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Impending promotions in the Judiciary have generated a great deal of concern within the legal fraternity and outside.

The traditional approach is promotion by reference to seniority. While this approach does not necessarily address the issue of meritocracy, it can to a large extent avoid subjectivity and favouritism.

The traditional approach should not be lightly discarded, unless it is replaced by other rational, objective and transparent criteria of selection. The criteria used must be relevant to judicial performance, such as judicial temperament, diligence, competence or excellence, and contribution towards the development of the law. An important yardstick must surely be the written judgments by which a judge may be objectively assessed.

However, a merit-based selection process will only be acceptable if it is open and structured, if there exists a sufficient degree of transparency and objectivity, and if there is full consultation with important stakeholders of the justice system such as the Bar. Members of the Bar, who represent the public who are litigants before the courts and who are therefore 'consumers' of the justice system, must surely be regarded as a crucial assessor of judicial performance. No system can enjoy public confidence if the opinion of its very own consumers is ignored.

Transparency is not a matter for lip-service. Transparency is true only when it is practised. Absence of transparency and lack of consultation will do nothing to dispel any perception that judicial promotions might be based on subjective favouritism, or, worse still, might be a form of reward to a selected few, unguided by relevant and proper considerations.

In the present context and as an illustration, it is a matter of public record that the five most senior Court of Appeal judges are Dato’ Gopal Sri Ram, Datuk Hj. Mokhtar Sidin, Datuk Denis Ong Jiew Fook, Dato’ Abdul Hamid Hj. Mohamad and Dato’ Hj. Abdul Kadir Sulaiman; whereas the five most senior High Court judges are Dato’ Faiza Tamby Chik, Dato’ James Foong, Datuk Ian Chin Hon Chong, Dato’ Azmel b. Hj. Maamor and Datuk Vincent Ng Kim Khoay. If these senior judges are bypassed in promotions in favour of junior ones, there must exist very cogent and relevant reasons which must be disclosed and fully explained to the public. Anything less than a full and convincing explanation will immediately damage public confidence in the administration of justice.

The Bar will, if necessary, call an Extraordinary General Meeting to discuss the matter. The public must also be engaged in an open and constructive discussion of this issue of paramount importance. It must be remembered that the Judiciary is one of our most important national assets; and every citizen has a stake in it.

Dated this 5th day of July 2003.

Haji Kuthubul Zaman Bukhari
Chairman
Bar Council