by Parliamentary opposition Leader, DAP Secretary-General and MP for Tanjong, Lim Kit Siang, in Petaling Jaya on Saturday, October 21, 1995:
DAP to move an amendment in Parliament on Tuesday to resolve the constitutional point raised by the Ayer Molek controversy to make it very clear that a High Court judge cannot make a “double-jump” and sit as a Federal Court judge.
I have today given notice to Parliament that. I win move an amendment. to the Courts of Judicature (Amendment) (No.2) Bill 1995 to resolve the constitutional point raised by the Ayer Molex controversy to make it very clear that a High court judge cannot make a ‘double- jump ‘ and sit as a federal Court judge.
The Ayer Molek legal controversy had raised two luncia-mental issues, one of which is whether the judgment of the Federal Court which rebuked the Court of Appeal was a nullity as the or judges that sat was not in conformity with Article122(2) of the Federal Constitution as amended last year, which reads :
“A judge of the Court of Appeal other than the President of the court, of Appeal may sit as a judge of the Federal Court where the Chief Justice considers. that the interests of justice so require, and the judge shall be nominated for the purpose (as occasion requires) BY. the Chief Justice . ”
It is very clear that constitutionally as well as going by common sense, only a court of Appeal judge and not a high Court judge can be appointed in special circumstances to tin a vacancy in the federal Court, panel. Otherwise, we will have the extraordinary spectacle of a High court, judge doing a “double-jump” leaping over the Court, of Appeal to sit a-r- a federal Court judge .
In the Ayer Molek case, however, a high Court judge was appointed as one of the three-member panel of judges of urn federal Court, which would make its judgment a nullity and the judgment of the court of Appeal as the highest judgment on the issue in the land.
The Deputy Minister in the Prime Minister’s Depart¬ment, Datuk Nazri Tan Sri Abdul AZIZ, had been remiss in his parliamentary duties when he railed to include an amendment in the Courts of Judicature (Amendment) (No.2)1955 Bill to remove all doubts that it is unlawful and unconstitutional for a High court judge to be appointed for a “double jump’ to a panel of the Federal Court.
I hope he would accept and support this amendment so that such an unconstitutional event, would not. recur in the future .
There is a second important aspect in the Ayer Molek legal controversy, which is ever- more important – the imputation in the Court of Appeal judgment of gross improprieties and abuse of process in the administrations of justice.
The President of the Bar Council, Hendon Mohamad, had expressed the Bar Council’s concern when she said in a statement.:”The totally different views and comments of the court, of Appeal and the federal court raise very serious questions on the admin¬istration of justice in Malaysia. These questions demand an answer as something is very wrong.”
The united Nations Special Rapporteur on the independence of the Judges and Lawyers, Datuk Param Cumaraswamy said that ‘complaints were rite -that certain ‘ highly-placed Malaysian personalities including those in the business and corporate sectors are manipulating the Malaysian system or justice B.HU thereby undermining the due administration of independent and; impartial justice by die courts”.
The Prime Minister, Datuk Seri.Mahathir Mohamed, was also very concerned by the Ayer Moleks controversy which moved him to state publicly that it was– harming confidence in Malaysia’s legal system.
AS Parliament is debating the courts of Judicature (Amendment.) (No.2} Bill 1995, all MPs , regardless of party, should stand as one to restore national and international confidence in the independence, impartiality and integrity of the judicial system and to demand that the legal process should be uncorrupted by private interest.
The best defence of the legal’ process, or any other field in public lite, against corruption is transparency, and Parliament must demand greater transparency of the legal process and judicial system to create the favourable conditions where Malaysia can compete with Hong Kong and Singapore tor the re-gion’s fund management and capital market business.