DAP calls for a high-powered commission to make recommendations to restore public confidence in the independence of the judiciary, which will also deal with the appointment of judges and serious allegations of gross improprieties and abuse of process in the administration of justice as highlighted by the Ayer Molek controversy


Speech (Part 2) by Parliamentary Opposition Leader, DAP Secretary-General and MP for Tanjong, Lim Kit Siang, in the Dewan Rakyat in the continuing debate on the Judicature Amendment bill on Tuesday October 24, 1995

DAP calls for a high-powered commission to make recommendations to restore public confidence in the independence of the judiciary, which will also deal with the appointment of judges and serious allegations of gross improprieties and abuse of process in the administration of justice as highlighted by the Ayer Molek controversy

When the House adjourned last Thursday, I had come to the last part of my quotation from the front-page article in the August 1995 issue of INFOLINE, the legal bulletin of the Bar Council, on the grave implications of the Ayer Molek controversy which had sparked off a new and second crisis or confidence in the independence of the judiciary in Malaysia.

Let me continue from this front-page article in the August issue of infoline which written by infoline editor, Zainur Zakaria, who was the former Bar Council President:

“The judgment of the Court of Appeal seems to suggest that there are serious flaws and weaknesses in the judiciary and the administration of justice.

“Public perception of the independence of the judiciary in cases involving political interest or issues have been unfavourable in recent years. Recent decisions on cases involving corporate personalities have drawn negative reaction.

“The feeling among the profession, the public and foreign investors, is that there is something seriously wrong with the judiciary.

“The courts are the principal forum where disputing parties can nope to seek legal redress and the role which the courts play in a democracy cannot be downplayed. Judges sit to dispense justice and must do so without fear or favour. Inability or failure on the part of judges to discharge this responsibility will bring about anareny and unbridled abuse of legal process and consequently bring the judioeary into disrepute.

“There can be no compromise. Those who sit in judgment must possess, apart from other qualities, unquestionable integrity.

“In this regard, the Bar Council has long called for a review in the process of appointment of judges to ensure that only those who are suitably qualitied and possessing the necessary qualities are appointed in turn these judges of high integrity can nopetuily ensure that unethical lawyers do not abuse the legal process. This is not to say that all judges lack such qualities. However the few that do can cause the entire judiciary to fall into disrepute.”

The current President of the Bar Council, Hendon Mohammad, had earlier 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 administration of justice in Malaysia. These question 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 of justice and thereby undermining the due administration of independent and impartial justice by the courts”.

Param Cumaraswamy said that judicial independence is also very much linked with the appointment, promotion and dismissal of judges.

He said: “ It is important that the right kind of people are appointed and those who are appointed must have a proven record of competence, probity, integrity and independence. This is because judges set standards . There should not be ulterior motive or doubt in their appointment, as it could be the root of erosion in judicial principles.”

Param Cumaraswamy said that until the first judicial crisis in 1988 which led to the removal of the Lord President and the suspension of the Supreme Court judges, the Malaysian judiciary was highly respected as it was comparatively independent.

The Prime Minister , Datuk Seri Dr. Mahathir Mohamed, was also very concerned by the Ayer Molek controversy which moved him to state publicly that it was harming confidence in Malaysia’s legal system.

As the Asian Wall Street Journal pointed out in its editorial of 12th Sept. 1995 , Malaysia is bidding against Hong Kong and Singapore for the region’s fund management and capital markets business, and these industries have an interest in being where the courts are seen as reliable.

The Awso commented: “ Any legal system is an arm of government, of course, and there’s room to dirter about how closely the judiciary should be allied to government policymaking . About one thing, though, there is no disagreement: the legal process should be uncorrupted by private interests, which is precisely the issue raised by Ayer Molek. And it’s axiomatic that the best defence against corruption is transparency.”

The AWSJ editorial ended on the following note: “On the weekend, Dr. Mahathir complained once more about ruling party officials using bribery to move up though the party nierarchy. We can only sympathize with everything he is trying to do –flight corruption in the ruling party, preserve the reputation of the legal system , and prepare the way for Malaysia to become a regional financial centre. In all these things, his most powerfulally would be greater transparency.”

