance inves¬tigated simply, expeditiously and cheaply so that a genuine grievance can be readily redressed without resort to removal procedures.
Justice V.R. Krishnan Iyer, a former judge of the Supreme Court of India, had suggested a Judicial Ombudsman to call attention and seek correction when the judicial personnel or process fails structurally or functional in integrity, expedi¬tion, efficiency or fairness.
Mr. Justice Kirkby, President of the New South Wales Court of Appeal, had pointed out that the catalogue of complaints against judges is as endless as human error and human frailty. He said that constitutional guarantee of judicial independence stands as a guardian not only of the fearless judge but also of a judge who cannot or will not properly discharge the functions of his office.
He has more than once recognised the need for external stimulus to deal with complaints against the judiciary for such matters as “rudeness, tardiness, senility, incompetence or for a small thing like suspected inability to actually hear the evidence or the argument”.
In his 1988 address on “Ombudsman – The Future” he referred to delays in the delivery judgements in the various states in Australia, ranging from the average delay of 47 days in the deliver of judgement in one state to 140 days in another state, and said:
“Clearly delays of this order are generally unacceptable…
“In this Philippines, as I am informed, a judge who has not delivered judgement within three months runs the risk that his salary will be suspended until judgement is delivered. This has provided a mighty impetus to promptness in the delivery of reserve judgement.
Malaysia should seriously consider the establishment of a Judicial Performance Commission to regulate and deter injudicious conduct short of invoking removal procedures through the establishment of a Judicial Tribunal under Article 125 of the Federal Constitution to sack judges.
Parliament should stop being a rubber-stamp factory to approve Bills churned out by the Government without examination or scruntiny
The second important point I wish to make is that the time has come, 37 years after Merdeka, for Parliament to stop being a rubber-stamp factory to approve Bills churned out by the Government without examination or scrutiny.
Let us remind ourselves that under our system of parliamentary democracy, it is Parliament which controls govern¬ment and not the government which controls Parliament.
Before Parliament passes any legislation presented by Parliament, it must have adequate time to study Bills to examine and scrutinise their provisions.
The Courts of Judicature Amendment Bill to set up Court of Appeal, together with two other Bills one concerning the subordinate courts and the other the subordinate courts rules, was tabled in the Dewan Rakyat yesterday, and within 24 hours, MPs are expected to debate and pass all three.
In doing so, the Government is showing utter contempt for MPs and Parliament, for the Government cannot expect MPs to have the time to study the three Bills in so short a time. MPs who support the establishment of a Court of Appeal must be given time to study and scrutinise the provisions of the Bill and not be required to give their blind support.
MPs must realise that if there is any ill-conceived or badly-drafted provision, Parliament must bear responsibility for the defective legislation which might cause inconvenience or hardship to Malaysians who are seeking justice in the courts.
Time must also be given to the Bar Council and the public to give their reactions to these Bills, and it is clearly impossible for this to take place when Parliament is to debate them 24 hours after they had been tabled in the House.