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Unless one takes the view that our system of appointment and promotion of judges is perfect, it is only right and proper that suggestions for improvement must continue to be made and discussed. A responsible government is expected to receive, and indeed welcome, with an open mind such suggestions and discussions, even if they do not accord with the current thinking of the Government of the day.

Such a suggestion was recently voiced by Datuk K C Vohrah, a retired judge, and one of the most respected judges Malaysia has had. He advocates the setting up of an independent Judicial Commission to deal with the appointment and promotion of judges, giving reasons for the suggestion, and drawing from his vast experience as a former judge of high repute.

The Malaysian Bar firmly agrees with the suggestion, which is similar to the Bar’s position that we have consistently maintained for many years. An independent Judicial Appointment and Promotion Commission is indeed the way forward. We agree with Mr Karpal Singh when he says that this is the general opinion of retired judges and the legal fraternity. Dismissing outright the strong and reasoned views of these bodies of experience will be like disregarding the accumulated wealth of knowledge and wisdom of our justice system of the past 5 decades.

If the present system has worked so well that nothing needs to be done to improve it, then why is it that there has for years been so much disquiet about the judiciary, among the stakeholders in the system? How would an independent Commission not be definitely far more transparent and accountable, when presently the process is entirely not within public knowledge or scrutiny? What about the shortage of consultation with the relevant parties and stakeholders? If the current system works so well, why then have important judicial positions been left unfilled for long periods of time, when such vacancies were known well beforehand? What about the sad and demoralizing fact that many senior judges have been bypassed for promotion, a phenomenon that is somehow becoming the norm rather than the exception?

These, and others, are issues that can either be swept under the carpet, or be discussed and dealt with. We highly recommend the latter. The choice is between making believe that everything is well, and finding ways to improve matters.

Two arguments have recently been heard against a Judicial Commission. The first is that setting up such a Commission will amount to interference with the judiciary. This represents a complete misunderstanding of fundamental principles. Non-interference by the Executive and the Legislature on the Judiciary relates only to the process of judicial decision-making, in order that judges will be able to make decisions and judgments entirely free from any pressure or undue influence. The concept does not, and cannot, apply to the setting up of any system itself. If it were otherwise, then our present judicial system is itself fatally flawed, because it was not set up by the Judiciary in the first place. As another illustration, it would also mean that (e.g.) the addition of another tier with the setting up of the Court of Appeal (when before that there was none) was an interference with the Judiciary, which was obviously not the case.

The second argument is that the idea of a Judicial Commission would only be considered by the Government if the proposal had come from serving judges (as opposed to retired judges). This argument is unappealing. Surely any suggestion must be considered by reference to its merit, not its origin. A proposal cannot be a bad idea one moment because it is made by X, and become an idea worthy of consideration the next moment when it is made by Y.

It is not suggested that an independent Judicial Commission will be a perfect system. But an independent Judicial Commission will certainly be a vast improvement on the present process that minimizes objectivity and consultation, and that changes with any change in personalities.

The Bar Council plans to organize a conference or forum to discuss and debate the setting up of an independent Judicial Appointment and Promotion Commission. We will invite persons with diverse views to participate in it.

Dated 8 February 2007

Yeo Yang Poh
President
Malaysian Bar

 

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