It the Judges’ Code or Ethics is taken seriously, then the Aver Molek controversy should be the basis for the empanelling of Judicial Tribunal to inquire whether any judge should be removed for “Bringing the judiciary into disrepute”

Last year, the Judges’ Conference agreed on a -nine-point Judges’ Code of Ethics which was gazetted in December, which provides that ” The breach ol any provision or this Code or Ethics may constitute a ground for the removal of a judge from; office . [Section 2(2) ]

The tourth of the nine-point judges’ code of Ethics states that ” A judge snail not conduct himself dishonestly or in such manner as to bring the Judiciary into disrepute or to .bring discredit thereto” .

There can be no disagreement that the Ayer Molek controversy has Brought the Malaysian judiciary into disrepute both nationally and internationally, and has breached the judges’ Code of Ethics.

If the Judges’ code of Ethics IS taken seriously, then the Ayer Molek controversy should be the basis for the empanell¬ing of judicial Tribunal to inquire whether any judge should be removed for “bringing the judiciary into disrepute”.

Although Insas and Megapoiitan had subsequently aborted the Aver Molek deal, resulting in the abandonment of the Insas-Ayer Molek lawsuit, the controversial rulings handed down in the proceedings still stand -as major blots for the Malaysian judiciary as having brought it into national and international disrepute and plunged it into a second crisis of confidence.

I would like’ to know whether the Prime Minister or the Chief Justice proposes to invoke Article 125(3) of the Federal constitution to make representation to the Yang di Pertuan Agong to constitute a judicial Tribunal to inquire into the breach of the Judges’ code of Conduct in the Ayer Molek controversy and whether any judge should be removed from office as a result.

As Parliament is debating the Courts or judicature (Amendment)( N0.2)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.

DAP calls for a high-powered commission to make recommendations to restore public confidence , both national and international, in the independence, impartiality and integrity of the judiciary, which will also deal with the appointment of judges and serious allegations of gross improprieties and abuse of process in the administration of justice as highlighted by the Ayer Molek controversy.

Such a high-powered commission should investigate into the very serious problem of the appointment of judges, and should consider whether there should be a different system or appointment, as through the establishment of a National Judicial com¬mission consisting of senior Federal Court judges, eminent jurists, lawyers and a Law Minister.

It has been said that a judge should possess basic requirements. Firstly, the judge’ should have a thorough under¬standing of the law and be possessed of a well -developed legal intellect. Secondly, the judge should be seen to be evenhanded , fair and reasonable. In essence, the goal should be that a losing party can emerge from the court and say, “ I may have ost , but at least the court gave me a fair hearing.”

More and more, both prerequisites seem to be missing in the judicial attributes of those who sit on the bench in Malaysia.

This high-powered commission to restore public confidence in the judiciary should also examine into -another important. attribute of a good judge – his commitment to justice.

Malaysia need more judges who are strong on justice rather than on the finer points of law -and THIS is one reason why the JUSTICE BAO television series whose ban by the information Ministry – until its was revoked – created a nationwide controversy is so popular transcending race, culture, nationality and even civilisation.

Commentators had said that it is disheartening to observe that Malaysian judges tend to be conservative and not courageous enough to chart new courses to widen the scope or the right of concerned citizens to bring proceedings to Court, especially in cases against misuse of power by public authorities.

Malaysian judges have been given many opportunities to be the guardians of justice in cases involving locus standi but they did not take up the challenge when such opportunities arose.

The classic case on the law of locus standi, for instance, is the UEM case, Lim Kit Siang v Government or Malaysia, which Professor H.P. Lee, in his latest book “Constitutional conflicts in Contemporary Malauysia” has described the majority view or the federal Court as “a retrograde step in the develop-ment of administrative law in Malaysia”.

The high-powered commission to restore confidence in the judiciary should make recommendations whereby Malaysian judges could, play a more active role in developing administrative law to advance the rights of the citizens in Malaysia to check abuses of power, maladministration and other forms or administrative injustices by the government, or public authorities: through the legal process.

Finally, I wish to express my surprise to learn that the Bar council had not been consulted beforehand about the present amendment to the Judicature Act and did not know anything about the Bill until it was debated in the House. This is a very sad state or affairs and should not continue as the Bar Council must be intimately involved in the administration of justice and.the legal process.

In the Bar Council had been consulted beforehand, for instance, the omission in clearing up the unconstitutional inci¬dent where in the Ayer Molek case, a High Court judge could take a “double jump” and act. as Federal Court judge, would have been dealt with in this Bill.

In the event, l have given notice over the recess that 1 would move an amendment to the Bill to clear up such a doubt, to make it very clear that a High Court judge cannot make a double-jump’ to act as Federal court, judge, and 1 hope the Government and government backbenchers would give this amendment support.