Brave New World (The Star)
26 June 2008
"Making the judicial appointment process more transparent and accountable and having true separation of powers will be our main safeguard against tyranny."
In April, the Prime Minister made a speech at a dinner organised by the Bar Council and the Government. In it, he promised that there would be established a Judicial Appointments Commission (JAC) made up of “primary stakeholders” to shortlist nominees for judges.
This was to make the judicial appointment process more transparent and accountable and thus ensure that the judiciary could once more be trusted.
Earlier this month, the Royal Commission set up to investigate the Lingam tapes came out with its report and, apart from confirming the veracity of the video and condemning the damage done to the judiciary by those named by senior lawyer V.K. Lingam in their devious ploys at determining which judge was promoted, the Commission suggested that a JAC be established and that its recommendations should be taken heed of by the Prime Minister, who could reject its views only in the most extreme of circumstances.
I didn’t write about these two developments earlier because, being Malaysian, cynicism runs in my veins and I wanted to see whether any real developments would happen. Not just talk.
Personally, I would like to see the Prime Minister, as the head of the Executive, having nothing at all to do with the appointment and promotion of judges. Only in that way can there be true separation of powers, our main safeguard against tyranny.
In that sense, the Royal Commission’s suggestion was a little mild for my liking. Having said that, it is still a million times better than the system that we have now – a system where the Prime Minister has the final say, and the appointment and promotion of judges is done arbitrarily.
Regarding the Prime Minister’s speech, although I did not feel the need to give him a standing ovation as the Bar did, I was optimistically cautious. After all, the independence of the judiciary was one of the waves that made up the political tsunami of March 8.
No right thinking premier indeed would not take note of this fact and take the necessary steps to give the people what they want.
And for a while at least, it looked like the Prime Minister was on the road to doing just that.
He appointed Datuk Zaid Ibrahim (who was not even selected to stand for election – maybe because of the liberal sounds he makes) as a senator and made him the de facto Law Minister. Zaid then promised not only a JAC but also to return Article 121 to its original form.
Article 121, for those of you who have never slept through a Constitutional Law lecture, is about judicial power. It used to be that the Judiciary determined its own jurisdiction, i.e. what cases it could, and could not, hear.
Article 121 was amended in 1988 to give that power to Parliament. So now Parliament has the power to tell the Judiciary what sort of cases it can judge. Not exactly a ringing endorsement for the separation of powers.
Then last Saturday, it was reported that the proposed JAC Zaid tabled before the Cabinet had been “put on hold”. The newspaper report was full of coy statements by the Law Minister when faced with the question of whether the Prime Minister was truly committed to the idea.
Well, I’m not in government and I don’t have to be coy. If the Prime Minister and his Cabinet were committed to the idea of a clean, fair and independent judiciary, we should be making substantial steps forward with the proposal by Zaid being made open to the public for further debate before it is sent to the Attorney-General’s Chambers to be made into a Bill.
As it is, it all seems to be in limbo. Just what is it about the proposal that the Prime Minister and his Cabinet dislike? Is it the fact that one man does not hold all the power anymore? Could it be the idea that the loss of the ability to twist the judiciary around the fingers of the Executive is so shocking that it can’t be endured?
Frankly, I think that is the only reason for this plan to be “put on hold”. The Government wants to control the Judiciary. It doesn’t want an independent bench. It doesn’t want the citizens of this country to enjoy the security of a competent court whose powers are separate and safe from the political machinations of the Executive and the Legislature.
If a JAC made up of reputable “primary stakeholders”, and not by toadying civil servants and politicians, is not established, and if Article 121 is not returned to its original form, then whatever shred of credibility this government may have will be destroyed.
The Cabinet will have to decide. Does it want to “renew the public’s trust in the nation’s Judiciary”, or is its hunger for dominance and total control over the three branches of government so ravenous that it can’t see beyond the short term?
Does the Cabinet not realise that by taking away from the people what is rightfully theirs, it is merely digging its own grave?