Malaysiakini: How do you feel being among the most besieged lawyers in Malaysia?

Param: I don't feel myself as the most besieged lawyer at all. I think there are others who are also being harassed and one of the leading figures now is Karpal Singh. It doesn't really bother me because this is something which I see happening in other countries too. I go into defence of all these people who are harassed, under my United Nations mandate. So I get the feel of what it is all about. And I have been in this for the last 25 years, being subjected to prosecution and civil suits, banned from a country and you name them, I think I've gone through them and am still going through.

Malaysiakini: There are presently a series of hefty defamation suits against you.

Param: Yes, a mere RM280 million in four claims arising from the same article would give some people the impression that I'm a billionaire.

Malaysiakini: About your role as a UN Special Rapporteur on the Independence of Judges and Lawyers, very few Malaysians know exactly what you do. Would you like to explain?

Param: In fairness to Malaysians, I think many in other countries too, do not know much about this system. The special procedure mechanism is a unique set up within the UN system. It is not found in the UN Charter, nor in any of the UN instruments. It is a feature which emerged way back in 1984.

It originated with the problems in Argentina in the early 1980s. The UN wanted to send an independent monitor to monitor the developments there. They found it was quite effective and they started extending to other areas and on other issues, like apartheid in South Africa. And today, there are about 44 special rapporteurs on various subjects.

There are two kinds of rapporteurs, one is the rapporteur we call country specific, where the rapporteur is appointed just for one particular country to monitor that country. The other one is what we call the thematic rapporteurs who monitor the whole world on a particular subject.

Malaysiakini: So you are not focusing on Malaysia only?

Param: No. I think they have got all that wrong. The Malaysian Foreign Minister (Syed Hamid Albar) in his statement said that I am biased, etc. I have previously explained all that in a press statement when the prime minister attacked me at the podium of the UN General Assembly last year. Strangely enough, after about just six months, the minister echoes the same words. Obviously he was quite ignorant about the special procedure mechanism of the UN. Or maybe he was aware but was just following what the prime minister had said.

Malaysiakini: How are rapporteurs appointed?

Param: Special rapporteurs are appointed by the chairman of the UN Human Rights Commission after consultation with the UN bureau. There is a small bureau or caucus within the commission with regional representations. Once there is a need to appoint a special rapporteur, the chairman then goes through a process which he knows and the bureau knows, selects a particular person from anywhere in the world. They may have several recommendations from various quarters.

Then he contacts the particular person, asks whether he would accept, and after consultation with the bureau, he appoints. He never consults the particular country concerned. Otherwise, the whole purpose of an independent monitor will be defeated. And this is exactly what happened in my case, back in 1994. I just received a call from the then chairman of the commission. I didn't know him before. I had never met him before. There was a telephone call from The Hague for me. He was a Dutch. I was taken aback when he invited me to accept.

Malaysiakini: Why did you accept it?

Param: Well, it is a real honour. It is an honour, not only for the particular person, but it should have also been an honour for the country, but unfortunately the government here did not think so. I received a large number of congratulatory messages from judges and lawyers from all over the world [#1][See comments][/#].

I have been appointed for the last six years. I had my mandate renewed in 1997 when Malaysia was a member of the UN Human Rights Commission. They never objected to anything then. And at that time the civil suits were already filed. Suddenly this year they went all out to block the reappointment under the pretext of a small technicality over the transition provision. ("[#2]Malaysia seeks to limit UN special rapporteur's term[/#]", April 24)

Malaysia came down very badly as you can see from the letter I wrote to the ambassador in Geneva and also my statement to the press in response to Datuk Syed Hamid Albar's outburst ("[#3]Stop harassing Param, government told[/#]", May 8). I think the minister's outburst was largely due to government's frustration over their efforts to block me. Not one state came out openly in support of Malaysia's interpretation of the transition provision. Hence, they really got very, very upset.

Malaysiakini: What is the transition provision?

Param: In the past, thematic special rapporteurs were appointed for terms of three years and renewed for further three years. Rapporteurs terms could be renewed every three years, forever. In 1999, it was felt that there should be a term limit. Hence, it was agreed by the commission to fix a limit of two terms, i.e six years in all.

However, as a transition for those who had served three or more years their mandate could be renewed for another term of three years at the expiry of their existing term. I and others who had served six years were entitled to be reappointed under this transition provision.

Malaysiakini: Do you foresee changes, given that there is a public perception that the judiciary is not independent?

