Saturday, 19 April 2008

Justice Half Delivered and Confidence Half Gained

The special dinner organized by the Bar Council and sponsored by the Government held last night at the JW Marriott hotel carried so much expectations that people laughed at the nervousness.

The Master of Ceremony likened the Council President’ Ambiga Sreenevasan to a virgin bride on her wedding day, such was her nerves and the room erupted in laughter.

The theme, Delivering Justice and Rebuilding Confidence’ was loaded and deliberately so. The phrase was successful in attracting a room full of lawyers waiting to hear good news.

At the end of the evening, after the Prime Minister careened precariously close to an apology, announced the establishment of the Judicial Appointment Commissions and extended belated ex-gratia payment to sacked former Lord President, Tun Salleh Abbas, those in attendance left in two minds.

Obviously the law minister Datuk Zaid Ibrahim had done his fraternity proud by pushing the Government to formally recognize and accept that the 1998 sacking of the Lord President did grave injustice to them and the judiciary, more importantly the Executive openly admitted that the judicial crisis marked the steady decline in public respect for the courts and the negative effect it had on civil society.

Before Zaid had taken the rostrum, Ambiga had praised the Prime Minister for giving Malaysians more room to express themselves and credit was recognized by Bar members through their applause.

As expected of the Bar Council President, Ambiga also sneaked in an appeal for a reassessment of the Internal Security Act and a reappraisal of the detention of five Hindraf leaders at the end of the speech to the approval of the room.

When Abdullah took the microphone everyone shifted in their seats in anticipation of a big announcement and it started trickling in with reference to the sad series of events that led to the sacking of the country’s top judge.

With the mood of the room uplifted Abdullah went as close to an apology as he dared by saying that the Government appreciated the sacrifice made by Salleh and his courageous colleagues.

After stating that public confidence in the independence of the judiciary took a nosedive since 1998, he began creaking open the door for reform by suggesting that the salary scale of judges would be revised to the ‘correct’ level and clarified that ‘correct’ meant higher.

This desire to attract the best legal mind onto the bench then began developing into a more substantial need to ensure that the right kind of people were given the responsibility of judges and Abdullah then announced the establishment of a Judicial Appointments Commission. The crowd roared in approval.

He then emphasized a proviso that the Prime Minister shall retain his constitutional right to have the last say before presenting the names put forth by the commission to the His Royal Highness the Agong.
This was followed by an announcement that the Government would like to make good to Salleh and his colleagues.

Abdullah explained that no amount of money could put things right for the injustice and miscarriage of administration that was inflicted on them, nevertheless the Government would offer them an ex-gratia payment as a gesture of their appreciation for the sterling work done.
The room gave Abdullah a standing ovation, Ambiga was clearly beside herself, Zaid smiled and basked quietly in accomplishment. Appeals Court President, Tan Sri Zaki Tun Azmi who sat mostly expressionless throughout the speech clapped with slow nods of approval as did Attorney General Tan Sri Abdul Gani Patail.

We talked to several lawyers afterwards and they were clearly split in opinion, some saying this is a good step forward while others are unconvinced that the new developments constituted a fundamental change in the process of judicial appointments.

Blogger and Civil Rights Lawyer Haris Ibrahim saw the glass half full, he said the Commission is what they had been hoping for because it gives transparency to the process of appointing judges and this is key to regaining people’s confidence in the bench.

“We are still at a very early stage, next we need to work out the composition and structure of the commission and once this has been finalized we can better gauge the Government’s sincerity in the matter.
“For tonight this is good enough,” he said.

Haris was also positive about the compensation offer to the sacked judges; “Of course no amount of money can put things right but it is as close as they are ever going to get to apologizing to the Judicary and the people. I think it is a nice gesture”.

Out in the lobby, the discussions were more polarized with some lawyers clearly resenting the fact that the Prime Minister was still the last word on judicial appointment.

“Maybe the current Prime Minister will take the commission’s list in good faith but what about the leaders that come after him? We need to remove the influence of the executive completely from the process,” said one lawyer.

Another lawyer felt that the Government must put stronger safeguards in the process and brought up the appointment of Zaki as Appeals Court president as indication of where the present Government stands in his mind when it comes to restoring public confidence in the independence of the judiciary.

Others were more receptive to the idea, saying that this is exactly what the Bar Council has been asking for.

“We have never wanted to take away or negate the King or the Prime Minister’s role in the appointment of judges, we just wanted to ensure that it is transparent and the commission will give it that.
“Of course the PM can refuse to accept the list but at least we can now tell the people that we have vetted the candidates and come up with a selection that we think is the best, if the Government refuses to listen to us they better have a good reason for it otherwise they are going to look bad,” said the lawyer.

Another bar member recognized the difficulty of doing away with the Prime Minister’s input in the selection process as it is a constitutional matter.

“We have to amend the constitution if we want to completely remove the executive’s role in judicial appointment and that is going to be difficult, anyway you find the same influence in judicial appointments in most country so it is really up to the people in office to discharge their duties responsibly and with the best interest of the country at heart,” said another lawyer.

The Bar was less divided on the issue of ex-gratia compensation to the judges, many thought it was a nice gesture although a few felt it was insulting for the executive to suggest monetary compensation for what they had done.

“I think if they had set up a tribunal their peers to decide on the best way to put things right with the judges and they had come up with a package that included back pay, ex gratia payments and revised pension then it would have been seen as an administrative correction rather than a moral compensation which smacks of insult,” said one lawyer.- By Wahid Yunus-

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