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©New
Straits Times (Used by permission)
by R. Sittamparam and V. Anbalagan
KUALA LUMPUR: Practising lawyers are in the best position to understand what is
required and desired of a judge from the perspective of a practitioner and
therefore should be represented in the Judicial Appointments Commission (JAC),
said Bar Council president Datuk Ambiga Sreenevasan.
She said the inclusion of a Bar Council representative was
important to ensure transparency.
She added that the inclusion of the presidents of the Malay- sian Bar and the
law associations of Sabah and Sarawak in the commission was in accordance with
international guidelines relating to the administration of justice.
"The Beijing Statement and the Latimer House Principles, the authoritative
guides in the Asia Pacific and Commonwealth, respectively recommend or encourage
the inclusion of the judiciary, the legal profession and civil society in the
JAC.
"The Bar's inclusion will ensure that the views of the legal profession and
public will be put forward fearlessly."
Ambiga said the Malaysian Bar president had a fixed tenure of
two years, thus ensuring a continuous change which provided a further safeguard.
She said the commission should not only oversee the appointment of new judges
but the promotion process as well, considering that there had been much
unhappiness over the abuse of the promotion process.
Ambiga added that the JAC, being an important body, must be carefully thought
out and must be a model for all time.
De facto law minister Datuk Seri Mohamed Nazri Abdul Aziz, in an interview with
the New Straits Times, said the cabinet did not agree that the chairmen
of the Malaysian Bar, and law associations of Sabah and Sarawak be on the
commission, for fear that there would be a conflict of interests.
Former United Nations official Datuk Param Cumara- swamy, however, agreed with
Ambiga that the Bar should be represented in the commission.
Param said the Bar could nominate any of its senior members to be in the
commission on a rotational basis.
He said Nazri should look at the structure of similar commissions in Britain,
South Africa and Philippines where the legal profession was represented.
"If Nazri feels that including the Bar chairman in the commission could cause
new judges elevated by the commission to be swayed (when the chairman appears
before him in court), the Bar representative can be someone else.
"The representatives can be nominated by the Bar to serve on the commission for
a fixed term," said Param, the former UN special rapporteur on the independence
of judges and lawyers.
Param said the commission should not be over represented by too many judges but
instead follow the model in other countries to include representatives from the
legal aca- demia and lay persons.
"However, the government must lay out a specific criteria for the appointment of
commissioners of this important institution. For instance, lay persons appointed
should have high integrity and standing in society."
Param said it was interesting to note that in the latest development in Britain,
it was ruled that the Judicial Appointments Commission chair- man should not be
a lawyer or possess any legal background.
He said judicial promotion should also not be left in the hands of the
judiciary. A caucus of senior judges should be involved in submitting
recommendations to the commission.
Former Court of Appeal judge Datuk Shaik Daud Ismail said how judges should be
appointed and promoted was the sole prerogative of the government. The judiciary
should not dictate terms to the government
"The opinions of the judiciary can be sought, but ridiculous suggestions should
not hold back the setting up of the commission."
He said the government should table the necessary amendments to the Federal
Constitution and get the support needed from MPs to set up the commission.
He added that retired judges should be appointed as commission members as their
opinion and experience would come in handy in vetting candidates.
Former attorney-general Tan Sri Abu Talib Othman said the inclusion of the
attorney-general, or his representative, would contribute to the discussion in
selecting candidates for appointment or promotion.
"The A-G who, at times, goes to court will know the quality, attitude, ability
and conduct of lawyers and his officers who are being considered for
appointment."
Lawyer and Bukit Glugor MP Karpal Singh said a broad section of opposition
members should be considered for appointment to the commission, not just the
opposition leader.
He said the commission must be for appointments and promotions of judges at all
levels.
"Nothing will change if it is limited to the entry level to appoint lawyers and
judicial and legal service members as judicial commissioners."
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Circular No 297/2008
