KUALA LUMPUR, June 28 ─ The government’s plans to reform the way it appoints judges, announced with much fanfare, are floundering.
Former premier Tun Dr Mahathir Mohamad and an East Malaysian judge are sniping at each other publicly.
Indeed, the Malaysian judiciary is back in the news, but it is not good news.
Dr Mahathir has been at war with High Court judge Datuk Ian Chin since Chin accused him of threatening to sack judges who did not toe the government line back when he was prime minister.
Chin’s accusation was disputed by other judges but they resonated with Malaysians. Many people simply believe that the judiciary lacks independence in the face of a dominant executive.
That perception was strengthened by a government inquiry that in May said it had found evidence of improper influence in the appointment of judges in the late 1990s.
Before those findings were released, Prime Minister Datuk Seri Abdullah Ahmad Badawi had announced in April that he would set up an independent Judicial Appointments Commission to recommend suitable candidates for the Bench.
Under the current system, the decision is left to the Chief Justice and Prime Minister.
The initiative had been barely announced when it stalled.
Yesterday, the influential Malaysian Bar, the umbrella group for the country’s 13,000 lawyers, urged the government to show its commitment by setting a timetable for the commission’s establishment.
“We trust that the promise and hope that moved us to rise to our feet on April 17 will not be dashed against the rocks,” said Bar council president Datuk Ambiga Sreenevasan. “If so, it will be a colossal loss, not just to us but also to the nation.”
But the group should brace itself for disappointment. Several Cabinet ministers, including those close to Abdullah, are believed to be opposed to the composition of the proposed appointments commission.
In addition, the dominant Umno party feels it would dilute the Prime Minister’s discretion in appointing judges.
Reports surfaced that the party also feared that non-Malays may eventually outnumber Malays on the Bench and possibly even one may be appointed as the nation’s top judge. At present, the judiciary is largely made up of Malays as their ranks are mostly drawn from government service.
The Straits Times understands that several senior judges are also concerned that their promotions could end up under the control of this panel.
“There is no reason why internal promotions should go through the commission,” a judge told The Straits Times.
The judges’ objections are, however, the least of the obstacles. The political opposition is the greater of the headaches. Abdullah can ill afford to rock the boat at this time, given his precarious position in Umno.
He is still fending off calls for his resignation since the March8 general election. At a meeting with Umno’s grassroots in Johor last week, he again faced calls for a leadership transition.
The party’s governing council met earlier this week and pressed the PM to name a date for the handover of power to his deputy, Datuk Seri Najib Razak.
Abdullah can ill afford to ignore Umno’s demands ahead of crucial party polls. The party views the push for judicial reforms as against Malay interests.
The appointments commission proposal has also angered the PM’s fiercest critic ─ his predecessor. Dr Mahathir sees it as a personal attack.
It was during Dr Mahathir’s time that judicial independence nose-dived, as he tried to tighten his grip on power by weakening its power.
Abdullah’s move to set up a government inquiry into judge-fixing backfired. Umno did not like what it saw as the humiliation of Dr Mahathir and the Malay judges.
“What it has achieved is to make the lawyers happy, and Umno very unhappy,” said a political observer.
Abdullah’s immediate concern is his political survival in Umno. So, he has since quietly backed away from judicial reforms, much to the frustration of his hand-picked de facto law minister Datuk Zaid Ibrahim.
The prominent lawyer was roped into the Cabinet specifically to undertake judicial reforms, and he went about it with a zeal that did not endear him to his more senior colleagues.
Zaid has fought both for the Judicial Appointments Commission, and a constitutional amendment to vest judicial power with the courts, to be implemented during the current parliamentary sitting.
Both have now been put on the backburner.
This shows how Umno’s interests still dominate the Malaysian administration. Real judicial reforms may never take place without strong political will.
That is bad news for a judiciary which has been struggling to regain public confidence since 1988 when top judge Tun Salleh Abas and several others were removed for reasons viewed as politically motivated.
It hit another low in the mid- to late-1990s when allegations of cosy ties between top judges and certain prominent lawyers surfaced.
A number of controversial cases at that time, including record high damages for defamation, fanned the flames of suspicion.
The atmosphere was so bad at that time that, when he retired in 2001, Court of Appeal judge Datuk Shaik Daud Ismail famously remarked that the judges’ car windows were tinted ─ not for their safety, but to hide their shame.
Where once the Malaysian judiciary was among the most respected, its descent has been so steep that foreign companies now routinely refuse to have their disputes adjudicated in Malaysian courts.
They stipulate that disputes are to be resolved through arbitration overseas.
The sputtering attempts at judicial reform in the face of political opposition will not boost confidence. ─ Singapore ST