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©The Sun (Used by permission)
Comment by Param Cumaraswamy

JUDGES are standard setters in society. They interpret and develop the law upon which society is structured and human relationships conducted. Their actions and conduct, both within and outside the Court, must at all times be above suspicion and seen to be so if they are to command the respect and confidence of the public.

The suspicious conduct of one or two judges is enough to tarnish the image of the entire judiciary. It follows that those appointed to this high position of esteem and respect must be only men and women with proven competence, integrity, probity and independence. There should be no compromise on these standards. Judges appointed for lesser qualifications or for other considerations, political or otherwise, would eventually bring disrepute to their own institution.

What should be an ideal mechanism for judicial selection and appointment has gone through considerable debate in the last three decades. Traditionally constitutions provide that such appointments are made by the head of state upon the advice of the chief executive of the government who in turn consults the chief justice. Many Commonwealth constitutions provide for such a procedure. To provide for more transparency, integrity, competence and accountability, modern constitutions provide for an independent mechanism like a judicial services commission to advise the chief executive.

International & regional standards for judicial appointments

The UN Basic Principles on the Independence of the Judiciary provide inter alia, “1) those selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law; 2) any method of judicial selection shall safeguard against judicial appointments for improper motives persons”.

The Beijing Statement of Principles of the Independence of the Judiciary in the Asia Pacific Region 1995, adopted by no less than 32 chief justices in the Asia Pacific region including the Chief Justice of Malaysia, provide among others, the following, for the appointment and promotion of judges:

• In some societies, the appointment of judges by, with the consent of, or after consultation with a judicial services commission has been seen as a means of ensuring that those chosen as judges are appropriate for the purpose. Where a judicial services commission is adopted, it should include representatives of the higher judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

• Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.

The 1998 European Charter on the Statute for Judges provides inter alia, “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representative of the judiciary.” (emphasis added).

Experience has shown that considerable executive involvement in the appointment procedure has resulted in the judiciary not being independent or perceived to be independent, and seen as incompetent. Provisions for consultation or advice too have resulted in doubts and suspicions whether such consultation and advice are genuine or mere shams. Vesting this power in just one person like the chief justice too is fraught with suspicions. However eminent he may be there is always the likelihood of abuse.

Hence, the trend not only in modern constitutions but also in developed systems is to entrust the power of selection and recommendation for judicial appointments to an independent council or commission. Such council or commission is composed of representatives of institutions not only closely connected with the administration of justice but also lay persons. The council or commission invites, evaluates, selects and recommends suitable men and women to the chief executive for appointments by the head of state.

Good examples

» The Philippines

Pursuant to the 1986 Constitution there was created a Judicial and Bar Council (JBC) for judicial selections and recommendations. The JBC is composed of the chief justice as ex-officio chairperson, the secretary of justice and a representative of Congress as ex-officio members, a representative of the Integrated Bar of the Philippines, a professor of law, a retired member of the Supreme Court and a representative of the private sector as regular members.

Although the president appoints the regular members, the Constitution has fixed and staggered the term of the members and requires that the Commission of Appointments consent to the president’s appointment. The JBC advertises for judicial appointments, processes all applications, conducts interviews and selects suitable applicants based on proven competence, integrity, probity and independence which is the criteria expressed in the Constitution. Whenever there is one vacancy in the Supreme Court or High Court, the council submits to the executive president three names, from which the executive president selects one.

» South Africa

Similarly the 1996 South African Constitution provides for a Judicial Services Commission (JSC) to recommend to the executive president suitable appointees for judicial appointments. It consists of three senior judges including the chief justice who presides, the minister of justice, four practising lawyers including two advocates and two attorneys, one law academic, six members of the National Assembly of whom at least three are from the opposition, four permanent delegates of the National Council of Provinces, and four persons appointed by the president after consulting the leaders of the parties in the National Assembly.

The JSC invites, processes, evaluates, interviews and selects for judicial appointments. Qualified lawyers could apply themselves to the JSC to be considered for judicial appointments. Other interested persons or organisations could nominate anyone qualified for consideration by the JSC.

One constitutional requirement is the need for the judiciary to reflect broadly the racial and gender composition of South Africa. The JSC then prepares a list of nominees with three names more than the number of appointments to be made and submits the list to the president. The president may make appointments from the list, but must advise the JSC with reasons if any nominees are unacceptable and any appointment remains to be made. The JSC then prepares a supplemental list and the president must make the remaining appointments from that list.

» United Kingdom

For many decades the selection of judges had been the sole responsibility of the Lord Chancellor who was part of the executive. In July 2003 the Secretary of State for Constitutional Affairs, who was then also the Lord Chancellor, publicly announced that “in a modern democratic society, it is no longer acceptable for judicial appointments to be entirely in the hands of a government minister. For example the judiciary is often involved in adjudicating on the lawfulness of actions of the executive. And so the appointment systems must be and seen to be independent of government”.

Following this on April 6, 2006 an independent Judicial Appointments Commission (JAC) of 15 commissioners was set up under the Constitutional Reform Act 2005 to select and recommend to the Secretary of State for Constitutional Affairs suitable applicants for judicial appointments. The JAC attends to advertisements of vacancies, receives applications, shortlists, interviews, selects and recommends. The selection is based solely on merit and good character.

The JAC is composed of five judges including the chief justice, two lawyers – one practising barrister and one practising solicitor – six lay members, one justice of the peace and one representative from a long list of statutory tribunals. An interesting feature of this commission is that it is chaired by a lay member who has never held a judicial office or been a practising lawyer. Commissioners are appointed for a fixed term.

Judicial promotions

Like appointments, judicial promotions too must be based on merit without any improper considerations. Generally, the same mechanism for judicial appointments could attend to recommendations for promotions.

Promotions need not be based solely on seniority. While seniority should be a guiding factor, it should not be the sole criteria. Leap frogging in some jurisdictions in the past did give rise to suspicions. There were resignations from those superseded. That was because the selection process was left with the chief executive of the government or as in some countries with the chief justice who, as said earlier, too could abuse his power.

The choice for Malaysia

Whatever model the government adopts for the proposed judicial appointments commission, it must see to it that the process of selection and recommendation for judicial appointments is based entirely on merit. The commission must not only be independent but seen to be so. Its composition while reflecting racial and gender diversity should not be unwieldy. Only men and women with integrity should be appointed to the commission.

It should not be seen as an institution composed of just retired judges, diplomats and government servants.

Datuk Param Cumaraswamy, a former Bar Council chief, was United Nations Special Rapporteur for the Independence of Judges and Lawyers. His first article on the subject appeared on Tuesday.

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