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Monday, November 5, 2007

Study reforms in picking Judges, says HP Lee

The Malaysian Bar (31/10/2007): It might be opportune to consider possible reforms to strengthen the judicial appointment process in Malaysia, given the ongoing controversies surrounding the judiciary, Professor Lee Hoong Phun of Australia’s prestigious Monash University suggested.

“As Lord Falconer of Thoroton points out,” he told an almost 400-strong audience at the second day of the 14th Malaysian Law Conference at the Kuala Lumpur Convention Centre on Tuesday, “the judiciary is often adjudicating on the legality of executive actions and hence the judicial appointments system must be seen to be independent of government.

“It must be transparent. It must be accountable. And it must inspire public confidence,” the Penang-born academic said.

Prof. Lee suggested this prescription after comparing the judicial appointments system of Australia, Britain and Malaysia from a sociological standpoint of “someone who is removed from the emotions and passions which sparked the highs and lows in the metamorphosis of a nation” and providing overseas experiences as “valuable insights.”

He noted that while the Australian Attorney-General enjoyed the discretion of who to consult and the determination of the scope of such consultation, in relation to appointment to the High Court of Australia, a statute required the Attorney-General to consult with the Attorneys-General of the various component States.

“In the United Kingdom, there has been a ‘complete overhaul of the appointment system in the Constitution Reform Act 2005’,” Prof. Lee said of the statute that replaced the Lord Chancellor’s primary role of selecting judges by two independent judicial appointments commission.

He said that Justice Ronald Sackville of the Federal Court of Australia and a former chairman of the Judicial Conference of Australia had, after invoking Lord Falconer’s observations, also argued for a reform of the Australian judicial appointments process.

“Justice Sackville proffered the following:

‘The most suitable model for Australia would see the creation of an independent commission responsible for making recommendations to government for appointment to vacant judicial offices.

‘The commission’s membership should be equally divided between legal and lay members, although the former would assess an rank the legal qualifications, experience and ability of candidates. All commission members, however, should participate in making the final recommendations’.”

Focusing on Malaysia, Prof. Lee said that “there is even an expectation on the part of the people that the Conference of Rulers can contribute immensely to good governance by providing the government with their collective wisdom and sound counsel” after the constitutional crises of 1983 and 1993.

“The Constitution mandates consultation with the Conference of Rulers in respect of a number of specified matters, for example the appointment of members of the superior court,” he added.

Prof Lee quoted His Royal Highness Sultan Azlan Shah of Perak in a book entitled Constitutional Monarchy, Rule of Law and Good Governance edited by Prof. Visu Sinnadurai in 2004:

“The entire process of consultation with the Conference of Rulers cannot simply be relegated to a mere formality …

“This is a constitutional role that was contemplated by the drafters of the Constitution – a role of checks and balances that ensures the appointment of the best persons to important constitutional positions.

“It was also clearly intended to prevent any abuses of power by not giving the appointing authority the sole discretion in the appointment process of key positions under the Constitution.”

In the book, His Royal Highness, who was also one of the most, if not the most capable, Lord President before his enthronement as the Sultan of Perak, added:

“It is generally difficult to rationalize why a Prime Minister would not want to consider, or even abide by the views of nine Rulers and four Governors who constitute the Conference of Rulers.

“These are independent persons, with vast experience and with no vested interest in nominated candidates. Their duty is to fulfil their constitutional role in ensuring that only the best and most suited candidates are selected for the posts.”

Earlier, Prof. Lee had recounted the six blessings that Malaysia had enjoyed in its first 50 years of Merdeka or Independence as:

- Being colonized by the British, instead of the French, Dutch or Spanish;

- Having Tunku Abdul Rahman as the first leader after his legal education in the “homeland of the common law,” a leader who imbibed the notions of the rule of law, the independence of the judiciary and the separation of powers.;

- Having succeeding Prime Ministers such as Tun Abdul Razak and Tun Hussein Onn, both of whom had similarly imbibed those notions and understood the fundamental importance of the rule of law as the underpinning of a stable nation;

- Being endowed with an already existing solid and sound legal system with highly competent legal practitioners and a respected judiciary at Independence;

- Enjoying the culture of a civilian supremacy over the military; and,

- Enjoying the federal nature of the Constitution.

Prof. Lee also took his audience on a glimpse into the next 50 years, noting that India had exhibited maturity at the transfer of power from the ruling Congress Party to the Opposition. “Malaysia is yet to be tested on that score,” he noted.

He also saw the “religion factor” as a major hurdle within a secular constitution and said the extent to which the cancer of corruption “which has undermined stable government in many developing countries can be curbed will determine the prospects of good governance and impartial and fair administration of justice.”


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