Malaysians should not expect any major overhaul of the judicial system when Abdullah Ahmad Badawi becomes prime minister, said senior lawyer Param Cumaraswamy.

The former UN Rapporteur on the Independent of Judges and Lawyers said it would take more than a change in leadership to 'improve' the standard of judicial independence.

Param said this in response to a question during a public lecture in Kuala Lumpur yesterday, after presenting a paper entitled 'Judicial Independence: In Search of Public Trust'.

While he saw no harm in hoping for improvement, Param said Prime Minister Dr Mahathir Mohamad's resignation in two weeks' time is unlikely to change the government's political will in rectifying the harm inflicted on the judiciary.

"We cannot simply undo things that have taken place. It must be done in a systematic manner. What we need to do to change the system? The (Bar Council's) call for establishment of an independent commission for judicial appointments is a fine suggestion," he said.

Mahathir rapped

However, Param pointed out that such suggestions were often misconstrued by the government.

The Bar had called for an extraordinary general meeting (EGM) to discuss the matter after the controversy surrounding the recent promotion of judges, which some quarters alleged was politically motivated.

This drew flak from various government leaders, including Mahathir. The EGM was later called off due to a lack of quorum.

In his 22-page lecture, Param criticised Mahathir (photo) for failing to understand the principles and independence of the judiciary and claimed that this has resulted in more damage to the institution of justice.

"Throughout his 22 years in office, the prime minister got some things right. Yet he never got the principles and the role of an independent judiciary right. That was his shortcoming and it resulted in so much of damage to this vital constitutional institution," he said.

He cited the outgoing premier's criticism of the Bar's call for the EGM as an example of this.

While Mahathir can be excused for misunderstanding this as he is not a lawyer, Param said the same cannot be said of de facto Law Minister Dr Rais Yatim (photo) for alleging that the Bar had insulted the King's constitutional role in judicial appointments.

He said the interpretation of laws clearly shows that the choice of judicial appointments does not lie with the King, but the prime minister whose advice cannot be rejected by the former.

"Maybe Dr Rais has been in politics for too long and needs to return to law school," he quipped.

Param said the Bar had the right to call for the EGM after the judicial promotions in July which "once again brought to surface the rot which has beset the Malaysian judiciary since 1988".

"In the recent exercise, three particular promotions had every reason for the public to perceive as 'rewards' for having 'delivered' in the (jailed ex-deputy premier) Anwar Ibrahim-related trials and appeals. 'Blatant' is a mild word to describe these promotions," he said in reference to the promotion of Justices Pajan Singh Gill, Arifin Jaka and Augustine Paul.

Unacceptable system

On the system of judicial appointments, Param said the current trend in modern constitutions is to entrust the power of recommendations to an independent council or commission, composed of representatives of institutions connected to the judiciary.

Whatever form the mechanism may be, he added, it is essential that judicial appointments are perceived to be made independently and transparently based on merit and without improper considerations, political or otherwise.

He said any system similar to the one practised in Malaysia is no longer accepted because it lacks transparency and gives too much power to the executive and chief justice.

The lawyer also said the public must strongly support calls for reform of the system in order to be more transparent and for this, the media must play an important role.

"The media must create awareness among the public that they have a right to an independent judiciary. Such awareness can mobilise public support which in turn will pressure the executive into making the changes," he said.

However, Param noted that the lack of press freedom in the country would make this task difficult.

Indian example

Commenting on the same matter at the lecture, veteran lawyer Raja Aziz Addruse said the 'decline' of judicial independence, which started with the sacking of former lord president Salleh Abbas in 1988, was not the work of a single individual.

"It involved several people who will continue to be around. So I think it will be too optimistic and romantic to hope that the change of leadership will also change the judiciary for the better," he said.

He also pointed out that India, whose judicial independence was at its lowest ebb in 1975, had only improved after the people ousted the entire government lead by the late Indira Gandhi and the judicial system was changed.

"So it takes more than one man to do this," he added.