Reform in the judiciary and Royal Commission of Inquiry — Mah Weng Kwai

MARCH 7 — In view of recent events, I wish to write on the reforms in the judiciary and the training of judges. I believe that it is important that the public be made aware of the steps taken to implement reforms that will strengthen the judiciary.

I am acutely conscious of the public's desire for urgent reform of the many important institutions in the country, including the judiciary.

I write this letter to highlight to the public that work has been undertaken to bring about positive changes to the judiciary since July 12, 2018 by the new management of the judiciary.

These changes are substantive and not cosmetic by any measure. They include:

1) E-court reforms

a) A system of e-balloting (without human intervention) has been introduced so that there can be no interference in the empanelling of the Judges sitting in the appellate courts. This is an internationally recognised method of ensuring judicial independence because no interference is possible, and no senior judge may direct any particular Judge to hear a case.

b) E-review — online case management without the physical presence of parties.

c) Queue management system — the display of hearing time on LCD screens and mobile apps at the appellate courts.

d) Video conferencing system in Peninsular Malaysia for hearing of simple applications by way of video conferencing.

2) Collective leadership

The decision-making process of all administrative and policy matters of the courts is now done collectively by the Chief Justice of the Federal Court, the President of Court of Appeal, the Chief Judges of Malaya and Sabah and Sarawak respectively and not from “top down..

3) Establishment of a consultative committee

A consultative committee (consisting of representatives from the Attorney General's Chambers, the Judiciary, the Malaysian Bar, the Sabah Law Association and the Advocates' Association of Sarawak) has been established and is tasked to define the parameters of what amounts to judicial interference or intervention, administrative actions or mere advice.

4) Appointment of judges

Though not required by law, the consultative committee will and has been consulted in the appointment and promotion of judicial commissioners and judges. Presently the Judicial Appointments Commission as a recommending body will submit the names of shortlisted candidates to the Prime Minister for appointment by the king.

5) Separation of the judicial and legal services

Initiatives have been taken to separate the judicial and legal services administratively. The Chief Registrar's Office under the direction of the Chief Justice has submitted a proposal to the executive for the deletion of Pekeliling Perkhidmatan Bil 6/10.

6) Written judgments

A circular has been issued by the Chief Justice directing that grounds are necessary for the hearing of appeals in the Court of Appeal and the Federal Court. A case summary will be issued to the press in respect of public interest cases to ensure accuracy in media reporting. Dissenting judgments are encouraged.

7) Judicial review

The Rules of Court 2012 have been amended recently by the Rules Committee, of which the Chief Justice is the chairman, to dispense with the “leave application” requirement in judicial review matters. This change is now waiting to be gazetted by the government. A judicial review guide for public officers launched at the opening of the legal year 2019 has been published.

8) Continuing legal education

The Judicial Academy continues to provide monthly training for judges on various topics of the law. In this respect, the Judicial Academy continues to collaborate with the judiciary from United States of America, England, Singapore and Australia to enhance the quality of the justice delivery system to the public in Malaysia.

9) Corporate social responsibility

a) Mobile Court programmes, environmental programmes and charity programmes. Activities include building a hostel for students, free meals for staff and back-to-school programmes.

b) Courtroom to classroom programmes jointly organised with UITM and the Ministry of Education. Activities include giving talks to primary and secondary school students and bringing students to the courts to experience court proceedings.

c) Engagement with stakeholders, ministries and government agencies and international bodies.

Judges, by the very nature of their position and in the best traditions of the institution, do not and cannot respond publicly to the kind of personal criticisms levelled against them recently.

I had the honour to serve till my retirement as a Court of Appeal judge, remember only too well what is (quite rightly) expected of judges, and the responsibility judges have in upholding the Constitution and to the litigants who appeared before them.

I remember well my respected brother and sister judges many of whom are still on the Bench, and who continue to execute their duties faithfully and with integrity. I am also delighted to see so many promising new talents who are serving, and who are prepared to serve, in the Judiciary.

This brings me back to recent events. It cannot be denied that the judiciary has in the past suffered from many disturbing incidents. One such Royal Commission of Inquiry (RCI) has already taken place, that looked into the Lingam tapes scandal.

Now a second RCI is to be held because of an affidavit sworn by a sitting Court of Appeal judge which contains serious allegations. As stated, the judges referred to in the affidavit cannot respond publicly and the RCI will now give them an opportunity to do so ion whether there is any legal or factual basis to the allegations.

It will also be an opportunity to address holistically the concerns expressed by the public about the judiciary. However, in the interest of due process, the work of the RCI should start with a direction to the police and the Malaysian Anti-Corruption Commission to complete their investigations into the several police reports made regarding the contents of the affidavit.

I must emphasise that the findings of the RCI must contain actionable recommendations that will assist in a systemic and positive changes in the judiciary. Such changes are imperative to enhance the rule of law and the independence and impartiality of the judiciary.

Judicial independence is a core feature of the rule of law and steps must be taken to restore public confidence in the Judiciary as an institution. Malaysia must aspire to adhere to the international standards as set out in the United Nations Basic Principles on the Independence of the Judiciary.

This will serve to bolster not only the independence but also the integrity and sanctity of the judiciary as well as to promote the rule of law.

In the meantime, Malaysians must take heart that the work of the judiciary has been proceeding as usual as it should be, and the judges. must be left to carry out their duties unimpeded.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.