©New
Sunday Times (Used by permission)
by Roger Tan
ON July 24, 2003, the then chief justice Tan Sri (now Tun) Ahmad Fairuz Sheikh
Abdul Halim announced the promotions of eight judges. The four new Federal Court
judges were Datuk Abdul Hamid Mohamad, Datuk Wira Mohd Noor Ahmad, Datuk Pajan
Singh Gill and Datin Paduka Rahmah Hussain.
Four other High Court judges were elevated to the Court of Appeal: Datuk Nik Hashim Nik Ab Rahman, Tengku Datuk Baharudin Shah Tengku Mahmud, Datuk Arifin Jaka and Datuk S. Augustine Paul.
However, the Malaysian Bar was not happy with the promotion list because its
then president, Kutubul Zaman Bukhari, had issued a statement on July 5 on the
promotions arguing that if senior judges were bypassed in promotions in favour
of junior ones, there must exist reasons which must be explained to the public.
"Anything less than a full and convincing explanation will damage public
confidence in the administration of justice."
He said the Bar would, if necessary, call an extraordinary general meeting to
discuss the matter.
In announcing the new appointments, Ahmad Fairuz said
seniority was not the only criterion, and that if it was, then there would be
much deadwood.
"The seniors will not work because they know they will move up when the time
comes because they are seniors."
He also denied that the promotions of three of the eight judges –– Arifin, Paul
and Pajan –– were a "reward" for their decisions in cases involving Datuk Seri
Anwar Ibrahim.
Responding to the promotions, Khutubul issued the following statement:
"Today's announcement of promotions in the judiciary, which saw so many senior
judges being passed over, has unfortunately confirmed the fears of the Bar that
such an important aspect of our system of justice has been lightly treated, with
indifference to transparency and objectivity, and in the absence of consultation
with the Bar.
"There has been no credible explanation for the en masse bypass of senior
judges, and none is apparent. This process, or lack of proper process, has been
carried out despite the clarion call by the Bar Council as exemplified in the
Bar Council's press statement dated July 5, 2003.
"The Bar Council had taken great pains to explain that, when senior judges are
bypassed en bloc in favour of junior ones, the question that immediately
presents itself is not so much the suitability of the latter, but rather on what
acceptable criteria have the former been considered unsuitable and therefore not
been chosen (as would otherwise have been in the ordinary course of things).
"This issue is of legitimate concern to the Bar and the public, especially when
passing–over appears to have become the rule rather than the exception.
"Today's event has exposed the alarming breakdown of a much needed mechanism for
the determination of fair and proper judicial promotions in this country.
"It leaves many questions unanswered, and sinks the system into poorer health."
With this, Khutubul reiterated the Bar's call made even much earlier for an
independent judicial appointments and promotions commission in consultation with
the Bar to ensure the appointments and promotions process is transparent,
structured, accountable, objective and consultative in manner.
Hence, the Bar Council called an EGM on Oct 5, 2003, to pass a resolution for
the inception of this commission and also to call on the chief justice to
disclose and make public the method and criteria employed in the July 24, 2003
judicial promotions.
In response, former prime minister Datuk Seri (now Tun) Dr Mahathir Mohamad
said that in the event that the Bar Council's resolution was adopted, the
judges appointed would be indebted to the council and would no longer be
independent.
The then de facto law minister, Datuk Seri Rais Yatim, said the appointment of
judges must be decided by law and not through public sentiment or pressure from
interest groups.
Writing in the New Sunday Times on Sept 28, 2003 ("Appointment of judges: Bar
should act rationally"), lawyer Datuk Zaid Ibrahim joined in calling on the Bar
not to go ahead with the EGM and instead use diplomacy when dealing with the
judiciary, but he did not say that he was against the Bar's proposal.
Alas, due more to the members' insouciance and the stringent quota requirement,
the EGM scheduled on Oct 4 2003, could not proceed.
But in the government's view, Rais said the lack of quorum exemplified the
conclusion that the legal fraternity, especially practitioners, were not of the
same view as the council.
The Bar Council did not lose hope and it continued with its call for the
commission whenever an opportunity arose.
Expectedly, the Bar's lukewarm relationship with the judiciary worsened as
thenceforth Ahmad Fairuz virtually stopped all dialogue with the Bar Council,
and refused to meet Khutubul.
