The much needed judicial reforms to bring the country’s legal system back to its former glory requires constitutional amendments, said former United Nation’s official Param Cumaraswamy.

In a statement today, the ex-UN special rapporteur on the independence of judges and lawyers welcomed Prime Minister Abdullah Ahmad Badawi’s efforts in setting up a judicial appointments commission.

scah ipcmc talk 181207 param cumaraswamyHowever, Param viewed that the commission is not necessarily the most important requirement and further reforms which includes constitutional amendments are needed.

"The needed reforms must be carefully identified and addressed comprehensively as most of them will require constitutional amendments.

"It is prudent to seek constitutional amendments for all the needed reforms in one session of Parliament rather than moving piecemeal," he stated.

Last Thursday, Abdullah announced that the government will establish a judicial appointments commission to identify and recommend suitable candidates for the judiciary to him.

Address these reforms

In addition to the proposed commission, the former Bar Council president lists out several reforms that "must simultaneously be addressed":

  1. Article 121 of the constitution must be amended to restore the pre-1988 position thereby restoring the judicial power in the courts (presently Article 121 limits the federal courts from ruling on matters ruled on by the Syariah court when it touches on Islamic matters).
  2. It is necessary to expressly entrench the concept of separation of powers in the constitution and provide that the judiciary is independent of the other organs of state.
  3. The same or another commission should be set up to deal with judicial complaints to extract judicial accountability. The present procedure under Article 125 only deals with misconducts requiring removal of a judge and not for misconduct falling short of need for removal.
  4. Remove the 1994 judges’ code of ethics entrenched in the constitution. Instead, expand the code by incorporating the Bangalore principles of judicial conduct that is now adopted by many countries.
  5. The appointment of judicial commissioners (JC) under article 122AB need to be reviewed. JCs are in effect judges on probation and do not have the requisite security of tenure to insulate them to secure their independence but yet they are entrusted with the same powers and jurisdiction of a judge.
  6. The proposed judicial appointments commission could also deal with appointments of magistrates and session judges. Currently the magistrates and judges fall under the purview of the Judicial and Legal Service Commission which is an executive body though a constitutional creature.
  7. Instil institutional autonomy over the financial aspects of court administration. Currently, the judiciary’s financial dependence on the executive hinders the former’s independence.
  8. Amend Article 145(5) and reinstate the provision in the 1957 constitution and make the office of the Attorney-General independent and accountable over his decisions, not to prosecute in particular cases and more particularly in high profile cases.
  9. With regards to the police, the government is urged to implement the recommendations of the Royal Commission To Enhance the Operation and Management of the Royal Malaysian Police without any further delay.

Frustrated judges

"In the light of what has been outlined above it will be seen that addressing the need for a judicial appointment commission is only one of the several reforms needed to correct the ills in our system of justice," Param said.

According to him, while better judges may be appointed through the independent judicial appointment commission, they can however be frustrated.

"Better judges maybe frustrated if the environment in the structure is not conducive for them to effectively administer and deliver independent and impartial justice," he added.

The spotlight on the judiciary - seen to be ailing for the past 20 years - hit its peak when the controversial VK Lingam video clip was released in September last year.

A royal commission of inquiry into the video was set up but it has been criticised for its limited terms of reference and the panel’s reluctance to accept further evidence.