©New Straits Times (Used by permission)
Minister in the Prime Minister's Department, Datuk Seri Nazri
Aziz talks to V. Vasudevan about areas of dispute in the makeup of the Judicial
Appointments Commission
Q: What is the status of the Judicial Appointments Commission?
A: The cabinet has approved it, but what we are now looking at is the structure and format. We have to discuss them. We have not given up on the commission.
Q: Could you explain this structure you mentioned?
A: I am referring to who will sit on the commission or who will be the
commissioners. Right now, it is structured according to the positions of the
members of the judiciary, for example, the chief justice, president of the Court
of Appeal, the chief judge of Malaya and the chief judge of Sabah and Sarawak.
It is all right for these people to be commissioners, but not
those from the Bar Council. We (the cabinet) don't agree that the chairmen of
the Malaysian Bar, Bar Council Sabah and Bar Council Sarawak should sit on the
commission.
Q: Why not? Aren't they stakeholders? Should they not know about their peers?
Who better in the appointment of judges?
A: That is the reason. There will be conflict of interests. If I am a new judge,
for example, how would I react if the chairman of the Bar appeared before me and
I knew that he or she was instrumental in my elevation to the bench? Would I not
be swayed?
Q: Is it true that some object to the attorney–general sitting on the
commission?
A: True. We (the cabinet) also object to the A–G and solicitor–general being
made commissioners. The cabinet rejected the earlier structure because of these
people. We want commissioners to be anyone. We don't want members of the Bar. We
are open to having former judges.
Q: If you say you are open, will you appoint the opposition leader?
A: Why not? The opposition leader is a possible commission member.
Q: Ministers have been said to be unhappy about this commission and its role.
Why?
A: If you want to talk about reforms, you must remember that the executive will
never give up the power it has under the Constitution. That is fundamental. If
the Bar Council can understand this, then we can discuss our meeting point, our
concerns.
I have spoken to the Bar Council before this (in his previous term as de facto
law minister). Their concern is that they don't like the idea of one person, the
chief justice, nominating judges to the prime minister. That is their concern.
That was what they said to me.
Q: Do you agree with that view?
A: I agree with the Bar. We cannot put the future of the judiciary in the hands
of one person (the chief justice). The prime minister obviously cannot be
expected to know the lawyers and judges who are nominated.
A change is needed as there is always the danger of a prime minister abusing his
position. At least, that was the perception during (former prime minister) Tun
Dr Mahathir Mohamad's time.
Q: You say the commission could affect the executive's power. How does it
affect the prime minister's power?
A: The prime minister is essentially being directed (if he can't refuse
recommendations). It does not work that way. That would be compromising the
privileges of the prime minister, which he has had all these years. But under
the proposal before us, there is a choice.
Q: What choice is there?
A: We screen first. Let's say there are four vacancies for the position of
judge. The commission can screen and recommend eight names. Therefore, the prime
minister has eight names to choose from. Everyone should be happy with this. The
prime minister is then no longer dependent on the chief justice alone.
Q: Does the commission's work include elevations for those who are already
judges?
A: It will look at those being promoted from the Sessions Court to High Court
and lawyers who are elevated to the High Court.
So far, there is only one thing the judiciary has indicated that it wants –– for
the commission to only look at names being nominated for the position of judge
at the point of entry. After this, the judges want to decide on their own.
When it comes to promotions for cops, the Police Commission makes the decision,
while the Public Service (Department) decides for other civil servants. It is
done internally.
This is their request, but nothing has been made final.
Q: Will this not unleash new allegations, such as judges being elevated
because of favouritism, etc?
A: True. I think a way around this would be for the commission to look at such
elevations after names are recommended to them by the chief justice. We can
accommodate. The commission decides.
The commission could also mull the choice of successor to the chief justice when
retirement comes up. He could recommend several names and they could vet and
make suggestions to the prime minister. That is a better way. I think everybody
can accept (it).
Q: The opposition has been agitating for judicial reform. How do you think
they will take to these proposals?
A: My take is that if the opposition is not happy, they can change whatever we
have done when they form the government.
Q: Will this proposed commission need a constitutional amendment? The
opposition might not endorse these changes.
A: I have to check if there is a need for a constitutional amendment. If it is
needed and the opposition refuses to support it, good for them. We tried. We
want reforms and they don't.
Q: When can you start with this?
A: I want it to be as soon as possible. I have met the A–G and have spoken to
the chief justice. We spoke briefly. I hope to meet the Bar Council after Hari
Raya Aidilfitri. I have spoken to the Legal Department in the Prime Minister's
office. All the records of what transpired before are there.
Q: Can you complete this before Prime Minister Datuk Seri Abdullah Ahmad
Badawi leaves office?
A: That should not be a criterion. What (Abdullah) wants is good for the
judiciary. It is what the prime minister wants and the cabinet has endorsed it.
Q: What if Deputy Prime Minister Datuk Seri Najib Razak does not want it when he
assumes office?
A: He has already agreed to it. We will go ahead. I believe it is good for the
country as it is aimed at stopping any abuse of the system by a prime minister.
And the decision to appoint judges is no longer the decision of one person.
Q: How will the commission work? Is it only when there is a vacancy?
A: They can work all year round. They can ask for names throughout the year, if
they want. It will be decided later.
Q: Tell us about the ex gratia payments made to judges who were put before a
tribunal. Why the secrecy?
A: I don't know. I have not received any reply. After Hari Raya, maybe. I will
release the figures. I am sure it will be raised by the MPs during the budget
debates. These are public funds, we have to reveal everything. I will disclose
it in Parliament as it is the best forum to do it.
Q: Would you have paid if you were the de facto law minister earlier, if this
idea had been suggested to you?
A: I feel this is what is due to them. They have served. Personally, I say yes.
What they are entitled to they must be given. There's nothing wrong with the
decision. It is not an ex gratia payment, it is their entitlement.