Instead, he chose only to engage with the state Bar committees with the council
wondering whether this was a divide–and–rule tactic.
At the Johor Bar annual dinner on March 11, 2006, in Johor Baru, Ahmad Fairuz
shocked everyone present by revealing that he did not like Khutubul and believed
that the latter's successor, Yeo Yang Poh, would be a better person to work
with. But he was obviously mistaken.
Yeo was no less determined and convinced than his predecessor that there ought
to be a commission. Backed by a strong Bar Council and its website, Yeo
continued with the mission.
In a statement dated June 6, 2006, he said if the commission was implemented,
"this will prove to be one of the greatest legacies that the government and the
people of Malaysia can leave behind for the benefit of generations to come".
But the Bar's call for such a commission continued to fall on deaf ears.
The new de facto law minister, Datuk Seri Nazri Aziz, felt that it should be the
judiciary and not the executive who should initiate this.
Thanks to the infamous V.K. Lingam video clip, the need for a more transparent
and accountable appointments mechanism could not have been more urgent.
On Sept 26 last year, the Bar led by its president, Ambiga Sreenevasan walked
from the Palace of Justice, Putrajaya, to the Prime Minister's Office to hand
over the memorandum calling for the formation of a commission.
Hence, needless to say, when the prime minister announced last Thursday that the
government agreed to the setting up of a commission, the Bar gave him a standing
ovation.
Indeed, the Bar must acknowledge the efforts of Zaid, and the determination of
the previous and current Bar leaderships for this struggle now coming to
fruition.
If Sept 26 is remembered as the day the Bar walked for justice, then April 17
should be celebrated as the day the Bar dined for justice, savouring the fruits
of its many years of struggle for an independent commission leading to an
independent judiciary.
The Bar proposes that this commission acts in a recommending capacity in that
when the prime minister consults the chief justice over judicial appointments
before advising the Conference of Rulers, under Article 122B of the Federal
Constitution, the chief justice's advice to the prime minister on candidates
will be the candidates identified by this commission.
In other words, it only changes the chief justice's constitutional role in this
process and not that of the prime minister and the Conference of Rulers.
With this procedure, it will also render the appointment of judicial
commissioners unnecessary.
The Bar is of the view that the commission should comprise 13 members made up of
the following:
– Chief justice, who should head the commission;
– The attorney–general;
– The president of the Court of Appeal;
– The chief judge of Malaya;
– The chief judge of Sabah and Sarawak;
– The minister of law or his nominee;
– President or vice–president of the Malaysian Bar;
– Three senior practising lawyers (nominated by the Bar Council); and,
– Three lay people who are not practising lawyers and have never held judicial
office (to be appointed by agreement of the other members of the commission).
In this respect, I wish to say that any argument that the judiciary will be
beholden to the Bar is fallacious as the Bar, though a minority in this
composition, is nevertheless a major stakeholder in the administration of
justice.
To say so will mean also that judges appointed are beholden to the executive.
As Ambiga said at the dinner last Thursday, this issue should not arise as
judges know that they discharge their responsibilities impartially, independent
of who the appointing authority is, guided only by their oath of office and
their conscience.
However, it cannot be denied that whoever is nominated and appointed to sit in
this commission does matter a great deal.
This is echoed by Chief Justice Datuk Abdul Hamid Mohamad in his speech at the
recent Judges' Conference. He said: "They (the commissioners) themselves must be
people of integrity, knowledgeable, incorruptible, fair and without any vested
interest. They should not have an agenda of their own. Neither should they be
the conduit for lobbying for the judgeship.
"Again, as I have said at Universiti Utara Malaysia, whatever system we have, in
the final analysis, it is the people who implement the system that matters."
Indeed, there is no perfect mechanism but this is nevertheless the best option
available as many Commonwealth countries have also adopted it.
Even Britain has opted for such an independent judicial appointments commission,
doing away with the centuries–old practice of letting the lord chancellor make
or recommend judicial appointments to the Queen.
But here, we have the executive and the rulers who continue to act as the check
and balance just in case the commission fails in its constitutional duty, and
vice versa.
In conclusion, let no one mistake the Bar's resolve when it sets its mind into
doing something which is good for the people and country.
The public can be assured that notwithstanding this historic announcement, the
Bar will not sit back until the commission becomes a reality.
The writer is a member of the Malaysian Bar Council