(Petaling Jaya, Monday): Malaysians hope that the speech by the new Chief Justice of the Federal Court, Tan Sri Mohamed Dzaiddin Abdullah at the meeting of 71 senior judges on Saturday declaring that his mission is to bring back the judiciary to its "past glories" marks the end of the denial syndrome about the need for far-reaching judicial reforms and the beginning of a national debate and endeavour to restore public confidence in the judiciary.
Henceforth, the national focus should go beyond the question as to whether there had been an acute crisis of confidence in the independence, impartiality and integrity of the judiciary, but how quickly to arrest and reverse the erosion of public confidence in the judiciary and restore the judiciary to its "past glories".
Dzaiddin’s courageous admission of the "unpalatable fact that public confidence in the judiciary has eroded in the last few years" and that "this negative perception has held back the country’s development as multinational corporations and foreign investors are reluctant to invest because they perceive there is no level playing field" had been a very important step to arrest further erosion of public confidence in the judiciary, but meaningful judicial reforms have to be initiated and implemented if the erosion of public confidence in the judiciary in the past 12 years is to be reversed and the judiciary restored to its "past glories".
Dzaiddin has arrested the erosion of public confidence in the judiciary but he needs to do more in terms of judicial reforms to turn it around to reverse the erosion and restore public confidence in the judiciary.
The new Chief Justice’s proposal on judicial training for new judges and continuing training for sitting judges to achieve judicial excellence is most timely and commendable, as Malaysia has lagged behind other legal systems in this field.
Like other countries, Malaysia should recognise that a judiciary in a dynamic and changing society must constantly renew its intellectual resources, and there is an urgent need for judicial education programmes as judging requires a combination of skills not all of which are necessary possessed by every appointee to judicial office.
As a jurist has pointed out, the idea that all judges arrive fully equipped in terms of legal and procedural knowledge, administrative and technical skills, temperament, the ability to communicate effectively and respond sensitively to cultural and social issues, is hardly tenable.
Dzaiddin should consider picking a leaf from the Canadian National Judicial Institute which recommended a minimum of 10 days of continuing education per year for each judge.
While all efforts to ensure judicial excellence as institutionalising a system of continuing education of judges deserves full public support, the more pressing issues which must be addressed in order to reverse the erosion and restore public confidence in the judiciary remain those concerning the independence, impartiality, integrity and accountability of the judges.
This is why Dzaiddin should take the bold step to initiate widespread national consultation, both within and outside the judiciary, on how best to restore public confidence and bring back the judiciary to its "past glories". After all, judicial independence and impartiality, which constitute the cornerstone of a just rule of law, are not private rights of judges but the fundamental rights of all Malaysians.
There are many areas for far-reaching judicial reforms which should be the subject of national debate in order to uphold judicial accountability, independence, impartiality and integrity - whether in the updating and developing of the Judges’ Codes of Ethics or a fair and transparent system of making judicial appointments.
Even an examination of the Malaysian Constitution is necessary if there is to be a full restoration of public confidence in the judiciary.
There should, for instance, be amendment of Article 121(1) of the Constitution to restore the inherent judicial powers and jurisdiction of the courts.
The Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim, in his book "Freedom under Executive Power in Malaysia" said that the removal of the "judicial power of the Federation" from the High Courts in the 1998 amendment to the Constitution after the Salleh Abas judicial crisis "endangered" the constitutional doctrine of separation of powers.
Rais endorsed the description of the amendment to do away with the court’s judicial power as "death strokes to judicial independence", saying that it was "a direct reaction by the executive to the attitude of the courts in certain decisions that went against the government, particularly during the two years preceding the amendment".
Is the Cabinet prepared to restore the inherent judicial powers of the courts by reinstating the original provision in Article 121(1) before the 1988 constitutional amendment?
(15/1/2001)