Param: It is a question of time, I think the change has to come in Malaysia, and it will be sooner than what you think because of what you see in the region. You just have to see what happened in Indonesia, in the Philippines, in Thailand, they all changed and are changing. Look at the steps taken in China to reform the judiciary.

The Philippines is a very good example because up to 1997, there were a lot of complaints about the judiciary. There was a very good article written by an investigative journalist, Sheila S. Coronel, in that year. She wrote a three-instalment article on corruption in the judiciary of the Philippines. It was reported in no less than three leading newspapers simultaneously. And it shook the nation. It was very well written, very well investigated. Details were given.

And what happened? Just about that time the previous chief justice retired. The new chief justice, Hilario G. Davide, Jr, took office in 1998. He came in with a determined programme called the "Davide Watch". Within 20 months, more than 30 judges were removed for violations of the Anti-Graft and Corrupt Practices Act and related statutes. More are under investigation. And together with the United Nations Development Programme, the Supreme Court in April this year launched a five-year programme of action for increased "integrity and accountability, independence, knowledge-based adjudication, fairness, efficiency and accessibility to the courts".

Three public opinion polls, one from the business community, taken recently have raised the rating of the judiciary by 30 to 40 percent since Chief Justice Davide took over. So similarly, changes can take place here. It's a matter of time. Unfortunately, people are afraid of speaking up. Civil society is still in a climate of fear but it has to change.

The developments in the Philippines illustrate what a former chief justice in India, Justice Verma, said in an interview when asked for his message for the youth on how to battle corruption. He said, "Keep the top clean, and whatever trickles down will also be clean. No matter which field you're in, don't try to reach the top by doing something wrong. Your past will catch up with you."

What is sad is whereas other countries in the region never had a good independent system of justice are now striving to improve, but Malaysia which inherited a good system has allowed it to deteriorate, and the competent authorities appear impervious to calls for reform.

Malaysiakini: The government argues that the judiciary is indeed independent. Take, for example, the majority of the court cases, the criminal cases especially.

Param: Yes and no. I think ultimately, the independence of the judiciary in any country will be measured by the more high profile, politically and economically sensitive cases. That's where the test of the judiciary comes.

Malaysiakini: What needs to be done in Malaysia to secure an independent judiciary?

Param: First, in the light of all the present allegations of judicial improprieties, investigations ought to be carried out by an independent body like a royal commission whether there have been breaches of the Judges Code of Ethics. If there is evidence, then the judges concerned should be asked to resign. If not, a tribunal should be set up to try them. Unless the few black sheep are removed, the entire judiciary will remain tainted by their continued presence.

Second, the present system of selection, appointment, promotion and discipline is certainly unsatisfactory and inconsistent with international standards. There must be an independent mechanism like a judicial services commission responsible for selection and recommendation including promotions. This mechanism should not be left in the hands of just one person, be he the prime minister or chief justice.

No power should be left in the hands of a single individual. Similarly, there should be an independent complaints mechanism where the public can lodge complaints about judges. Judges, too, are accountable and subject to the law. In South Africa, for instance, the judiciary has recently drafted its own legislation to set up a judicial complaints commission.

Third, continued legal education programmes should be introduced and if necessary made compulsory for judges to update them on developments in the law including developments in other jurisdictions. Such programmes are quite common in other countries.

Malaysiakini: Why is the government so sensitive about criticism of the judiciary?

Param: I think it has a lot to do with the events of 1988 where the government's involvement was apparent. The present state of the judiciary could be traced to those events. Hence, any criticism now is seen as a reflection on the government.

Malaysiakini: But the situation appears to be serious enough that something needs to be done about it.

Param: Certainly, it has to be done and the sooner it is done, it is better for the country.

Malaysiakini: Are you concerned over the recent court judgements to injunct Bar Council's general meetings?

Param: I am concerned but not surprised. It reflects the present state of play in the country. It is said that freedom of expression is the mother of all freedoms. In all civilisations, the judiciary is expected to be the guardians of freedoms. What is happening in Malaysia is that the judicial process is perceived as being used to stifle this basic freedom. If the legal profession is not able to have the freedom to assemble and discuss affairs in the judiciary, which is its legitimate right, who else can? By handing down such judgements, wouldn't the court be perceived as undermining its own integrity, independence and impartiality?

Having said that, by virtue of a resolution adopted at the Bar's annual general meeting in 1999 with near unanimity votes the council was given a wide mandate to investigate all improprieties within the judiciary, and if necessary call for a royal commission. The council does not require any further mandate from the general body. It should proceed and collate the evidence.